Marsh

On December 3, 1968, this court filed its opinion, People v. Marsh (Cal.App.) 73 Cal.Rptr. 458 , affirming the judgment herein. Thereafter on January 29, 1969, the Supreme Court of the State of California granted appellant’s petition for hearing, transferred the matter to it and retransferred the same to this court with directions.

A jury found defendant guilty of robbery (§ 211, Pen. Code), attempted murder (§ 664, Pen. Code) and mayhem (§ 203, Pen. Code); it further found the robbery to be first degree and that defendant was armed with a deadly weapon at the time of the commission of the robbery (coiint I) and attempted murder (count II). Defendant was sentenced to the *367 state prison for the term prescribed by law; execution of sentence on counts II and III was stayed until the sentence on count I is served. He appeals from the judgment and order denying motion for new trial. The appeal from the order is dismissed.

On December 9, 1966, around 10:40 p.m. Nicholas Joiner was in the office of his motel when the doorbell rang; he found a couple who wanted accommodations. Defendant stood a few steps behind the couple. Joiner invited them in; he knew defendant from prior visits…