People v. Hulbart

FINLAYSON, P. J.

Defendant, who was convicted of the offense defined in section 288 of the Penal Code, namely, the commission of a lewd and lascivious act upon or with the body “of a child under the age of fourteen years, with the intent of arousing . . . lust,” etc., appeals from the judgment and from an order denying his motion for a new trial.

At the time of the commission of the offense of which he was convicted, defendant was a man of about twenty-three years of age, and his victim, the complaining witness,

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was a boy of about twelve years. A discussion of the malodorous facts is not necessary, and in view of the nature of the testimony, no detailed consideration of the evidence will be made. At the request of defendant the court gave certain instructions respecting the necessity of corroboration of the testimony of an accomplice. These instructions were given upon the theory that, in every case of this character, the complaining witness is, of necessity, an accomplice. Subsequently the court withdrew all of the instructions that it had given relative to the law of accomplices, and specifically instructed the jury that the complaining witness was not an accomplice. It is of this action on the part of the court that complaint is now made.

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Appellant contends that, regardless of the boy’s age, the evidence shows him to be an accomplice because of his intelligence, education, and understanding of moral questions, and that, therefore, the court’s withdrawal of its instructions upon the law of accomplices and its refusal to instruct the jurors that if they found the child to be an accomplice his testimony would require corroboration to sustain a conviction, constituted a prejudicial error. Without doubt, the testimony of an accomplice is required to be corroborated in order to sustain a conviction. Section 1111 of the Penal Code expressly so provides. But, by an amendment of that section in 1915 (Stats. 1915, p. 760), we now have a legislative definition of an accomplice as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the case in which the testimony of the accomplice is given.” The gist of the offense defined by section 288 is that the acts shall be committed upon or with the body “of a child under the age of fourteen years.” In the present case the prosecuting witness, a boy of but twelve years, could not be guilty, with this defendant—who was over fourteen years of age— of the defense defined in section 288, for as we have seen, the gist of the offense is that the acts shall be committed upon or with the body of one under the age of fourteen years. It is not necessary to ■ pursue the question further; for it has been expressly decided that there is no statute or rule of law of this state calling for the corroboration of the testimony of the complaining witness in cases of this character, where, as here, the defendant is