(dissenting). Since defendant entered no objection or exception to the County Judge’s charge concerning accomplice corroboration, and never in any manner or at any time during the trial raised any such question, the point is not *123open to him here (People v. Rosenthal, 289 N. Y. 482, 484). Even if the court’s instructions on this subject were to be examined by us, we would have to say that they were all too favorable to defendant, since they authorized the jury to come to the shocking conclusion that this twelve-year-old boarding school pupil was an “ accomplice ” of the teacher who commanded him to submit to a crime against nature. And the final answer to all of defendant’s arguments as to accomplice corroboration is this: there was in the admissions of defendant to the State policeman, ample corroboration of the boy’s testimony. While there was no confession of the fellatio, defendant admitted “ that he was fooling with the boy in that he pushed him down on the bed ” that the boy “ told him to stop this and it was done again ” and that he (defendant) told the boy “ to go downstairs easy ” so the school commandant would not hear the youth leave defendant ’s room, and finally, that on several occasions defendant gave money to the alleged pathic. Even if the complainant was found by the jury to be a willing victim, and so an “ accomplice ”, all that was needed to support his testimony was “ such other evidence as tends to connect the defendant with the commission of the crime ” (Code Crim. Pro., § 399). “It is not necessary that the corroborative evidence of itself should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime. Nor need the corroborative evidence be wholly inconsistent with the theory of the defendant’s innocence ” (People v. Elliott, 106 N. Y. 288, 292). “ The corroborative evidence so required need not connect the defendant with the crime charged. If it have a fair tendency to connect him therewith and is found by the jury to be true, the statute is satisfied ” (People v. Henderson, 298 N. Y. 462, 467). Proof such as we have here, has been, in somewhat similar cases, held sufficiently corroborative (see People v. Bodenstein, 240 App. Div. 849, as described in People v. Masiano, 253 App. Div. 454, 456; People v. Pratchner, 9 Cal. App. 2d 451).
The judgment should be affirmed.
Lewis, Dye, Fttld and Froessel, JJ., concur with Conway, J.; Desmond, J., dissents, in opinion in which Loughran, Ch. J., concurs.
Judgments reversed, etc.