Kanngiesser

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:

It thus appears that the jury were clearly advised as to what constitutes an accomplice, the distinction between the consent necessary to…