Scallion

A jury found defendant guilty of robbery of the first degree and found he was not armed at the time of the robbery. On motion for a new trial the court reduced the offense to robbery of the second degree and denied the motion. *36 Defendant appeals from the judgment and the order denying a new trial.

About 9 :30 a. m. on Friday, February 27, 1959, Howard Kerr, who owned a service station and operated a cheek-cashing service, left his place of business to go to the First City Bank of Rosemead. The bank was located on the southeast corner of Rosemead and Valley Boulevards in Los Angeles County. Kerr was accompanied by Maurice Mistieh, his uniformed guard. Mistieh was supplied by a detective agency and was armed with a revolver. He had accompanied Kerr to the same bank on two previous Fridays at about the same time.

At the bank Kerr received $20,000 in cash, most of it in currency. He put $7,000 in a canvas moneybag bearing the bank’s stamp. He left the bank followed by Mistieh at a distance of about 5 feet. As he proceeded along the sidewalk he saw defendant between himself and an alley lounging against the wall of the bank, looking in his direction. As Kerr passed, defendant…