Kimmerle

The defendant was charged in an information filed by the district attorney with two offenses, the first count alleging the crime of assault by means or force likely to produce great bodily injury, and the second count charging the offense of mayhem. The jury returned a verdict of not guilty of mayhem and found the defendant guilty of the offense first charged. This appeal is prosecuted by defendant from the judgment pronounced upon the verdict and from the order denying his motion for a new trial.

The first count details that the defendant “did wilfully, unlawfully and feloniously and forcibly strike, beat and bruise one Arthur M. Loeb about and upon the eye and head of him, the said Arthur M. Loeb, with the fists and hands of him, the said H. J. Kimmerle, with all the force and violence that he, the said defendant, was then and there able to exercise and which said striking and beating and bruising did then and there cause a fracture of the left cheek bone of the said Arthur M. Loeb, together with other grievous bodily injuries, and which said striking, beating and bruising was by means likely to and did produce great bodily injury to the said Arthur M. Loeb.” Count two charges…