¶1(dissenting):
¶2I specially concur in Judge Roylston’s .dissent from the decision of the majority in the above entitled and numbered cause.
¶3The majority bases its opinion on a faulty premise that this 12 year old girl is a normal, intelligent child. To say that she is normal and intelligent completely ignores the record in this case. From the time she first entered school as a six year old child, until her twelfth year when the defendant was arrested, she had been sexually molested by the defendant and had been continually subjected to unnatural sex acts, namely, fellatio and cunnilingus, imposed upon her by her stepfather, the defendant. She had constantly been under the domination of this depraved, drunken, violent man and she had witnessed all of the cruelty that had been imposed upon her nearly deaf mother, by the defendant, as is described in Judge Roylston’s dissent.
¶4The treatment this child had received since she was six years of age had been, rather than normal, about as abnormal as can be imagined. You would look in vain to find another child in' the entire state that has been subjected to such indignities - and bestialities.
¶5It is difficult to judge from the record whether the child is intelligent; perhaps it would take an expert in child psychology to determine what would happen to the intellect of a growing child with a background such as is recorded in this case. Of one thing we can be sure: that a child reared in the environment described in this case would not have the same clear mind with which to reach logical conclusions on moral and ethical problems as would be expected of a child reared in a good, wholesome home. It would be reasonable to assume, taking into consideration her background, that her thinking would be distorted and twisted compared to a girl reared in an average home environment.
¶6In my opinion the majority likewise is in error when they assume that this 12 year old child “[is] aware that the police exist for the purpose of [suppressing crimes] and to arrest and see that those who have committed wrongs are punished.” So far as this record is concerned, the only experience the child had with the police was when the police came to investigate and *347arrest the defendant for his violent acts committed on the person of her mother. The defendant admits that he was arrested five times within the two-year period before he was charged with this crime. It is evident that he was not convicted of any offense, since he continued to live with the family and impose himself upon them. This child had observed the futility of the complaints made by her mother to the police department for protection and help. Somewhere in the midst of these arrests the defendant had told the child, “that if I told anybody, that both of us would get in trouble.” In light of the circumstances of this case, this statement amounted to a threat on the part of the defendant, and to prove to the child that his rule was supreme he admitted that he had whipped the girl three times in order to discipline her.
¶7As an abstract proposition it can be agreed that the police do exist for the purpose of suppressing crime, but the cold facts as this child understood them were that the crimes inflicted on her mother had not been suppressed and the only thing she knew was to endure the indecent and cruel acts of her stepfather, since there seemed to be no means of escape. It must have seemed to her that the defendant could intimidate and threaten her, whip her, and could beat and abuse her mother at will and at any time he wishes, without hindrance.
¶8In view of the child’s background I have found it impossible to conclude that she was a normal child or that she had the intelligence or training to form a basis for knowing what was right or wrong, and— as she testified — she never had the courage to tell her mother until, as she expressed it:
A “Well, I just broke down and told her [her mother].
Q “Because Roy was not there?
A “Yes.”
¶9In my opinion, the record clearly does not show that the 12 year old victim here was an accomplice to the acts upon which the defendant was convicted below.
¶10In Dutzler v. State, 41 Ariz. 436, 19 P.2d 326 (1933) we held that a boy under 14 years old was not an accomplice within the rule requiring corroboration of an accomplice’s testimony against an accused. It should also be noted that both A.R.S. §§ 13-135 and 13-136 (1956) were adopted from California. An examination of the judicial opinions of that state regarding these statutes in regard to crimes similar to the ones at bar reveal almost without exception that children under 14 years are not accomplices whose testimony need be corroborated. See, e. g., People v. Terry, 180 Cal.App.2d 48, 4 Cal.Rptr. 597 (1960) ; People v. Becker, 80 Cal.App.2d 691, 181 P.2d 958 (1947); People v. Slaughter, 45 *348Cal.App.2d 724, 115 P.2d 30 (Cal.App. 1941). In People v. Terry, supra, the court said:
“It is next claimed that the evidence was insufficient to support the conviction of violating Section 286; first because the boy involved was an accomplice and his testimony was uncorroboratéd, and second, there was no proof of penetration. It is settled, of course, that corroboration of the complaining witness is necessary (People v. Robbins, 171 Cal. 466, 472, 154 P. 317) unless he was not an accomplice. Timothy, the minor in question, was eleven years of age at the time of the act. By Section 26 of the Penal Code it is provided that all persons are capable of committing crime except (among others) ‘children under the age of fourteen, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness.’ Analyzing this requirement, it was stated in People v. Becker, 140 Cal.App. 162, 164, 35 P.2d 196, 197, after reference to Section 26: ‘No case has been brought to our attention in which a child of 11 years has been held to be an accomplice in the commission of such an offense (Section 286, Penal Code). It is doubtful whether it could be said in any case that a child of tender years could so far understand the nature and effect of acts such as those charged against appellant here as to know of their wrongfulness.’ In People v. Williams, 12 Cal.App.2d 207, 209-210, 55 P.2d 223, the court declared that proof that the child understood the wrongfulness of the act must be clear and convincing.” 4 Cal.Rptr. at 604.
¶11For the foregoing reasons, I would affirm the lower court judgment.