Curry

Defendant was accused of robbery, assault with a deadly weapon with intent to commit murder, the offense of kidnaping (Pen. Code, § 207) and the offense of kidnaping to commit robbery (§ 209). He was convicted of robbery, assault with a deadly weapon, kidnaping for robbery and was acquitted of kidnaping (Pen. Code § 207). He appeals from the judgment.

According to the evidence of the People, defendant robbed the proprietor of a liquor store of $97 at the point of two guns and in the course of the robbery he fired three shots. As he left the store he commandeered an automobile and its *67 driver, one Williams, and at the point of a gun caused Williams to drive him about for an hour and a half. The evidence with respect to the offense of assault as charged was that in the course of the robbery a customer named Muller threw bottles at the defendant. This precipitated the firing of several shots into pastry and crackers in the delicatessen counter behind which Muller was standing. Evidently, due to uncertainty whether defendant was shooting at Muller with homicidal intent, he was found guilty of the lesser offense of assault with a deadly weapon.

The question on the appeal is…