Carmen

The defendant having been convicted of the crime of rape, committed upon the person of a female child under the age of sixteen years, appeals from the judgment entered pursuant to the verdict, and from an order denying his motion for a new trial.

The first and principal error alleged and relied upon by appellant consisted in the giving of a certain instruction to the jury. In that instruction the court said:

Whether such an instruction as the foregoing was correctly given must be determined by reading the same in connection with the other instructions given, and by considering all such instructions in connection with the evidence in the case. Immediately preceding the above quoted instruction, the court said to the jury: “The court instructs the jury that it is wholly immaterial on what day or night the offense charged in the information was committed, provided you believe from the evidence it was committed, and that the same was committed within three years prior to the filing of the information in this case.” The entire record shows an attempt by the prosecution to prove the commission of the offense charged at a stated time of the day on Sunday, March 2, 1913, and an attempt…