Costa

In a jury trial defendant Costa was convicted of first degree robbery. He appeals from the judgment, and from the order denying his motion for a new trial. Such an order is not appealable.

Appellant contends that the court erred in failing to give certain instructions regarding circumstantial evidence, included lesser offense, self-defense, and a dangerous weapon.

Mr. Johnson (the victim) was playing cards at the Embassy Club in Gardena from 10 p.m. on March 3, 1961, to approximately 2 a.m. on March 4, except that on two or three occasions during that time he went into a nearby bar and had four or five drinks of liquor. While he was playing cards, he first saw defendant who was then standing outside the rail watching the game. About 1:30 or 2 a.m., while Johnson and defendant were in the bar, Johnson asked defendant whether he might ride with defendant toward town—to Manchester Avenue or Florence Avenue, where he would get out of the car and catch the bus. After they entered defendant's car about 2 a.m., defendant drove north on Vermont Avenue and then turned onto the Harbor Freeway. Johnson, who sat in the right front seat, had $74 on his person. When they came to Manchester…