O'Bryan

Defendant was found guilty by a jury of the crime of attempt to commit incest and sentenced to San Quentin state prison. He appeals from the judgment and from an order denying his motion'for a new trial.

One John Wilemon testified that, armed with a revolver, he had secreted himself in a bedroom closet at the home of defendant’s daughter Anna, a married woman, referred to occasionally hereinafter as Mrs. N-; that he entered the closet upon his observing the defendant come up the walk toward the front porch of Mrs. N-’s home about 7 o’clock of the evening of August 17, 1932, while he and Mrs. N-were alone in the house, Mrs. N-’s husband having gone to work a few hours previously; that shortly after defendant’s arrival at Mrs. N-’s house, this witness surprised him in the act of attempting to have sexual intercourse with Mrs. N-, his own daughter, against her objection, the witness describing in detail the position in which he found the defendant and Mrs. N- on the bed as he opened the closet door, the revolver grasped in his right hand. The defendant claimed in his testimony that he was the victim of a “frame-up’.’, that his intention in going to the bedroom with his daughter was…