Defendant was informed against by the district attorney of Stanislaus County, state of California, in which he was charged "with having on or about the twentieth day of August, 1918, in the county of Stanislaus, state of California, and prior to the filing of this information, willfully, unlawfully and feloniously accomplished an act of sexual intercourse with and upon one Catherine Medina, then and there a female under the age of eighteen years, to wit, of the age of twelve years, and not then and there the wife of the said 'Jessie' Martinez."
[1] Defendant, on the first day of July, 1919, secured from this court an order extending his time to and including the twentieth day of July, 1919, within which to file his opening brief on appeal from the judgment of conviction, the attorney-general, by stipulation, having previously agreed thereto. No brief was filed by either party nor was any appearance made by the defendant at the argument on the day set therefor in this court, nor was any further stipulation or order made extending defendant's time to file his brief. Upon motion by the attorney-general the cause was accordingly submitted on the record.
In the case of People v. Young, 38 Cal.App. 492, [176 P. 696], under a similar set of circumstances, the court held that it must be assumed that the appeal has been abandoned and the judgment should be affirmed for want of prosecution. (See, also, People v. Wong Bow, 38 Cal.App. 213, [175 P. 802];People v. Schiaffino, 40 Cal.App. 675, [181 P. 813]; andPeople v. Medaini, 40 Cal.App. 676, [181 P. 673].)
[2] Notwithstanding the foregoing, we have carefully perused the pleadings, the evidence, and the instructions, together with the rulings of the court upon the admission and rejection of evidence, and are fully convinced that the defendant, after a fair and impartial trial, was justly convicted of the crime of statutory rape with which he was charged. No sufficiently prejudicial errors appear in the *Page 748 record to warrant any interference with the action of the lower court.
The judgment is amended by striking out the words "for the term of not more than fifty (50) years, the exact term to be determined as provided by law," and, as so amended, the judgment and the order are affirmed.
Hart, J., and Burnett, J., concurred.