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]; Richards v. State, 82 Wis. 172 [51 N.W. 652]; State v. Laudise, 86 N.J.L. 230 [90 A. 1098]; Joiner v. State, 119 Ga. 315 [46 S.E. 412]; Nunn v. *748State, 143 Ga. 451 [85 S.E. 346]; State v. McNamara, 116 N.J.L. 497 [184 A. 797, 185 A. 479]; Thomasson v. State, 21 Ala.App. 562 [110 So. 563] ; Allen v. State, 20 Ala.App. 467 [103 So. 712] ; State v. Wooley, 215 Mo. 620 [115 S.W. 417] ; Rex v. Bartlett, 7 Car. and Pay. 832; Rex v. Smithers, 5 Car. and Pay. 332; 8 Wigmore on Evidence (3d ed., 1940) § 2232, p. 237; 22 C.J.S. p. 1259; 20 Am.Jur. § 577, p. 487; 2 Wharton’s Criminal Evidence (11th ed., 1935) § 658, pp. 1094 et seq.; 80 A.L.R. p. 1246), nor did the fact that Mrs. Leary was under arrest on suspicion of being an accomplice in the commission of the crimes make them inadmissible (People v. Shelest, 62 Cal.App. 213, 217 [216 P. 389]).
Defendant complains of the instruction given on the subject of the limited purpose of the accusatory statements. The instruction, however, was correct. In the absence of exceptional circumstances, which are not here present, accusatory statements of the character here under attack are admissible against a defendant whether he be tried alone or jointly, provided that in the latter case they are properly limited to the defendant concerned (People v. Yeager, 194 Cal. 452, 486 [229 P. 40]). The court stated to the jury at least three times that “the testimony of a conversation as to one defendant is admissible only as to the one who made it. ’ ’
The record shows no error at the trial.
Spence, J., concurred.
Appellant’s petition for a rehearing was denied September 12,1946.