Walden

Appellants Walden and Colson, together with Walden’s wife, Edna Prances Walden, were jointly charged with the crime of arson, committed by wilfully, etc., setting fire to and burning a dwelling-houue owned by Sophie Gwertz.

Walden asked that he be granted a separate trial from, that of his wife. This request was denied. His motion was based upon an affidavit which stated that he and Mrs. Walden were husband and wife; and “by reason thereof and section 1322 of the Penal Code,” alleged that “unless he is granted a separate trial from that of the codefendant, Edna Prances Walden, he cannot have a fair and impartial trial, and he will be prejudiced therein and will suffer a substantial injustice by reason thereof.” Said section 1322 is the section under which, in a case of this kind, neither husband nor wife would be a competent witness for or against the other, except with the consent of both.

On the subject of separate trials of defendants in criminal actions the rule now prevailing in this state requires that defendants jointly charged shall be tried jointly “unless the court order separate trials.” (Pen. Code, sec. 1098.) The court in its discretion may order a separate trial,…