The defendant was convicted of the crime of rape, and was sentenced to a term of five years at San Quentin. He appeals from the judgment and from the order denying his motion for a new trial. The sole question presented is the sufficiency of the evidence to support the verdict.

This is a companion case to that of People v. Caulfield (Crim. No. 112), this day decided (ante, p. 656, [95 Pac. 666]). The charges in both cases sprang out of the same transaction, and in the two cases the evidence is substantially the same, except that here there was direct proof that the prosecutrix was a woman of loose character, and also stronger evidence that she was addicted to drink. For a statement of this case reference is made to People v. Caulfield, ante, p. 656, [95 Pac. 666].

The evidence in this case makes a little stronger defense than was presented by the evidence in the Caulfield ease, but after all the record in both cases presented a question of fact for the jury.

Counsel for the appellant, in their brief and in the oral argument, referred to testimony which shows that the prosecutrix died of alcoholism, and that before she died she made statements contradictory of her testimony as to the time appellant with his companions came to her room, and as to the rape itself. Appellant, and one Mary McCarthy, and one Nettie Richardson, all state that she said that Scobie did not rape her. This evidence, however, was taken on the hearing of a motion to place appellant on probation, and is not part of the evidence in the case, and therefore cannot be *661 considered by this court. It may not be out <of place, however, to state that the trial court acted upon this showing, and placed appellant on probation; but a few days thereafter, on appellant being brought before the court for a violation of the terms of such probation, he was sentenced to a term of five years in the penitentiary.

For the reasons stated in the ease of People v. Caulfield, ante, p. 656, [95 Pac. 666], and upon the authorities there cited, the judgment and order in this case are affirmed.

Hall, J., and Cooper, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on April 8, 1908, and a petition to have the cause heard in the supreme court, after judgment in the district courL of appeal, was denied by the supreme court on May 10, 1908.