Schober

Manuel Schober was accused by information of the crime of rape in separate counts, namely, in Count I' defendant accomplished the act against Mrs. F. who resisted but her resistance was overcome by force and' violence and, in Count II, the act was committed when the same victim was prevented from resisting by threats of great and immediate bodily harm accompanied by apparent power of execution. (Pen. Code, § 261.) In a jury trial defendant was convicted upon Count I. Count II was dismissed. Defendant’s motion for., a. new trial was. denied and he was sentenced to state prison. T-Ie appeals from the judgment and the order denying him a new. trial.

The points- on appeal are that the evidence was insufficient to justify the'verdict; there was error in the admission of testimony of the prosecutrix and in denying the motion for a new trial.

The essential facts in evidence are the following:' Mrs. F., cashier at. a'- market, left work January 27, 1961, at about 11 p. m.; she went to the Den Café with a girl friend, Frances Young; ghe had not .been there before; she met defendant whom , she had not known, and danced with him. At about 1:45 a.,m. Mrs. F., Frances and defendant left the…