Cicerelli

Defendant was tried before a jury upon an information charging an assault with intent to commit rape and of a violation of section 448a of the Penal Code. He was found guilty of the first charge and not guilty of the second.

Two points are raised on the appeal: The sufficiency of the evidence to sustain the verdict of guilty and the refusal of the trial court to give the proposed instruction covering lesser offenses. The evidence is meager and is not in substantial conflict. Appellant and the prosecutrix were employed in a workroom adjoining a small factory in the city of Oakland; on the day specified in the information they took their lunches together and both consumed a considerable quantity of wine; a struggle ensued, during which appellant struck the prosecutrix on the jaw and both parties fell to the floor, where the proprietor of the factory discovered them—the appellant sitting astride the prosecutrix and tearing at her underclothing, while the prosecutrix had both hands locked in appellant’s hair. This witness ordered the appellant to leave the girl alone and the appellant thereupon set upon the witness and some blows were struck. The only conflict in the evidence is in…