People v. Booth

SHINN, P. J.

Appellant Booth was convicted by a jury of violation of section 288, Penal Code. He moved for a new trial, which was denied, and he was placed on probation for seven years. He appeals from the order denying his motion for a new trial, claiming error in the instructions.

[108]

The court gave an instruction reading: “Every person who wilfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child is guilty of a crime.”

Also one reading as follows: “In every crime or public

offense there must exist a union or joint operation of act and intent. To constitute criminal intent it is merely necessary that a person intend to do an act which, if committed, will constitute a crime. When a person intentionally does that which the law declares to be a crime, such person is acting with criminal intent even though he may not know that such act is unlawful and even though there be no bad motive.”

The two instructions are in direct conflict. One states that in order to constitute the offense the act must be committed with the intent of arousing the passions, etc., of the accused or the child, the other that criminal intent is merely the intent to commit the act which constitutes the crime, even though there be no bad motive. The first describes the specific intent which is an element of the crime here charged, the second the general intent or violation of the actor which is an element of every crime or public offense. Since the second instruction relates to all crimes, it embraces those which require proof of a specific intent. Under this instruction defendant could have been convicted without evidence or a finding of a specific intent, and to give it was error.

(People

v.

Geibel,

93 Cal. App.2d 147, 176 [208 P.2d 743].)

We are at a loss to understand why it was given, or why it is given in so many cases where it can serve no purpose and tends to create confusion. To be sure it states the law as declared in the Penal Code, but that is no reason for giving an instruction which expounds legal principles that are wholly irrelevant to the issues. In every case involving specific intent an instruction on specific intent is sufficient for all purposes. It embraces all the elements of general intent. When instructions are given on both general and specific intent a third instruction is necessary which states that the instruction on general intent does not relate to crimes which require proof of specific intent. The instruction on general intent should not be given at all in a prosecution for violation of section 288. In fact it is only in rare eases that it will serve any purpose. Occasionally