tion 288, for the gist of that offense is that the act is comImitted with one under the age of fourteen years.

[4] "Section 1111 of the Penal Code, while requiring the testimony of an accomplice to be corroborated in order to sustain a conviction, expressly defines an accomplice as 'one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' However, in addition to the foregoing reasons, it has been expressly decided in this state, in the case of People v. Raich, 26 Cal. App. 286, [146 Pac. 907], that there is no statute or other rule of law which calls for the corroboration of the testimony of a complaining witness in a case of this character. Also, in the case of People v. Thourwald (Cal. App.), 189 Pac. 124, it is said, in considering a conviction under this same section: 'Upon her testimony [the prosecutrix] alone a verdict of conviction may securely rest,' and it is then pointed out that no corroboration is required in cases of rape, and that the same rule applies to cases under section 288 of the Penal Code. Furthermore, there is some corroboration of the boy's testimony in the letters appearing in the record which were written to him by the defendant from time to time. The appellant contends that under certain cases in this state, such corroborating evidence is insufficient. But be that as it may in a case where corroboration is required-under the ruling in the cases of People v. Raich and People v. Thourwald, supra, corroboration of the testimony of the prosecuting witness is unnecessary in a case like the present one, and, therefore, we are not concerned with whether or not the possible inference which the jury might draw from the letters would have sufficiently corroborated the boy's story.

[5] "A somewhat different, though a closely related, proposition to the one just discussed is involved in the further contention of counsel that testimony of the boy relating to the commission of similar acts by the defendant subsequent to the act charged, and after October 30th, when the boy became fourteen years of age, was improperly admitted to show the disposition of the defendant to commit the act charged. It is appellant's contention that even though it be held that the boy was not an accomplice while he was under the age of fourteen years and while he came within the scope of section 288 of the Penal Code, nevertheless,

as to acts committed after he reached the age of fourteen years, he would be an accomplice, and as to such acts, at least, the court should have instructed the jury that his testimony must be corroborated. There is no merit in this contention, as it was not necessary to prove any offense except the one selected by the district attorney as the charge upon which the state relied for a conviction. The instruction given by the court, of which complaint is made, did not refer to other 'crimes," but referred to other 'acts' which it was stated were introduced to show the disposition of the defendant to commit the act charged, and as corroborative evidence of the main charge.

[6] "Reference has been made herein to certain letters written by the defendant to the prosecuting witness. These letters were introduced in evidence, and appellant contends that the jury should have been instructed specifically that they must give the letters an innocent construction for the reason that the mother of the boy saw these letters as they were received by him, and gave to them an entirely innocent construction. We do not see how the jury could be bound by the construction given to the letters by the mother before she was in possession of the information given by her son's testimony. The letters are not isolated from all other facts when being construed by the jury; they are interpreted in the light of all the other testimony in the case. It is perfectly clear from the record that when the mother was informed by her son of the alleged acts, she no longer gave to the letters of the defendant an innocent construction, but that, thereupon, such letters became exceedingly significant to her. We see no error in the action of the trial court in permitting the letters to go to the jury.

[7] "Complaint is made of the following instruction: "Testimony has been introduced by the prosecution tending to prove other acts of lewd and lascivious conduct of the defendant toward Herbert Cramer, prior to and subsequent to the acts relied upon for conviction. This evidence is introduced for the purpose of proving the lewd and lascivious disposition and tendency of the defendant to commit the lewd and lascivious acts. This evidence is not introduced to prove distinct offenses but is corroborative evidence tending to support the one specific offense for which the defendant is being tried.' Appellant contends that this instruction

positively asserts the existence of a fact, i. e., that the proof of similar offenses is corroborative of the main charge. Practically the same instruction was approved in the case of People v. Gasser, 34 Cal. App. 541, 544, [168 Pac. 157]. Certainly it is well recognized that in cases of this character, evidence of similar acts tending to prove a lewd and lascivious disposition and the tendency of the defendant to commit lewd and lascivious acts would be corroborative of the specific charge. There is nothing in this instruction, nor in the other instructions, which would prevent the jury from disbelieving the entire testimony of the prosecuting witness, both as to the main charge and the other offenses tending to show a lascivious disposition; and we think that appellant's contention that this instruction is, in effect, a direction to the jury to find the defendant guilty is without merit.

"Numerous objections are made with reference to other instructions of the trial court. It can serve no useful purpose to consider, specifically, each of these. The instructions as a whole must be read together, and after such reading, we are convinced that no error prejudicial to the defendant was made. Under the instructions, taken as a whole, his rights were fully protected. The simple fact is that the jury believed the story of the boy and did not believe the story of the defendant. There is no other direct evidence upon the charge. We do not think it can be said that the evidence was such that reasonable men could not have reached the conclusion arrived at in this case.

[8] "It is further urged by the appellant that error was committed in selecting the jury in this case, and that the trial court should have required the district attorney to exercise his peremptory challenge before the defendant was called upon to exercise his challenge. The district attorney was permitted to pass his peremptory challenge on several occasions, and after passing his challenge more than five times, was permitted to exercise one peremptory challenge. Appellant contends that this is a violation of section 1088 of the Penal Code, which provides that 'first the people and then the defendant shall take a peremptory challenge.' Section 1404 of the Penal Code provides that 'neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor any error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in

respect to a substantial right.' If an error in procedure was committed by this practice of the trial court, we fail to see how such an error tended to the prejudice of the defendant, and, certainly, there is no showing made of any actual prejudice suffered by him therefrom.

"Furthermore, it appears from the record that defendant exercised only nine of his peremptory challenges, thus leaving one unexercised. The state exercised only one such challenge. The record shows that after these challenges were exercised the attorney for the defendant stated: 'We are satisfied,' whereupon the district attorney stated: 'So are we.' It appears, therefore, that the defendant had an additional challenge unexercised which he did not desire to use because the jury as constituted was satisfactory to him. Under such circumstances, he cannot complain here of any irregularity, if irregularity there was, in allowing his peremptory challenge to the people. It was held in Baird v. Duane, 1 Cal. Unrep. 492, that error in refusing to allow a challenge for cause is not prejudicial if the party, although forced thereby to use a peremptory challenge, has a peremptory challenge to spare when the jury is completed. It was held in the case of People v. Schafer, 161 Cal. 573, [119 Pac. 920], that the disallowance of a challenge for cause on the ground of actual bias, interposed to a juror who was subsequently peremptorily challenged, will not be reviewed on appeal for error, where the record, while it shows that the defendant exhausted his ten peremptory challenges, including the ane used on such juror, fails to show that he had occasion or desire to use an additional peremptory challenge, or that each and all of the twelve jurors finally accepted and sworn were not entirely satisfactory to him. The reason for the rule announced in the last cited case, and the full discussion of the subject therein, apply with equal force in the present case. The defendant having expressly stated that the jury was satisfactory to him, and having one of his peremptory challenges unexercised at the time. the jury was accepted, his objection here is without merit.

"We find no errors in the record which would warrant a reversal of this judgment under all the facts in evidence, and the same is affirmed."

Wilbur, J., Shurtleff, J., Lawlor, J., Angellotti, C. J., Sloane, J., and Shaw, J., concurred.

187 Cal.-21

[S. F. No. 9998. In Bank.-November 8, 1921.]

In the Matter of the Estate of SILVIS H. CHEDA, Deceased, GEORGE A. CHEDA, etc., Appellant, v. ELENORE A. CHEDA, Respondent.

PERFORMANCE

[1] APPEAL - CONTRACT BY DECEASED PERSON BY EXECUTORS-APPEALABLE ORDER.-An order made under section 1597 et seq. of the Code of Civil Procedure directing the execu tors of a will to transfer and deliver to a third party certain assets of the estate, based on a contract for the sale thereof alleged to have been made by the testator, is an appealable order, although not specified as such in subdivision 3 of section 963 of the Code of Civil Procedure, specifying the probate judgments and orders from which an appeal may be taken.

[2] ESTATES OF DECEASED PERSONS

PROCEEDING FOR ENFORCEMENT OF CONTRACT-NATURE OF JUDGMENT.-The proceeding authorized by section 1597 of the Code of Civil Procedure is practically a proceeding in equity terminating in a final judgment having the full force and effect of a final judgment in an action for specific performance of a contract.

MOTION to dismiss an appeal. Denied.

The facts are stated in the opinion of the court.

Henry E. Greer and Thos. P. Boyd for Appellant.

Jos. K. Hawkins for Respondent.

THE COURT.-Motion to dismiss appeal from order on ground that the same is not an appealable order.

The order was one made by the superior court under section 1597 et seq. of the Code of Civil Procedure, directing the executors to transfer and deliver to a third party certain assets of the estate, being certain shares of bank stock. The application for the order and the order were based on a contract for the sale thereof alleged to have been made by the deceased.

[1] The claim that the order is nonappealable is based on the fact that such an order is not specified as an appealable order in the statute specifying the probate judgments and orders from which an appeal may be taken. (Code Civ.