Winters

Defendant-appellant was charged with and convicted by a jury of the offense of rape, a violation of section 261, subdivision 4 of the Penal Code, and robbery, second degree, violation of section 211 of the Penal Code, on October 19, 1957.

The prosecutrix, aged 22, about 5 feet 6 inches tall, weighing about 140 pounds, was living with her husband in Lemoore. On October 19, 1957, she left in her ear with her four children, ranging in age from 2 to 5 years, to visit her mother near Riverdale. On her return home that evening about 8 :45, her car ran out of gasoline. After waiting alongside the road for some time appellant and his 12-year-old brother-in-law drove up and offered to push her car to a service station. After some effort he said he could not negotiate it and he invited the prosecutrix and her children to ride with him to the station. They got in the back seat of his car. Appellant drove off the highway and up a more or less isolated dirt road, stopped, got out, opened the door to the back seat and invited the prosecutrix to see a rear tire which he said was flat. He then put his hands on her shoulders and told her to put the baby down from her arms or in the front seat.…