Lougheed

Defendant was tried before a jury upon an

information charging rape under subdivision 3 of section 261 of the Penal Code—where the female “resists, but her is overcome by force or violence. ’ ’ A verdict of guilty of attempt to commit rape was returned and from the judgment upon the verdict the defendant has appealed on a typewritten record.

The material evidence in the case is found in the of the testimony of the prosecutrix taken at the examination (she having failed to appear at the trial of the action in the superior court) and in the statement of the defendant made in the office of the district attorney shortly after his arrest. The stories of the two parties are without substantial conflict except upon the two issues of resistance and penetration. At about the noon hour of July 11, 1927, the defendant, a man of fifty years of age, picked up the prosecutrix, a woman over twenty-one, on the streets of Berkeley, where she was soliciting subscriptions for an Oakland newspaper. He drove her in his car to a place in the hills of Contra Costa County, where the attack is alleged to have taken place about an hour later. The prosecutrix went upon the ride willingly and permitted the…