I dissent.
The majority admit that in this death penalty case error, constitutional error, was committed, but conclude that such error was not so prejudicial as to require reversal. With this conclusion I cannot agree. The error consisted of admitting into evidence, in the prosecution's case in chief, a recorded statement taken from defendant after he had twice asked for his attorney, and without warning him of his right to remain silent and his right to counsel. The majority concede that the taking of such statement under such circumstances violated the rule announced in Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977], With this I agree. The majority also correctly rule that there was no waiver of these rights. The majority then hold that because the improperly secured statement was not a confession but an exculpatory statement the rule of People v. Hillery, 62 Cal.2d 692 [44 Cal.Rptr. 30, 401 P.2d 382], applies. With this I also agree. But then the majority hold that such error was not prejudicial within the meaning of article VI, section 4½, of the state Constitution as interpreted in People v. Watson, 46 Cal.2d 818 [299 P.2d 243], With this I disagree.
The majority imply that the error was not prejudicial because, after the recorded statement was read to the jury as part of the prosecution’s case in chief, the defendant voluntarily took the stand and testified to the same facts contained *435in the improperly admitted statement. This is a misinterpretation of the record. Based upon this misinterpretation, the majority then rely on the well-settled rule that the erroneous admission of evidence as to facts subsequently testified to is harmless. That rule, based on sound principles of waiver, is a good and proper rule where applicable. Obviously, when hearsay or irrelevant or incompetent evidence is improperly introduced, and then the defendant takes the stand and elects to testify to the same identical facts, he has not been prejudiced by the error and has waived it. Even if the record were as interpreted by the majority it is doubtful whether that rule would be applicable here. The instant case was tried before the Escobedo case, supra, was decided. It is one thing to hold that where a person knows or should know that improper evidence has been admitted but then voluntarily takes the stand and testifies to the same facts, he waives the error. It is quite another to hold that a person knows or should know his constitutional rights before the courts have announced them. To so hold would be to impute omniscience to the appellant. How could he waive rights that he and this court did not know he had?
But the important fact is that the version given by appellant on the witness stand was not the same as that in the recorded statement. In fact, he took the stand to explain and to contradict that statement and to give an entirely different explanation of his presence at the scene of the crime. The improperly admitted statement introduced in the prosecution’s case in chief, if true, would have exonerated Mathis of both the robbery and murder. The testimony given on his own behalf implicated Mathis to such an extent that it showed he was guilty of manslaughter and perhaps second degree murder. But he was convicted of first degree murder. If either the recorded statement or the testimony were true Mathis was not guilty of first degree murder. Mathis, on the witness stand, admitted giving the recorded statement to the police, admitted it was untrue, and attempted to explain why he had lied to the police.
The recorded statement was used mainly to discredit Mathis ’ credibility, and it certainly did just that. Had it not been introduced it is doubtful that appellant would have taken the stand. He must have been impelled to take the stand because, with the improper statement before the jury and with the properly admitted testimony before it, he stood impeached as one who told false stories to the police—i.e., as a liar. Of *436course, he had a constitutional right not to take the stand. (Griffin v. California, 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106]; Malloy v. Hogan, 378 U.S. 1 [84 S.Ct. 1489, 12 L.Ed.2d 653].) But he was practically forced to take the stand because the law enforcement officials had improperly secured from him and introduced into evidence the statement that he knew and the prosecution had proven was false. Obviously, had the statement not been introduced, it would not have been necessary to explain or to deny it. Obviously, he took the stand because he was under the practical compulsion to explain or deny that false statement, because otherwise it gave support to the argument that its very falsity showed a consciousness of guilt. Under such circumstances, his testimony, in a very real sense, was the “fruit of the poisoned tree.” To hold that by taking the stand he waived the error is to ignore realities and to condone the very thing Escobedo and Dorado tried to prohibit. (See People v. Davis, 62 Cal.2d 791 [44 Cal.Rptr. 454, 402 P.2d 142].) This we should not do.
In my opinion the admission into evidence of this recorded statement was prejudicial in the reversible sense, and this is so whether the test for such prejudice is that used in Watson or a more liberal one.
The majority have cited both People v. Watson, supra, 46 Cal.2d 818, 836, and Fahy v. Connecticut, 375 U.S. 85, 91 [84 S.Ct. 229, 11 L.Ed.2d 171], in applying a standard of reversible error and have thereby implied that both cases establish the same criteria. I disagree.
The federal standard of reversible error was clearly stated in Fahy v. Connecticut, supra, in 1963 as follows (at p. 86): “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. ” Requiring a finding that there is a “reasonable possibility” that the erroneously secured and admitted evidence “might have contributed to the conviction” is far different from requiring a finding that the error is harmless unless the court affirmatively finds that, as required by Watson, “it is reasonably probable” that without the error “a result more favorable” to the defendant would have been reached. The difference in language is not simply one of semantics. The state rule requires, before a case may be reversed, an affirmative finding that without the error it is reasonably probable that a different result would have been reached. The federal rule simply requires that there be a reasonable possibility that the error might have contributed to the verdict.
*437But this part of the discussion is academic. The error here involved is so serious that it requires a reversal whether the stringent rule of Watson or the more liberal rule of Fahy be applied. For this reason the judgments should be reversed.
Another serious error, and one that cannot but confuse the law, was committed by the majority in discussing the admissibility of the testimony given by Mrs. Mathis, the wife of the appellant, when called as a witness by the prosecution. On the penalty trial she was permitted to testify to various vicious assaults committed upon her by appellant, which assaults were in no way connected with the crime for which he was being prosecuted. This testimony was to the effect that Mathis had several times attacked and cut her with a knife, and another time had strangled her into unconsciousness with an electric cord. This testimony, if inadmissible, was highly prejudicial, particularly on the penalty trial. It pictured Mathis as a cruel sadistic beast, and well could have been a decisive factor in convincing the jury to impose the death penalty.
The majority first hold that when his wife was called as a witness Mathis did not object to her testimony, and that this constituted an implied consent to her testimony within the meaning of “consent” as used in section 1322 of the Penal Code. In this determination the majority are probably correct. (People v. Singh, 182 Cal. 457 [188 P. 987], and cases following it.)
This sufficiently disposes of this point.
But the majority do not stop there. They state: “We further hold that the testimony would have been admissible even had appellant entered a timely objection. ’ ’ Then after laboring this point the majority conclude the discussion of this point with the statement:
“We hold, therefore, that at a penalty trial the spouse of the defendant may not be compelled to testify against the latter, yet may do so voluntarily even in the absence of the defendant’s consent when the testimony relates to prior acts of violence committed upon the witness-spouse by the defendant.”
This discussion is the sheerest dicta and like most dicta very mischievous indeed. It is particularly vicious because it is clearly wrong and cannot help but confuse the law relating to the husband and wife privilege as it applies to penalty trials in death penalty cases. The erroneous dicta must therefore be discussed.
The conclusion that the testimonv of appellant’s wife was *438admissible, even if an objection had been made, flies directly in the face of the applicable code sections. This cavalier treatment of the statutory provisions is rationalized on several grounds. It is first argued that such testimony is relevant, that it therefore should be before the jury on the penalty trial, and therefore should be and is admissible. This is a clear non sequitur.
The privilege here involved is set forth in two code sections. Section 1322 of the Penal Code provides:
“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, or in case of criminal actions or proceedings for a crime committed by one against the person or property of the other, whether before or after marriage or in eases of criminal violence upon one by the other, or upon the child or children of one by the other or in cases of criminal actions or proceedings for bigamy, or adultery, or in cases of criminal actions or proceedings brought under the provisions of section [s] 270 and 270a of this code or under any provisions of the ‘Juvenile Court law.’ ’’
Section 1881 of the Code of Civil Procedure provides: “There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following eases:
“1. A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, or for a crime committed against another person by a husband or wife while engaged in committing and connected with the commission of a crime by one against the other; or in an action for damages against another person for adultery committed by either husband or wife; or in a hearing held to determine the mental competency or condition of either husband or wife. ’ ’
Portions of section 1881 not appearing in the Penal Code section have been held applicable to criminal trials. (People v. Pittullo, 116 Cal.App.2d 373 [253 P.2d 705].)
*439The two quoted statutes, in language too clear to be misinterpreted, limit the admissibility of one spouse’s testimony as to violence against the witness by the other spouse, when proper objection is made, to “actions or proceedings for a crime committed by one against the person or property of the other” (Pen. Code, §1322), or as expressed in section 1881 of the Code of Civil Procedure “to a criminal action or proceeding for a crime committed by one against the other, or for a crime committed against another person by a husband or wife while engaged in committing and connected with the commission of a crime by one against the other.” The privilege clearly applies to all civil or criminal proceedings where one spouse attempts to testify against the other spouse about violence against the witness in no way connected with the proceeding before the court except in very limited situations not here involved. The majority have disregarded and overlooked the fact that we are here dealing with a statute or statutes, and that the problem is not what the law should be but what the Legislature has prescribed. I could agree with many of the arguments made by the majority were they being made in support of a recommended legislative change. But here they are being made to support a reading out of the law of a legislatively prescribed privilege. That is not the function of a court.
The penalty trial is certainly an action or proceeding pending before the court. In fact it is an integral part of the criminal trial. Otherwise the bifurcated and trifurcated trial would be unconstitutional. (People v. Troche, 206 Cal. 35 [273 P. 767]; app. dism. 280 U.S. 524 [50 S.Ct. 87, 74 L.Ed. 592].) Thus the same statutory rules govern both the guilt and penalty trials except where the statutes expressly provide that they are only applicable to one or the other phase of the trial.
The majority hold that section 190.1 of the Penal Code is such a statute, and that it impliedly modifies, repeals, amends and controls section 1322. It is contended that the enumeration in section 190.1 of the type of evidence that may be brought before the jury on the penalty trial indicates, in some undisclosed fashion, an intent to abrogate and abolish the husband and wife privilege insofar as the enumerated kinds of evidence are concerned. This is an obvious non sequitur.
Penal Code section 190.1 provides that evidence of “the circumstances surrounding the crime, of the defendant’s background and history, and of any facts in aggravation or miti*440gation of the penalty” may be presented to the jury as factors to be considered in its determination of life or death. This is a simple relevancy statute, not one that makes otherwise inadmissible evidence admissible. The only purpose for the enumeration in the statute is to broaden the relevancy rules on the penalty trial, because much of the enumerated evidence would not be admissible, for relevancy reasons, on the guilt phase of the trial. The majority opinion necessarily holds that a general statute broadening the relevancy rule must affect the husband and wife privilege found in a specific statute. In other words all relevant testimony of the types enumerated is admissible, in spite of specific statute providing to the contrary. The fallacy of this reasoning is that it fails to recognize that in all cases, and in all situations, the husband and wife privilege is meaningful only when it is presupposed that the witness-spouse will relate relevant evidence. The very purpose of the privilege statute is to exclude otherwise relevant testimony. There would be no need for the privilege if the witness-spouse’s testimony could be excluded on grounds of irrelevancy.
The majority argue at length that the purposes for the husband and wife privilege have been outgrown, and would not be served in the situation where the witness-spouse testified against the defendant-spouse at the penalty phase of the trial. These are good arguments in support of a legislative repeal of the privilege. They constitute nothing more than an indictment of the theory behind the privilege. They are not applicable to an interpretation of the statutory privilege. These arguments amount to an abuse of the judicial function. They were all answered in Bassett v. United States, 137 U.S. 496 (at pp. 505-506 [11 S.Ct. 165, 34 L.Ed. 762]) as follows:
“It was a well-known rule of the common law that neither husband nor wife was a competent witness in a criminal action against the other, except in eases of personal violence, the one upon the other, in which the necessities of justice compelled a relaxation of the rule. ... We do not doubt the power of the legislature to change this ancient and well-supported rule; but an intention to make such a change should not lightly be imputed. It cannot be assumed that it is indifferent to sacred things, or that it means to lower the holy relations of husband and wife to the material plane of simple contract. So, before any departure from the rule affirmed through the ages of the common law,—a rule having its solid foundation in the best interests of society,—can be adjudged, the language declaring *441the legislative will should be so clear as to prevent doubt as to its intent and limit. ’ ’
In Meade v. Commonwealth, 186 Va. 775 [43 S.E.2d 858], the Supreme Court of Appeals of Virginia had the following to say (at p. 862 [43 S.E.2d]): “Professor Wigmore in his excellent work on Evidence, 3rd Ed., Vol. VIII, page 221 et seq., vigorously attacks the privileges granted by the common law rule and the reasons upon which the rule is based. We are not, however, called upon to pass upon the reasons for the rule, or the wisdom of the law. A lack of good reason may be ground for the legislature to change the law; but we must construe the law as it is.”
A second claimed basis for the majority rule is that ‘ ‘ Since the testimony of Mrs. Mathis would have been admissible under the provisions of section 1322 at a trial for the acts to which she testified, it was admissible at this penalty trial.” This holding, as already pointed out, flies in the face of the language of the section.
There have been very few cases discovered where the witness-spouse is asked to testify to acts amounting to crimes committed against her by the defendant-spouse at a trial other than for the commission of those crimes. In the cases found involving this situation the courts have held that such testimony would be improper. The Texas Court of Criminal Appeals has so held on two different occasions (Brock v. State, 44 Tex.Crim.Rep. 335 [71 S.W. 20, 100 Am.St.Rep. 859, 60 L.R.A. 465]; Rogers v. State (Tex.Crim.Rep.) 368 S.W.2d 772) and has cut back on the rule only when clear dictates of necessity so demanded (Newman v. State, 151 Tex. Crim. Rep. 628 [210 S.W.2d 171]). (Cf. People v. McCormack, 278 App.Div. 191 [104 N.Y.S.2d 139], affd. without opn., 303 N.Y. 782 [103 N.E.2d 895].)
California has likewise, by its code provisions, recognized that under certain circumstances, not here present, testimony of crimes committed against a spouse may be compelled at a trial other than for that crime. Specifically, evidence of crimes committed upon a child or children of one spouse by the other (Pen. Code, § 1322) and crimes committed upon the witness-spouse by the defendant-spouse in the course of a crime committed against a third party (Code Civ. Proc., § 1881) may be testified to by the witness-spouse at the defendant-spouse’s trial for crime committed against the child or third person. In other words, the Legislature has provided that where it thinks necessity exists in the sense that a most *442important (and sometimes only) witness would otherwise be unavailable by operation of the husband and wife privilege, the rule will be relaxed. But the liberalizing of the rule under these circumstances is under specific statutory authority and the court should not create other exceptions.
As already noted the power to alter the privilege statute as urged by the majority lies solely with the Legislature. Quite recently the Legislature has exercised that power by the adoption of the Evidence Code. The new Evidence Code clears up the question as to when the witness-spouse may be compelled to testify against the defendant-spouse. The new code provides that the witness-spouse may be compelled to testify at “A criminal proceeding in which one spouse is charged with” (italics added) and then follows the same enumeration of crimes as is contained in the existing statutes. (Evid. Code, § 972, subd. (e).) The defendant, in the instant case, was not charged with assault upon his wife but rather was tried for the murder of Vernon Ray.
The holding in the majority opinion that the defendant-spouse’s acts upon the witness-spouse may be testified to by the witness-spouse will have the effect of undercutting this specific legislative intent at a time even prior to the effective date of the legislation.
I would reverse the judgments.