In Re Todd

On the thirteenth day of February, 1914, William A. Todd, in whose behalf a writ of habeas corpus is herein prayed for, was sentenced to a term of twenty-five years in the state prison at San Quentin upon a conviction of the crime of rape, alleged to have been committed in the county of Alameda on the twenty-fourth day of August, 1913, upon a female of the age of twelve years, not his wife.

The information charging said crime against the prisoner was founded on subdivision 1 of section 261 of the Penal Code. That section, in its entirety, reads:

Section 264 of the same code prescribes the punishment for the crime of rape and authorizes different penalties for said offense, such differentiation being based upon the distinction in the circumstances under which the crime may be committed. The section says:

By the writ herein asked for the prisoner claims that he is entitled to his release from the custody of the state prison officials for these reasons, viz.: 1. That, in so far as it denies to a person convicted of rape under subdivision 1 of section 261 of the Penal Code the right to have it determined by the jury whether he shall be imprisoned in the county jail or in the state…