
    Gates v. The State of Ohio.
    (Decided November 20, 1931.)
    
      Mr. Geoffrey H. Levy and Mr. P. P. Boli, for plaintiff in error.
    
      Mr. Z. G. Morgenthaler, for defendant in error.
   Cushing, J.

John Williams and Charles Gates were indicted by the grand jury of Butler county on two counts: The first count, for murder in the first degree, with deliberation and premeditation; the second count, for committing murder in the commission of a robbery.

The record discloses that Williams came from Dayton, and went to Gates’ home, borrowed a revolver from him, and then ordered him to drive an automobile to the corner of Tenth and Main streets.

Gates testified in the Williams case. In the Gates case, the stenographer, who took the testimony in the Williams case was called and read Gates ’ testimony given in the Williams case, and this was the only evidence offered by the state to prove Gates’ guilt.

At the conclusion of the state’s case, no motion was made for an instructed verdict on the ground that the reading of Gates’ testimony in the Williams case constituted a violation of his constitutional right not to be a witness against himself. Gates ivas called on defense, in his own behalf, and testified to practically the same state of facts as given in the Williams case.

It is stated in the briefs that Gates took the stand voluntarily in the Williams case. There is nothing in the record to show this. But, whether he did or not, he took the stand voluntarily in his own case, and confirmed the testimony given in the Williams case, which was offered against him.

In this state of the evidence, we fail to find any prejudicial error, and the judgment of the court of common pleas of Butler county will be affirmed.

Judgment affirmed.

Boss, P. J., and Hamilton, J., concur in the judgment.  