MacDonald

This is an appeal from a judgment of conviction and from the order denying motion for a new trial of the defendant upon an indictment by the grand jury of the city and county of San Francisco, returned on December 1, 1921, charging the defendant with the crime of rape and also upon an indictment by said grand jury returned December 29, 1921, charging said defendant with having violated section 286 of the Penal Code, defining the infamous crime against nature, both offenses being charged to have been committed against one Jessie Montgomery. On motion of the district attorney and over the objection of the defendant, these two charges were consolidated and thereafter came to trial on January 10, 1921. Upon the first trial thereon the jury disagreed and was discharged. Thereafter and on January 14, 1921, the defendant moved for a change of place of trial of the cause to another county, upon the ground that a fair and impartial trial could not be had in the city and county of San Francisco. This motion the trial court denied and on January 17, 1921, the matter came on for retrial before a jury, which, at the conclusion of said second trial, found the defendant guilty of the offenses…