People v. Johnson

KERRIGAN, J.

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

People

v.

Curiale,

137 Cal. 534, [70 Pac. 468], if the witness was the wife of appellant at the time of the assault she was competent to testify; whereas if she was not his wife at the time, but (as is claimed in appellant’s brief) became such afterward, she could not have testified for or against appellant without his consent. But the record in this case—and even the suggested diminution of the record— fail to show whether the witness was the wife of appellant at the time of the assault, and therefore whether she was competent or not as a witness; and as she gave no testimony against him we are unable to see wherein he was at all injured.

[235]

A diminution of the record has been suggested, and it is asked that the court permit the bill of exceptions to be amended by inserting therein certain testimony- under rule XIY of this court (144 Cal. xlvi, [78 Pac. x]), providing that where there is an error or defect in the transcript the proper clerk may be required to certify to the appellate court the whole or part of the record. The court, however, has no power to vary or amend the transcript itself.