I dissent. Apart from the question of the legal characteristics of an accomplice, which I do not find necessary to discuss, I am satisfied that the judgment of the lower court should be upheld upon two grounds — first, that under the evidence the jury could have found that the minor was not an accomplice, and, second, assuming that he was an accomplice, his testimony was sufficiently corroborated. *Page 477
I think it is clear that the jury could have found, as matter of fact, that the minor was not a willing or corrupt participant in the crime, in that he did not form the criminal intent to co-operate with appellant in its commission. A word about the evidence on this point: There is no suggestion in the record that the minor was consulted beforehand concerning the commission of the act, or that he, in any manner, affirmatively participated therein. The jury may have concluded from the evidence that he never acquiesced in the act. It does not appear that he protested against the criminal conduct of appellant, but, nevertheless, if he did not form the intention to join in the commission of the crime, it cannot be said that he consented. (Levering v. Commonwealth, 132 Ky. 666, [136 Am. St. Rep. 192, 19 Ann. Cas. 140, 117 S.W. 253].) On the subject of consent it was stated in People v. Dong Pok Yip, 164 Cal. 143, 147, [127 P. 1031]: "There is a decided difference in law between mere submission and actual consent. 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." (Citing authorities.) It was said in State v. Orrick, 106 Mo. 111, [17 S.W. 176, 329], that "mere consent to a crime, when no aid is given, and no encouragement rendered, does not amount to participation." (Citing Wharton, Criminal Law, sec. 211d, and other authorities.) To hold that the minor consented to the act, expressly or impliedly, is to declare that he acted "voluntarily." (Wharton on Criminal Evidence, sec. 440.) The jury was, therefore, called upon to decide whether the silence of the minor indicated that he performed a voluntary or involuntary part in the transaction. Whether the minor formed the intention to participate with appellant in the act was essentially a question for the jury, and he, alone, could give direct testimony upon the point. The jury, however, could infer the state of his mind from the proven circumstances and find the fact either way. The silence or lack of protest on the part of the minor would not be conclusive; it would only be evidence which it would be proper for the jury to consider in connection with other facts tending to *Page 478 solve the question whether he acted "voluntarily, and with common intent" united in the commission of the crime. (Wharton on Criminal Evidence, sec. 440.)
Under all the circumstances, the jury could well have found that the boy was not an accomplice upon any of the theories discussed, and, in my opinion, the judgment should be upheld on that ground alone.
The question whether he participated corruptly in the crime should be determined strictly upon the evidence in this case, and hence my views are not influenced by the facts in the case of Dong Pok Yip, supra. The minor in this case was only sixteen years of age. He did not attend school until he reached the age of eleven, notwithstanding that he lived with his parents and grandmother in apparently comfortable circumstances. The minor testified that he did not know, until Mrs. Nute, the housekeeper, informed him, that what appellant did was wrong. From the evidence the jury may have concluded that the minor did not possess the usual intelligence of one of his years, and that he was completely under the control of appellant, who was old enough to be his grandfather. In the eyes of the jury he probably appeared as a passive, undeveloped boy, subject to the will of the appellant, and they judged the case accordingly. Furthermore, in considering whether the boy consented it must be kept in mind that before the crime was committed appellant preliminarily performed another act upon the minor, which was probably intended to anticipate his resistance to the offense charged and at the same time stimulate appellant's own abnormal desires.
But if the minor was an accomplice, his testimony was nevertheless sufficiently corroborated. I shall first consider the character of the corroborative testimony required. The amendment of section 1111 of the Penal Code (Stats. 1911, p. 484) repealed the clause therein — "which in itself, and without the aid of the testimony of the accomplice." The adjudications touching this clause are to the effect that the corroborative evidence must be independent of the testimony of the accomplice. In People v. Compton, 123 Cal. 403, 411, [56 P. 44, 48], the rule is thus expressed: "It could tend to connect him with the crime by considering it with the testimony of the accomplice; yet, if it is necessary so to consider, it would not be legally sufficient. It is legally sufficient only *Page 479 if, standing alone, it tends so to connect him." (People v. Morton, 139 Cal. 719, [73 P. 609]; People v.Lynch, 122 Cal. 501, [55 P. 248]; People v. Creegan, 121 Cal. 554, [53 P. 1082]; People v. Sternberg, 111 Cal. 3, [43 P. 198].) But the repealed clause was not a part of section 1111 when the case was tried, and it is, therefore, sufficient, on this appeal, if any corroboration is shown — and it may either be entirely independent of the testimony of the accomplice or confirmatory thereof, provided that it tends to connect the appellant with the crime.
Now, as to the degree of proof required of the corroborative evidence: In People v. Barker, 114 Cal. 617, [46 P. 601], it was said: "The strength or credibility of the corroborating evidence is for the jury. It 'need not be strong; it is sufficient if it tends to connect the defendant with the commission of the offense; though if it stood alone it would be entitled to little weight.' (People v. McLean, 84 Cal. 480, [24 P. 32].) Nor need it extend to every fact and detail covered by the statements of the accomplice. (People v. Kunz, 73 Cal. 313, [14 P. 836); People v. Cloonan, 50 Cal. 449.)"
But although more is required by way of corroboration than to raise a mere suspicion, yet the corroborating evidence is sufficient if it tends to connect the defendant with the commission of the offense, although it is slight and entitled, when standing by itself, to but little consideration. (People v. Clough, 73 Cal. 348, 351, [15 P. 5]; People v.Melvane, 39 Cal. 614; Kent v. State, 64 Ark. 247, 253, [41 S.W. 849]; State v. Hicks, 6 S.D. 325, [60 N.W. 66].) It is not necessary to corroborate the testimony of the accomplice by direct evidence. It is sufficient if the connection of the accused with the alleged crime may be inferred from the corroborative evidence in the case.
These instructions were given to the jury: "No one can be convicted upon the uncorroborative testimony of an accomplice. . . . If the proof in this case does not satisfy your minds to a moral certainty and beyond all reasonable doubt of the guilt of this defendant, it is your duty to find a verdict of not guilty. It is also the law, and I give it to you in this case in behalf of the defendant, that no one can be convicted upon the uncorroborated testimony of an accomplice. No matter how strong a suspicion of the guilt of the *Page 480 defendant may be established in the minds of the jury by the testimony of an accomplice, no conviction can be had upon such testimony unless corroborated in some material point."
The testimony of the accomplice is sufficient to prove the actual commission of the offense. (People v. Leavens, 12 Cal.App. 178, [106 P. 1103]; People v. Thompson, 16 Cal.App. 748, [117 P. 1103]; People v. Barnnovich, 16 Cal.App. 427, [117 P. 572].) Can it be maintained that, as matter of law, there was not sufficient corroborating evidence within the meaning of the rule to connect appellant with the commission of the crime? The testimony of the minor and Mrs. Nute is fairly stated in the majority opinion, and it will not be necessary to refer to it at length.
Mrs. Nute saw appellant and the boy enter the bathroom together and close the door, and then heard the click of the bolt in the door. She saw the appellant glance over toward where she was concealed behind a lace curtain in her own room and lower the window of the bathroom, and observed by the shadow on the frosted glass that the shade was drawn, but, of course, she could not determine by whom. The boy testified that appellant drew the shade, and, from Mrs. Nute's statements, it is a fair inference, in support of his testimony, that appellant, who lowered the window, also drew the shade. While the fact that Mrs. Nute entertained suspicions of appellant's purpose is not in any sense proper evidence on the question, yet her vigilance throughout may be considered in testing the accuracy of her observations. From her position in her own room she heard the water running quite awhile before she started for the bathroom door to listen. She heard the voice of appellant in a low key. It doubtless seemed significant to the jury that the pair were in the bathroom together such a length of time before she made the noise at the door; that they still remained for five minutes; and that appellant should leave the house as soon as he came out of the bathroom.
The inquiry naturally arises from these facts, Why did appellant and the boy go to the bathroom together; why bolt the door, glance over toward where Mrs. Nute was concealed behind the lace curtains, lower the window and draw the shade? It is incomprehensible that all these precautions would have been taken if the sole object was "to wash their hands." The record is silent on the point whether the bathroom *Page 481 afforded the usual accessories, and this is important in view of the elaborate precautions to avoid observation. Moreover, if the quoted expression was intended to include another use of the bathroom, the indelicacy of such a suggestion would not help the position of appellant.
If the jury believed the testimony of Mrs. Nute, it could have found that the minor was corroborated on "a material point," which the trial court instructed the jury was required. But there was further evidence which may have influenced the jury and led them to reject the testimony of appellant. Does it not seem strange that after making an appointment with the boy at noon for 3 o'clock, the domino and tennis games should be of such short duration? It was proper for the jury to consider the conduct of appellant when he was arrested and questioned in the presence of the boy, and thereupon made the incomplete answer: "I don't see why that boy should say that, I did not do." Nor when he said to the officer, on the way to the prison, "I do not know how you feel about it. . . . You are entitled to your opinion and I am entitled to mine. It is his word against my word." His replies were not indicative of one falsely accused, and hardly represented the attitude of an innocent man charged with an unspeakable crime.
His general reputation for the traits involved was put in issue. (Code Civ. Proc., sec. 2053; Pen. Code, sec. 1102.) Two of the five witnesses called on his behalf were asked, on cross-examination, if they had ever heard that he was accused of similar acts upon two other boys of the age of sixteen years, which questions were answered in the negative. In rebuttal, the prosecution called the two boys, both of whom gave testimony that his general reputation for the traits involved was very bad. The officer in the case gave similar testimony.
From a study of the entire evidentiary record it is clear that the conduct of appellant throughout was of an equivocal import, which the jury could have resolved either in favor of his guilt or his innocence. It has found against his innocence, and, if the evidence under any theory of fact is susceptible of such a finding, it should not be disturbed on appeal. *Page 482