in the criminal complaint in said action was committed, and the said A B then and there falsely, knowingly, maliciously, wilfully and corruptly testified in substance as follows, to wit: That during all of the time between the day of 190, and the day of, 190, the said A B was in company with the said C D in the city of in county, California, and in truth and in fact the said A B was not in the company of the said C D in said city of in in the company of the said C of the time between the said and the said day of county, California, or D at all, during all portion of the said time between said dates, as he, the said A B then and there well knew in said justice court of said township at the time of the making in court of said false statements; And said oath was duly and legally administered to the said A B on the day of, 190—, in said justice court by the said A C P, who was a duly elected, qualified and acting justice of the peace in and for said township, and who had then and there competent authority to administer such an oath in such matters and proceedings, and particularly in said criminal action known as "The People v. C D, No. ———————;” And said false statements so made as aforesaid under oath in the manner and form as aforesaid were then and there material to the issues therein involved in the trial of the said criminal action, known as the People v. C D, No. FORM-SUBORNATION OF PERJURY. [Set out a charge of perjury as in preceding form and continue as follows]: And one, E F at and in county, California, on or about the day of -, 190-, did well know the testimony so given by the said A B as aforesaid was knowingly, wilfully and corruptly false, and did feloniously, wilfully and corruptly, suborn, incite and procure the said A B, being sworn as aforesaid, feloniously, knowingly, wilfully, corruptly and falsely to testify as aforesaid; and in truth and in fact as both the said A B and the said E F then and there in well knew, both at the time of the corrupt procurement of the said wilfully false and corrupt testimony as aforesaid by the said E F from the said A B and at the time of the giving of the said false testimony by the said A B as aforesaid, the said A B was not in the company of the said C D in the said city of county, California, or in the company of the said C D at all, during all of the time between said day of, 190-, and the said day of -, 190, or during any portion of said time between said dates, and the said E F did feloniously, corruptly, knowingly and wilfully procure the said A B to testify falsely and corruptly as aforesaid before the said false testimony was given in said justice court as aforesaid. PERSONATION, see FALSE PERSONATION. CHAPTER XL. POLLUTION OF WATER. [Penal Code, sec. 374.] POLLUTION OF WATER SUPPLY. Wilfully and unlawfully did keep a large number of sheep, to wit, about two thousand sheep, penned and corralled in, over and on the banks of that certain stream of water known as the so that by reason of keeping said sheep so penned and corralled as aforesaid the waters of said stream then and there became polluted; and from which said stream water was then and there, ever since has been, and now is, drawn for the supply of the inhabitants of the town of —, said town being then and there a town in the state of California.1 PRISON, see ESCAPES. PRIZE FIGHTS, see DISTURBANCES OF THE PEACE. PROFANITY, see DISTURBANCES OF THE PEACE. PROSITUTION, see SEDUCTION. 1 People v. Borda, 105 Cal. 637. CHAPTER XLI. RAPE. [Penal Code, secs. 261-264.] DEFINED. It is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, when such female is under the age of sixteen years, or is incapable from unsoundness of mind of giving legal consent or when resistance is overcome by force and violence, or when will is overcome by drugs administered by the perpetrator, or when she is unconscious, or submits by reason of fraud which induces her to believe that the person committing the act is her husband.1 CONSENT. After the prosecutrix reaches the age of consent, some force or intimidation must be shown or want of consent." Force is a necessary element of the crime and distinguishes from seduction.3 Words of solicitation and blandishments do not amount to force, and when the prosecutrix secumbs to them, she has consented, and it is not rape. But under a charge of rape by force and violence, evidence to show commission by means of intoxicating and narcotic substances is admissible. and when the charge is of rape of a female under age of consent, proof may be made of any other of the acts constituting the offense. When the female is 1 Penal Code 261. 2 People v. Stewart, 85 Cal. 174; People v. Brown, 47 Cal. 447; People v. Fleming, 94 Cal. 312. 3 People v. Royal, 53 Cal. 62. 4 People v. Fleming, 94 Cal. 308. 6 People v. Vann, 129 Cal. 118. 10 under the age of consent, a want of consent need not be shown. The law resists for her, and force is not an element of the offense, as she is presumed incapable of consenting." Legal consent presupposes an intelligence capable of understanding the act, its nature and probable consequences. And if the female is of unsound mind resistance and consent are immaterial. The absence of outcry and immediate disclosure of the outrage are not material when the female is under the age of consent. The object of the statute in fixing an arbitrary age of consent, is the protection of society by protecting from violation the virtue of young and unsophisticated girls. Although the assault ordinarily implies force by the assailant, and resistance by the one assaulted, it is not true where the girl is under the age of consent.13 PENETRATION. The slightest penetration is sufficient to constitute the offense. In instructing the jury, the court need not use the word sexual penetration, penetration being sufficient to describe the act.15 EVIDENCE. To impeach her, it is proper to show that the prosecutrix had declared an intent to get the defendant into state prison.16 The consummation of the offense may be proved by circumstances and surroundings, and the relationship of 7 People v. Stewart, 85 Cal. 174; People v. Verdegreen, 106 Cal. 211; People v. Webster, 111 Cal. 383; People v. Rangod, 112 Cal. 669; People v. Lourintz, 114 Cal. 629; People v. Gomez, 118 Cal. 328. 8 People v. Vann, 129 Cal. 118; People v. Gordon, 70 Cal. 9 People v. Benc, 130 Cal. 159; People v. Fleming, 94 10 People v. Verdegreen, 106 Cal. 214; People v. Lourintz, 11 People v. Griffin, 117 Cal. 383. 12 People v. Lee, 119 Cal. 84. 13 People v. Verdegreen, 106 Cal. 211. 14 People v. Chavez, 103 Cal. 407; People v. Rangod, 112 Cal. 669. 15 People v. Rangod, 112 Cal. 669. 16 People v. Lambert, 120 Cal. 170. |