Gonzalez

Defendant was convicted of the crime of rape alleged to have been committed by having sexual intercourse with a female child under the age of sixteen years who was not his wife.

He appeals from the judgment of the superior court sentencing him to ten years’ imprisonment in the state prison at' Folsom, and from the order of the court denying his motion for a new trial.

In support of these appeals he urges that the verdict is not sustained by the evidence; that there is no proof that the prosecutrix is not the wife of defendant; that the court erred in the instruction relating to this matter, and in not striking out certain testimony of the mother of the prosecutrix as to the complaint said to have been made by the latter.

In so far as the first matter urged is not covered by the second, the presentation thereof brings it clearly within the rule so often announced by appellate courts, that where the evidence is conflicting the verdict of the jury will not be disturbed. The probability of the story told by the prosecutrix is a matter for the jury. (People v. O’Brien, 130 Cal. 1, 5 , [ 62 Pac. 297 ].)

It is admitted that there is no direct evidence that the prosecutrix is not the…