Moore

As presented to the court by appellant, the appeal herein is based solely upon the contention that the district attorney, in the trial of the case, was guilty of misconduct prejudicial to the defendant. The conduct of which appellant complains had relation to an attempt made by the district attorney to ascertain whether or not the defendant would permit the prosecution to call the defendant’s husband and obtain his testimony as a witness for the People. “Neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties, except with the consent of both. ...” (Pen. Code, see. 1322.)

The victim of the alleged assault was one Dr. Cooley. The defendant having .become a witness in her own behalf admitted that both she and her husband were present at the time and place when the shots were fired by which Dr. Cooley was wounded, but denied that the shooting was done by her. On cross-examination the district attorney asked her whether she would waive the privilege of forbidding her husband to testify in this case, and permit him to testify as a witness if called as a witness for the People. Counsel for defendant…