Mathews

Defendant above named was found guilty by a jury of the crime of assault with a deadly weapon with intent to commit murder. His motion for a new trial was denied and judgment was pronounced. He has appealed from the judgment and from the order denying his motion for a new trial.

Appellant urges a number of grounds for the reversal of the judgment and order, but before discussing them we shall give a brief summary of the evidence as shown by the record.

At the time of the alleged assault, Mathews, a resident of Nevada, was an unemployed “pit boss” and an unpaid deputy sheriff in certain counties in Nevada. On December 15, 1957, he was returning from Sacramento to his home in Reno. He stopped in Placerville where he had some drinks. At Lindy’s Bat about 4 p. m. he began a conversation about narcotics w^th William Grissom. After about an hour, and after the bartender refused the two men further service, they visited another bar and then, in Mathews’ car, drove about 8 miles before stopping at the Bight Mile House where each had one drink. After they were refused further service they again drove a short distance and stopped at a restaurant where they ate. They then drove to Pollock…