Scott

Defendant Wilson Scott appeals from a conviction of assault with intent to commit rape in violation of Penal Code, section 220, and from the order denying his motion for a new trial. The latter order is no longer appealable (Pen. Code, § 1237).

The evidence may be summarized as follows: In March 1961, the prosecutrix, Mary Waller, was employed as a waitress at the Bella Napoli restaurant in Oakland, California. At approximately 4:45 a.m. on March 19, 1961, she completed her shift and prepared to drive to her home in Hayward. Since it was just becoming daylight, Mrs. Waller drove with her headlights on. She proceeded south on the Nimitz Freeway until she reached the Whipple Road turnoff into Hayward. Shortly after turning onto Whipple Road, Mrs. Waller noticed another automobile move up close behind hers and begin flashing its lights from high to low beam. The other car then overtook Mrs. Waller and drew up almost parallel to her car in an apparent attempt to force her off the road. At this point, Mrs. Waller looked over to the other ear and saw that the driver was a male Negro. She also noticed that the car had portholes in the fender, and that the front license plate was dented.…