Piero

The defendant was tried on an information charging rape. He was convicted as charged and from the judgment following the verdict and from the order denying his motion for a new trial he has appealed on a typewritten record. The assignments of error are: (1) The admission of evidence of a separate rape in which the defendant did not participate, (2) the admission of evidence of a robbery of which defendant was not guilty, (3) the admission of evidence of a crime against nature in which the defendant did not participate, and (4) misconduct of the district attorney in his argument to the jury.

A proper understanding of the grounds of appeal requires a more complete statement of the story of the case than we would otherwise be inclined to give, and for this purpose it is necessary to refer to the evidence offered on the motion for a new trial in addition to that tendered to the jury. This we are permitted to do under section 4% of article VI of the constitution, in order to determine whether the errors assigned resulted in a miscarriage of justice.

At about 12 o’clock midnight of August 2, 1925, the defendant and four companions, one of whom was a woman, took into their automobile…