Gaines

Defendant appeals from a conviction of assault upon a police officer with a deadly weapon in violation of section 245, subdivision (b), of the Penal Code, and battery in violation of section 242, a lesser and included offense within section 245, subdivision (a), of the Penal Code. He was also charged with one prior conviction of felony, which he admitted.

On December 7, 1965, the defendant picked up his wife Mabel near the bus station in Ceres. Defendant had been drinking with a friend before he met his wife, and afterward both he and his wife visited a cocktail lounge in Stockton. From there they went to the home of Mabel’s parents (the Bragers) where they began to argue. Defendant wanted to leave with his wife but she did not want to go. Finally, he forced her to leave, but not before she asked her sister to call the police. At the car defendant opened the door and pushed Mabel in from the driver’s side. Mabel refused to pull her feet into the car, whereupon defendant struck her in the face with his fist, knocking her down on the front seat. As Mabel was lying on the front seat defendant again struck her in the face with his fist.

Officer MeCown of the Ceres Police Department,…