Opinion
Appeal from a judgment of the Superior Court of Santa Clara County, and from an order refusing a new trial.
COUNSEL:
J. H. Campbell, for Appellant.
Attorney-General Marshall, Howell C. Moore, and D. W. Burchard, for Respondent.
JUDGES: In Bank. Myrick, J. McKee, J., McKinstry, J., Ross, J., Sharpstein, J., and Morrison, C. J., concurred.
OPINION
MYRICK, Judge
1. The defendant was accused by information of the crime of rape, the act being charged to have been "committed by force and violence, and against the will and consent of the person named as the subject [11 P. 762] of the act." Objection is made that the information did not contain an element of resistance on the part of the person; that subdivisions 3 and 4 of section 261 of the Penal Code have made resistance or prevention of resistance an element necessary to be alleged in order to state the offense.
We are of opinion that when the information stated that the act was committed by force and violence, and against the will and consent of the female, it was substantially equivalent to stating that she resisted, but that her resistance was overcome by violence, or that she was prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution.
Under the information as it reads, it was competent to prove that the act was committed under the circumstances provided for in either of the subdivisions referred to.
2. There was some evidence before the jury as to acts of resistance, and some evidence as to prevention of further resistance, -- sufficient, at all events, for the consideration of the jury. The instructions to the jury upon this subject were as favorable to the defendant as he was entitled to. We see no error in the action of the court as to the instructions refused. All instructions to which the defendant was entitled were given, either in the instructions allowed or in the general charge.
Judgment and order affirmed.