THE PEOPLE, Appellant, v. ROBERT V. McRAE, Respondent, 31 Cal. 2d 184

TRAYNOR, J. Respondent was charged in an information with violating

section 288a of the Penal Code. The only evidence at the preliminary hearing was the testimony of the complaining witness. The magistrate held respondent to answer. The People appeal from an order of the superior court granting respondent’s motion under

section 995 of the Penal Code to set aside the information on the ground that he was committed without reasonable or probable cause. Respondent contends that the complaining witness was an accomplice and that his testimony, which was uncorroborated, could not support a determination by the magistrate under

section 872 of the Penal Code that there was sufficient cause to believe respondent guilty of the offense charged. Respondent relies on

section 1111 of the Penal Code, which provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense. ...” Appellant contends that the complaining witness was not an accomplice and that even if he was, his uncorroborated testimony could support the commitment, since

section 1111 prohibits only a conviction based solely upon the uncorroborated testimony of an accomplice. According to his testimony the complaining witness submitted to the act committed upon him without resisting or objecting to respondent’s conduct. He was 15 years of age, and there is nothing in his testimony to indicate that he lacked normal mentality. Since his testimony shows that he knew that the act was wrongful and that he willingly participated therein, it follows that he was an accomplice. (People v. Robbins, 171 Cal. 466, 472 [154 P. 317]; People v.

Tenner, 67 Cal.App.2d 360, 363 [154 P.2d 9]; People v. Reynolds, 26 Cal.App.2d 219, 221 [79 P.2d 150]; People v. Casey, 79 Cal.App. 295, 300 [249 P. 525]; see People v.

McCollum, 214 Cal. 601, 602 [7 P.2d 301].) It was held in In re Schwitalla, 36 Cal.App. 511 [172 P. 617], that a magistrate can hold a defendant to answer upon the uncorroborated testimony of an accomplice. “While a defendant cannot be convicted upon the uncorroborated testimony of an accomplice, the testimony of an accomplice is admissible, and is proper to be considered, and we think it sufficient to make it appear that there is a ‘probability’ that a defendant has been guilty of the offense charged against him.” (36 Cal.App. 511, 512.) This case was followed by the Circuit Court of Appeals for the Ninth Circuit in Curreri v.

Vice, 77 F.2d 130. A Minnesota statute that also required corroboration of the testimony of an accomplice to support a conviction was similarly construed in State v. Jeffrey, 211 Minn. 55 [300 N.W. 7]. Respondent contends that the Schwitalla case was erroneous and should be disapproved, on the ground that it construed

section 1111 according to its literal terms without regard to its underlying policy that testimony of an accomplice must be regarded with distrust. He contends that this policy governs the testimony of an accomplice at a preliminary hearing as well as at a trial and that a commitment, like a conviction, cannot be based on the uncorroborated testimony of an accomplice. Since the testimony of an accomplice comes from an untrustworthy source and may be given in expectation of immunity, it must be received by a jury with caution and distrust. (Code Civ. Proc., § 2061 (4); People v.

Dail, 22 Cal.2d 642, 653, 654 [140 P.2d 828], and cases there cited.) A committing magistrate should likewise receive the testimony of an accomplice with caution and distrust. A committing magistrate may nevertheless believe the testimony of an accomplice and conclude that there is probable cause to believe defendant guilty of a public offense to which he should be held to answer.

Section 1111 supplements the policy that testimony of an accomplice shall be regarded with distrust by barring a conviction of a defendant based solely upon the uncorroborated testimony of an accomplice, even though such testimony may convince the jury beyond a reasonable doubt. “The requirement of

section 1111 of the Penal Code is in addition to the requirement of the doctrine of reasonable doubt; it in effect says that even though the jury are convinced to a moral certainty that the defendant is guilty, yet they must acquit him if the testimony of the accomplice is not corroborated by other evidence, which connects him or tends to connect him with the offense charged.” (People v. Dillon, 68 Cal.App. 457, 477 [229 P. 974]; see People v. Clough, 73 Cal. 348, 353 [15 P. 5]; People v. Negra, 208 Cal. 64 [280 P. 354]; 8 Cal.Jur. 173; 2 Wharton, Criminal Evidence, 11th ed. 1225.) Thus, by prohibiting a conviction based solely iipon the uncorroborated testimony of an accomplice,

section 1111 precludes a result that might otherwise follow from such testimony. It is explicit and complete in defining the result that it precludes. In restricting its prohibition to a conviction,

section 1111 is in harmony with the principle that less evidence is required to support a determination of probable cause for a commitment than a determination of guilt for a conviction. It is settled that in determining that there is probable cause to hold a defendant, a magistrate is not bound by the rule that there must be no reasonable doubt as to the guilt of a defendant, and that he may commit a defendant, even though there may be doubt as to his guilt. (People v. Nagle, 25 Cal.2d 216, 222 [153 P.2d 344]; People v. Tallman, 27 Cal.2d 209, 212 [163 P.2d 857]; People v.

Mitchell, 27 Cal.2d 678, 681 [166 P.2d 10].) The order appealed from is reversed. Gibson, C. J., Shenk, J., Edmonds, J., and Spence, J., concurred.