Deerman

The appellant and a codefendant by an information were charged in Count One with armed robbery, a violation of Penal Code, section 211; and in Count Two with assault with a deadly weapon, a violation of Penal Code, section 245. Both defendants pleaded not guilty to each count and were tried by a jury. They were acquitted as to Count *809 One, but the jury failed to agree on Count Two. This appeal is from the judgment pursuant to a verdict of guilty on a retrial of Count Number Two.

The facts disclose that appellant, his codefendant, and one Joseph V. Bradley had met on the afternoon of December 22, 1957. They did some drinking and decided to drive to a tavern several miles distant, where dancing was permitted. The wife of appellant accompanied them. After considerable drinking, talking, and some dancing the four started home. Appellant drove the car and his wife sat beside him on the front seat. The codefendant sat in the back seat with Bradley. The evidence concerning what happened when the car reached a secluded spot a short distance from the tavern is conflicting to say the least. There is no question but that a knife was drawn and Bradley gave his wallet to appellant who…