Lourintz

The sole question in this case is whether a defendant can be? legally convicted of an assault with intent to commit rape upon the person of a female under the age of consent, where the latter in fact consents'to the defendant’s act.

This same question was before the court in the recent case of People v. Verdegreen, 106 Cal. 211 , 46 Am. St. Rep. 234 , where the reasoning and doctrine of the cases now relied upon by defendant was considered and re *630 jected, and where it was held (following People v. Gordon, 70 Cal. 467 ) that, under our statute, which makes a female under a certain age incapable of consenting to an act of sexual intercourse, and making such act rape regardless of such consent, a girl under that age is equally incapable in law of consenting to an assault committed with the intent to have such intercourse; that whether the girl in fact consents to or resists such an assault is immaterial—in either event the defendant is guilty. It is there said:

The evidence in this record clearly makes a case against the defendant within the principles there announced, and the instructions of the court are in exact accord therewith. As we are not disposed to depart from the…