As will be noted, the majority opinion concedes that the evidence is legally sufficient to sustain the verdict, but reverses the judgment of conviction upon a ruling of the trial court sustaining an objection to a general question propounded to the prosecutrix on cross-examination. In this regard the majority opinion states in substance that much of the prosecutrix’s account of the affair is equivocal, that the question of appellant’s guilt is close, and that therefore the ruling complained of was prejudicial and probably resulted in a miscarriage of justice. I am unable to agree with these conclusions.
As is usual in cases of this kind the testimony given by the prosecutrix and the accused is conflicting- as to the extent of force and violence used in accomplishing the act constituting the alleged crime; but admittedly under such circumstances it is the exclusive province of the jury, as the fact-finding body, to decide which of the parties has told the truth. In the present case the jury accepted as true the account given by the prosecutrix and acted upon the same in finding appellant guilty. It must be presumed on appeal, therefore, that her testimony is true; and in the light of such presumption it would seem that her account of the affair cannot be said to be equivocal. Moreover, her conduct immediately following the alleged assault, and the physical and mental condition in which she was *753found at that time, as established by the testimony of disinterested witnesses, strongly supports her claim that she was assaulted wholly against her will and as a result of violence and the use of superior force coupled with a feeling of fear, brought about by a realization that at that late hour of the night she found herself alone in the foothills of a sparsely-settled country that was entirely strange to her, with a man whom she had met for the first time only a few hours before, and who had succeeded through trickery in bringing her there.
In this connection the evidence shows she had no relatives living in this state. She had resided in Oakland only about a year and a half, and in the state less than two years, and was entirely unfamiliar with the territory surrounding Oakland or the location or termination of the highways in those regions. Consequently, after having accepted appellant’s invitation to drive her home in his car, she was not aware at first, so she stated, that he was proceeding in the opposite direction, but as soon as she became aware of the fact she called his attention to it, and was told, by appellant that there were several ways of reaching Oakland, and besides that he wanted to go to the airport to see if his brother had arrived. Upon receiving information at the airport to the contrary, he purchased a small quantity of gasoline. It was then considerably past 1 o’clock in the morning, and instead of turning back toward Oakland he again started in the opposite direction and soon turned from the main highway on to a dirt road leading into the foothills, toward Contra Costa County. The prosecutrix, realizing they were not headed for Oakland, again protested; and appellant finally admitted they were not on the right road. About this time the car stopped. It had run out of gasoline, but as appellant admitted at the trial, he did not at that time disclose this fact to the prosecutrix. As soon as the car stopped he began making his advances. Kepulsing him, she got out of the car and ran down the road. Appellant followed her and brought her back; she claimed she was forced or dragged back. Appellant claimed he “persuaded” her to come back, that he “certainly wasn’t going to hurt her”. The ear was an Essex coach, and after the prosecutrix broke away the second time appellant threw the “jump” seat forward; and upon re*754turning to the car the second time with the prosecutrix he picked her up bodily, so she testified, and shoved her into the car, on the floor, face downward. She testified that during the struggle which ensued she used all her strength “to keep him away, keep him at a distance . . . threw him back to the wheel of the car, tried to knock Mm out”; that she “resisted with every ounce of strength” she had; that she was powerless to kick Mm because her leg was caught in the front seat. Following the assault appellant informed her that the gasoline supply was exhausted, and he took a pail and proceeded to walk down the road to see if he could obtain gasoline from some farmhouse. It was then daylight; and after he disappeared down the road the prosecutrix got out of the car and ran back toward the main highway. After running a short distance she met a farmer named Cronin coming in the opposite direction, driving a truck. He was on his way to a field to get a load of hay. She hailed him, and told Mm what had happened. In this respect Cronin testified: “She was coming down the road and I was going up the road for a load of hay and she waved her hand and I stopped. She was crying. The first question she asked me, ‘Where am I?’ I didn’t know what she meant and I said, ‘What do you mean?’ She said, ‘How far am I from Oakland?’ I said, ‘You are about twenty-three miles.’ Just then an Essex ear drove up and a man was in it, and she said, ‘Don’t let that man get me’, and I said, ‘What’s wrong?’ She said,- ‘He had me up in the hills here all night’, and I said, ‘Then step in the truck here’, and the man drove by in the machine and-I got out, but he didn’t stop, he just drove down the road slow, and I could see from looking in the back mirror.” Cronin further testified that when the prosecutrix hailed him “she was crying and seemed to be awfully excited and nervous”. He took her on the truck, drove on a short distance, got his load of hay and then drove back to his home in Dublin; and at the prosecutrix’s request he phoned for an officer. Constable Vervais of Pleasanton responded, and in describing the prosecutrix’s condition as he saw it upon his arrival there, Yervais testified that “she was like was all wore out. Her clothes were all mussed up”; t appeared “awful nervous” and was crying. He forth, stated that “she had a mark on her leg and one on her ar *755and a mark on her neck”. Ver vais conveyed her to the district attorney’s office in Oakland, and it was ascertained that the alleged assault doubtless occurred in Contra Costa County, whereupon Vervais drove the prosecutrix back to the scene of the alleged assault, and then to Danville, Contra Costa County. There they met Constable Read of that county, and that afternoon the prosecutrix was taken before Dr. M. C. Bollender in Danville for an examination. Bruises were found on both knees and on her arms and there was a black and blue spot on the side of her face, near the throat, and the doctor testified that as a result of his examination he found her sexual parts lacerated, and “a virginal type of hymen”, which in his opinion showed that intercourse had taken place for the first time within the previous twenty-four hours. Pour or five days later appellant was located in Oakland, identified by the prosecutrix and placed under arrest.
There is no intimation anywhere in the record that the prosecutrix was actuated by any motive to unjustly cause the arrest of appellant, whom as stated she had known less than half a day, and thereby expose herself to humiliation and notoriety which was bound to follow her appearance as a witness at a public trial in a case of this kind. And the answer to the argument that the prosecutrix did not scratch appellant, nor scream, may be found in language used in People v. Norrington, 55 Cal. App. 103 [202 Pac. 932], wherein the court says that the conclusion reached in some cases that unless a woman “kicks, bites, scratches and screams” to the “utmost of her power and ability” she will be deemed to have consented and indeed to have invited the familiarity is “neither justice, law, nor sound reason”.
With respect to the question of the soundness of the ruling upon which the majority opinion bases the reversal, it may be conceded that on account of the nature of the charge, the trial court might ‘well have allowed the question in dispute to be answered. But technically, from an analysis of that portion of the record, it would seem that its ruling sustaining the objection thereto was not erroneous. As held in the cases cited in the majority opinion, preliminarily, for the purpose of laying foundation for impeachment, or to show either friendliness or unfriendliness of a witness toward the accused, a general question is permissible. But *756it does not appear that the general question here propounded was asked for any of those purposes. At least if it was, such purpose is not manifest from the question itself, nor was it disclosed by counsel at the time of asking it. The record relating thereto is as follows: “Q. Well, Miss Miller, isn’t it a fact that you immediately after preferring these charges against Mr. Brown, you asked that they be dismissed? Mr. Collins [deputy district attorney] : Objected to as incompetent, irrelevant and immaterial, not within the province of this prosecuting witness to dismiss any charges. The Court: Objection sustained.” There the matter ended, no further reference being made thereto. Obviously, as stated by the district attorney in his objection, it is not within the province of a prosecuting witness in a ease of this kind to dismiss the charge. If, therefore, the purpose of the general question was to elicit testimony leading to impeachment or to show the state of mind or conduct of the witness toward the accused, it would seem that it was incumbent on counsel for appellant so to state at the time, or to reframe the question, and having failed to do either, that it is too late to disclose the purpose for the first time on appeal.
For the reasons stated, I do not believe that sufficient legal grounds for reversal have been shown.
A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 28, 1934.