People v. Kanngiesser

KERRIGAN, J.

The defendant was charged by information with the violation of section 286 of the Penal Code. He was tried by jury, convicted, and given an indeterminate sentence. He appeals from the judgment and from the order denying his motion for a-new trial.

The first contention made for a reversal of the judgment and order is that the evidence is insufficient to support the verdict in that the story of the prosecuting witness, John Smith, as detailed to the jury was not corroborated. The theory of the prosecution is that such corroboration was unnecessary, for the reason that John Smith was not an accomplice, he being at the time of the commission of the offense a boy nine years of age, who did not know the wropgfulness of the act in which the defendant engaged (Pen. Code, sec. 26, subd. 1); that consequently he could not give the necessary consent to the commission of the act to constitute him an accomplice.

[1]

Whether or not under the evidence the boy was an accomplice was submitted to the jury by the following portion of the court’s charge:

“Section 1111 of the Penal Code provides as follows: ‘A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense. ’ . . .

“If you find from the evidence in this case that John Smith was at the time of the alleged commission of said offense of the age of less than fourteen years, and that it is clearly proved in this case that at the time of the alleged commission of the offense he, the said John Smith, consented to the commission of the said offense, then and in that event the said John Smith is an accomplice within the meaning of the section of the code I have just read to you, and the testimony of John Smith must be corroborated by such other evidence in this case as shall tend to connect the defendant with the commission of the offense. . . .

[347]

‘ ‘ Consent in law means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice to do something proposed by another. Consent differs very materially from assent. The former implies some positive action and always involves submission. The latter means mere passivity or submission which does not include consent. In cases of this character the age and mentality of the subject of an indecent assault is important and should always be considered in determining the presence or absence of consent. The mere submission of a child of tender years to an attempted outrage of his person should not in and of itself be construed to be such consent as would in point of law justify or excuse the assault.”