Eaton

Defendant was charged by information with forcible rape and burglary. Upon trial by the court sitting without a jury he was adjudged guilty of both offenses, the burglary being fixed in the first degree due to the accompanying assault. Three prior felony convictions were admitted and he was sentenced to the state’s prison. He appeals from the judgment of conviction and the order denying a motion for new trial.

Pursuant to recognized rules, the following narration of the evidence is in the aspect most favorable to the respondent. At or about 5 o’clock on the morning of June 16, 1958, the husband of the victim, Mrs. Smith, left the family home in Long Beach for his place of business. Approximately 30 minutes later Mrs. Smith arose to go to the bathroom. She was seized in the hallway by a large man who put his thumbs inside of her mouth, forced her back into the bedroom and onto the bed. After pulling a bed sheet over his victim’s head, he accomplished the act complained of, in the course of which the assailant touched her arm with some sharp article, saying: “You know what that is. . . . It is a knife.” Although unable to see her attacker, Mrs. Smith recognized his voice as that of…