Craig

The defendant and one Charles Mack were jointly accused by information of the crime of assault with a deadly weapon with intent to commit murder. Upon a separate trial defendant was convicted of the crime of assault with a deadly weapon. He appealed from the judgment and from an order denying his motion for a new trial to the district court of appeal, where, by reason of a difference of opinion among the judges, there was a failure to decide the cause, and it has accordingly been transferred to this -court for hearing and' decision.

There is an objection by the attorney-general to any consideration of the appeal from the order, upon the ground that it does not appear from the bill of exceptions that any motion for a new trial was made.

The objection seems to be well founded, according to the decision of this court in People v. Ruiz, 144 Cal. 251 , [ 77 Pac. 907 ], and that of the district court of appeal in People v. Frank, 2 Cal. App. 283, [ 83 Pac. 578 ], but in this case it is of no practical consequence whether the objection be sustained or not, since every assignment of error urged by counsel for appellant is reviewable on the appeal from the judgment. Such facts as are…