Leary

J.—Defendant Dan Leary and his codefendant William Crain were charged by information 100192 with the following crimes: First count, the murder in November, 1944, in Los Angeles of Frank 0 cello; second count, attempted robbery of the same victim; third, fourth and fifth counts, the respective robberies in Los Angeles on December 9, 1944, of Nathan Rack, Joseph B. Mathews and Ellen Landers. Each defendant was also charged with two prior convictions.

Leary pleaded not guilty, not guilty by reason of insanity, and denied the prior convictions. The two defendants represented by separate counsel, were tried jointly. During the course of the trial Leary admitted the two prior convictions. The jury found him guilty of first degree murder as charged in the first count of the information, fixed the punishment at imprisonment for life, and found him guilty as charged in the other four counts. Thereafter, Leary withdrew his plea of not guilty by reason of insanity, and was sentenced to the state prison for the terms prescribed by law, the sentences on the last four counts to be consecutive as to each other and concurrent with the sentence under count one. Judgments of convictions were…

I concur in the affirmance of the judgment but challenge the assumption that certain accusatory statements were erroneously admitted in evidence.

For the reasons set forth in my concurring opinion in the case of People v. Simmons, ante, p. 723 [ 172 P.2d 18 ], the statements were clearly admissible. There is no showing that upon the occasions when Leary was confronted with the statements he was under any compulsion or that he was pressed for a continuance of his conversation with the police when he chose to terminate it. In view of his admissions and other detailed evidence in proof of the crimes, the matter contained in Mrs. Leary’s statements was merely cumulative; the statements were not used as a device to read into the record testimony of matters which could not otherwise be shown.

The fact that the accusations were made by the wife of the accused who was incompetent to testify against him without his consent (Pen. Code, § 1322), did not render the statements inadmissible (People v. McCrea, 32 Cal. 98, 100 ; People v. Murphy, 45 Cal. 137, 143 ; People v. Ah Yute, 53 Cal. 613 ; 8 Cal.Jur. § 196, p. 103; State v. Portee, 200 N.C. 142 [ 156 S.E. 783 , 80 A.L.R. 1229 ];…