Pratt

Defendant was accused, tried and convicted of the crime of rape. A motion for a new trial was made and denied. The accusation was based upon section 261, subdivision 1, of the Penal Code condemning acts of sexual intercourse with females under the age of eighteen years. The prosecutrix was of the age of fifteen years, and the act was accomplished upon her with her consent on January 6, 1923. Trial was had in October of the same year, and judgment was pronounced the November following. At the time the offense was charged section 264 of the Penal Code read as follows: “Rape is punishable by imprisonment in the state prison not more than fifty years, except where the offense is under subdivision 1 of section 261 of the Penal Code, and the female is over the age of sixteen years and under the age of eighteen years, in which case the punishment shall be by imprisonment in the county jail for not more than one year, or in the state prison for not more than fifty years, and in such case the jury shall determine by their verdict whether the punishment shall be by imprisonment in the county jail or in the state prison.”

It will be observed that under this section a minimum sentence may be…