
    THEODORE GROSS v. STATE.
    No. A-7767.
    Opinion Filed March 28, 1931.
    (297 Pac. 309.)
    
      Billingsley & .Stanley and Ira J. Banta, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of the crime of manslaughter in the first degree, and his punishment fixed by the court at imprisonment in the state penitentiary for 20 years.

The evidence of the state was that the deceased was employed by defendant, and that a difficulty arose between them over money matters; that during the difficulty defendant struck at deceased with a chair and that deceased was escorted out of defendant’s premises; that defendant-followed deceased from the back room into the front room and threw two soda pop bottles at deceased as he was going out the front door; that defendant followed deceased out of the premises and continued to assault him with the ice pick; that after deceased had fallen to the ground defendant stooped over him, while he was prostrate on the ground, and stabbed him several times in the breast with the ice pick; that at the time defendant was placed under arrest, immediately after the infliction of the fatal wounds, and before defendant knew that he had killed the deceased, and while he still had the ice pick in his hand, defendant stated to the officers that the pick was the instrument with which he had assaulted the deceased, and that, if he thought he had not done a good job by killing him, he would go- back and finish him up; that deceased died in a local hospital shortly after the assault.

Defendant denies that he brought on this difficulty, and contends that the deceased assaulted him, and that all he did was done in his own self-defense.

Defendant contends first that the court erred in instruction No. 5 given to the jury.

This instruction bears upon defendant’s guilt of the crime of murder and sets out a state of facts which, if believed by the jury beyond a reasonable doubt, would justify the jury in finding, the defendant guilty of murder. It has no bearing upon the question of defendant’s guilt or innocence of the crime of manslaughter, of which he was convicted.

This court has held that, where one is charged with murder and convicted only of manslaughter, instructions bearing- on tbe question of bis guilt or innocence of murder will not be considered on appeal in the absence of a showing that the defendant was injured thereby. Byars v. State, 7 Okla. Cr. 650, 126 Pac. 252; Elliott v. State, 18 Okla. Cr. 230, 194 Pac. 267; Littleton v. State, 19 Okla. Cr. 461, 200 Pac. 716; McElwee v. State, 49 Okla. Cr. 325, 294 Pac. 214.

It is also contended in connection with the argument made against this instruction that, Avhen it is considered with instructions numbered 14 and 15, bearing on self-defense, it will be seen that the defendant was prejudiced of his right of self-defense 'by the giving of instruction No. 5. It is a cardinal principle that one who invokes the right of self-defense must, himself, be without fault in bringing on the fatal difficulty. Evans v. State, 8 Okla. Cr. 78, 126 Pac. 586; Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808; Larry v. State, 10 Okla. Cr. 340, 136 Pac. 596, 597; Beason v. State, 18 Okla. Cr. 388, 195 Pac. 792, 795; Berry v. State, 23 Okla. Cr. 223, 213 Pac. 909.

It would be a manifest travesty of justice for the court to leave the impression with the jury that a person could himself bring on a fatal difficulty and then be permitted to invoke the law of self-defense without in good faith withdrawing therefrom. In instruction No. 5 the trial court told the jury a state of facts which, if believed, disclosed that the defendant did not withdraw from the difficulty after he entered into it, but pursued the deceased until he slayed him. Such a state of facts certainly would deprive the defendant of the right to invoke the law of self-defense.

When instruction No-. 5 is considered in connection with the facts and circumstances of the case and in connection with instructions numbered 14 and 15, it clearly states tbe law and is as liberal to tbe defendant as tbe evidence requires.

It is next contended that tbe trial court erred in permitting tbe state to read tbe transcript of tbe testimony of one N. E. Greer given at tbe preliminary examination without requiring tbe state to establish a proper predicate for the admission of this class of evidence.

On objection of defendant to tbe reading of the transcript of the evidence of tbe absent witness, Greer, it was made to appear by tbe state that at tbe preliminary examination tbe witness Greer was present and testified and was cross-examined by tbe defendant’s counsel; that in a former trial of tbe case it was shown that tbe witness Greer was absent and beyond tbe jurisdiction of tbe court, and at such trial tbe state was permitted to read the transcript of Greer’s evidence taken at the preliminary to tbe jury. For some reason not made clear in the record, three was a mistrial, and tbe case was set down and called for trial regularly at another term of court; that in tbe meantime the state bad bad a subpoena issued for the witness Greer; that, at tbe request of the county attorney, tbe sheriff and tbe evidence man out of tbe county attorney’s office bad made a personal search for the witness and had been unable to find him within tbe jurisdiction of the court; that tbe transcript of tbe evidence taken at tbe preliminary examination and introduced in tbe former trial whs a past of ilu* case-made, ana such part of tbe case-made th.: '.raaseilpt «nd shoving made at tbe time was offered in (vide nee by tbe state for tbe purpose of establishing tbe anther ti city of such transcript. Upon this showing the court permitted tbe state to read tbe transcript of the evidence of tbe witness Greer, and defendant now contends that is was reversible error to permit such evidence to be read to the jury, because no proper showing of diligence had been made.

This court has held in cases similar to- the one at bar that this showing was sufficient to entitle the state to read the transcript of the evidence in the trial. Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Weil v. State, 47 Okla. Cr. 88, 287 Pac. 752.

It further appears from the record that the facts testified to by the witness Greer at the preliminary examination were proved by other witnesses who were present and testifying in behalf of the state in the trial of the case.

Under the showing made by the state, it was not error for the trial court to- permit the reading of the transcript of the evidence of the absent witness, Greer.

The evidence of the state being sufficient to support the verdict of the jury, and the errors of law complained of being without substantial merit, the cause is affirmed.

DAVENPGRT, P. J., concurs. EDWARDS, J., absent, not participating.  