Yeats

The defendant was convicted by a jury of assault by means of force likely to produce great bodily injury. (Pen. Code, § 245.) He appeals from the ensuing judgment (state prison sentence). (Pen. Code, § 1237.) The main issue presented is whether the crime of battery (Pen. Code, § 242) is included within the offense charged (Pen. Code, § 245). Although the issue is not one of first impression, there is a conflict in the authorities which we hope may finally be laid to rest.

Defendant had been living with Pauline. One evening he became angry and began to beat her with an 18-inch length of lead pipe. She suffered numerous injuries, including two broken arms, a broken wrist, and a broken finger. One ear was nearly tom off. One of Pauline’s legs was so severely bruised that, had it not been treated, amputation might have been required. The beating lasted for one or two hours. Defendant completely denied that he had beaten Pauline.

A jury instruction on the offense of battery was requested by defendant but refused by the trial judge. Defendant asserts that this constituted prejudicial error because battery was an included offense.

A trial court must instruct the jury on…