Norrington

Defendant, who was convicted of an assault with intent to commit rape, appeals from the judgment and from an order denying his motion for a new trial. The appeal presents the single question as to whether the evidence is sufficient to justify the verdict, defendant claiming that the testimony of the prosecutrix is inherently improbable, and that she did not resist to the utmost of her ability.

There is an irreconcilable conflict between the testimony of the prosecutrix and that given by the defendant. [1] But, since our appellate jurisdiction extends only to questions of law, we must accept as proven the facts as detailed by the witnesses for the state. As was said by our supreme court in People v. Emerson, 130 Cal. 562 [ 62 Pac. 1069 ], “if the evidence which bears against the defendant, considered by itself and without regard to conflicting evidence, is sufficient to support the verdict, the question ceases to be one of law—of which alone this court has jurisdiction—• and becomes one of fact upon which the decision of the jury and the trial court is final and conclusive.”

About midnight of August 18, 1920, the prosecutrix, a married woman, forty years of age, and who resided…