In People v. Girr, 53 Cal. 629, an indictment charging that the defendant "did willfully, feloniously, and of his malice aforethought commit an assault upon the person of ____ [named] with intent her, the said ____ [named] then and there to rape" was held to be sufficient.Summary of this case from People v. Blankenship
Appeal from the County Court of Lake County.
The defendant was convicted of an assault with an intent to commit rape. He appealed from the judgment and from an order denying a new trial.
Welch & Britts, for Appellant.
Attorney-General Hamilton, for Respondents.
The indictment states that the defendant " did willfully, feloniously, and of his malice aforethought commit an assault upon the person of Caroline Waldfogal, with intent her, the said Caroline Waldfogal, then and there to rape." The demurrer, on the ground, among others, that the facts stated in the indictment do not constitute a public offense, was overruled.
The Penal Code, sec. 220, provides that " every person who assaults another, with intent to commit rape," is punishable as therein provided. But the offense is not particularly described.
It has repeatedly been held that an indictment is sufficient if it describe the offense charged in the language of the statute. (See People v. Shaber , 32 Cal. 36; People v. White , 34 Cal. 183; People v. Potter , 34 Cal. 114.) It would have been sufficient, according to the authority of those cases, to have described the intent in the language of the statute--that is to say, to have alleged the felonious assault, " with the intent then and there upon the person of the said Caroline Waldfogal to commit a rape." In People v. Potter, supra, it is said that it is not necessary to follow strictly the language of the statute by which the offense is described, but that words conveying the same meaning may be used. The words employed in the indictment convey the same meaning as the words of the statute, and therefore the indictment is, in that respect, sufficient.
Judgment and order affirmed.