People v. Brown

BARNARD, P. J.

The defendant was prosecuted on an information containing four counts. In count I he was charged with a violation of section 288a of the Penal Code in connection with a named individual. In count II he was charged with a violation of the Juvenile Court Law in having contributed to the delinquency of this individual, who was alleged to have been a minor. In count III he was charged with a violation of section 288a on another occasion in connection with another minor, and in count IV he was charged with another violation of the Juvenile Court Law with respect to that person. Having been convicted by a

[515]

jury on all four counts a judgment was entered covering the two counts of sex perversion and a separate judgment on the contributing charges. He has appealed from both judgments and from orders denying motions for a new trial.

We will consider first the appeal from the judgment covering counts I and III of the information. The first assignment of error which need be considered is that the trial court committed prejudicial error in refusing to instruct the jury that the two minors involved in these charges, who appeared as witnesses against the appellant, were accomplices. The respondent argues that it does not necessarily appear that these witnesses were accomplices and that whether or not they were was a question of fact which was properly left to the jury. The one concerned in the charge set forth in count I of the information, in testifying as to what occurred at the time in question, said that he made objection and pushed the appellant away. It is argued that this shows that he did not voluntarily participate in the affair and, therefore, was not an accomplice. It fully appears from this witness’ own testimony that the appellant used no force and that the witness made no objection until after the crime had in fact been completed. The respondent argues that the witness connected with the charge involved in the third count was not an accomplice since he was drunk at the time. Not only is the question of specific intent not a necessary element in this offense

(People

v.

Avanzi, ante,

p. 301 [77 Pac. (2d) 237]), but it affirmatively appears from the testimony of this witness that he knew and fully understood what was going on at the time in question and for at least two hours thereafter. The acts and conduct of these witnesses were admitted, the facts were not in dispute, and the question whether or not those acts and facts made the witness an accomplice was in each of these cases a question of law for the court. It affirmatively appears from the testimony of these witnesses that each of them was an accomplice and the requested instruction should have been given.