Hartshorn

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…