SULLIVAN, J.
Defendant was indicted by the grand jury on five separate counts of rape (Pen. Code, § 261), two of which charged violations of subdivision 1 of section 261 ("[w]here the female is under the age of eighteen years") and three of which charged violations of subdivision 5 of section 261 ("[w]here ... [the female] is at the time unconscious of the nature of the act, and this is known to the accused"). The indictment charged the commission of these acts...
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