— The defendant was convicted of the crime of rape, and sentenced to the penitentiary for ten years.

The^rst point made is that the court erred in overruling defendant’s demurrer to the information on the ground that it did not state facts sufficient to constitute a public offense. The information charges rape upon the person of a female child under the age of fourteen years, but does not state that the defendant was a male, or over the age of fourteen years, or if under that age that he possessed physical ability, as required by section 262 of the Penal Code, to commit the offense. This is not necessary. If the defendant was incapable of committing the offense, such fact may be shown in defense; but the averment that he was capable is implied in the charge that he wilfully and feloniously commited the act. (People v. Ah Yek, 29 Cal. 576 ; Commonw. v. Sugland, 4 Gray, 7 ; Commonw. v. Sullivan, 6 Gray, 479 ; Commonw. v. Scannel, 11 Cush. 548 .)

It is next contended that the court erred in overruling defendant’s objections to certain testimony. To contradict the testi.mony of the prosecutrix, who was a child of eleven years, the *354 defense read her testimony before the committing magistrate, in which it was claimed she had made statements inconsistent with her evidence on the trial. Thereupon the prosecution recalled the prosecutrix, and asked her to explain the discrepancies. This course was too plainly proper and of too common practice to justify the presentation of the question here.

The court instructed the jury as follows: “While it is the law that the testimony of the prosecutrix should be carefully scanned, still this does not mean that such evidence is never sufficient to convict. If you believe the prosecutrix, it is your duty to render a verdict accordingly.” It is contended that this is telling the jury that they may act on the testimony if they believe it, although it may not be sufficient in substance, though true, to establish the offense. I cannot understand the instruction as equivalent to telling the jury that they should convict if they believe the prosecutrix. It is simply saying that if they believe it, they should act upon it, as establishing the facts" proved by it; that is, that the offense may be proven by the testimony of the prosecutrix. The jury was fully instructed as to the elements of the crime.

Defendant copied from Ram on Pacts a long statement as to the testimony of children, and asked the court to give i-t as an instruction. To have given it would have been clearly erroneous, and is inhibited by section 19, article VI. of the constitution.

It is next argued that the testimony of the prosecutrix, if true, fails to show that there was sexual penetration. The child was naturally averse to calling some things by their names, and the prosecuting attorney was considerate, but the testimony is not of doubtful import to this point.

The testimony was ample as to the identity of the defendant. On this subject the witness made some rather inconsistent aud unintelligible statements, but that was for the jury.

On the twenty-eighth, day of August, 1891, the defendant submitted a motion for a new trial which was then denied, and the court on the same day proceeded to pronounce judgment. On the 25th of June, 1892, the defendant gave notice that he would ask leave to amend his motion for a new trial by adding the ground of newly discovered evidence, and he served certain *355 affidavits showing the nature of the alleged newly discovered evidence. The defendant at that time had no motion for a new trial pending. There was therefore nothing to amend. It was too late to institute such motion. (Sec. 1182, Pen. Code.)

The judgment and order should be affirmed.

Searls, C., and Belcher, C, concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

Garoutte, J., Paterson, J., Harrison, J.