Birch

Statement of the Case

Defendant was charged by amended information with the crime of assault with a deadly weapon with intent to commit murder in two counts. Count I charged an assault against the person of Rex Council. Count II charged an assault upon the person of Roderick] Ferguson. It was further alleged that the defendant had suffered a prior conviction of murder in the State of Texas in 1949. Upon arraignment the defendant entered a plea of not guilty and admitted the truth of the allegation of prior conviction. Upon trial by jury the defendant was found guilty of assault with a deadly weapon upon both counts, a lesser but necessarily included offense within those charged, and not guilty of assault with intent to commit murder. A probation officer’s report was ordered. On the day set for hearing the matter of probation, the motion for a new trial was denied and the matter was referred to the Director of Corrections for review regarding placement for diagnosis and treatment pursuant to section 1203.03, Penal Code. Upon return and report from the Director of Corrections, probation was denied and the defendant was sentenced to state prison on both counts, the…