Appeal from a first-degree murder conviction at a jury trial. Affirmed.
Defendant and one Weddle robbed a service station attendant after defendant had hit him over the head about three times with a ratchet wrench. They absconded in the attendant’s car in which there was a .22 caliber pistol, and which ran out of gas on the highway. A patrolman who stopped to investigate was shot to death by either Weddle or defendant or both, Weddle firing five shots from a .38 caliber pistol into him and a .22 caliber shot having gone through the patrolman’s head. Defendant admitted holding the .22 caliber gun which was fired at the time by defendant, who said nonetheless that he did not shoot or intend to shoot the victim.
These points on appeal so startle this author as to render him almost breathless in announcing that we disagree with defendant’s counsel, but we do, including the contention that defendant constitutionally was denied a fair trial.