43. Intent of defendant is to be determined from all the circumstances in the case, and by the acts of defendant, and is a question for the jury.-People v. Collins, 5 Cal. App. 654, 91 Pac. 158.

44. It is not necessary for courts to draw fine analytical distinction between an attempt to commit an offense, and an assault with intent to commit such offense.People v. Lee Kong, 95 Cal. 666, 30 Pac. 800; People v. Christian, 101 Cal. 471, 35 Pac. 1043; People v. Collins, 6 Cal. App. 492, 92 Pac. 513, 4 Cal. App. Dec. 653, 654.

45. Same-Same-Question for jury.-Intent with which defendant did act is question for jury.-People v. Estrada, 53 Cal. 600; People v. Johnson, 106 Cal. 289, 295, 39 Pac. 622; People v. Webster, 111 Cal. 381, 382, 43 Pac. 1114; People v. Johnson, 131 Cal. 511, 513, 63 Pac. 842; People v. Barker, 137 Cal. 557, 558, 70 Pac. 617.

46. If there is evidence tending to prove intent, verdict is conclusive.-People v. Estrada, 53 Cal. 600.

47. The intent with which the assault is committed is a fact to be inferred from the facts and circumstances surrounding it, and is a question of fact for the jury and not one of law for the court, except where the facts proved afford no reasonable ground for the inference drawn.-People v. Moore, 155 Cal. 238, 100 Pac. 688.

48.

Force-Essential of intent to use necessary.-Assault must have been made with intent to commit rape, notwithstanding all possible resistance that could have been made. People v. Fleming, 94 Cal. 308, 310, 29 Pac. 647; People v. Roach, 129 Cal. 33, 34, 61 Pac. 574; State v. Hagerman, 47 Iowa 151, 152.

49. Conduct of defendant must be such as to indicate purpose to use whatever force is necessary to accomplish his desires.People v. Stewart, 97 Cal. 238, 240, 32 Pac. 8. 50. In cases of this kind it is not necessary that it should be shown that accused intended to gratify his passion at all events, if he intended to have actual intercourse with child, and took steps looking to such intercourse, and laid hands upon her for that purpose, though he did not mean to use any force or to complete his attempt if it caused child pain, yet he would be guilty of assault with intent to commit rape.-People v. Courier, 79 Mich. 366, 44 N. W. 571. See, also, State v. Sherman, 106 Iowa 684, 77 N. W. 461.

51. If defendant laid hands on prosecutrix violently for purpose by force to overcome her to some extent, he is guilty of simple assault.-People v. Manchego, 80 Cal. 306, 307, 22 Pac. 223.

the offense.-People v. Murat, 45 Cal. 281. 283; People v. Gordon, 70 Cal. 467, 468, 11 Pac. 762.

53. Evidence Admissibility.-Evidence that prosecutrix remained in unconscious or semi-unconscious state for some hours after assault is admissible.-People V. Stewart, 97 Cal. 238, 240, 32 Pac. 8.

54. Evidence of physician as to whether injury could be produced in certain way without producing certain other injuries, is immaterial, though it would have been material on charge of committing crime itself. -People v. Graham, 21 Cal. 261, 266.

55. Evidence by physician that he attended mother at time of prosecutrix's birth, in giving further evidence as to age, may refresh his memory by referring to entry of date of such attendance in his cash-book.-People v. Vann, 129 Cal. 118, 61 Pac. 776.

56. Conviction of assault with intent to commit rape, under indictment for rape, will not render harmless error in refusing to admit evidence to show that act could not have been done in manner testified to by prosecutrix.-People v. Baldwin, 117 Cal. 244, 248, 49 Pac. 186.

58.

Same-Bible of family, in which entry is made of birth, may be used by mother in refreshing memory, when testifying as to child's age.-People v. Vann, 129 Cal. 118, 61 Pac. 776.

59. Same-Child's competency as witness is peculiarly within discretion of trial court. -People v. Collins, 5 Cal. 654, 91 Pac. 158.

60. Same-Evidence of declarations of defendant concerning his misconduct with other young girls is not admissible.-People v. Bowen, 49 Cal. 654, 655.

61. Evidence is admissible to show that about one hour before assault defendant gave wine to prosecutrix, which she drank. -People v. Vann, 129 Cal. 118, 121, 61 Pac. 776.

62. Same- Evidence that complaining witness habitually indulged in lewd conversation, telling indecent stories, and the like, is not admissible as affecting question whether she resisted the defendant.-People v. Kuches, 120 Cal. 566, 570, 52 Pac. 1002.

63. Same-General reputation of prosecutrix for unchastity is not admissible, where she is under age of consent, such evidence going to question of consent only. -People v. Johnson, 106 Cal. 289, 293, 39 Pac. 622.

64. Where defendant introduced evidence of indecent conduct on part of prosecutrix with certain young men previous to alleged assault, amounting to solicitation to sexual intercourse, evidence of her generally good

reputation for chastity was admissible in rebuttal.-People v. Kuches, 120 Cal. 566, 570, 52 Pac. 1002.

65. Same-Immediate complaint by prosecutrix is material and competent evidence. -People v. Mayes, 66 Cal. 597, 599, 56 Am. Rep. 126, 6 Pac. 691; People v. Stewart, 97 Cal. 238, 240, 32 Pac. 8; People v. Barney, 114 Cal. 554, 555, 47 Pac. 41; People v. Baldwin, 117 Cal. 244, 248, 49 Pac. 186; People v. Scalamiero, 143 Cal. 343, 349, 76 Pac. 1098. See People v. Snyder, 75 Cal. 323, 325, 17 Pac. 208; State v. Imlay, 22 Utah 156, 61 Pac. 557, 558.

66. Same rule governs evidence of complaint as in rape.-People v. Imlay, 22 Utah 156, 61 Pac. 557, 558.

67. Same-Statements, if made by child after complaint, to her mother, which did not appear in testimony of child itself, as to how matter occurred, are inadmissible.People v. Graham, 21 Cal. 261, 268.

68. Where complaint was made almost at time of committing assault, to persons whose approach compelled defendant to desist, and evidence of remarks made or particulars given at time of making such complaint, are admissible as part of res gestæ. -State v. Imlay, 22 Utah 156, 61 Pac. 557. See, also, People v. Gage, 62 Mich. 271, 4 Am. St. Rep. 854, 28 N. W. 835; Johnson v. State, 17 Ohio 593; Phillips V. State, 9 Humph. (Tenn.) 246, 49 Am. Dec. 709.

69. Same-Same-Same-Rules respecting particulars of assault given at time of complaint which govern in charge of rape are applicable.-People v. Imlay, 22 Utah 156, 61 Pac. 557, 558.

70. Same-Statements of affair, made by prosecutrix in making complaint, are hearsay, and not admissible.-People v. Stewart, 97 Cal. 238, 240, 32 Pac. 8; People v. Barney, 114 Cal. 554, 555, 47 Pac. 41; People v. Scalamiero, 143 Cal. 343, 348, 76 Pac. 1098. See, also, People v. Mayes, 66 Cal. 597, 599, 56 Am. Rep. 126, 6 Pac. 691.

71. Same-Statement by defendant, made to father of prosecutrix, after complaint had been made, is admissible.-People v. Scalamiero. 143 Cal. 343, 349, 76 Pac. 1098.

72. Evidence of remarks made by defendant after alleged assault, tending to show his intent, is admissible.-People v. Roach, 129 Cal. 33, 34, 61 Pac. 574.

73.

Same-Sufficiency-Evidence of prosecutrix alone may be sufficient.-People v. Girr, 53 Cal. 629, 630; People v. Stewart, 90 Cal. 212, 213, 27 Pac. 200; People v. Fleming. 94 Cal. 308, 310, 29 Pac. 647; People v. Stewart, 97 Cal. 238, 239, 32 Pac. 8; People v. Gardner, 98 Cal. 127, 130, 32 Pac. 880; People v. Gomez, 118 Cal. 326, 327, 50 Pac. 427. See, also, People v. Mayes, 66 Cal. 597, 56 Am. Rep. 126, 6 Pac. 691.

74. Same-Same-The weight to be accorded evidence is question for jury.-People v. Stewart, 90 Cal. 212, 213, 27 Pac. 200, citing People v. Mayes, 66 Cal. 597, 56 Am. Rep. 126, 6 Pac. 691.

suffi

78. Same-Same-Evidence held cient to sustain conviction for assault under a charge of assault with intent to commit rape.-People v. Green, 1 Cal. App. 432, 82 Pac. 544; People v. Stewart, 97 Cal. 238. 240, 32 Pac. 8; People v. Kuches, 120 Cal. 566, 567, 52 Pac. 1002; People v. Johnson. 131 Cal. 511, 513, 63 Pac. 842.

79. Impotence of defendant being shown, he may be convicted of simple assault.— People. v. Bradbury, 151 Cal. 675, 91 Pac. 497.

80. Indictment - Describing offense Stating acts constituting offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, is sufficient.-People v. Collins, 5 Cal. 654, 91 Pac.

158.

81. Indictment that defendant feloniously did make an assault with intent then and there to commit act of sexual intercourse with D., with force and violence, against her will, is good, in substance, as charge of assault to commit rape.-People v. Brown, 47 Cal. 447, 450.

82. Indictment charging defendant with unlawfully and feloniously assaulting one D., with intent to outrage her person, by throwing her on her back, with intent to have sexual intercourse with her. does not charge assault with intent to commit rape. -People v. O'Neil, 48 Cal. 257, 258.

83. Same-Describing person assaulted. -Indictment charging that defendant did assault W., with intent to commit rape, is sufficient, as far as naming person is concerned.-People v. Girr, 53 Cal. 629.

84.

Indictment need not necessarily allege that person assaulted was not wife of defendant.-People v. Estrada, 53 Cal. 600.

85. Same-Essential allegation-Female not wife.-Allegation that the female alleged to have been raped is not the wife of the accused is essential in information for assault with intent to commit rape.-People v. Everett, 10 Cal. App. 12, 14, 101 Pac. 528. 86. Same-Same-Failure to state woman not wife of accused, sufficient to sustain conviction, where the record shows that it was clearly proven on the trial that the woman was not the wife of the accused, in view of the provisions of the state constitution, art. 6, § 41⁄2.-People v. Bonfanti, 40 Cal. App. 614, 180 Pac. 80.

87. Same Same - Simple assault not charged. Information for assault with intent to commit rape failing to allege the female was not the wife of the accused can not be held to charge a simple assault as the latter is not within the original jurisdiction of the superior court.-People v. Everett, 10 Cal. App. 12, 14, 101 Pac. 528. 88. Same-In language of statute is sufficient.-People v. Girr, 53 Cal. 629.

89. Indictment need not follow strictly the language of statute by which offense is described, but words conveying same meaning may be used.-People v. Girr, 53 Cal. 629.

90. Indictment for rape which also charges assault with intent to commit rape is not bad as charging two offenses.-People v. Tyler, 35 Cal. 553, 554.

91. Instruction-In general.-Instruction that if jury believe prosecutrix as to the acts and conduct of defendant, they must find him guilty, is erroneous in those cases where the defendant might have done all the things charged against him by the evidence of the prosecutrix, and still have had no intent to commit rape.-People v. Johnson, 106 Cal. 289, 295, 39 Pac. 622; People v. Barker, 137 Cal. 557, 558, 70 Pac. 617.

92. Instruction that prosecutrix could not consent, though her contradicted evidence was that she was under age of consent, was erroneous. People v. Webster, 111 Cal. 381, 382, 43 Pac. 1114.

93. Same-Refusal or omission to instruct that defendant could be found guilty of simple assault is erroneous.-People v. Demasters, 105 Cal. 669, 672, 39 Pac. 35.

94. Penalty prescribed-Construed not to apply to conviction for attempt to commit rape.-People v. Gardner, 98 Cal. 127, 128, 32 Pac. 880.

IV. ASSAULT TO COMMIT ROBBERY. As to robbery, see, ante, § 211 and note. As to assault with intent to rob, where person had no money, see note, 41 Am. Rep. 492.

95. Elements-Ownership of property in some person other than accused is essential, the same as in robbery, and must be alleged in indictment.-People v. Ammerman, 118 Cal. 23, 26, 50 Pac. 15.

96. Evidence- Proof necessary. - Under an information charging the crime of assault with intent to commit robbery by means of a loaded revolver, it is not essential to a conviction that the prosecution should prove that the assault was made with that particular weapon.-People v. McInerney, 30 Cal. App. 283, 158 Pac. 128.

97. Same-Sufficiency of.-That defendant, late at night, stopped persons on public highway, by presenting revolver and by ordering them to stop or he would shoot, constitutes prima facie case. People v. Woody, 48 Cal. 80, 82.

an

99. Same-Question of intent with which assault is committed, whether or not it is for purpose of robbery, is for jury to determine from evidence, and where assault is committed by two men upon another, all three of them having been drinking in saloon, and circumstances are such as to point to fact that assault may have been committed with intent to rob, verdict of jury of guilty, in prosecution for assault with intent to rob, will not be disturbed.-People v. Hite, 135 Cal. 76, 78, 67 Pac. 57. See People v. Woody, 48 Cal. 80; People v. Johnson, 131 Cal. 511, 63 Pac. 842. See People v. Collins, 5 Cal. App. 654, 91 Pac. 158.

100. Same-Support of verdict of guilty. -Where the complaining witness testified positively that defendant was one of the two men who attempted to rob him at the time and place stated in the information, such testimony, if believed by the jury to be true, is sufficient to support a verdict of guilty. People v. McNabb, 17 Cal. App. 155, 118 Pac. 945.

101. Information-As to generally.-Information that at the time specified and in the county of the venue, the defendant did “in and upon one John Connolly feloniously and with force and violence, did make an assault with intent the money, goods and chattels of the said John Connolly, then and there feloniously and by force, violence and intimidation to steal, take and carry away, contrary to the form of the statute," etc., is good against demurrer. People V. Holden, 13 Cal. App. 354, 356, 109 Pac. 495. 102. Information for assault with intent to commit robbery need not allege by what "means" the assault was committed, nor need it set forth the "means" used to constitute the force or fear.-People v. Holden, 13 Cal. App. 354, 357, 109 Pac. 495.

103. Same-Gist of offense.-In information for assault with intent to commit robbery, it is not necessary to allege that the person assaulted had in his possession any personal property. The gist of the offense being the assault with intent to rob.-People v. Holden, 13 Cal. App. 354, 357, 109 Pac. 495.

104. Instruction-As to generally.-Instruction that if accused made assault upon person, at same time demanding his money, presumption is that he intended to rob him and get his money by means of force or fear, and upon this presumption jury should act unless such intent is contradicted by other evidence or circumstances, is correct. -People v. Cadd, 60 Cal. 640, 641. 105. Charge to effect that if jury had no doubt defendant aided and participated in assault, and had reasonable doubt as to