Deverre

The defendant was convicted of the crime of robbery in the second degree and appeals from the order denying his motion for a new trial and the judgment of conviction herein. The facts shown by the testimony set out in the transcript are substantially as follows: That on or about the eleventh day of September, 1923, Bert Stoner, and two other persons were riding in the toilet of a flat car, which was part of a train traveling from Brighton Junction through the town of Lodi, San Joaquin County; that just after pulling out of Brighton Junction, Stoner and his com panions were ordered to come out of the toilet and put up their hands. This order came from a negro, who held a revolver in his hands and compelled them to submit to a search. Stoner and his companions were then lined up in front of the defendant and there searched by him. After being held up Stoner and his companions were told by the negro holding the gun to “hit the dirt”; they complied with the order and jumped off the train. Stoner informed the authorities of what had happened and the train was stopped at Lodi. There the defendant, while lying on the top of a freight-ear, was shot in the arm and in one leg and taken into…