delivered the opinion of the court:
Arthur Walden, Jr., was convicted of the crime of rape in the circuit court of Winnebago County and a writ of error has been issued to review the judgment of conviction.
It is first urged that the evidence was insufficient to establish defendant’s guilt. The prosecutrix testified that the defendant entered her hotel room, grabbed her by the throat and threatened to kill her and forced her to submit to sexual intercourse. She escaped from the room, ran tо the head of the stairs and called for help and some men downstairs heard her cries and called the police. The defendant had еscaped before the police arrived. The prosecutrix further testified that she noticed that her purse, which contained some mоney, was missing. Counsel for the defendant objected to the testimony concerning the missing purse and money and the court ruled that the objection was sustained unless the prosecutor could connect up the pocketbook with the defendant to show that the defendant was in the room. Thе court stated in the presence of the jury that the only purpose of the evidence was to show defendant’s presence in the roоm and not to show any other crime. Other witnesses testified that after the assault they had seen the prosecutrix and noticed that her bed and her slip were soiled with blood. The police officer who arrested defendant testified that when defendant was arrested he first denied being in the hotеl but later admitted that he had been in the barroom but still denied that he had been in the prosecutrix’s room. Another police officer testified thаt he had questioned the defendant following his arrest and that the defendant first denied being in the hotel but later admitted that he had been there and admittеd that he had had intercourse with the prosecutrix. This officer testified that defendant told him that the act of intercourse was with the consent of thе prosecutrix and that he had paid her $5. The officer also testified that defendant’s trousers and underclothing were stained with a substance which lоoked like blood. The slip which the prosecutrix had worn at the time of the assault was admitted in evidence and defendant’s clothing was likewise admitted.
For the defense the police magistrate who had issued the warrant for defendant’s arrest testified that the complaint which was signed by the prosecutrix alleged that the defendant had attempted to commit rape. Another witness testified that the defendant was in the barroom of thе hotel several hours before the occurrence in question and that he did not know where the defendant went after that. The defendant testifiеd in his own defense and admitted having intercourse with the prosecutrix but claimed that he had paid her and that the act was done with her consent.
Defendant contends that this evidence fails to establish that the intercourse was without the consent of the prosecutrix. Defendant’s contention cannot be sustained. The testimony of the prosecutrix that the defendant forced her to submit to the act of intercourse is corroborаted by her cries for help and by the evidence of the blood-stained garments;' Opposed to this evidence is only the testimony of the defendant that the act was done with the consent of the prosecutrix. In such a situation, where the evidence is conflicting, the credibility of the witnesses is а matter for the jury to determine. We are of the opinion that the evidence was sufficient to establish defendant’s guilt beyond a reasonablе doubt. Defendant also contends that the prosecution failed to prove that the defendant was not married to the complaining witness. Wе held in People v. Hornaday,
Defendant also alleges that the court improperly admitted evidence of other crimes, referring to the testimony of the prosecutrix that her purse and money were missing. The court stated in the presence of the jury that this evidence was admitted only for the purpose оf showing the defendant’s presence in the room and not to show the commission of another crime. There was never any connection еstablished between the purse and the defendant and the purse and money were not admitted in evidence. We are of,the opinion that this testimony did not constitute reversible error.
Defendant also complains of the argument of the prosecuting attorney. However, this argument was nоt reported or transcribed and, therefore, does not appear in the • record. , We are, therefore, unable to consider thе assignments of error with respect to the alleged prejudicial argument.
Defendant contends that the exhibition of the bloody garments before the jury was prejudicial. The record shows that while one of the witnesses who had seen the prosecutrix after the attack was identifying the bloоd-stained slip, the court said, “You don’t show that anymore. You have had it up there seven times now.” The garment was admissible in evidence as tending to prove the element of force. The trial judge restricted the prosecuting attorney from further exhibitions and we are unable to say from the rеcord before us that the acts of the prosecuting attorney in exhibiting it to the jury before this admonition by the court constituted prejudicial error.
Defendant also contends that the court erred in refusing an instruction to the effect that if the jury found that the act of intercourse was with the consent of the prosecutrix the jury should find the defendant not guilty. While the rule of law stated in the instruction was correct and was applicable to the case, we find that substantially the same principle was set forth in another instruction which was given. The court therefore, did not err in refusing the instruction.
Defendant claims that he was not given sufficient time to prepare a defense. The record shows that the defendant was arraigned on July 5. On July 8, cоunsel was appointed. On July 10, a motion to quash the indictment was heard and denied and defendant entered a plea of not guilty. The case wаs set for trial on July 15. On that date counsel for the defendant moved for a continuance and the case was continued until July 19, on which date the сase proceeded to trial. No further motion for a continuance was made. In view of the fact that defendant’s motion was allowеd and no further motion for a continuance was made, we find no merit in defendant’s contention that he was not given a sufficient time to prepаre his defense.
We have carefully considered the many assignments of error advanced by the defendant and are of the opinion that thе evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt and that he received a fair and impartial trial. The judgment of the circuit court of Winnebago County is affirmed.
Judgment affirmed.