Wysong

The appellant and three other men were charged by indictment with robbery. In one count it was alleged that on or about the eleventh day of April, 1927, at and in the county of Los Angeles, state of California, the defendants did wilfully, unlawfully,. and feloniously take from the person, possession, and immediate presence of one Clifford Shaw $3,090, the personal property of the Citizens Trust & Savings Bank, without the consent and against the will of Shaw, and which said taking was accomplished by means of force and by then and there putting the said Clifford Shaw in fear. Appellant was tried alone, and was convicted of robbery in the first degree. A motion for new trial was presented, which was denied, and he appealed from the judgment and from the ruling upon said motion. The indictment contained a second count, but it was dismissed.

The principal ground of appeal consists in the assertion that section 211a of the Penal Code declares robbery as defined by section-211 of the Penal Code to be that of the second degree, but does not embrace the elements necessary to constitute robbery in the first degree, and that since the indictment in this case merely charged appellant with…