Hall

The defendant entered a plea of guilty to a charge of robbery and the court thereupon took evidence to determine the degree of the crime and adjudged the defendant guilty of robbery of the first degree. The defendant has appealed from the judgment.

“All robbery which is perpetrated by torture or by a person being armed with a dangerous or deadly weapon is robbery in the first degree. All other kinds of robbery are of the second degree.” (Pen. Code, sec. 211a.)

Appellant contends that the court erred in refusing to admit in evidence the transcript of the testimony taken at the preliminary examination of the defendant. The witnesses who testified at the preliminary examination also testified at the hearing in the superior court to determine the degree of the crime and were there cross-examined by counsel for defendant. In offering such transcript in evidence, counsel for defendant said: “I don’t say that it will impeach them (the witnesses) in any respect.” No foundation was laid for impeachment of any of the witnesses. The ruling was not error.

It is also contended that the evidence does not show that the gun used by defendant in committing the crime was loaded. The men who were…