Holmes

The appellant was charged by information with having committed the crime of rape in violation of the provisions of subdivisions 3 and á of section 261 of the Penal Code, and was also charged jointly with one Tetta Ratiate with having contributed to the delinquency of a girl under the age of twenty-one years. Both defendants were convicted by a jury, and this appeal is taken from the judgment and order denying a motion for new trial upon the charge of rape.

The portions of said section which are relied upon by respondent read as follows:

Appellant’s contention in his brief is that the prosecutrix cohabited with him continuously for a period of about two years from March, 1922, until the fourteenth day of May, 1924, and that from that fact, coupled with all the evidence in the case, he succeeded in proving that there was no resistance, or prevention of resistance accompanied by apparent power of execution; that such a condition of depravity was shown to have existed that the jury concluded, contrary to the evidence, that he “should be in the penitentiary regardless of the fact that he had not committed the offense alleged.” It is argued that the testimony of the prosecutrix was so…