People v. Hartshorn

NOURSE, P. J.

The defendant was tried by a jury upon an information framed in three separate counts charging a violation of sections 220 and 288 of the Penal Code, and section 702 of the Welfare and Institutions Code. He was convicted on count one, acquitted on count three, and acquitted under special instructions on count two. A motion for probation was granted on condition that he serve six months in the county jail and pay a fine of $250. He appeals from the judgment and the order denying his motion for a new trial.

As no sentence was imposed upon the verdict there is no judgment to appeal from, and hence the attempted appeal from the judgment must be dismissed.

(In re Phillips,

17 Cal.2d 55, 58 [109 P.2d 344] ;

People

v.

Guerrero,

22 Cal. 2d 183, 184 [137 P.2d 21].)

Treating the arguments made in appellant’s brief as addressed to the appeal from the order denying a new trial, we find two points raised—that the acquittal upon counts two and three is inconsistent with the verdict of conviction on count one, and hence the latter is void; that the trial court committed error in the course of the instruction relating to count two.

The facts as testified to by the prosecutrix and other witnesses are: Defendant and his wife left their house early in the evening to attend a party and engaged the prosecutrix, a girl of 13 years, to stay with their two infant children. Defendant left his wife at the party and returned to his home at about 4:00 a. m. He entered the bedroom where the prosecutrix was sleeping with the two children, removed his clothes, and got into bed with her. He removed some of her clothing and endeavored to quiet her by placing his hand upon her throat. The screams of the girl attracted the attention of neighbors whose bedroom windows overlooked, and were in close proximity to, the room in which the defendant and the girl were struggling. One of these neighbors rapped on the window pane; called to the defendant to desist,' and then summoned the police. The defendant then put in his own call for the police; donned his clothes and was at his doorstep to greet the officers when they arrived. This testimony was

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