Robles

Appellant and his codefendant, Rocha, were charged in a three-count indictment with: Count I, violation of section 261, subdivision 4 of the Penal Code, rape by means of force and fear; Count II, violation of section 459 of the Penal Code, burglary by entering a dwelling house with intent to commit rape; Count III, violation of section 207 of the Penal Code, kidnaping. A jury found defendant guilty of the burglary, Count II, but failed to reach a verdict as to Count I, rape by force and violence. They acquitted defendant of Count III, kidnaping. Subsequently the court, upon motion of the district attorney, dismissed Count I “in the interests of justice, ’ ’ and appellant was sentenced to the state prison pur suant to the judgment of conviction of burglary, first degree. Appellant has appealed from the judgment of conviction.

Appellant and his codefendant, Rocha, drove from Kettle-man City to Fresno, Sunday afternoon, January 15, 1961. They spent most of their time drinking mixed drinks, whiskey and beer, in various taverns, until closing time at 2 o’clock the following morning. They started back to Kettleman City and on the way appellant told Rocha that he knew of a woman with…