I concur in the judgment. I assent to that portion of the opinion in which the information is held to be fatally defective, because it omits to state that the prosecutrix is not the wife of the accused, upon the sole ground that the appellate courts of this state have so construed section 261 of the Penal Code as to require such allegation in order to properly state the crime therein defined, and that such construction seems now to be the settled rule in California.
I am of the opinion, however, that the instruction in which the jury were told that "a malicious and guilty intent is conclusively presumed from the deliberate commission of an unlawful act for the purpose of injuring another," is prejudicially erroneous. Under the information here it was competent for the jury to return a verdict of simple assault, and, while I agree that there may be evidence sufficient to support the verdict, it is equally true that, under the evidence, the *Page 17 jury would have been clearly justified in returning a verdict of simple assault. The vice of the instruction is that the jury were instructed in effect that the mere assault was sufficient to justify the indulgence by them of a conclusive presumption that the accused was guilty of the crime of an assault with intent to commit rape. It is manifest that, under such instruction, the jury could have concluded, even if they in fact did not do so, that, notwithstanding the fact that the evidence was not of sufficient probative strength to persuade a conviction that the specific crime charged was committed, they were nevertheless required to conclusively presume it to have been committed from the fact of the commission of the assault under the circumstances disclosed by the record. These circumstances are sufficiently referred to in the opinion of Justice Burnett to show that such an instruction could have had none other than a highly prejudicial effect.