Ross

Appellant was found guilty of the crime of rape and has appealed from the judgment of conviction and the order denying his motion for a new trial. Iiis defense was that he was not present at the time or place of the alleged crime, and on this appeal he contends that the testimony offered in support of his alibi, when considered with other circumstances shown by the evidence, proves that he is the victim of mistaken identity, and that therefore the verdict is contrary to the evidence.

It appears from the record that the crime was committed upon a young married woman named DiFiori in her home on a small ranch just outside the city of San Jose, where she lived with her husband and infant child. On the day in question, October 18, 1926, she had been left alone with her baby while her husband went to San Jose to repair his automobile. About ten minutes past noon a strange man called and inquired for her husband, stating that he was a salesman from Cuthbert’s garage and wanted to interest him in the purchase of an automobile. The prosecutrix told him that her husband was in San Jose at Drake’s garage, but was expected home soon for lunch. The man said he would return later and started…