People v. Edwards

SHAW, J.

Defendant was convicted of the crime of pimping, as defined by the act of the legislature approved February 8, 1911. (Stats. 1911, p. 10.)

Upon this appeal from the judgment and an order of court denying his motion for a new trial, he assigns as the sole ground for a reversal the fact that the court, over his objection, permitted his wife to testify on behalf of the prosecution. Clearly the ruling of the court was based upon subdivision 2 of the act under which defendant was prosecuted. This provision reads as follows: “Sec. 2. Any such female person referred to in the foregoing section shall be a competent witness in any prosecution under this act to testify for or against the accused as to any transaction or as to any conversation with the accused or by him with another person or persons in her presence, notwithstanding her having married the accused before or after the violation of any of the provisions of this act, whether called as a witness during the existence of the marriage or after its dissolution.”

Appellant insists that the above provision was inoperative by reason of an implied repeal thereof. Section-1322 of the

[718]

Penal Code, as it existed at the time when the act under which defendant was prosecuted was adopted, declared that, except in certain cases therein specified, neither husband nor wife was competent as a witness for or against the other in a criminal action to which either or both were parties. In effect, the adoption of section 2 of the Pimping Act added another exception to those contained in said section 1322 under which the wife of defendant was competent as a witness. By act of the legislature approved March 2, 1911 (Stats. 1911, p. 270), section 1322 was amended by adding another exception to those specified therein. As thus amended, however, no reference was made to subdivision 2 of the act defining the crime of pimping. Upon these facts, and since the amendment of section 1322 was made subsequently to the adoption of the act under which defendant was prosecuted, he insists that the provision of the Pimping Act permitting defendant’s wife to testify was repealed by implication. The rule is that repeals by implication are not favored.

(Malone

v.