People v. Becker

SCOTT, J., pro tem. Defendant was convicted of three counts of violation of section 288a, one count violation of [164]section 286 and one count violation of section 288 of the Penal Code. The alleged acts took place between defendant and the complaining witness, a boy of eleven years, in the store of defendant where the latter was engaged in the malt and liquor business.

Appellant contends that the evidence is insufficient to support the verdict, especially by reason of the fact that the complaining witness was an accomplice and corroboration as required by Penal Code, section 1111, was lacking. A child under the age of fourteen, in the absence of clear proof that he knew its wrongfulness at the time of committing the act charged against him, is deemed incapable of committing crime. (Pen. Code, sec. 26.) No case has been brought to our attention in which a child of eleven years has been held to be an accomplice in the commission of such an offense. It is doubtful whether it could be said in any case that a child of tender years could so far understand the nature and effect of acts such as those charged against appellant here as to know of their wrongfulness. A child may know that certain acts are forbidden and that if he commits them he will be punished, without being conscious that they are wrongful within the meaning obviously intended by the code. From the evidence in this case it cannot be said that there was the clear proof of knowledge of the wrongfulness of the acts which the law would require before the complaining witness could be held to be an accomplice. (People v. Camp, 26 Cal. App. 385 [147 Pac. 95]; People v. Kanngiesser, 44 Cal. App. 345 [186 Pac. 388]; People v. Dong Pok Yip, 164 Cal. 143 [127 Pac. 1031].)

The testimony shows that the felonious acts were committed, and specific acts were proved, several weeks prior to the dates alleged in the information. In these circumstances the variance as to dates would not be material unless defendant is misled in making his defense or placed in danger of being twice in jeopardy (People v. Harrington, 92 Cal. App. 245 [267 Pac. 942]); and talcing into consideration the proof in this case it appears that there was not such a material variance. In this connection the trial court properly gave the following instruction: “It is wholly immaterial on what day or night the offense charged in any particular count of the information was committed, provided [165]