Britt

The defendant was accused by information in four counts, the first and third counts charging statutory rape on or about the fifteenth day of June, 1921, and on or about the fifteenth day of September, 1920, respectively, and the second and fourth counts charging incest at the same times at which the alleged rape was committed. A verdict of guilty as to each count was returned by the jury. A motion for a new trial as to counts two and four was granted. A similar motion as to counts one and three was denied and sentence thereon was pronounced. Defendant appeals from the judgment and from the order denying his motion for a new trial.

The contentions of the appellant are: (1) That the corpios delicti was not established; (2) that the evidence was insufficient to warrant or sustain a conviction; (3) that the trial court made prejudicially erroneous rulings during the course of the trial; (4) that instructions were improperly given or refused, and (5) that he was not given a fair trial because of certain matters occurring at the trial and which will hereinafter be more particularly noted.

The prosecuting witness, Beulah Britt, died before the trial and her testimony given at the…