
    [Crim. No. 536.
    First Appellate District.
    November 12, 1914.]
    THE PEOPLE, Respondent, v. ROBERT WEST, Appellant.
    Criminal Law—Rape—Sufficiency of Evidence.—In this prosecution for rape it is held that upon the whole case the evidence does not appear to be inherently incredible and improbable and that it is sufficient to support the verdict.
    APPEAL from a judgment of the Superior Court of Alameda County and from an order refusing a new trial. F. B. Ogden, Judge.
    The facts are stated in the opinion of the court.
    A. L. Frick, and B. J. Wyman, for Appellant.
    U. S. Webb, Attorney-General, John H. Riordan, Deputy. Attorney-General, for Respondent.
   THE COURT.

This is an appeal by the defendant from a judgment and order denying a new trial, the conviction being for the crime of rape. In support of the appeal it is-urged that the evidence is insufficient to sustain the verdict, this contention being based upon the alleged inherent improbability of the evidence.

We have read the record and considered it carefully, and are satisfied that while an argument might be made against the truthfulness of the testimony, it fails when made against its inherent probability. The mere fact that it is.unusual and out of the ordinary to encounter the situation described in the record does not make it absolutely and inherently improbable. We do not see upon the whole case that the evidence is inherently incredible and improbable; on the contrary, the story in its entirety may well be true. In parts perhaps it is doubtful, and might be made the foundation of a strong argument to the jury that the complaining witness was not to be believed. That argument doubtless was made to the jury and considered by it, but such an argument cannot be considered by this court.

The judgment and order are affirmed.  