Gaeta

The appellant was convicted of the crime of assault by means of force likely to produce great bodily injury (Pen. Code, § 245), in a trial by the court without a jury, a trial by jury having been waived. He appeals from the judgment of conviction and from the order denying his motion for a new trial.*

The appellant states his contention as follows: “The court *831 erred in finding that appellant did not act in self defense at the time of the alleged violation of Penal Code, section 245 and that the force used by appellant was excessive so as to constitute a violation of Penal Code, section 245—assault by means of force likely to produce great bodily injury.” Accordingly, the evidence will be summarized.

The evidence of the prosecution was that on the early morning of October 25, 1958, William V. Jordan, Maurice B. Quigley and Mary Paul left a restaurant on Olvera Street in Los Angeles and proceeded to the place where their automobile was parked. As Mr. Jordan was walking along, he was hit over the head by a bottle and was knocked unconscious. He suffered a skull fracture and his right eye was later removed by surgery. While neither he nor Mr. Quigley saw the person who struck…