People v. Johnson

The defendant was convicted of the crime of assault to commit murder, and was sentenced to the penitentiary for the term of ten years. This appeal is from the judgment, the order denying defendant’s motion for a new trial, the order denying probation and from the sentence.

It is claimed that the trial court committed error in permitting a certain witness to be sworn and to be asked whether she was the wife of appellant (defendant). After having been sworn, no testimony on the subject having yet been introduced, the district attorney, over the objection and exception of the appellant, asked the witness whether or not she was the wife of the appellant at the time of the alleged assault, to which question she responded that she could not remember. Whereupon the district attorney announced that he did not wish to further question the witness, and she gave no other testimony. Section 1322 of the Penal Code declares: ‘‘Neither husband or wife is a competent witness for or against the other in a criminal action or proceeding tó which one or both are parties, except with the consent of both, or in case of criminal violence upon one by the other. ...” Under this section, as construed in…