The sole question in this case is whether a defendant can be? legally convicted of an assault with intent to commit rape upon the person of a female under the age of consent, where the latter in fact consents'to the defendant’s act.
This same question was before the court in the recent case of People v. Verdegreen, 106 Cal. 211, 46 Am. St. Rep. 234, where the reasoning and doctrine of the cases now relied upon by defendant was considered and re*630jected, and where it was held (following People v. Gordon, 70 Cal. 467) that, under our statute, which makes a female under a certain age incapable of consenting to an act of sexual intercourse, and making such act rape regardless of such consent, a girl under that age is equally incapable in law of consenting to an assault committed with the intent to have such intercourse; that whether the girl in fact consents to or resists such an assault is immaterial—in either event the defendant is guilty. It is there said:
“It is the declared policy of our law, as expressed in the statute, that any female under the age there fixed shall be incapable of consenting to the act of sexual intercourse, and that one committing the act with a girl within that age shall be guilty of rape, notwithstanding he obtain her actual consent. The obvious purpose of this is the protection of society by protecting from violation the virtue of young and unsophisticated girls. To hold that one of this class, although incapable of consenting to sexual commerce, could, nevertheless, give her assent to an assault upon her person made for the express purpose of accomplishing the sexual act, would be to largely emasculate the statute, and defeat in great part its beneficent object. It is the insidious approach and vile tampering with their persons that primarily undermines the virtue of young girls, and eventually destroys it; and the prevention of this, as much as the principal act, must undoubtedly have been the intent of the legislature. The incapacity extends to the act and all its incidents.”
The evidence in this record clearly makes a case against the defendant within the principles there announced, and the instructions of the court are in exact accord therewith. As we are not disposed to depart from the construction there given our statute, we must hold that the court below did not err in its rulings.
' Judgment and order affirmed.
Garoütte, J., and Harrison, J., concurred.