MATSON, J.
(after stating- the facts as above). It is first contended that the court erred in admitting the evidence of a certain conversation had between one Charlie Johnson and certain parties who were present at the time the pistol was -found, which is alleged to have belonged to the deceased. In the direct examination of M. V. Shaw, a witness for the defendant, and one of the parties who made the search at the time the pistol was found, the following questions and answers were asked and made:
“Q. Did any other person or persons come there while you were searching the field? A. Well, there was a party stopped out at "be road and come out about half way to where we were. Q. Do you know who that was? A. Yes, sir. Q. Who? A. Charlie Johnson. Q. He didn’t come out? A. No, he didn’t come clear to where we were. Q. Anything said to him about what was being done there? A. Yes, he called to me and told me to come to him, and I said, ‘No, you come here.’ We were squatted down then around where the gun was. Q. He didn’t come there? A. No, sir.”
On cross-examination, the county attorney asked the following questions, and the respective answers were made thereto :
“Q. How long did you all sit dov/n around that gun? A. Oh, I suppose five minutes, anyway. Q. What was said upc»n that occasion by any of you and by all of you? A. Well, we were just talking about the condition of the gun — the way it appeared. Q. What was done? A. I think I suggested, myself, that the gun had been there long enough for the metal part-to be rusted and where there was a little grease settled around the cylinder that the dust and dirt had settled on it; been laying there -for some time; I [91]*91íhink I suggested that myself. Q. Who else suggested anything? A. I don’t know that. Q. Was that all there was said? A. No, there was quite a bit said. Q. What was it, Mr. Shaw? A. Oh, I don’t think I could detail the conversation; we were sitting there talking about it; I was ■discussing the condition of the gun and talking about it, at the time this Mr. Johnson come up there and called me. Q. Mr. Johnson? Charlie Johnson? A. Yes, sir. Q. He came up and called you ? A. Yes, sir. Q. What did you say to him? A. He called me and said, ‘Come here’; and I said, ‘No, you come here.’ Q. What did he say to you ? A. He said, ‘No, I’m not coming there; I know all about that I want to. know.’ Q. What else did he say to you? A. I don’t know; he muttered out something, I don’t know just exactly the words he did say. Q. You couldn’t tell what he said? A. Well, I know that that’s what he said; he calling me to come here* and I called him and I said, ‘No, you come here;’ and he said, ‘No, I know all about that I want to know; I am going right now to see the county attorney’; and he turned and went back to his ear from the road. Q. Will you tell this jury if that’s all he said upon that occasion? A. I think that’s all he said; he may have said more, but I think that’s all he said. Q. I will ask you if he didn’t tell you that no, he knew all about that he wanted to know, that he knew for some time that they was going to find a gun out there? That it was all fixed and he wasn’t going to have anything to do with it? A,' I don’t think he said that, either; he said that up in the road after we overtaken him. Q. And that he was going to report it to the county attorney? A. Yes, sir. I told him if he knew anything that the county attorney ought to know that he ought to go and tell him, and he says, ‘Well, I know it.’ Counsel for Defendants: If the court please, we move to strike out all of that conversation that took place up in the road there, between the representative of the county attorney and the witness. By the Court: Overruled. Counsel for Defendants : We except.”
[92]*92Evidence relative to the conversation between Johnson and Shaw was also elicited from the witness A. T. Walker, which evidence was admitted without objection and exception, except that the defendant moved to strike the statements testified to as having been made by 'Charlie Johnson for the reason that such statements were incompetent, irrelevant, immaterial, hearsay, and prejudicial to the rights of the defendant, at which time the court announced that he would reserve his ruling.
At the conclusion of the trial, the court ruled on the foregoing motion to strike as follows:
"‘By the Court: Gentlemen of the jury, on yesterday an objection was made to the introduction of certain evidence concerning statements made by one Charlie Johnson, or Charles Johnson, at the time of the search that — or on finding of a pistol at the scene of the killing in this case, to which objection the court at that time reserved the ruling. The court at this time will sustain the objection to the statements made or purported to have been made by Charlie Johnson at that time and the same are stricken and withdrawn from your consideration and are not to be considered by you for any purpose.”
It is contended by counsel for the defendant that, although the court, in response to the defendant’s request not to consider the statements alleged to have been made by Charlie Johnson to those present at the time of the finding of the pistol, withdrew said statements from the consideration of the jury, nevertheless the damage had been done by their admission and the error could not be cured by a mere withdrawal of the same from the jury’s consideration.
Counsel overlook the fact that this evidence was admitted first without objection and exception by counsel who represented defendant at the trial of this case. Counsel also overlook the fact that as a part of the direct examina[93]*93tion of the first witness called to testify as to the finding of this pistol, counsel for the defendant elicited part of this ■conversation had with Charlie Johnson. The rule is well. established that “when a witness on direct examination is interrogated relative to a conversation, the opposing party is entitled to draw out all the material portions of such conversation pertinent to the issues on cross-examination.” Gibbons v. State, 5 Okla. Cr. 212, 115 Pac. 130. In the body of the opinion in the f oregoing case, it is said :
“The appellant contends that the court erred in refusing to allow him to have the witness, Mrs. Notson, (formerly the wife of the deceased, Renfro) give the whole of a conversation had between her, the defendant, and one Redding-ton, after having permitted a portion of the conversation containing alleged threats to go to the jury in chief. We think this contention is well taken. The general rule is that when a conversation is gone into in chief, all the material portions pertinent to the case can be drawn out on cross-examination. In the case of U. S. v. Knowlton, 13 N. W. 575, the Supreme Court of North Dakota says: ‘No rule is plainer than that a party has the right, upon cross-examination, to have given all other parts of the same conversation mot given on the examination in chief which will serve to explain or modify the tendency of that part testified to in •chief.’ This statement of the rule is sound and expresses our view. In the case of Sager v. State, 11 Tex. App. 110, the court says: ‘When the state has put in evidence a portion of the conversation between the defendant and another, the defense has the right to prove the whole of it on the same subject.’ See, also, 142 U. S. 691. In the 11th Pacific, 811, in the case of Watrous v. Cunningham,
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MATSON, J.
(after stating- the facts as above). It is first contended that the court erred in admitting the evidence of a certain conversation had between one Charlie Johnson and certain parties who were present at the time the pistol was -found, which is alleged to have belonged to the deceased. In the direct examination of M. V. Shaw, a witness for the defendant, and one of the parties who made the search at the time the pistol was found, the following questions and answers were asked and made:
“Q. Did any other person or persons come there while you were searching the field? A. Well, there was a party stopped out at "be road and come out about half way to where we were. Q. Do you know who that was? A. Yes, sir. Q. Who? A. Charlie Johnson. Q. He didn’t come out? A. No, he didn’t come clear to where we were. Q. Anything said to him about what was being done there? A. Yes, he called to me and told me to come to him, and I said, ‘No, you come here.’ We were squatted down then around where the gun was. Q. He didn’t come there? A. No, sir.”
On cross-examination, the county attorney asked the following questions, and the respective answers were made thereto :
“Q. How long did you all sit dov/n around that gun? A. Oh, I suppose five minutes, anyway. Q. What was said upc»n that occasion by any of you and by all of you? A. Well, we were just talking about the condition of the gun — the way it appeared. Q. What was done? A. I think I suggested, myself, that the gun had been there long enough for the metal part-to be rusted and where there was a little grease settled around the cylinder that the dust and dirt had settled on it; been laying there -for some time; I [91]*91íhink I suggested that myself. Q. Who else suggested anything? A. I don’t know that. Q. Was that all there was said? A. No, there was quite a bit said. Q. What was it, Mr. Shaw? A. Oh, I don’t think I could detail the conversation; we were sitting there talking about it; I was ■discussing the condition of the gun and talking about it, at the time this Mr. Johnson come up there and called me. Q. Mr. Johnson? Charlie Johnson? A. Yes, sir. Q. He came up and called you ? A. Yes, sir. Q. What did you say to him? A. He called me and said, ‘Come here’; and I said, ‘No, you come here.’ Q. What did he say to you ? A. He said, ‘No, I’m not coming there; I know all about that I want to. know.’ Q. What else did he say to you? A. I don’t know; he muttered out something, I don’t know just exactly the words he did say. Q. You couldn’t tell what he said? A. Well, I know that that’s what he said; he calling me to come here* and I called him and I said, ‘No, you come here;’ and he said, ‘No, I know all about that I want to know; I am going right now to see the county attorney’; and he turned and went back to his ear from the road. Q. Will you tell this jury if that’s all he said upon that occasion? A. I think that’s all he said; he may have said more, but I think that’s all he said. Q. I will ask you if he didn’t tell you that no, he knew all about that he wanted to know, that he knew for some time that they was going to find a gun out there? That it was all fixed and he wasn’t going to have anything to do with it? A,' I don’t think he said that, either; he said that up in the road after we overtaken him. Q. And that he was going to report it to the county attorney? A. Yes, sir. I told him if he knew anything that the county attorney ought to know that he ought to go and tell him, and he says, ‘Well, I know it.’ Counsel for Defendants: If the court please, we move to strike out all of that conversation that took place up in the road there, between the representative of the county attorney and the witness. By the Court: Overruled. Counsel for Defendants : We except.”
[92]*92Evidence relative to the conversation between Johnson and Shaw was also elicited from the witness A. T. Walker, which evidence was admitted without objection and exception, except that the defendant moved to strike the statements testified to as having been made by 'Charlie Johnson for the reason that such statements were incompetent, irrelevant, immaterial, hearsay, and prejudicial to the rights of the defendant, at which time the court announced that he would reserve his ruling.
At the conclusion of the trial, the court ruled on the foregoing motion to strike as follows:
"‘By the Court: Gentlemen of the jury, on yesterday an objection was made to the introduction of certain evidence concerning statements made by one Charlie Johnson, or Charles Johnson, at the time of the search that — or on finding of a pistol at the scene of the killing in this case, to which objection the court at that time reserved the ruling. The court at this time will sustain the objection to the statements made or purported to have been made by Charlie Johnson at that time and the same are stricken and withdrawn from your consideration and are not to be considered by you for any purpose.”
It is contended by counsel for the defendant that, although the court, in response to the defendant’s request not to consider the statements alleged to have been made by Charlie Johnson to those present at the time of the finding of the pistol, withdrew said statements from the consideration of the jury, nevertheless the damage had been done by their admission and the error could not be cured by a mere withdrawal of the same from the jury’s consideration.
Counsel overlook the fact that this evidence was admitted first without objection and exception by counsel who represented defendant at the trial of this case. Counsel also overlook the fact that as a part of the direct examina[93]*93tion of the first witness called to testify as to the finding of this pistol, counsel for the defendant elicited part of this ■conversation had with Charlie Johnson. The rule is well. established that “when a witness on direct examination is interrogated relative to a conversation, the opposing party is entitled to draw out all the material portions of such conversation pertinent to the issues on cross-examination.” Gibbons v. State, 5 Okla. Cr. 212, 115 Pac. 130. In the body of the opinion in the f oregoing case, it is said :
“The appellant contends that the court erred in refusing to allow him to have the witness, Mrs. Notson, (formerly the wife of the deceased, Renfro) give the whole of a conversation had between her, the defendant, and one Redding-ton, after having permitted a portion of the conversation containing alleged threats to go to the jury in chief. We think this contention is well taken. The general rule is that when a conversation is gone into in chief, all the material portions pertinent to the case can be drawn out on cross-examination. In the case of U. S. v. Knowlton, 13 N. W. 575, the Supreme Court of North Dakota says: ‘No rule is plainer than that a party has the right, upon cross-examination, to have given all other parts of the same conversation mot given on the examination in chief which will serve to explain or modify the tendency of that part testified to in •chief.’ This statement of the rule is sound and expresses our view. In the case of Sager v. State, 11 Tex. App. 110, the court says: ‘When the state has put in evidence a portion of the conversation between the defendant and another, the defense has the right to prove the whole of it on the same subject.’ See, also, 142 U. S. 691. In the 11th Pacific, 811, in the case of Watrous v. Cunningham, the court says in the syllabus: ‘Where a witness on his examination in chief testifies to a part of a conversation had by him at a certain time and place, the entire conversation is admissible in evidence on cross-examination’ — and in the opinion: ‘When a witness has related anything which he said at a certain time and place and under a given state of facts, it is competent to [94]*94have him state all be uttered on such occasion.’ See, also,, Walsh v. Patterson, 59 Neb. 645, 81 N. W. 853; Metzer v. State, 39 Ind. 596; Patrick v. Crowe, 15 Colo. 543, 25 Pac. 985; People v. Warren, 122 Mich. 504.”
In the instant case, the court did not rule adversely to the defendant, but sustained the motion of the defendant to strike the alleged incompetent evidence from consideration by the jury. This was all the trial court was called upon to do, and this was the only ruling that he could make under the circumstances, as counsel for the defendant had let this evidence go in without objection and exception, and it-was only by a motion to strike that it could be withdrawn from the jury’s consideration. The condition is not presented, therefore, where the court admits incompetent and irrelevant evidence over the objection and exception by the defendant, and this court is not called upon to construe as error any action of the trial court adverse to the defendant.
If the trial court’s ruling was error in this particular, the action taken was favorable to the defendant, and the defendant will not be heard to complain in this court of action by the trial court which was made at his request. It is perhaps due to counsel who represent the defendant in this court to state that they did not participate in the trial. We find no merit in the foregoing assignment of error.
It is next contended that the trial court committed prejudicial error in permitting the county attorney to cross-examine the witness Clemmie Valentine as to acts of immoral conduct with men other than the deceased. The particular evidence complained of is set out in the brief of counsel for the defendant as follows :
“Q. Do you know Jim Coleman? A. Yes, sir. Q. Did you ever go down on the creek with Coleman? Counsel for Defendant: If the court please, we object to that as not [95]*95the proper cross-examination, incompetent, irrelevant, and immaterial. County Attorney: We think it is very material under the circumstances in this case. By the Court: I will let her answer. Counsel .for Defendant: Overruled? We except. Q. Did you ever go down on the creek there — the creek that runs down by your house there, doesn’t it? A. Yes, sir. Q. What is called, ‘Stickin’ Creek’ ? A. Yes, sir. Q. Was you ever down on the creek there with Jim Coleman? A. Was down there while they was building that bridge. Q. How many times while they was building that bridge was you down there with Jim Coleman? A. Once.’ Q. More than once? A. Once is all I remember of. Q. Wasn’t you down there twice? A. Not that I remember of.”
Counsel argue that the foregoing testimony tends to show immoral conduct by the witness Clemmie Valentine with another than the deceased. We are not seriously impressed with the force of this argument. So far as the examination of the witness with reference to conduct with one Jim Coleman is disclosed, there is nothing in the evidence set out to indicate that anything immoral ever took place between the witness Clemmie Valentine and Jim Coleman. If they ever took a trip “down on the creek,” the evidence shows it was to a place near where they were building a bridge in the daytime and that others were present.
We fail to see wherein this evidence could have prejudiced the defendant, and this court is not permitted to reverse a judgment of conviction on the ground of the improper admission of evidence, unless in the opinion of the court, after an examination of the entire record, it appears that there has probably been a miscarriage of justice, or a substantial violation of a constitutional or statutory right. Section 6005, Revised Laws 1910.
While the evidence admitted on cross-examination, as above set forth, was incompetent and shed no light upon the [96]*96issues under investigation, it failed to show any immoral conduct between Clemtaie Valentine and Jim Coleman, and resulted in no prejudice to the defendant.
Lastly, it is contended that the court erred in permitting the state to introduce in evidence the testimony of Carter Barney given at the preliminary examination of the defendant. Barney was an eyewitness to the tragedy, and was one of the boys riding with the deceased just before the shooting took place. The record shows that a subpoena was issued and served upon Carter Barney, but that at the time of the trial he was at the home of his father, Frank Barney, in Kiowa county, confined to-his bed with an attack of measles, and there was introduced a certificate of an attending physician to the effect that the witness Barney was sick in bed and unable to attend the'trial, and that he was suffering at that time with the measles. 'Counsel admit that where the witness is out of the state or dead, his former testimony may be read in evidence, but contend that where the witness resides and is within the jurisdiction of the trial court, although sick and unable to attend at the time of the trial, his former testimony may not be read. The question here presented has been decided adversely to the contention of counsel for plaintiff in error in the case of Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, where it is held:
“The constitutional provision which guarantees to a defendant the right to be confronted by the witnesses against him is fully complied with when the defendant has had the opportunity to cross-examine the said witnesses in a preliminary trial before a justice of the peace. When this has -been done, and upon a subsequent, trial of the -said cause, if it is satisfactorily proven that such witnesses have, since the former trial, died, become insane, left the state, or that their whereabouts cannot with due diligence be ascertained, or are sick and unable to testify, the testimony of such witnesses [97]*97given upon said former trial may be proven upon the subsequent trial.”
Finding no reversible error in the record, the judgment of conviction is affirmed.
DOYLE, P. J, and ARMSTRONG, J., concur.