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District Court of Appeal, Second District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Willie GREENWOOD, Defendant and Appellant.*

Cr. 5656.

Decided: August 28, 1956

Melvin Simon, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., James L. Mamakos, Deputy Atty. Gen., for respondent.

As recited in appellant's brief, ‘The defendant and appellant, Willie Greenwood, was charged in an information filed by the District Attorney of Los Angeles County with a violation of Section 245 of the Penal Code, (Assault by Means of Force Likely to Produce Great Bodily Injury). After a plea of not guilty, the appellant duly waived a trial by jury and it was stipulated to submit the cause on the testimony taken at the preliminary hearing, and each side reserving the right to submit further evidence. After the trial by the Court, appellant was found guilty as charged in the information. His application for probation, and his motion for a new trial being denied, appellant was sentenced to a term of six months in the county jail. This appeal is from the judgment and from the order denying the motion for a new trial.

‘The evidence indicates that on the night of November 11th, 1955, between the hours of 10:00 and 11:00 P.M., the complaining witness, Raymond James, who operated a shoe shine stand on Central Avenue, in the City of Los Angeles, was struck on the head and arm with a shoe shine form. He stated that the defendant Willie Greenwood struck him. This testimony was corroborated by the prosecution witness, William Simmons.

‘The defendant Greenwood denied the assault on James and testified that he was at home asleep at the time of the alleged offense. He produced two witnesses to support his alibi. The defendant's witness Kinion testified that immediately after the assault he was the complaining witness sitting in a chair.

‘He testified as follows:

“Q. Did you notice some incident that happened around the 3400 block on South Central, at the shoe shine stand? I did.

“Did you see somebody strike a man? No, I didn't see him strike him.

“What did you see? Well, when I got up to the scene, the guy was sitting in the chair and he was bleeding. So I walked in and I asked him what happened; and he said somebody hit him; and I said, ‘Who’? and he said, ‘I don't know.”

‘The defendant's witness, William J. Hartweel, stated that he was in the vicinity of the shoe shine place on the night of the assault and he saw a man running from the the scene of the assault and the defendant Greenwood was not the man.

‘On this conflicting evidence, the trial court found the appellant guilty.

‘On the hearing of the defendant's motion for a new trial, there was filed with the Court an affidavit of William J. Hartwell who had testified for the defendant on the trial. In said affidavit, the affiant Hartwell confessed to the assault on the complaining witness, and in said affidavit stated that Greenwood was not at the scene of the crime. His affidavit reads as follows:

“I William J. Hartwell confess to hitting Raymond James on the night of Nov. 11th. That he accused Willie Greenwood. Willie Greenwood is innocent an knows nothing what so ever about anything that happen on the night of Nov. 11th Because he wasn't on the scene.

“William J. Hartwell

“Sign ________”

Appellant summarizes the record and the law correctly. As recited in appellant's brief, ‘The sole ground urged on this appeal is that the trial court erred and abused its discretion in denying the defendant's motion for a new trial.

‘The state of the evidence is such that where there is a conflict in the evidence, the rule is that a finding of guilt is supported by the evidence. However, on a motion for a new trial, the trial court has the duty to re-examine the evidence and reconsider the credibility of the witnesses. If the affidavit of William J. Hartwell is true, then the defendant could not have committed the offense. * * * If this affidavit containing a confession by Hartwell was true, then the trial court erred in not granting a new trial, for on a new trial the result would have been different. A compelling reason why Hartwell's affidavit contained the truth is that when he made the same he was not charged with the offense nor prosecuted therefor. Another compelling reason why his affidavit should be given credence is that it was voluntarily made, and it subjected him to be charged with the offense of which the defendant was found guilty, and also with the crime of perjury for testifying falsely as a witness for the defendant.

‘The case at bar is factually similar to People v. Shepherd, 14 Cal.App.2d 513 [58 P.2d 970]. In the Shepherd case the order denying the defendant's motion for a new trial was reversed, wherein this Court speaking through the Honorable Justice White, said:

“The question as to the effect upon the case of the newly discovered evidence is from its nature peculiarly one that is addressed to the discretion of the trial court, and, of course, should be determined by that court with a full realization of the responsibility involved; and the motion should undoubtedly be granted where the showing is such as to make it apparent to the trial court that the defendant has, without fault on his part, not had a fair trial on the merits, and that by reason of the newly discovered evidence the result would probably be, or should be, different on a retrial.”

Respondent's reference to Section 4 1/2 is beside the issue. See People v. Davis, 210 Cal. 540, 293 P. 32; People v. O'Bryan, 165 Cal. 55, 130 P. 1042.

The judgment and order are reversed.

DORAN, Justice.

WHITE, P. J., and FOURT, J., concur.

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