Warren

Defendant was charged with a violation of Penal Code section 244, assault with a caustic chemical. The information also alleged two prior felony convictions, felonious assault and violation of Penal Code, section 447a. Defendant pleaded not guilty and denied the prior convictions. Trial was by the court and by stipulation the cause was submitted upon the proceedings had at the preliminary hearing. The court found defendant guilty of assault by means of force likely to produce great bodily injury in violation of Penal Code section 245, an offense which the court found to be a lesser and necessarily included offense within the offense originally charged. The prior felonious assault conviction was stricken on motion of the People and no finding was made by the court on the second alleged prior conviction. Probation was denied and defendant was sentenced to the state prison for the term prescribed by law. Defendant appeals from the judgment of conviction.

On the afternoon of September 6, 1962, Worth Moore (the victim), was standing with several other men in front of the Irish Café, which is located in Los Angeles. As defendant approached Moore from the rear, he “pulled back” Moore’s…