People v. Miller

The defendant was convicted of the crime of rape, and sentenced to a term of seven years’ imprisonment in the state prison at Folsom. He appeals from the judgment *193 and from an order denying Ms motion for a new trial. The grounds for reversal alleged are: (1) The insufficiency of the indictment in failing to allege that the prosecutrix was not the wife of the defendant at the time of the commission of the offense; (2) error of the court in allowing a question to the prosecutrix, and the insufficiency of her answer to establish an essential element of the crime; (3) the exclusion of certain testimony; and (4) that the verdict is contrary to the evidence.

The objection to the indictment is obviously untenable. The actual allegation is that the defendant on the day named “did willfully, etc., .... commit an act of sexual intercourse with one Eva Hilberg, a female person under the age of sixteen years, and not the wife of said Clarence T. Miller”; and this, whether we have regard to the mere grammatical construction or to the manifest intent of the allegation, unequivocally alleges that the act was committed on a female under the age of sixteen years, and not the wife of the…