Elgar

The appellant was convicted of the crime of rápe and was sentenced to not less than fifty years in the state prison. The appeal is from the judgment and from an order denying a motion for a new trial.

There is evidence in the record which tends to show that the appellant committed two acts of rape upon the prosecuting witness, one about May 6th, the other about May 14th, both in 1917. The information charges that the act was committed on or about the sixth day of May, 1917, and the district attorney told the jury, near the commencement of the trial, that he selected the act of May 6th, or thereabouts, as the one upon which he would ask for a conviction. This statement was made in connection with a remark of the court showing the reason for the admission of evidence as to the act of May 14th. Evidence of that act was of course admissible to show the lascivious disposition of the appellant toward the prosecuting witness, and the consequent probability of the commission of the act of May 6th (People v. Koller, 142 Cal. 621 , [ 76 Pac. 500 ]); but the court instructed the jury that “it is not incumbent upon the prosecution to prove the exact time and place when the offense, for which…