People v. Hart

DOOLING, J.

Defendant was convicted of the crime denounced by section 288a Penal Code committed'upon the per

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son of one M. Defendant appeals from the order of the court denying his motion for new trial. While many points are urged on the appeal we confine our consideration to only one of them which in our judgment is controlling.

M was a sailor under treatment at a Naval Hospital for a broken leg. His leg was confined in a rigid cast from hip to ankle. At 2:30 a. m. appellant was driving an automobile with a woman companion. He offered M a ride to his hospital. After proceeding a few blocks the ear was stopped and both M and appellant left it briefly and then, according to M’s testimony, appellant got into the back seat with M while the woman remained in the front seat. There appellant exhibited a knife which he kept passing from one hand to the other and proposed to M the commission of the act charged. M acquiesced and the act was performed.

Appellant argues that M was an accomplice within the meaning of section 1111 Penal Code and that his testimony was not corroborated. It is the theory of the prosecution that M was not an accomplice because acting under coercion.

The coercion necessary to relieve an adult person from responsibility for a criminal act is defined in section 26, subdivision 8 Penal Code as follows:

“All persons are capable of committing crimes except those belonging to the following classes: . . . Bight. Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.”

The last sentence of section 1111 Penal Code defines an accomplice:

“An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”

Under this definition M is an accomplice unless the evidence is sufficient to support a finding bringing the case as to him within subdivision 8, section 26 Penal Code above quoted, i. e. that M did believe that his life would be endangered if he refused.