Davidson

Appellant, charged in an information filed by the district attorney with the crime of rape committed February 27, 1937, on a fifteen year old girl, was convicted by a jury and sentenced to one year in the county jail. He appeals from the judgment and from an order denying a motion for a new trial.

Briefly, the evidence supports the following statement of facts: Since their marriage in 1929, appellant and his wife, and her two daughters by a former marriage, had made their home together' in Los Angeles. The two stepdaughters of appellant, Jane and Garnet, at the time of the alleged offense, were aged fifteen and fourteen years, respectively.

On the night of February 27, 1937, defendant, appellant herein, after a late dinner, lay down on the davenport in his living room and went to sleep. His wife tried to awaken him when she went to bed, but failed to do so, and she told her daughter Jane to be sure and awaken him before she went to bed. Jane endeavored to do so but could not arouse him and she, too, went on to bed. Later, a little after 12 o’clock, Jane got up and went back into the living room and succeeded in awakening defendant. They talked for a few minutes and then…