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defense of contributory negligence is available against the city, even if not so available against the injured persons. Judgment affirmed.

Sloane, J., Lennon, J., Lawlor, J., Shaw, J., and Shurtleff, J., concurred.

[Crim. No. 2366. In Bank.-November 7, 1921.]

THE PEOPLE, Respondent, v. HOLMES F. TROUTMAN, Appellant.

[1] CRIMINAL LAW-LEWD AND LASCIVIOUS ACT-SUFFICIENCY OF EVIDENCE.- -On this appeal from a judgment of conviction of viola tion of section 288 of the Penal Code, the testimony of the complaining witness is held not to be so inherently improbable as to be unworthy of belief, although it reveals an exceptional depth of moral degeneracy.

[2] ID.-CONSTRUCTION OF SECTION 288, PENAL CODE ERRONEOUS REFERENCE.-The reference to "Part Two" in section 288 of the Penal Code, making it an offense to commit any lewd or lascivious act "other than the acts constituting other crimes provided for in Part Two of this code," should be construed as a reference to "Part One," as the reference was either a legislative oversight or a clerical misprision.

[3] ID. COMPLAINING WITNESS-ACCOMPLICE. In a prosecution for violation of section 288 of the Penal Code, the complaining witness cannot be an accomplice regardless of his mental capacity, moral insight, or acquiescence, where the defendant is over the age of fourteen years, since the gist of the offense is the crime against a child under the age of fourteen years.

[4] ID.-EVIDENCE-TESTIMONY OF COMPLAINING WITNESS-CORROBORATION. In a prosecution for violation of section 288 of the Penal Code corroboration of the testimony of the complaining witness is not required.

[5] ID.-ACTS COMMITTED AFTER AGE OF FOURTEEN YEARS-CORROBORATION. In a prosecution for violation of section 288 of the Penal Code corroboration is not required of the testimony of the complaining witness relating to the commission of similar acts by the defendant subsequent to the act charged and after the witness

5. Age of alleged accomplice in sexual offense as affecting the necessity of corroboration of testimony, note, L. R. A. 1915E, 1222.

became of the age of fourteen years, admitted to show the disposi tion of the defendant to commit the act charged.

[6] ID. LETTERS OF DEFENDANT-CONSTRUCTION-INSTRUCTION.-In a prosecution for violation of section 288 of the Penal Code the defendant was not entitled to an instruction that the jury were to give an innocent construction to letters written by defendant to the complaining witness because the mother of the witness gave them such a construction when they were received and before she was informed of the alleged acts.

[7] ID.-OTHER OFFENSES-EFFECT OF PROOF-INSTRUCTION.-An instruction that testimony had been introduced tending to prove other lewd acts for the purpose of proving the lewd and lascivious disposition of the defendant, and not to prove distinct offenses, but such evidence was corroborative evidence tending to support the offense charged, was not erroneous.

DEPARTURE

[8] ID.-JURY - EXERCISE OF PEREMPTORY CHALLENGES FROM CODE PROCEDURE LACK OF PREJUDICE.-A defendant cannot complain of an alleged violation of section 1088 of the Penal Code, which provides that first the people and then the defendant shall take a peremptory challenge, by the action of the court in permitting the district attorney to exercise one peremptory challenge after passing his challenge several times, where the defendant after exercising nine of his peremptory challenges, leaving one unexercised, and the state exercising only the one challenge, expressed satisfaction with the jury.

APPEAL from a judgment of the Superior Court of Alameda County. James G. Quinn, Judge. Affirmed.

The facts are stated in the opinion of the court.

Ostrander & Carey for Appellant.

U. S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Respondent.

LENNON, J.-The order granting a rehearing of this case was prompted by the earnest and persuasive petition for a rehearing after decision by the district court of appeal. Here, as in the court of appeal, a reversal was sought primarily upon the contention that the evidence adduced in support of the people's case was so inherently improbable as to be unworthy of belief, and, therefore, insufficient to support the jury's verdict of guilty. Accordingly, we have, in addition to giving due consideration to the remaining

points made in support of the appeal, painstakingly reviewed and considered in every detail the evidence adduced upon the whole case, with the result that we are constrained to hold, as did the district court of appeal, that the evidence is sufficient to support the verdict and judgment.

[1] Conceding, as is contended, that at the time of the commission of the crime charged the physical condition of the boy, not necessary to be detailed here, upon whose person the crime charged was found by the jury to have been committed by the defendant, who was so diseased as to be abhorrent and, therefore, was calculated to repulse, rather than arouse, the unnatural lascivious desires even of an extremely morally degenerate man, nevertheless we are not satisfied that the evidence upon which the conviction was had is so inherently improbable as to be altogether unworthy of belief. While the testimony of the complaining witness concerning the details of the commission of the crime is so out of the ordinary in its revelation of revolting details as to be startling in the extreme and difficult to believe, still it cannot be held to be unbelievable merely because it reveals an exceptional depth of moral degeneracy. To so hold would be "purely a speculative attempt to sound the depths of human depravity and assign arbitrary rules beyond which desire and passion are held to be incapable of seducing or impelling human nature." (People v. Von Perhacs, 20 Cal. App. 48, [127 Pac. 1048]; Stout v. State, 22 Tex. App. 339, [3 S. W. 231].) It will be unnecessary to prolong a discussion of this phase of the case, for, apart from what we have said, we are satisfied that the case is adequately dealt with in so far as the sufficiency of the evidence is concerned and correctly decided from every point of view by the district court of appeal in the opinion of Mr. Presiding Justice Langdon, which we quote and adopt as follows:

"This is an appeal by the defendant from a judgment of conviction of violation of section 288 of the Penal Code. A motion for a new trial was denied, from which order an appeal is also taken.

"A discussion of the facts does not seem to us necessary, and in view of the nature of the testimony, detailed consideration of the evidence will not be made in this opinion. It is sufficient to say that the evidence has been read with

care and that we cannot agree with the appellant that the testimony of the boy against whom the crime is alleged to have been committed presents such inherent improbabilities as to entitle it to no credence as a matter of law, and thus leave the record with no legal evidence to sustain the conviction. It is, of course, true that all offenses under this section, by their very abnormality, are improbable measured by the standard of the normal; but the observation and experience of any court handling criminal records demonstrates that many such cases do occur, and their facts are, therefore, not inherently improbable, as that phrase is used in the law. As to the especially revolting facts in this case in connection with the alleged acts, which are urged by appellant as making the testimony of the boy unbelievable and inconceivable, it is sufficient to observe that once a man slips away from normal, once he enters the uncharted region of abnormality, the details and depths of degradation which his actions will show can no longer be measured. For the normal man, we have a standard from human experience; but for the abnormal, there are no rules of conduct. The argument of inherent improbability was doubtless made to the jury, where it was a proper one, but these men and women believed the testimony of the boy, and even under the unusual conditions shown by the evidence did not find the facts unbelievable. We cannot, therefore, as a matter of law, say that the revolting conditions surrounding the abnormal acts in this case render the commission of them by the defendant inherently improbable.

[2] "Objection is made by appellant that no crime is charged in the information against the defendant, because section 288 of the Penal Code is unconstitutional upon the ground that it is vague, ambiguous, indefinite, and uncertain. The specific objection to the section is that the language, 'Any person who shall willfully and lewdly commit any lewd or lascivious act other than the acts constituting other crimes provided for in part two of this code,' etc., is unintelligible in that 'Part Two' of the code referred to relates solely to criminal procedure and does not describe acts constituting other crimes. This precise objection was considered in the case of People v. Bradford, 1 Cal. App. 42, [81 Pac. 712], where the court said that it was evident that either by legislative oversight or by clerical misprision the words 'Part

Two' were inserted for the words 'Part One' in such section, and that it should be so construed. Appellant refers to this case in his brief, but asks this court to overrule it. We see no justification for so doing, and we consider the question of the validity of this section, against such an attack, as settled in this state.

[3] "Appellant makes various objections to instructions given and refused by the trial court. His main objection is that the evidence shows the prosecuting witness to be an accomplice, regardless of his age, because of his intelligence, education, and understanding of moral questions, and that the refusal of the court to leave the question of whether or not the boy was an accomplice to the jury, and to instruct the jury that if they so found, his testimony would require corroboration to sustain a conviction, was prejudicial error. Much argument is indulged in by the appellant regarding the law relating to accomplices, and the responsibility of minors for crimes, etc. We are of the opinion that none of the rules discussed governing these matters are applicable to a case such as the present one. The inquiry here is not at all as to the guilt or moral responsibility of the child, and under the section of the code under which the conviction here was had, the minor is guilty of no legal offense, regardless of his mental capacity or moral insight and regardless of his acquiescence. A different situation might exist if the defendant here was of the age of thirteen years and charged with any act included in section 288 against 'a child under the age of fourteen years.' Then the question of the defendant's knowledge of right and wrong would be important. It would be a question of fact, and the disputable presumption regarding the responsibility of infants between the ages of seven and fourteen years for crimes might be rebutted by the evidence. But the gist of the offense under section 288 is the crime against a 'child under the age of fourteen years,' and in the present case, the prosecuting witness, even if it were overwhelmingly proved that he had full knowledge of right and wrong and that he had innumerable vicious and criminal tendencies himself, and that he had suggested to the defendant (a man of thirty-eight years of age) the commission of the act charged against said defendant, yet he would not be guilty of an offense under sec

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