Peery

Appellant was convicted of the crime of rape and sentenced to serve a term of imprisonment in the penitentiary. Appeals were taken from the judgment and from an order denying a motion for a new trial. Counsel for appellant states that there is an appeal also from an order denying a motion made in arrest of judgment. No separate appeal lies from such an order, although that ruling is subject to review on the appeal taken from the judgment. (People v. Rogers, 163 Cal. 476 , [ 126 Pac. 143 ].)

The female participant in the alleged crime was a girl of about nineteen years of age, the daughter, by a former marriage, of appellant’s wife. It was alleged that the girl was of unsound mind and incapable of consenting to the illicit act. At a trial previously had appellant admitted the fact as to the intercourse had with the girl, and he at the time of his arrest made the same admission, in effect, to the arresting officer. These statements were proved before the jury. The grandmother of the girl testified that she had known the latter since her birth and had seen her constantly during a great many of the years following that event, and as often as once a week during the five years…