Bier

An appeal from the judgment and from the order denying a motion for a new trial. The information alleged an assault with intent to commit rape; also a prior conviction of rape in pursuance of which conviction defendant had served a term in a penal institution. A jury was waived and the case heard by the court.

The complainant, married, and the mother of a nineteen months old baby, testified that on the morning of the date alleged in the information defendant drove an automobile to the rear of her home and “asked me if my husband were at home, and I said no, that he was at work, and then he told me that he had been talking with my husband about the old car we had in the yard and that he said that he had it for sale. He was driving by and he thought he would like to see it. I said ‘You go ahead and take a look at it.’ So he went up to the car just a few feet away. I walked over to the car with him. ... I walked back to the house and he came back and was standing there, and I said ‘Why don’t you go down where my husband works and ask him about the car, if there was some question about it?’ He said, well, he was going into Oakland and he didn’t want to stop that morning, and he said…