Clayton

Defendants Rust and Clayton were charged with robbery from O. H. Deeper while they were armed with a deadly weapon. A jury found them guilty of robbery in the second degree, that is, of taking property from the person or immediate presence of the possessor by means of force or fear but without being armed with a dangerous or deadly weapon. Defendants appeal.

Viewed most favorably to the prosecution, the evidence shows the following: Mr. and Mrs. O. H. Leeper operated an automobile service station in the City of Bipon. On May 14, 1962, at about 5 p.m. defendant Bust drove his automobile into the service station. Clayton and an unidentified third man were passengers in the ear. Leeper waited on them. Bust asked for $1.00 worth of gas. Bust got out of his vehicle and entered the station. He found Mrs. Leeper inside. On Mr. Leeper’s instruction, he paid her $1.00 for the gas. The three men then left.

Shortly thereafter Mrs. Leeper left the station. Bust and his two passengers returned in the same vehicle 15 to 20 minutes later and ordered another $1.00 worth of gasoline. Clayton got out of the car, followed Leeper into the station, ordered Leeper to give him all the money in the…