People v. Greenwood

SPENCE, J.

Defendant was charged with assault by means of force likely to produce great bodily injury, a felony, committed on the person of Raymond James on or about November 11, 1955. (Pen. Code, § 245.) After a plea of not guilty, defendant waived a jury trial, and it was stipulated that the cause be submitted on the testimony taken at the preliminary hearing, with each side reserving the right to submit further evidence. Both sides introduced additional testimony and defendant testified in his own behalf. He was found guilty as charged. Following the denial of his application for probation and his motion for a new trial, defendant was sentenced to a term of six months in the county jail. He appeals from the judgment and from the order denying the motion for a new trial.

Defendant’s sole contention on this appeal is that the trial court abused its discretion in denying his motion for a new trial, which motion was based upon the ground of allegedly newly discovered evidence. (Pen. Code, § 1181, subd. 8.) After a review of the record, however, we have concluded that defendant’s contention cannot be sustained.

The evidence shows that on the night of November 11, 1955, between 10 and 11 o’clock, the complaining witness James, who operated a shoe shine stand on Central Avenue, in the city of Los Angeles, was struck on the head and arm with a shoe shine form. James and a bystander who saw the assault testified that defendant was the assailant. Defendant had previously owned the shoe shine stand, at which time James had asked for a job there but defendant had told James that he could not afford a helper.

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Defendant denied the assault. He testified that he was at home asleep at the time of the alleged offense, and he produced two witnesses to support his alibi. Defendant also called William J. Hartwell, who testified that he was near the scene of the assault at the time it occurred, that he saw somebody run by him, but that defendant was not the man.

Upon this conflicting evidence, the trial court found defendant guilty. Defendant then moved for a new trial on the ground of newly discovered evidence. (Pen. Code, § 1181, subd. 8.) That section provides: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: . . . 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. ...”