Chastain

Defendant Chastain was convicted of violating Penal Code, section 207 (kidnaping) and Penal Code, section 261, subdivision 3 (rape). A new trial was granted as to the kidnaping conviction whereupon it was dismissed. The appeal is from the judgment of conviction of Penal Code, section 261, subdivision 3 (rape). Codefendant Chavez was granted a separate trial and he was convicted of violating Penal Code, section 207 (kidnaping). The charges arose out of the same transaction.

Chavez also appealed and his case is the subject matter of a separate opinion.

*435 The facts are the same in both cases except that in this case Chastain was called as a witness in his own behalf. He testified as follows:

All three occupants got into the front seat and drove down the freeway for about two miles, then pulled off on the side. Chavez and Mrs. Mills then got into the back seat and Chastain drove on, but became caught in a pocket of traffic on the freeway. Since everyone could see Chavez and Mrs. Mills undressed in the back seat, he turned off the freeway and stopped. Chastain got out of the ear, later returned, and after sitting there a few minutes was asked by Chavez, “Do you want some of…