Wessel

— 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…