
    240 F. 685
    ROSE v. UNITED STATES.
    No. 2819.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 13, 1917.
    Rehearing Denied March 19, 1917.
    Louis K. Pratt, of Fairbanks, Alaska, and Herman Weinberger, of San Francisco, Cal., for plaintiff in error.
    R. F. Roth, U. S. Atty., of Fairbanks, Alaska, and John W. Preston, U. S. Atty., and Casper A. Ornbaun, Asst. U. S. Atty., both of San Francisco, Cal.
    Before GILBERT, MORROW, and HUNT, Circuit Judges.
   MORROW, Circuit Judge.

The plaintiff in error was indicted and convicted of the crime of having carnal knowledge of one “Grace Carey, a female child, then under the age of 16 years, to wit, of the age of 12 years,” the plaintiff in error being a male person over the age of 21 years. The indictment does not charge that the carnal knowledge was with the consent of the female child. A demurrer to the indictment raised the question whether the indictment was sufficient without this allegation. The demurrer was overruled, and this action of the court is assigned as error.

1. In Callahan v. United States, 240 F. 683, 153 C.C.A. 481, recently decided in this court, that question was considered, and it was held that this objection to the indictment was without merit.

2. It is assigned as error that the trial court sustained objections made to questions asked of the prosecutrix tending to show her lascivious conduct in the summer of 1915 while a'passenger on a river steamer in Alaska. In support of these questions it is said that they went to the moral character of the prosecutrix. The indictment charged the crime to have been committed on June 1, 1913, and such was the evidence. We do not think that the moral character of the prosecutrix in 1915, or, indeed, at any time, was material to the questions at issue before the court on this indictment.

3. The errors assigned relating to the action of the court in overruling objections to the testimony cannot be sustained. We think, upon the issues before the court, the questions were proper; but, if subject to objection, they were not properly reserved. Sparf & Hansen v. United States, 156 U.S. 51, 57, 715, 15 S.Ct. 273, 39 L.Ed. 343; Examiner Printing Co. v. Taggart Anston, 238 F. 459, 151 C.C.A. 395, recently decided in this court.

4. The court instructed the jury as to the law, as follows :

“You are further instructed that it is the policy of our law, as expressed in the statute, that any female under the age of 16 years shall be incapable of consenting to the act of sexual intercourse, and that any one committing the act with a girl within that age shall be guilty of rape, notwithstanding he obtained her consent thereto; and whether the girl in fact consented or resisted is immaterial in this case.

“In this case neither the element of force nor the question of consent has any application. The witness, Grace Carey, could not consent, and the law resists for her.”

This instruction was correct. Callahan v. United States, supra.

The judgment of the District Court is affirmed.  