People v. Dant

FINCH, P. J.

The defendant was convicted of the crime of lewd and lascivious acts upon a male child of the age of eleven years. He prosecutes this appeal from the judgment of conviction and the order denying his motion for a new trial. The case was submitted upon the appellant’s opening brief.

His first contention is that the information does not state a public offense, in that it fails “to negative any conclusion that the acts which defendant is charged with committing are those embraced in the exception” contained in section 288 of the Penal Code defining the crime charged. That section reads as follows:

“Any person who shall willfully and lewdly commit any lewd or lascivious act other than the acts constituting other crimes provided for in part two of this code 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, shall be guilty of a felony and shall be imprisoned in the state prison not less than one year.’’

It has been held that “either by legislative oversight or by clerical misprision the words ‘part two’ were inserted for the words ‘part one’ in such section, and that it should be

[590]

so construed.”

(People

v.

Troutman,

187 Cal. 313, 316 [201 Pac. 928, 930].) So construed, the definition of the crime charged excludes the crime against nature and certain other sexual crimes. The allegations of. the information material to the question under consideration are as follows:

“The said George Dant . . . did . . . commit certain lewd and lascivious acts upon and with the body and certain parts thereof of one —--, who was then and there a male child ... of the age of eleven years, which said lewd and lascivious acts were so committed by said defendant as follows, to-wit: That said George Dant did then and there willfully, wrongfully, unlawfully, lewdly, and feloniously open up and remove the clothing of said-— so as to expose and did expose the body, legs, and private parts of the said-, and did then and there take out and expose the private parts of him the said George Dant, and did rub' the private parts of him the said George Dant upon and over the body, legs and private parts of the said -, and did cause an emission of the seminal fluid from the private parts of him the said George Dant upon the body, legs, and private parts of the said -, all with the felonious intent then and there and thereby of arousing, appealing to and gratifying the lust, passion, and sexual desires of him the said George Dant. ’ ’