Dukes

— A jury convicted defendant of kidnaping (Pen. Code, §207), probation was denied and he was sentenced to prison for the term prescribed by law. He appeals from the judgment.

Two contentions are advanced on appeal: 1. that the prosecutor committed prejudicial misconduct in asking certain questions of two witnesses called by defendant; and 2. that the court should have instructed the jury on assault and attempted kidnaping.

The following is a summary of the evidence: The complaining witness, Miss M. was waiting for a bus at 5 :40 p.m. on October 24, 1964. Before then she had called her fiance and told him that she would meet him in half an hour. An Oldsmobile driven by defendant stopped. A male passenger got out of the car, 11 acted as if he had a gun” and forced her to enter the car by threatening that he would “blow [her] brains out.” She had never seen either man before. In the ear she was seated between the two men and pleaded to be let out. The passenger started to slap and beat her.

They drove about 5 or 6 miles. She was taken to an apartment where another male person was present. The passenger pulled and shoved her into the apartment and into a bedroom where he raped her.…