Defendant was convicted after trial before a jury of (1) attempt to commit murder, (2) attempt to commit robbery, and (3) violation of the Deadly Weapons Act, the jury at the same time finding that defendant had been previously convicted of a felony and served a term therefor in a state prison. He appeals from the judgments of guilty and from the orders denying his motion for a new trial.

Viewing the evidence most favorable to the People (respondent), the essential facts are:

January 3, 1939, Herbert E. Thomas was driving easterly on Wilshire Boulevard in the city of Santa Monica at about 7:15 P. M., when he stopped for a traffic signal and was accosted by defendant, who asked him for a ride. Mr. Thomas permitted defendant to enter his car, and while they were proceeding toward Los Angeles defendant suddenly placed a gun in Mr. Thomas’s side and said, “This is a stickup, see.” Before Mr. Thomas could grab the gun it was discharged and he was shot through the right arm. He then grabbed the barrel of the weapon and while he was endeavoring to obtain possession of the gun defendant again discharged it. The automobile in which the two were riding was then run into the curb and two motorcycle officers placed defendant under arrest.

Defendant relies for reversal of the judgment on these propositions.

First: There is no substantial evidence to sustain the verdict of (a) attempt to commit robbery or (b) attempt to commit murder.

Second: An attorney for a defendant in a criminal prosecution cannot waive a formal showing that the prosecutor has used due diligence to locate an absent witness, in order to lay a foundation for reading the testimony of such witness taken at a preliminary examination.

Third: The trial court committed prejudicial error in permitting the prosecution to read over defendant’s objection the testimony of the complaining witness given at the preliminary examination.

Fourth: The trial court committed prejudicial error in refusing at defendant’s request to instruct the jury as follows:

Defendant’s first proposition is untenable. An examination of the record discloses substantial evidence, together with the inferences which may reasonably be drawn therefrom, to sustain the facts as set forth above and each and every finding of fact upon which the verdicts of guilty were necessarily predicated. In addition to the testimony of the complaining witness, a motorcycle officer testified that when he drove alongside of the car in which defendant and Mr. Thomas were riding he saw them scuffling in the automobile, and that he heard two shots. Another motorcycle officer testified that immediately after the car in which defendant and Mr. Thomas were riding came to rest he took a gun out of defendant’s hand, and that two empty shells were in it.

The second proposition is likewise untenable. It is the general rule that counsel in a criminal case has the right to stipulate relative to any of the steps in the action or proceeding. Among the stipulations which may be entered into by counsel in a criminal case is one waiving on behalf of his client the right to have a preliminary showing that the People have used due diligence to locate an absent witness prior to the reading of the testimony of such witness taken at the preliminary examination. (People v. Garvey, 93 Cal. App. 497, 503 [ 269 Pac. 702 ]; People v. Schoon, 177 Cal. 678, 683 [ 171 Pac. 680 ]; People v. Bird, 132 Cal. 261, 264 [ 64 Pac. 259 ].)

The third proposition is also untenable. During the course of the trial the following occurred:

In view of the foregoing, it is clear that defendant through his counsel waived the right to a preliminary foundation before the testimony of the complaining witness taken at the preliminary examination was read.

The instructions set forth in paragraphs A, C, D, E, F, G, and H of defendant’s fourth proposition were properly refused for the reason that the subject matter thereof was fully, completely, and accurately covered by instructions read to the jury by the trial judge.

The instruction set forth in paragraph B of defendant’s fourth proposition was likewise properly refused, as it is not the law that a police officer ’s testimony is to be judged by any other standard than that which applies to the average witness.

For the foregoing reasons the judgments and orders appealed from are and each is affirmed.

Moore, P. J., and Wood, J., concurred.

A petition for a rehearing of this cause was denied by the • District Court of Appeal on January 10, 1940, and an ap plication 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 January 25, 1940.