Wilson

Defendant was convicted by the court of forcible rape (count one), sex perversion (count four), and assault by means likely to produce great bodily injury (count five). A motion for new trial was denied on November 5, 1962, and defendant was committed to the Atascadero State Hospital for observation before final judgment. The appeal from the order denying a new trial is therefore allowable. (Pen. Code, § 1237, subd. 2; Cal. Rules of Court, rule 31 (a). )

Defendant first claims that the evidence is not sufficient to sustain a conviction for rape when the complaining witness does not testify that she was not married to the defendant at the time of the alleged offense.

On July 13, 1962, defendant and a Mrs. Loving were bowling. Later, defendant took her to his home. They had an argument. In his desires, he struck and slapped her, shoved her into the bedroom and ordered her into his bed. He forced her, without her consent, into having sexual intercourse with him. Following this act, an act of unconsented oral copulation was had. Defendant then went to the dresser and removed an instrument (handle end of a baseball bat), lubricated it and inserted it into his victim’s vagina, and as…