
    10999.
    WALLS v. THE STATE.
    The exceptions based upon the testimony of the defendant’s wife as a witness for the State are not ground for a new trial, under the facts of this case. The other evidence demanded the verdict of guilty.
    Decided January 27, 1920.
    ' Accusation of pointing gun; from city court of Leesburg— Judge Martin. September 2, 1919.
    In an accusation based upon an affidavit of Sarah Walls, Zach Walls (her husband) was charged with having unlawfully pointed a shotgun at her. The evidence at the trial was as follows: Sarah Walls testified: She was the wife of defendant. On or about “the —day” of December, 1918, the defendant had a gun in his hands. She did not know what he did with it. It was nighttime and she was afraid and ran off. He was cursing and abusing her. Whether he did anything with the gun or not she did not know If he aimed a gun at her she did not know it. He did not shoot at her. This was in Lee county. On cross-examination she testithat she did not want to testify against her husband, that she did not want him convicted. Viney French testified that she was across the street on the night the crime was alleged to have occurred, and saw the defendant point and aim a shotgun at his wife, and that Sarah Walls turned and ran off.
    
      Lippitt & Burt, for plaintiff in error.
    
      J. B. Moyl, solicitor, contra.
   Bloodwokth, J.

The accused was convicted of pointing a gun at his wife. The special grounds of»the motion for a new trial are all based upon the fact that his wife was allowed to testify against him. In an explanatory note to his approval of the amendment to the motion for a new trial, the judge shows that he fully instructed the wife as to her rights under section 1037 of the Penal Code of 1910, and that thereafter she “answered all questions propounded freely and voluntarily, and was in no instance ordered by the court to make answer to any question propounded. On cross-examination by counsel for the accused the witness answered that she did not wish to testify against her husband, and did not want to see him prosecuted. Defendant’s counsel then moved to exclude the testimony of the witness, on the ground that she did not want to swear against- her husband.” Under this qualifying note there is u<~> merit in the amendment to the motion for a new trial. If, however, it was error to admit the evidence of the wife, the nncontradicted evidence of the other witness demanded a verdict of guilty.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.  