APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Mr. Herman Lewkowitz, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. J. R. McDougall, Assistant Attorney General, and Mr. Lloyd J. Andrews, County Attorney, for the State.
ROSS, C. J.
The defendant Dutzler was convicted of the crime defined by section 4651, Revised Code of 1928, described by the medical term of fellatio. He has appealed, and among other errors assigns that the court erred in denying his motion for an instructed verdict on the ground of insufficient evidence to take the case to the jury. There is no evidence of the act other than that of the boy who [41 Ariz. 437] participated in the act with defendant. Under section 4491, Id., all persons concerned in the commission of a crime, whether they directly commit it or aid and abet in its commission, except children under 14 years of age, lunatics or idiots, are principals. Section 5055, Id., requires the corroboration of an accomplice by testimony independent of his tending to connect the accused with the commission of the offense charged. There was no such evidence in this case, and the court so instructed the jury.
The correctness of the court's ruling in refusing to instruct a verdict is made to turn upon the age of the boy participant. If he was of the age of 14 years or more, he was an accomplice, but if under that age he was not an accomplice, and the rule of evidence requiring corroboration is not applicable. The evidence as to the age of the boy consists of his statement to the effect that he was 13 years old on the ninth day of September, 1931. The offense is alleged to have been committed November 21, 1931, so if his story is to be taken as true he was not 14 years old. The father testified, and we give his statement in full, as follows:
"Q. How old is the boy? A. Thirteen.
"Q. When was he born? A. In '17.
"Q. Sir? A. In '17, September the 24th.
"Q. Of what year? A. '17.
"Q. 1917? A. 1917.
"Q. Let's have it right, you were there?
"Mr. Lewkowitz: Q. Were you there when he was ...