Nye

Defendant appeals from a judgment entered on a jury verdict finding him guilty on two counts of assault with intent to commit rape and from the order denying his motion for a new trial. The sentences for the two offenses run concurrently. •

The conviction on the first count is for an assault with intent to commit rape on Miss W. on May 7,1950, in Burbank. Defendant entered Miss W.’s house-trailer early in the morning. When she awakened and asked what he wanted, defendant tore.off the bed covers and ripped her nightgown down to her knees. He grasped her throat and threatened to kill her if she screamed. He exposed his genital organs, got on the bed on top of Miss W. and attempted to accomplish sexual intercourse despite her resistance. In the course of the attack Miss W. ’s alarm clock rang, and as defendant reached to turn it off he released his grasp of her throat. He then left, after threatening Miss W. with death if she reported the attack. Defendant does not contend that the evidence was insufficient to support his conviction on this count.

The conviction on the second count was for an assault with intent to commit rape on Mrs. P., on May 27, 1950 in a motel in Burbank.…

I dissent.

I do not feel that the evidence in support of the second count (assault with intent to commit rape on Mrs. P.) was sufficient to uphold the judgment of conviction. The inference that he had entered the room with intent to commit larceny is as readily deducible from the evidence in support *42 of this count, as is the inference that he intended peacefully to solicit sexual relations with her. If the evidence as to the assault on Miss W., 20 days prior to the act in question, had not been admitted in support of the second count, no one could doubt that the evidence would have been insufficient *-o uphold the judgment.

My views, with respect to the admission of evidence of crimes other than that which is charged against the defendant and for which he is being tried, have been expressed many times (see dissent People v. Dabb, 32 Cal.2d 491, 501 [ 197 P.2d 1 ]; People v. Westek, 31 Cal.2d 469, 483 [ 190 P.2d 9 ] ; People v. Peete, 28 Cal.2d 306, 322 [ 169 P.2d 924 ]; People v. Zatzke, 33 Cal.2d 480, 486 [ 202 P.2d 1009 ]) and, so long as this court continues to sanction a procedure so manifestly unjust, will be expressed many more times.

Appellant’s petition for a…

Defendant appeals from a judgment entered on a jury verdict finding him guilty on two counts of assault with intent to commit rape and from the order denying his motion for a new trial. The sentences for the two offenses run concurrently.

The conviction on the first count is for an assault with intent to commit rape on Miss W. on May 7, 1950, in Burbank. Defendant entered Miss W.'s house-trailer early in the morning. When she awakened and asked what he wanted, defendant tore off the bed covers and ripped her nightgown down to her knees. He grasped her throat and threatened to kill her if she screamed. He exposed his genital organs, got on the bed on top of Miss W. and attempted to accomplish sexual intercourse despite her resistance. In the course of the attack Miss W.'s alarm clock rang, and as defendant reached to turn it off he released his grasp of her throat. He then left, after threatening Miss W. with death if she reported the attack. Defendant does not contend that the evidence was insufficient to support his conviction on this count.

The conviction on the second count was for an assault with intent to commit rape on Mrs. P., on May 27, 1950 in a motel in…