Allison

Upon an information charging him therewith, defendant was convicted of rape alleged to have been committed in Tulare County upon a female under the age of eighteen years, who was not his wife. Judgment followed, from which and an order denying his motion for a new trial, defendant appeals.

[1] The first point urged in support of a reversal of the judgment and order is insufficiency of the evidence to show that the prosecuting witness was not the wife of defendant. As in the ease of People v. Bonzani, 24 Cal. App. 549 , [ 141 Pac. 1062 ], involving a like question, there was no direct testimony upon the point; nevertheless, the character of the evidence was such as to exclude the existence of such relationship. Not only in his testimony did defendant refer to a person as his wife who was other than the victim of his alleged lust, but the prosecuting witness, whose name was shown to be different from that of defendant, testified that prior to the commission of the offense she never met defendant and did not know him. The conclusion based upon a fair inference to be drawn from such testimony is that reached by the jury, that they were not husband and wife when the crime alleged was…