In a trial before a jury the defendant was convicted upon an information charging robbery and ■the jury fixed the offense as of the first degree. The defendant appeals from the judgment and from the order denying him a new trial.
The sole ground raised is that the evidence is insufficient to sustain the verdict and the degree of the crime.
The complaining witness testified that, as he was about to enter his automobile parked on a side street near a large hotel in the business section of San Francisco, the appellant approached the right-hand side of the car and, displaying an automatic pistol, ordered him to get into the car and drive him “out into the country”. Appellant compelled the witness to drive him about town until they had reached an unfrequented street, when he compelled him to stop. Appellant then took from the witness about nine dollars in money. Throughout the ride the weapon was held at the back of the witness’ neck.
*745There is no question of error in the admission of evidence, in the instructions to the jury, or in the identification of the appellant. Appellant argues that the evidence is inherently improbable, but we are satisfied that it is sufficient to sustain the verdict. ITe argues that the “weapon” might have been a water pistol because the complaining witness saw it only in the dark. But the witness testified that it was an automatic and the appellant did not take the stand to support his defense. There is no error in the record.
The judgment and the order denying a new trial are both affirmed.
Sturtevant, J., and Spence, J., concurred.A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 16, 1934.