Benton

Appellant was convicted of the crime of robbery in the first degree, by a jury, and now appeals from the judgment of conviction and order denying a motion for new trial.

On September 19, 1938, appellant, his half-brother Ralph Benton, and one John Suttle, drove to the city of Modesto, in an automobile. They stopped near a Safeway store at approximately 4:30 o’clock in the afternoon, entered the store, and bought some coca cola. They stayed in the store from about twenty to twenty-five minutes, and then left the premises, entered their automobile, and drove around a few blocks. After an interval of several hours they again parked their automobile near the store. Defendant and John Suttle got out of the automobile. The latter returned to the store, and his testimony at the trial indicates just what he did: “ I went up to the store and knocked on the door, and the clerk come to the door and asked me what I wanted, and I told him a coca cola. He opened the door and I went in and I got my coke, went over and drank a little of it, put a gun on him and took the money and marched him into the back room looking for the rest of it; I couldn’t get it so I took him out back to the store and…