Shayer

The jury found appellant guilty of second degree robbery; also that a prior conviction of robbery with which he was charged was true. He was sentenced to imprisonment in the penitentiary, and this appeal was taken from the judgment of conviction and the order denying a motion for a new trial.

As to the degree of crime involved the jury was instructed that if appellant were found guilty “the only verdict would he a verdict of second degree, because no deadly weapons were used’’. Appellant contends that the offense established by the evidence, if any there was, was grand theft and not robbery; that therefore the above instruction was erroneous and the verdict rendered in conformity therewith is contrary to the evidence. The question of variance was not raised at the trial, nor were any instructions proposed by appellant relating to the crime of grand theft. Assuming, however, that the point may be raised for the first time on appeal, it finds no support in the evidence.

According to the testimony given by the complaining witness, named Rudden, appellant and another man unknown to him accosted him on the street in San Francisco shortly after the noon hour as he alighted from a…