Mabrier

Information was laid by the district attorney of Modoc County charging defendant with the crime of rape upon a female person under the age of eighteen years. He was convicted by the jury and was sentenced by the court to imprisonment in the state prison for the period of forty-seven years. The appeal is from the judgment of conviction and from the order denying motion for a new trial.

The sufficiency of the evidence to justify the verdict is not called in question. The point most strongly urged for a reversal is that the court erred in denying defendant’s motion, made under section 1033 of the Penal Code, to change the place of trial to some county other than Modoc, on the ground that, owing to the bias and prejudice against him throughout the county, defendant could not have a fair and impartial trial in that county.

It appeared that defendant’s conviction was upon the third trial for the same crime, and that at the two former trials there were disagreements, the jury standing eleven for conviction and one for acquittal. An application for the change of the place of trial was made and denied before the second trial and again before the third trial began. The application was…