Whearty

In an information filed by the district attorney of Los Angeles County defendants were accused of violating section 245 of the Penal Code in that on or about February 13, 1958, they committed an assault upon Harold James Schlarman by means of force likely to produce great bodily injury. Trial by jury was duly waived and the cause submitted on the transcript of the testimony adduced at the preliminary examination, with each side reserving the right to offer additional evidence. No additional testimony was offered, and after reading and considering the aforesaid transcript, the court adjudged each defendant guilty of simple assault, a lesser and necessarily included offense in that charged. Defendant Whearty was denied probation and sentenced to serve a term of 30 days in the Los Angeles County jail. Defendant Dawson was sentenced to serve a term of six months in the Los Angeles County jail. Execution thereof was suspended and conditional probation granted him. From the judgment of conviction and “probation and sentence” each defendant prosecutes this appeal. Since defendant Whearty was denied probation, his attempted appeal from such an order must be dismissed (Pen. Code, § 1237)…