Jones

A jury found the appellant guilty of assault by means of force likely to produce great bodily injury (Pen. Code, § 245). He was found not guilty on charges of (1) assault with a deadly weapon, to wit, an iron bar, and (2) possession of a deadly weapon, to wit, a billy. The appellant appeals from the judgment sentencing him to prison. As grounds for appeal, he urges misconduct of the deputy district attorney in his closing argument, and the aggravation of such misconduct by an alleged prejudicial statement of a prosecution witness. He contends that the combined effect of the misconduct and of the prejudicial statement deprived him of a fair trial in violation of his constitutional rights. Appellant does not question the sufficiency of the evidence to sustain the conviction, other than to contend that but for the alleged misconduct of the prosecutor he might only have been convicted of simple assault. To dispute the sufficiency of the evidence would be futile in light of the undisputed testimony describing the totally unprovoked and vicious attack by the appellant.

The appellant and Richard Yegan were strangers to each other, except for a few words about motorcycles at a…