People v. Hinshaw

LAWLOR, J.

This is an appeal from a judgment of conviction under section 245 of the Penal Code and from an order denying defendant’s motion for a new trial. Probably the inclusion in the notice of appeal of “all other orders . . . denying and overruling the various applications of the defendant ...” has reference to the orders denying the motion to set aside the amended information, disallowing the demurrer, and denying the motion in arrest of judgment, none of which is appealable. They will, however, be reviewed on the appeal from the judgment.

At the time of the trouble out of which the charge grew, the complaining witness, Bobert Bitter, and the defendant were rival newsboys in the city of Los Angeles. Bitter was

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selling the “Los Angeles Herald” and the defendant the “Los Angeles Express.” At the time of the alleged assault they were selling papers at the comer of Fifth and Hill Streets. One Isidore Gralla was also a newsboy. Before selling the “Express” in Los Angeles he attended a college in Berkeley and sold newspapers in Oakland. It was during this period that he met the defendant. While in Los Angeles he handled at Fifth and. Hill Streets three papers, including the “Herald” and the “Express,” and remained there until within two weeks of the alleged assault, when he established himself at Seventh and Alvarado Streets and employed the defendant to sell papers at Fifth and Hill Streets for the purpose “of helping push the sales of the ‘Express’ particularly.” Gralla testified that “the ‘Express’ sort of guaranteed me to make up for what I lost getting those ‘Heralds,’ for this reason: If I would give them a little special representation there on the ‘Express’; but they didn’t really hire me.” The people claimed that the defendant was under engagement with Gralla to get Bitter off of the corner of Fifth and Hill Streets within a week and that the week had not expired when Bitter was injured. A further statement of the facts of the case will later appear in a review of the evidence.

The defendant was arraigned upon the charge and following the interposition and denial of a motion to set aside the amended information and the filing and disallowance of a demurrer he pleaded not guilty. Upon the trial the following verdict was rendered: “We, the jury in the above-entitled action, find the defendant guilty of assault by means and force likely to produce great bodily injury, a felony, as charged in the information.” In due course, the defendant was arraigned for judgment and motions for a new trial and arrest of judgment were respectively interposed and denied; whereupon, the defendant was sentenced to serve a term prescribed by law in the penitentiary at San Quentin.