22.

Same-Seductive arts, what classed among.—Anything which merely excites woman's passion, leaving her at same time in full possession of her mental and physical powers, capable of comprehending nature of the act and of exercising her own volition in matter, is classed rather among arts of the seducer, than weapons of him who would destroy family virtue by force. -State v. Lung, 21 Nev. 209, 212, 37 Am. St. Rep. 505, 506, 28 Pac. 235.

23. Separate offenses-Trial and instruction. In prosecution for rape upon person of child aged thirteen, where prosecutrix testified that she had lived with defendant for period of four months, and on nearly every day during that time, and sometimes five or six times a day, they had had sexual intercourse with each other, each act constitutes separate offense, and defendant can be tried for either, and separately for each of them. Hence, instruction to effect that if jury finds defendant had had sexual intercourse with the prosecutrix at any time within three years before finding of indictment, they must find him guilty, is erroneous. People v. Williams, 133 Cal. 165, 167, 65 Pac. 323.

As to instruction generally, see Part IV, this note.

As to requisites and sufficiency of indictment under subdivision two, see note, L. R. A. 1916F, 748.

As to requirement that indictment be in the conjunctive where stating two or more of the acts which may constitute rape, see par. 149, this note.

As to requisites and sufficiency of indictment under subd. 1, of this section, see pars. 188-193, this note.

As to requisites of indictment under subdivision 6 of this section, see par. 265, this note.

25. As to requisites Generally.-In an indictment or information for a rape, it is not essential to set out under which series of the six series of circumstances enumerated in this section of the code the alleged offense was committed.-People v. Burns, 63 Cal. 614.

26. Neither is it necessary to allege that the person assaulted was not the wife of the accused.-People v. Estrada, 53 Cal. 600.

27. Same-Averment as to age.-An indictment for rape need not aver age of person charged with committing the rape nor that of the person injured.-People v Ah Yek, 29 Cal. 575, 576; Mosely v. State, 9 Tex. Ct. App. 137.

See 22 R. C. L. p. 1199, § 33.

28. ute.

Same-Charging in language of statAn indictment for rape which charges offense substantially in words of statute defining the crime is sufficient.-People v. Burke, 34 Cal. 661, 663; People v. Rangod, 112 Cal. 669, 671, 44 Pac. 1071.

29. But the language of the statute need not be followed in charging the offense of rape; words conveying the same meaning may be employed.-People v. Girr, 53 Cal. 629. See People v. War, 20 Cal. 119; People v. Garcia, 25 Cal. 533; People v. Shaber, 32 Cal. 36; People V. Phipps, 39 Cal. 326: People v. Soto, 63 Cal. 166; People v. Burns, 63 Cal. 614, 615; People v. Tomlinson, 66 Cal. 344, 345, 5 Pac. 509.

30. Same Charging two offenses - Demurrer.-Indictment for rape charging rape and assault with intent to rape is good, and not demurrable on ground that it charges two offenses.-People v. Tyler, 35 Cal. 553, 554.

As to charging in two counts, see pars. 40, 41, 42, this note.

31. Same Same — Does not charge two offenses, when.-An information for rape does not charge two offenses where it has two counts, one showing force, violence, and resistance, and without allegation as to age, and other containing an allegation as to age, without any allegation as to force, violence, and resistance, where allegations of each count show offense of rape committed on same person and on same day.-People v. Jailles, 146 Cal. 301, 304, 79 Pac. 965. 32. Same Intention of pleader. It would be preferable for pleader, in prosecu

tion for rape, endeavoring to set forth one offense in different forms, under different counts, to expressly state in information that matters and things so set forth are descriptive of one and the same offense. Such statement would obviate all question as to intention of pleader.-People v. Jailles, 146 Cal. 301, 304, 79 Pac. 965.

33. Same-Joinder of allegations in one count.-In information for rape, where there are two counts, and there is nothing inconsistent between them, all the allegations may be joined in one count.-People v. Jailles, 146 Cal. 301, 304, 79 Pac. 965.

As to charging crime in two counts, see par. 41, this note.

34. Same-Right of defendant.-Defendant on trial for rape has a right to demand that charge against him shall be stated in ordinary and concise language, that he may know upon what specific charge he is to be tried, so that he may prepare his defense. People v. Williams, 133 Cal. 165, 168, 65 Pac. 323.

35. Same What sufficient.-Information sufficient on prosecution for rape.People v. O'Brien, 130 Cal. 1, 3, 62 Pac. 297; People v. Parks, 133 Cal. 3. 65 Pac. 13; People v. Jailles, 146 Cal. 301, 304, 79 Pac. 965.

36. As to necessity of alleging female not wife. That the female alleged to have been raped is not the wife of the accused is an essential element of the crime of rape and an indictment omitting such allegation fails to state a criminal offense.-People v. Everett, 10 Cal. App. 12, 14, 101 Pac. 528; People v. Miles, 9 Cal. App. 312, 313, 101 Pac. 525.

As to requisites of allegation of nonexistence of marital relations, see 22 R. C. L. p. 1198, § 32.

37. Failure to charge female not wife of accused is fatal when the evidence in part, shows that she was his wife. In re Kostriken, 34 Cal. App. 489, 168 Pac. 150.

38. Failure to charge female not wife of accused not ground of reversal when the record fails to show that there was a miscarriage of justice, in view of the provisions of section 4% of article VI of the 'constitution. People v. Bonfanti, 40 Cal. App. 614, 181 Pac. 80.

39. Charges public offense, when.-Information charging that on a date named the accused did wilfully, unlawfully and feloniously and with force and violence attempt to have and accomplish an act of sexual intercourse with and upon the person of A, a female who was not then and there the wife of the defendant, without the consent and against the will of the said A, and she, the said A, then and there resisted the attempt of defendant to accomplish the said act of sexual intercourse, charges a public offense.-People v. Superior Court. 39 Cal. App. 324, 178 Pac. 730. relying upon the doctrine in People

V.

Gardner, 98 Cal. 127, 32 Pac. 880, and People v. Akens, 25 Cal. App. 373, 143 Pac. 795.

40. Charging crime in two counts. Where an information for rape charges the crime in two counts, in the first of which it is charged both that the female was under the age of consent, and also that it was committed by means of force and violence, and against her will and consent, and a second count, without mention of age, solely charges that, in the same transaction upon which the first count was founded, the defendant committed the rape charged by means of force and violence, and against the will and consent of the prosecutrix, and the verdict of guilty was based upon the first count, it does not operate as an acquittal upon the second count, notwithstanding the claim of defendant that the age of nonconsent was not sufficiently proved. People v. Maruyama, 19 Cal. App. 290, 125 Pac. 924.

As to charging two offenses, see pars. 30, 31, this note.

As to joinder of allegations in one count, see par. 33, this note.

41. Same Sufficiency of proof under first count.-Under the facts alleged in the first count of the information, the prosecution was not limited merely to proof of the age of the prosecutrix; but the evidence under the whole case, which tended to show that the crime was committed by force and violence, as alleged in the first count as well as the second, may be considered in support of the verdict, which is amply sufficient to support it, irrespective of the age of the prosecutrix.-People v. Maruyama, 19 Cal. App. 290, 125 Pac. 924.

As to sufficiency of evidence generally, see Part III, this note.

42.

Charging different offenses in separate counts, under provisions of section 954, post, where both arise out of the same acts and belong to the same class of crimes or offenses; thus, it has been said that an indictment is not vulnerable to demurrer because it charges rape in one count and in another lewd and lascivious conduct under section 288, post, both offenses belonging to the same class of crimes.-People v. Warriner, 37 Cal. App. 107, 173 Pac. 489.

III. EVIDENCE-ADMISSIBILITY AND

SUFFICIENCY-1. AS TO WHAT

ADMISSIBLE.

As to admissibility of evidence in prosecution for rape, see 22 R. C. L. p. 1200, §§ 35-53.

As to evidence under in prosecutions subd. 1 of this section, see pars. 161-187, this note.

43. Age of the victim in a charge of rape on a girl of thirteen can be established by the testimony of the prosecutrix, as every person is presumed to know his or her own age.-People v. Algar, 39 Cal. App. 78, 178 Pac. 168.

See par. 179, this note.

44. Appearance of child may be taken into consideration by the jury, in connection with testimony in determining her age. -People v. Elgar, 39 Cal. App. 78, 178 Pac. 168; Com. v. Phillips, 162 Mass. 504, 39 N. E. 109; Com. v. Hollis, 170 Mass. 433, 49 N. E. 632; People v. Elco, 131 Mich. 519, 91 N. W. 755, 94 N. W. 1069.

45. Appearance and physical condition of prosecutrix.-In prosecution for rape, evidence of physical condition or appearance of prosecutrix subsequent to date of alleged rape, so far as such condition and appearance bear upon act charged, or its effects upon person of prosecutrix, is admissible, where such condition or appearance is not so remote as to make evidence immaterial.-People v. Benc, 130 Cal. 159, 163, 62 Pac. 404.

46. Child of prosecutrix seen by jury, while the court was at recess, did not constitute receiving evidence out of court, in the sense in which the law deems such conduct on the part of the jury as prejudicial.-People v. Wademan, 38 Cal. App. 116, 175 Pac. 791.

may

to

49. Complaint of victim-By whom may be shown.-Complaint by victim of rape be shown by the testimony of the prosecutrix or by that of the person whom the complaint was made.-Elmer v. State, 20 Ariz. 170, 2 A. L. R. 1519, 178 Pac. 28; People v. Mayes, 66 Cal. 597, 56 Am. Rep. 126; People v. Snyder, 75 Cal. 323, 17 Pac. 208.

50. Same-Limitation of rule.-Evidence of complaint by the victim of rape is not admissible as a part of the res gestae, nor as evidence of the guilt of the defendant, but merely in corroboration of the prosecutrix as a witness in the sense that it removes from her testimony a suspicion

that might otherwise rest upon it, unless it be shown that she did what would naturally have been done by a chaste woman under like circumstances; that is, made known the fact of the injury done to her.-Territory v. Kirby, 3 Ariz. 291, 28 Pac. 1134, approved and followed in Elmer v. State, 20 Ariz. 170, 2 A. L. R. 1519, 178 Pac. 28.

See 22 R. C. L. p. 1212, § 47.

As to admissibility of complaint of victim as part of res gestae, see note, 2 A. L. R. 1525.

As to admissibility of complaint of victim of alleged rape when she is a witness, see note, 2 A. L. R. 1522.

51. Same Same Where prosecutrix is not witness, that is, does not appear and

testify, being of an age rendering her competent to testify, and not being an imbecile or otherwise incapacitated, and being available as a witness if the prosecution choose to call her, evidence of complaint made by her soon after the alleged occurrence of the act complained of is inadmissible.-Elmer v. State, 20 Ariz. 170, 2 A. L. R. 1519, 178 Pac. 28.

Where vic

52. Same Same Same tim not witness by reason of tender years incapacitating her to give testimony, the limitation of the rule is said not to apply in California.-See People v. Figueroa, 134 Cal. 159, 66 Pac. 202, relying upon People v. Barney, 114 Cal. 554, 47 Pac. 41. See People v. Bianchio, 5 Cal. App. 633, 91 Pac. 112.

53. It is to be noted that in People v. Barney, 114 Cal. 554, 47 Pac. 41, which case is the foundation of the doctrine in California, the victim was a child of about seven years, and the court, for some reason not appearing in the report, struck out all the testimony of the child, and thereafter permitted the mother to testify as to complaint made by the child at about the time of the occurrence, but in so holding bases its decision upon the doctrine of cases in which the victim was a witness; for this reason the doctrine is not regarded as adequately founded, in so far at least as the authorities go, because the cases cited are not in point.

As to admissibility of evidence of complaint of infant victim of rape who is incompetent to testify, see note, 2 A. L. R. 1523.

54.

Condition of sexual organs.-In prosecution for rape, physician's testimony as to condition in which he found sexual organs of prosecutrix some four to six days after alleged rape, admissible.-People v. Benc, 130 Cal. 159, 164, 62 Pac. 404.

See, however, rule in par. 81, this note. 55. Same- Infection with venereal disease. It is error to exclude evidence that prosecutrix had venereal disease at time alleged rape occurred, where it was proved that she had it after such time, and that defendant never had it, and same being contagious.-People v. Fong Chung, 5 Cal, App. 586, 91 Pac. 105, 108.

56. Consent to having sexual intercourse with other men.-On trial for rape, evidence is admissible to prove that prosecutrix, previous to crime, had consented to having sexual intercourse with other men.-People v. Shea, 125 Cal. 151, 152, 57 Pac. 885.

57. Cross-examination of prosecutrixLatitude and limitations.-In prosecution for rape the defendant should be given a wide latitude in the cross-examination of the prosecutrix and to show on crossexamination that at the time she made the complaint she was under arrest on a charge of vagrancy and threatened with commitment to a reformatory if she did not make

58. In a prosecution for rape, objections to questions asked of the prosecutrix on cross-examination as to her wayward conduct are properly sustained as not being within the proper scope of cross-examination.-People v. Burrows, 27 Cal. App. 428, 150 Pac. 382.

59. Objection is properly sustained to a question put to prosecutrix on crossexamination as to whether she had ever had sexual connection with any other man, and also as to who was the father of her child; those matters being no part of the state's case, on a prosecution for the rape of a girl under the age of consent.-People v. Wademan, 38 Cal. App. 116, 175 Pac. 791. 60. Date of offense May be fixed by prosecutrix as nearly as possible; it is not essential to show that the offense was committed on the date fixed in the charging papers, where the defendant is not prejudiced by a failure to fix the precise date.People v. Fraysier, 36 Cal. App. 579, 172 Pac. 1126.

61. Testimony of prosecutrix that act complained of in a prosecution charging rape occurred on the eleventh of the month, is sufficient to sustain a conviction under an indictment charging the act complained of occurred on the ninth of the month, where it is made to appear by the evidence that no act of intercourse occurred on the eleventh, and that her testimony in fact related to the ninth.-People v. Germino, 38 Cal. App. 100, 175 Pac. 489.

62. Diagram on blackboard.-In prosecution for rape, prosecuting witness may draw diagram of scene of crime and its surroundings on blackboard, in presence of jury, and, after explaining it, in their hearing, to witness familiar with locality portrayed, ask him if it is not substantially correct diagram of locality and points of which it purports to be representation; and if witness replies "Yes," officer may then make use of such diagram in examination of witness in usual way, pointing to it and asking distances between various objects thereon indicated.-People v. Figueroa, 134 Cal. 159, 161, 66 Pac. 202.

63. Fact of intercourse Question for jury. On a trial for statutory rape, where prosecuting witness did not in express terms state that she had sexual intercourse with the defendant, it is a question for the jury to determine whether, from her statements and reluctant explanations, the defendant actually did have sexual intercourse with her.-People v. Preston, 19 Cal. App. 675, 127 Pac. 660.

64. Impeachment of character of prosecutrix for chastity.-On charge of rape, character of prosecutrix for chastity may be impeached by general evidence of her reputation in that respect, but not by par

ticular instances of her unchastity.-People v. Benson, 6 Cal. 221, 222, 65 Am. Dec. 506. 65. Same Of evidence of prosecutrix.— In prosecution for rape, where announced theory of defense was that charge was made-up story by prosecutrix for purpose of getting away from her father's control, she may be asked whether she did not, at time and place specified, in conversation with brother, named, tell him that she and another brother and her married sister, each named, were putting up jobs on her father to get him into San Quentin, so that she could go and live with her sister. This lays sufficient foundation for impeachment, and is admissible for that purpose.-People v. Lambert, 120 Cal. 170, 176, 52 Pac. 307.

66. Medicine to prevent pregnancy-Furnished by defendant.-The admission in evidence on the redirect examination of the prosecutrix, over defendant's objection that no foundation had been laid therefor, of certain capsules or pellets identified by the witness as having been given her by the defendant for the purpose of preventing pregnancy, is proper.-People v. Kilfoil, 27 Cal. App. 29, 148 Pac. 812.

67. Other acts of sexual intercourseBetween parties.-In prosecution for rape committed upon one under the age of consent, but with her actual consent, other acts of sexual intercourse between the same persons may be proven as showing adulterous disposition, and thus corroborating the evidence of the substantive charge.-People v. Boero, 13 Cal. App. 686, 688, 110 Pac. 525. See par. 88, this note.

68. In prosecution for rape, the defendant being charged with aiding and abetting in the commission of the crime upon his step-daughter, a girl under the age of consent, evidence of other acts of lascivious conduct and intercourse under the direction and with the connivance of defendant, whether committed before or after the act charged, are admissible.-People v. Lewis, 9 Cal. App. 279, 282, 98 Pac. 1078.

69. Other acts of sexual intercourse with defendant may be shown in a prosecution charging rape of a girl under the age of consent, where the prosecutor has selected the act on a particular date as the one upon which he will rely, and the evidence sustaining the charge as to that date, the defendant is not prejudiced.-People Germino, 38 Cal. App. 100, 175 Pac. 489.

V.

70. Same Previous acts of sexual interCourse between parties properly admitted as tending to prove main allegation.People v. Jacobs, 16 Cal. App. 479, 117 Pac. 615.

71. Evidence of prior acts of sexual intercourse between the defendant and the complaining witness is admissible as tending to show the adulterous disposition of the defendant.-People v. Converse, 28 Cal. App. 687, 153 Pac. 734.

72.

Prior or subsequent lascivious acts of defendant, or acts of familiarity tending to arouse or promote sexual desires, notwithstanding the fact that they do not amount to sexual intercourse, are admissible in evidence as tending to establish the adulterous disposition of the defendant.People v. Wademan, 38 Cal. App. 116, 175 Pac. 791.

73. Physical examination of prosecutrix -As to power of court to order.-On a trial for statutory rape the court, in the exercise of its inherent power, may, upon the motion of the accused, order an examination of the vagina of the prosecuting witness, and it is not doubted that upon application by the defendant, the court, in the interest of justice, and under the circumstances, would have promptly ordered an examination before or even at the time of the trial. -People v. Preston, 19 Cal. App. 675, 127 Pac. 660.

74. Same-Failure of court to order not prejudicial.-The fact that, in a prosecution for statutory rape, no examination of the vagina of the prosecuting witness was made or ordered is without prejudice to the defendant, where the jury was satisfied by the character of proof in support of the charge.-People v. Preston, 19 Cal. App. 675, 127 Pac. 660.

75. Physical impossibility of committing act.-One charged with rape, committed upon young girl, has right to show that it was physically impossible for man to commit act complained of, or produce conditions found on person of female, in manner and under circumstances described by her. Such evidence is both relevant and material, and its exclusion is error, although defendant is found guilty only of assault with intent to commit rape.-People v. Baldwin, 117 Cal. 244, 248, 49 Pac. 186.

76. Statements of prosecutrix to third parties—Admissible, when.-The defendant in such a prosecution is not prejudiced by permitting a witness to state the time when the prosecutrix first told the witness that her father had had intercourse with her, where the defendant elicited the statement on the cross-examination of the witness that the prosecutrix had so charged her father.-People v. Burrows, 27 Cal. App. 428, 150 Pac. 382.

77.

Time and place-Sufficiently fixed by testimony that the act charged as a rape was committed during the noon hour at the home of the prosecutrix, and the further testimony that the father was at the home of the defendant pumping water with a gasoline engine, that the older brother of prosecutrix was at the home of the defendant doing chores and hitching a horse to a buggy for the family of defendant, that the smaller children of the family were school, and defendant admitting that prosecutrix was alone in the house on the only occasion when all the circumstances testified to occurred.-People v. Wademan, 38 Cal. App. 116, 175 Pac. 791.

at

78. Undergarments of prosecutrix — Exhibiting to jury without offer in evidence.-— In a prosecution for rape where the district attorney was permitted to exhibit to the jury the undergarments worn by the complaining witness at the time of the assault, without first offering the same in evidence, it was held that there was no prejudicial error where the prosecuting witness has identified the undergarments as those worn by her at the time of the assault, and has sufficiently identified them so as to lay a foundation for allowing them to be introduced in evidence; the fact that they were not formally offered or received in evidence works no injury to the defendant.-People v. Maruyama, 19 Cal. App. 290, 125 Pac. 924. AS TO WHAT

IV. SAME-SAME-2.

INADMISSIBLE.

79. Chaste character of prosecutrix.-In prosecution for rape, prosecutrix should not be permitted, over objection of defendant, to testify in chief that, prior to occasion of alleged offense by defendant, she had never had sexual intercourse with any one.-People v. O'Brien, 130 Cal. 1, 6, 62 Pac. 297.

80. Same-Specific acts.-On trial for rape, previous chastity of prosecutrix is presumed, and it is inadmissible, in advance of attack, to prove her good character, and still less to prove her innocence of specific acts of incontinence.-People v. O'Brien, 130 Cal. 1, 6, 62 Pac. 297.

81. Condition of sexual organs-Nonexpert testimony-Conviction of attempt.The refusal in a prosecution of rape upon a female under the age of consent to permit the grandmother of the prosecutrix to give her opinion as to whether the sexual organs of the prosecutrix had ever been entered by a human being, is not prejudicial to the defendant, in view of the verdict of conviction of an attempt to commit rape.-People v. Price, 26 Cal. App. 544, 147 Pac. 591. Compare: Rule in par. 54.

82.

83.

Cross-examination— Excluding evidence as to other improper relations.— Where the prosecutrix admits on crossexamination that she had told another girl that she had had improper relations with only one person, not the defendant, no prejudicial error is committed in sustaining objections to a series of questions designed to compel admissions that on certain specified occasions the witness had been questioned about her illicit relations with defendant and that on those occasions she had made statements inconsistent with her testimony on direct examination as to the time when she first had any illicit relations with him, where it appears that the witness was later permitted to answer other questions whereby virtually she admitted that she had made the statements referred to in the excluded questions.-People v. Kilfoil, 27 Cal. App. 29, 148 Pac. 812.

As to cross-examination of prosecutrix, see pars. 57-59, this note.