WARD, J.
The defendant, Festus L. Coleman, was found guilty by a jury in the Superior Court in and for the City and County of San Francisco of the following crimes: sex perversion (Pen. Code, § 288a), rape, and first degree robbery; [21]*21and he has appealed from the judgments of conviction and the orders denying his motions for new trial. The grounds urged for reversal are insufficiency of the evidence to sustain the convictions; that the trial court and the district attorney committed misconduct prejudicial to defendant’s rights, and failure to instruct the jury on attempted rape.
The evidence presented shows that the sex crimes were committed on a high school student (hereinafter referred to as Miss C) and that the victim of the robbery was a young army lieutenant (hereinafter referred to as Lieutenant A), attached to the United States Air Corps and stationed at Hamilton Field. It was mainly on their testimony defendant was convicted. Miss C’s home was in central California. She came to San Francisco with a girl friend and the latter’s parents to spend the Easter vacation at the home of the girl’s aunt. She had become acquainted with Lieutenant A some time previously while he was training at the army air field near her home. The crimes were committed on Friday night, April 11, 1941, between 11:30 and 12 o'clock near the 43rd Avenue-Fulton Street entrance to Golden Gate Park, a few blocks distant from the home where Miss C was visiting. The defendant, who is a negro, testifying in his own behalf, admitted being at the scene of the crimes at the time they were alleged to have been committed and that he had engaged in a fight with Lieutenant A, but he denied having molested the girl in any manner or having attempted to rob Lieutenant A.
On this appeal one of the points urged against the sufficiency of the evidence is that the testimony given by the prosecution’s witnesses concerning the commission of the crimes is inherently improbable and therefore that it should be disbelieved. It is not the province of an appellate court, however, to retry a case and to draw inferences from the facts proved. That is the function of the jurjL The province of the appellate court is to decide only whether upon the face of the evidence it can be held that sufficient facts would not have been found to warrant the inference of guilt. To warrant a reversal on the ground of insufficiency of the evidence it must be found that upon no hypothesis is there sufficient evidence to support the conclusion reached by the jury. (People v. Kabakoff, 45 Cal. App. (2d) 170 [113 P. (2d) 760].) In other words, unless the appellate court can say that the testimony is so inherently improbable as to leave the [22]*22court no recourse without self-stultification except to reverse tne judgment, the reviewing court should not interfere with the verdict and the judgment of the trial court on that ground. (People v. Moreno, 26 Cal. App. (2d) 334 [79 P. (2d) 390]; People v. Antunez, 28 Cal. App. 740 [153 Pac. 963] ; People v. Becker, 140 Cal. App. 162 [35 P. (2d) 196].) Furthermore, in considering the question of the sufficiency of the evidence, all intendments favor upholding the judgment and the action of the trial court, and the evidence is to be viewed in the light most favorable to the prosecution. (People v. Dukes, 90 Cal. App. 657 [266 Pac. 558].) The record in the present case discloses an abundance of evidence to sustain the jury’s finding upon the question of defendant’s guilt. The following are among the facts established thereby: Earlier on the evening of the commission of the crimes Lieutenant A and another young army lieutenant, stationed also at Hamilton Field (hereinafter referred to as Lieutenant B), called at the home where Miss C was visiting, to spend the evening with her and her girl companion, and later all drove down to the ocean beach nearby and spent some time patronizing the amusement enterprises. "While riding in a boat in the “chute the chutes” concession Lieutenant B and his girl companion were splashed with water, so the party returned to the home of the girls to change and dry their clothes, after which they drove back to the amusement center at the beach, remained there for some time and then started to drive back through the park. It was a warm, bright moonlight night, and when they reached a point near the 43rd Avenue-Fulton Street entrance they stopped, listened to the radio for a while, and then Lieutenant A and Miss C said they wanted to talk alone; they took a robe, walked about a hundred feet from the roadway and sat down. They had been there but a few minutes when they heard and saw a man (the defendant) prowling about the shrubs close to them. Becoming alarmed, they got up at once, intending to return to the automobile, but as they arose the defendant suddenly emerged through the shrubs, wearing a paper mask, with his hat pulled down over his eyes, and carrying a pistol. Lieutenant A said to him: “What can I do for you, fellow!” and the defendant, pointing the pistol at Lieutenant A said, “This is a stick-up. Don’t say a word.” “I don’t want any funny business or I’ll blow you to pieces.” He then ordered Lieutenant A to turn around, and placing the muzzle of the pistol at his back said, “I want your money. Where is it!” [23]*23The lieutenant replied that it was in his back pocket. Thereupon the defendant removed the lieutenant’s wallet from his pocket and also some loose change and a bunch of keys from another pocket. He offered the keys to the girl, saying, ‘ ‘ Here, sister, you can have the keys as a souvenir of your boy friend”; but when she started to take the keys he said, “No, I think I’ll keep them.” He then ordered the lieutenant to walk about five feet into the bushes, and to kneel down and keep facing the bushes, saying that “there were some other fellows waiting around the bushes for him and that they would get him if either of us tried to make a move. ’ ’ He then ordered the girl to take off her pants and lie down. Lieutenant A spoke up, saying: “What are you going to do?,” and the defendant replied that “he was going to French my girl friend.” The lieutenant asked him “what it meant,” and he replied, “I am going to kiss her between the legs.” The lieutenant pleaded with him to let the girl alone, and he replied that “that was all he was going to do,” and defendant told the girl not to be afraid. After he had forced the girl to lie down he told her to put her blouse over her head. She testified that he then put his mouth against her private parts and kept his mouth there for five or ten minutes, following which he began raping her. Before defendant started raping the gij’l Lieutenant A several times attempted to turn around and say something, but each time defendant threatened him with the pistol and warned him to keep facing the bushes. But when defendant began raping the girl she cried out and the lieutenant immediately sprang upon the defendant as he lay on top of the girl, and a desperate struggle ensued, during which the lieutenant’s hand was badly cut in several places, partially disabling him. As the struggle began the mask fell from the defendant’s face, and the girl and her companion then observed for the first time that he was a negro. Being freed from the defendant the girl ran screaming for Lieutenant B and the two young men finally subdued the defendant and started to walk him to the police station; but after proceeding a short distance defendant put up a fight in an attempt to escape, whereupon Lieutenant B returned for the automobile, and placing appellant between them in the front seat and the two girls in the back seat they drove defendant to the police station and turned him over to the police. Thereupon a police officer accompanied the two young men back to the scene of the crimes and there they found defendant’s hat, [24]*24the pistol, the paper mask, and Lieutenant A’s wallet; also a piece of glass smeared with moist blood, with which Lieutenant A’s hand evidently had been cut. Several times during the struggle defendant warned that he had a knife, but no knife was found. Upon finding the articles mentioned the police returned to the police station and about 2:30 a. m. that morning the defendant was questioned concerning the crimes of which he was accused and he did not deny having committed them. Two police officers so testified. His response was that he did not remember—that he had been drinking. The conversation had with him at that time, as repeated by Inspector McMahon in his testimony was as follows: “I asked him—that was a preliminary question—I asked him when he was brought in to identify his hat, which had been brought in separately. It wasn’t on the defendant. And he identified it as his hat. I asked him what he had been doing out there, and he told me that he had been out there walking through the park. And I asked him what his reason for walking through the park was. And he said that he had no particular reason. I asked him how it was that he happened to hold up this soldier and had raped this girl and committed the other acts that have been testified to here. And he said ‘If I done anything like that, I don’t remember, I must have been drunk.’ I asked him ‘If you don’t remember holding up this man, what were you doing out there with a gun?’ And he said ‘I just carried that gun, I bought it Wednesday night.’ And I said ‘Where?’ He said ‘At Wool worth’s on Fillmore street.’ I asked him what his reason was for packing it out there. And he stated he could give no reason for having it there. I asked him why he bought the gun, and he said he bought the gun for his babies, that they usually celebrated the Easter holidays on a Saturday, and he was going to give the gun to his babies.’’ It was ascertained afterwards that his two children were aged respectively about eight months and a year and a half. The defendant refused to give a written statement.
At the trial, however, defendant denied ownership or any knowledge of the pistol, and denied having made the above statements to the police. He claimed that the first time he ever saw the pistol was at his hearing before the municipal court; furthermore, as stated, he denied having committed any of the criminal acts about which the girl and Lieutenant A had testified. His version in substance was as follows: He [25]*25stated that he lived on Webster Street and for about two years had worked on WPA jobs as tree topper in the Presidio. On the day in question he quit work at 4 o’clock in the afternoon, went home, got $10 and started drinking. After visiting several drinking places around Fillmore Street he bought a half pint of liquor and went to the Uptown Theater on the corner of Sutter and Steiner Streets; and after the show he bought and drank another half pint of liquor. He then went on to say that he was “feeling kind of bad” and took a street car to the beach; that he walked around for awhile and then sat down at a place near the tunnel; that after smoking a few cigarettes he decided to take a walk through the tunnel. He was wearing two pairs of pants, laced boots and rubbers. Continuing his testimony, he stated that after going through the tunnel he proceeded along a bridle trail and across a football field, then decided to walk “up the trail to go over to 43rd, to walk over to Geary Street and take a car”; that while walking along that trail he ran across Lieutenant A and Miss C engaged in an act of sexual intercourse; that Lieutenant A jumped up, began berating him and attempted to strike him; that he knocked the officer down several times, whereupon the officer summoned Lieutenant B, and that after the two had given him a severe beating, they took him to the police station.
On cross-examination he was asked when for the first time he ever told this story about having found this couple in a compromising position and he answered “In this court. . . . To-day,” and the cross-examination on that point continued as follows: “Q. You never told ..anyone before? A. No. Q. Never ? A. No. Q. You didn’t tell your attorney? A. Anymore than my attorney. Q. Then you did tell somebody before to-day? A. Previous to that. Q. When? A. When he came up to see me. Q. When? A. I don’t remember the date, when he came up to see me, I told him then. Q. When? A. I don’t remember the date. Q. You have no idea? A. When he came to see me. Q. A week ago or a month ago or what? A. I imagine it was a couple of weeks ago. Q. Well, did you talk to Inspector McMahon on that following Saturday and tell him about it? A. I didn’t talk to him.” Furthermore, in contradiction of other portions of his story, Inspector McMahon testified that there were no trails or paths of any kind within a radius of 100 feet or more of the spot where the defendant claimed he came upon the couple; and testimony [26]*26was given that on the night in question there was no odor of “alcohol or anything like that” on his breath. Prom the foregoing narration it will be seen that the record contains an overwhelming amount of substantial evidence establishing defendant’s guilt.
The defendant contends, however, that in any event none of the particular acts he is accused of having committed upon the person of the girl constituted rape or the crime of sex perversion as denounced by section 288a of the Penal Code. There is no merit in the contention.
As to the crime of rape the girl testified that she felt his private parts in her private parts. The crime was complete, therefore, the moment penetration occurred. (22 Cal. Jur. 361, § 6.) As to the element of violence, the girl testified in effect that the reason she did not offer greater resistance was that she believed he had a “real gun”; that she was afraid, and fearful of being shot, which was sufficient to establish the element of violence (People v. Bouquet, 30 Cal. App. (2d) 264 [86 P. (2d) 145]); and in view of the positive denial of defendant of any assault or attempted rape, the failure to instruct the jury on attempted rape, a lesser offense, in the absence of a request by the defendant for such an instruction, was not error. (People v. Louviere, 34 Cal. App. (2d) 62 [93 P. (2d) 179]; People v. Welsh, 7 Cal. (2d) 209 [60 P. (2d) 124]; People v. Dozier, 35 Cal. App. (2d) 49 [94 P. (2d) 598].)
Regarding the crime of sex perversion, the provisions of said section 288a declare that “. . . the act of copulating the mouth of one person with the sexual organ of another . . .” constitutes the crime. In thus defining the crime it was obviously the intention of the Legislature to include therein loathsome sexual acts of the kind here committed. Defendant argues, and in the brief of amicus curiae (which was filed herein after oral argument and subsequent to the original submission of the cause) it is contended, that in view of the decision rendered in People v. Angier, 44 Cal. App. (2d) 417 [112 P. (2d) 659], the crime of sex perversion as defined by said section 288a was not here committed. A mere glance at the facts of that case clearly shows, however, that there is no comparison whatever between the single act there committed on the seven-year-old girl, and the continuous act committed on the young lady here assaulted, for while the defendant in this case said he was merely going “to kiss” the girl between [27]*27the legs he went far beyond doing so. As stated, he placed his mouth against her sexual organ and kept it there for five or ten minutes. Therefore the jury was fully justified in finding therefrom, as a fact, that the crime of sex perversion as defined by the code section had been committed. Furthermore one of the two determining factors in the Angier case upon which the reversal therein was based was the absence of evidence to establish that the defendant’s mouth touched “the sexual organ” of the child, while here there is positive evidence that such was the case.
Defendant seems to contend also that the crime of sex perversion as denounced by said section 288a cannot be committed by two persons of the opposite sex. The following decisions answer this contention: People v. Briley, 9 Cal. App. (2d) 84 [48 P. (2d) 734] ; People v. Roveano, 130 Cal. App. 222 [19 P. (2d) 506]; People v. Miller, 27 Cal. App. (2d) 722 [81 P. (2d) 567] ; People v. Avanzi, 25 Cal. App. (2d) 301 [77 P. (2d) 237]; People v. Ralls, 21 Cal. App. (2d) 674 [70 P. (2d) 265]. These cases do not relate the details in the manner outlined in People v. Angier, supra, but the Angier case did not suggest that the crime could not be committed between a male and a female. The court there said, page 419: “. . . the legislature, in framing section 288a of the Penal Code, must have intended to punish only those who participate in an act whereby they are united or joined by the perverted act of one’s holding in his mouth the sexual organ of another for the purpose of gratifying their sexual desires.” Without analyzing all that was said in People v. Angier, supra, we have concluded that, assuming the correctness of the decision, the facts are so dissimilar as to be of no assistance to appellant. In People v. Avanzi, supra, page 302, the court said: “It is clear that no particular purpose, motive or intent is a necessary element of the crime described.”
In a prosecution for violation of section 288a, there is no requirement that the testimony of a complaining party should be corroborated except where the complainant is an accomplice ; that is, one liable for prosecution for the identical offense charged against the defendant. (Pen. Code, § 1111.) The evidence in the present case does not even suggest that the young woman was an accomplice. There is evidence to show that she submitted to defendant’s acts under threats and menace; that she had reasonable cause to and did believe that [28]*28her life would be endangered if she resisted. Under such circumstances she was not a participant in the crime. (Pen. Code, §26; People v. Solano, 48 Cal. App. (2d) 126 [119 P. (2d) 381].) There is evidence showing not only fear of the defendant, but of possible confederates, as the defendant warned, lurking in the shrubbery. Assuming the testimony of the young woman required corroboration, it appears in the testimony of Lieutenant A heretofore given.
On the charge of robbery, the facts that the perpetrator was unarmed, or, being armed, made no use of the weapon, do not necessarily establish that personal property was taken from the person of another without the use of force or fear. (Pen. Code, § 211.) The evidence in the present case is amply sufficient to uphold a conviction of robbery. Proof that a defendant was armed is required only to fix the degree of the crime. To fix it as of the first degree, it is not necessary that the weapon should be a deadly weapon, if, in fact, it is a “dangerous” weapon. (Pen. Code, § 211a.) Bobbery committed with an unloaded pistol may be robbery of the first degree. The pistol need not be used or intended to be used as a firearm. If it is capable of use as a club or as an instrument to produce bodily harm it may be classified as a “ dangerous” weapon. In People v. Egan, 77 Cal. App. 279, 284 [246 Pac. 337], the court said: “Appellant urges also that the evidence is insufficient to sustain a conviction of first degree robbery because it did not appear that the revolver used in the perpetration of the crime was loaded. In support of this point appellant cites the case of People v. Sylva, 143 Cal. 62 [76 Pac. 814]. That case is not in point, however, because it involved the construction of the term ‘deadly weapon’ as used in the code section defining the crime of assault with a deadly weapon (Pen. Code, § 245), which is a different term from the one employed in the code section defining first degree robbery. The latter section declares that ‘all robbery . . perpetrated ... by a person armed with a dangerous or deadly weapon is robbery of the first degree.' (Pen. Code, §211a.) (Italics ours.) It is a matter of common knowledge that in committing robbery pistols are frequently used as bludgeons rather than as firearms. The fact, therefore, that a person perpetrating such crime is armed with a pistol is enough to justify the conclusion that the pistol used by him is a ‘ dangerous’ weapon within the meaning of said section 211a of the Penal Code, even though it be not loaded. ” It is immaterial [29]*29whether such weapon is actually used. (People v. Raleigh, 128 Cal. App. 105 [16 P. (2d) 752]; People v. Hall, 105 Cal. App. 359 [287 Pac. 533].)
The pistol was introduced in evidence and exhibited to the jury. The officer who found it referred to it as “a nickel plated revolver ’ ’; and in asking Lieutenant A to identify it at the trial the prosecutor’s question was: 1 ‘Now, I will call your attention here to what I will refer to as an automatic pistol, that is to say I believe it is referred to as a toy pistol, it is marked ‘Army 45/ and I ask you if that resembles in size, shape and general appearance the gun that this man who came toward you had upon that particular night ? ’' and the witness replied: “It does.” If it was capable of being used as a deadly weapon “and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a ‘dangerous or deadly weapon’ may be thus established, at least for the purposes of that occasion.” (People v. Raleigh, supra, pp. 108-109.) Whether or not the pistol was a dangerous weapon is a question of fact to be decided exclusively by the jury. (Pen. Code, §§ 1126, 1127, 1439; People v. Raleigh, supra.) In People v. Cook, 15 Cal. (2d) 507 [102 P. (2d) 752], in discussing a certain weapon instrument “a piece of two by four about two feet long,” the court at page 517, said: “Therefore, under all the facts and circumstances of the instant case the questions of the nature of the weapon and the manner of its use in their relation to the crime committed were for the determination of the jury. ’ ’
Appellant specifies several instances wherein he claims the trial judge questioned him to his prejudice. These instances occurred during either the direct or cross-examination of the defendant and related primarily to the latter’s explanation of his admitted presence here and there in the park, wandering around for several hours preceding the occurrences herein, wearing rubbers and a pair of jeans over his trousers, when, as stated in his opening brief, after walking along the beach he decided to go home by taking “a short cut through the park to the street car.” In one instance the trial judge used the word “sneaking, ” but upon objection struck the word from the record and reframed the question. All questions propounded were judicial in purpose (People v. Patubo, 9 Cal. (2d) 537 [71 P. (2d) 270, 113 A. L. R. 1303]) and re[30]*30lated to matters upon which defendant had been interrogated by his counsel; they were questions that would have been proper if asked by either defendant’s counsel or the district attorney. (People v. Ramos, 3 Cal. (2d) 269 [44 P. (2d) 301].) “A trial judge certainly is authorized on cross-examination of a defendant to call his attention to apparently conflicting statements which he has made so as to give him an opportunity to explain or reconcile them if possible.” (People v. Butterfield, 40 Cal. App. (2d) 725, 731 [105 P. (2d) 628].)
Lieutenant B was called out of order by stipulation because he was “due to fly to-morrow.” Upon completion of his testimony the court said: “Yes, he may go on his trip and good luck to you. ’ ’ The conduct of the court is not comparable to that related in People v. Mahoney, 201 Cal. 618 [258 Pac. 607] and other cases cited by appellant. The conduct of the court in propounding questions or in his remark to the army officer was not prejudicial to the rights of the defendant. (People v. Briley, supra.) Moreover, at no time during the course of the trial did defendant assign as misconduct any question propounded or statement made by the court.
The second specification of misconduct is directed against the district attorney and grows out of the following incident, which took place shortly after beginning the defendant’s cross-examination: “Mr. Skillin [assistant district attorney]: Q. Now, you are quite certain you didn’t have on when you came home from work that afternoon, an old rusty looking pair of boots ? Mr. Young: If the court please, I am going to object to the manner of examining this witness, holding a paper up in front of the jury. If he is going to do that, let’s find out what the paper is. Mr. Skillin: Of course you know as well as I do I can’t call his wife as a witness against him. Mr. Young: I don’t know anything about that. I didn’t even know you had a statement from the wife. Mr. Skillin: I have got a statement from the wife, where she said he had an old rusty pair of boots on that laced up the front, when he came home, and he took them off and put . . . Mr. Young: Just a moment. I object to that and I assign it as prejudicial misconduct on the part of the district attorney. He knows that he can’t prove indirectly what he can’t do directly.”
It is suggested in one of the briefs that the district attorney was “waving” the paper in front of the jury. Prom the above quoted statement of defendant’s counsel the record shows that the district attorney was “holding” the paper. [31]*31It is proper to use a statement, notes or memoranda while examining a witness and, under the circumstances of this case, the district attorney would have been justified in refusing to show or to accede to defendant’s counsel’s request: . . let’s find out what the paper is.” (People v. Bermijo, 2 Cal. (2d) 270 [40 P. (2d) 823]; People v. Singh, 136 Cal. App. 233 [28 P. (2d) 416].) The reply of the district attorney was invited and to that extent justifiable, but in the determination of the guilt or innocence of an accused it is not the technical privileges accorded one side or the other in the trial of the case, but rather, whether an accused has been afforded a fair trial. The statement of the district attorney related to the clothing worn by defendant at the time he re-turned home from work in the late afternoon preceding the evening during which the crimes were committed. It was not vital to the establishment of the guilt of the defendant to show any particular pair of shoes he wore at the time of the commission of the offenses. There is no question here of a case of mistaken identity. On the contrary, the defendant admits his presence at the scene and his meeting with Lieutenant A and the girl, Miss C. Whether he wore new or old boots is of no consequence in view of the uncontroverted testimony that he wore rubbers. There is no denial that he wore extra trousers, which would act as a protection to inner garments in passing through the shrubbery, and rubbers, which would tend to conceal his approach. It is true that defendant explained he was a “tree topper” and that the clothes were those usually worn by one of his calling, but the use of the clothing was nevertheless a settled matter. The “jeans” and the “black rubbers” were admittedly worn by defendant. Any inference that might be drawn from the fact of the appearance of a “tree topper” just before midnight in this particular spot in the park under all the circumstances of this case was a matter entirely within the province of the jury. The changing of the boots, if it did occur, would play little if any part in the determination of the guilt or innocence of the defendant. The effect of the remark of the district attorney, considered in the aspect most favorable to defendant, would simply be that defendant’s wife at some time, after the occurrences of the evening in question, had stated, not under oath, that the defendant had changed his shoes in the early part of the evening. The jury was instructed: “. . . that you and you alone determine the facts of the case, and determine the facts from [32]*32the testimony of the witnesses here on the witness stand . . .” “. . . please bear in mind that statements of counsel in this case are not evidence in the case.”
The suggestion is made by amicus curiae that the incident mentioned operated to defendant’s prejudice in that the statement of defendant’s wife to which the prosecutor referred was one tending to impeach the defendant’s testimony. However, as pointed out in the brief filed by respondent in reply to amicus curiae, the credibility of the defendant as a witness already had been and was thereafter in a large measure impeached by much competent evidence including his own cross-examination and the testimony of at least four other witnesses on material points. Such being the case, and keeping in mind that it was quite immaterial so far as the question of defendant’s guilt was concerned whether he was wearing old or new boots, there can be no force whatever in the contention that had it not been for the disclosure by the prosecutor of the contents of said paper the jury might not have found the defendant guilty.
Throughout this appeal respondent has contended that the incident above mentioned did not constitute prejudicial misconduct. At the time of oral argument in response to questions propounded to him, counsel for respondent stated in effect that although counsel for defendant had invited the prosecutor to divulge the contents of the paper he was then holding, it was improper for the prosecutor so to do because the paper was not in evidence. However, respondent has consistently maintained that the incident complained of falls far short of calling for a reversal of the judgment of conviction; and we are in complete accord with that view.
Some questions not suggested by appellant relative to other instructions is raised by amicus curiae. Ignoring the general rule that it is not within the province of those specially permitted to appear to raise new objections, in the interest of justice the instructions have been examined and it is sufficient to say that when read together they stated the law correctly and, as applied to the facts of this case, contained no statement that was legally unjust or unfair.
Appellant’s contention that the evidence of the state is "inherently improbable” is not based upon the fact that the designated crimes could not have been committed at the time and place alleged, but that the witnesses for the People have been guilty of a complete fabrication. Appellant does not [33]*33stop at the suggestion of a “seduction,” but boldly states that there was a “voluntary intercourse” between Lieutenant A and Miss C. All the evidence is directly to the contrary. Lieutenant A testified that he did not have, nor did he attempt to have, sexual intercourse with the young girl at the time in question. It was stipulated that Miss C if called would testify to the same effect. In this connection, there is, as already mentioned, testimony by the appellant that he never made such an accusation against the young couple following his arrest; that he told it for the first time “when he [his attorney] came to see me.” Appellant’s opinion as expressed in one of his briefs of the “usual . . . occurrence when a young army officer . . . and a comely young lady” are together in “a secluded spot. If the intercourse did not follow, that would be improbable” is a forced argument that might perhaps mislead a jury but not a reviewing court. Appellant proceeds further and argues that Lieutenant A was guilty of a statutory rape and that to protect his reputation the witnesses concocted the story related under oath. We need not return to the unsavory and nauseating story of the evening’s events, but simply call attention to the articles found at the scene of the crime by the civil authorities, and the statement of the defendant on the day following the commission of the offense, when accused of the crimes-. “If I done anything like that, I don’t remember, I must have been drunk.” (People v. Russell, 34 Cal. App. (2d) 665 [94 P. (2d) 400].) It is noteworthy that the record does not disclose that defendant ever emphatically denied the commission of these offenses until after he had talked with his attorney.
Nowhere throughout the ease is there any evidence even suggesting that these young people could have been actuated by some wrongful, hidden motive in accusing a man they had never seen before, of loathsome, heinous crimes he did not commit. Certainly there was nothing to be gained by their so doing; and it is utterly unbelievable that, if the defendant were innocent, they would think of subjecting this young lady, not yet out of high school and against whose character not a word of disparaging testimony was offered, to the humiliating ordeal of a public trial as the victim of sex crimes of a perverted nature, and of perjuring themselves to obtain a conviction.
Evidence which seems unusual is not necessarily improb[34]*34able. (People v. Headlee, 18 Cal. (2d) 266 [115 P. (2d) 427].) In reviewing facts an appellate court is limited to the determination of the question—is there substantial evidence to support the judgment? (People v. Braun, 14 Cal. (2d) 1 [92 P. (2d) 402].) Discrepancies in testimony, if any there be, the uncertainty of witnesses in giving the result of their observations or their recollection of oral statements, and the nature and character of an exhibit introduced in evidence are questions solely for the determination of the jury. (People v. Farrington, 213 Cal. 459 [2 P. (2d) 814] ; People v. Mitchell, 61 Cal. App. 569 [215 Pac. 117]; People v. Collier, 111 Cal. App. 215 [295 Pac. 898] ; People v. Raleigh, supra; People v. Cook, supra.)
One further contention should be mentioned. Throughout the briefs the fact that appellant is a negro is stressed. In only one instance did the district attorney refer to the color of the defendant and that in reference to the exact period when it was discovered during the events of the evening that appellant was a colored man. The record does not disclose that any prejudice existed by reason of defendant’s color. All citizens should be treated equally, but the briefs filed by appellant indicate a claim that by reason of his color appellant should receive more favorable consideration than should a white person. The colored race, as a body, however, seeks only a fair and impartial trial for any accused, and this was in fact accorded appellant.
The judgments and the orders denying the motions for a new trial in the three convictions are and each of them is affirmed.
Knight, J., concurred.