Olivas

This is anappeal “from an order denying a motion for a new trial. ’ ’

In an indictment returned in Los Angeles County appellant was charged with selling heroin on August 8, 1961. It was further charged that appellant had previously been convicted of two felonies (rape and pimping) and had been convicted (and had served a sentence) on one charge of violating section 11500, Health and Safety Code (possession of narcotics). Appellant pleaded not guilty and ultimately admitted the prior felony charges of rape and pimping. The court found the charge of the prior narcotics activity to be true. After a jury trial appellant was found guilty as charged. A motion for a new trial was denied and, as above indicated, the appeal is from the order of denial. Such an order is not appealable under the provisions of Penal Code section 1237, subdivisions 1 and 2; however inasmuch as appellant filed his own notice of appeal we are inclined presently to interpret liberally the notice of appeal and we have dealt with it as if it were a notice of appeal from the judgment.

A résumé of some of the evidence as disclosed by the testimony is as follows: at about 5 p.m. on August 8, 1961, Milton Reade, an…