People v. Reynolds

WHITE, J.

In an indictment returned by the grand jury of Los Angeles County, defendant was accused of three violations of section 288a of the Penal Code and one violation of section 288 of the same code. Counts I and II of the indictment charged violations of section 288a of the Penal Code on the 28th day of September, 1937, while counts III and IV involved respectively violations of sections 288a and 288 of the Penal Code on the first day of May, 1937. At the time of the commission of the offenses charged as having been committed on September 28th, the complaining witness was fourteen years of age, while on the date charged in counts III and IV he was thirteen years old.

After trial before a jury, guilty verdicts were returned on all counts. Prom the several judgments pronounced against him and from the order denying his motion for a new trial, defendant prosecutes this appeal.

Appellant does not challenge the correctness of the convictions had upon counts I, II and IV, thereby conceding the sufficiency of the evidence to sustain such convictions; and his sole contention is that as to count III the complaining witness was an accomplice within the meaning of section 1111 of the Penal Code, and that his testimony in relation to the offense charged in count III was not corroborated by such other evidence as tended to connect appellant with its commission.

It is conceded that the complaining witness, although slightly under the age of fourteen years, was nevertheless an accomplice, for the reason that he was possessed of knowledge of right and wrong and at the time of the commission of the offense charged in count III he knew its wrongfulness (subd. 1, sec. 26, Pen.

Code);

and the attorney-general in

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his brief with reference to count III says, “The only direct evidence establishing the commission of this offense was the testimony of the complaining witness.’’

That this case was tried upon the theory that the boy was an accomplice there can be no doubt. The learned trial judge of the superior court properly instructed the jury upon the necessary corroboration of an accomplice which would justify a conviction. We are convinced that this course was the proper one, because taking the testimony of the complaining witness as true, in connection with count III he was undoubtedly an accomplice