People v. Bradford

ALLEN, J.

The defendant was charged with the offense defined in section 288 of the Penal Code, convicted thereof, and sentenced to five years in the state prison. He appeals from the judgment and from an order denying a new trial.

Defendant contends on this appeal that section 288 of the Penal Code, which provides that “Any person who shall willfully and lewdly commit any lewd or lascivious act,

other than the acts constituting other crimes provided for in part ll of this code,”

etc., is unintelligible in that part II of the code referred to relates solely to criminal procedure and in no way describes acts constituting other crimes, and that v,diere a new offense is sought to he created by a section of the code it should have greater • certainty in its terms. It is

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true that in part I, and not in part II, of the Penal Code is to be found the statement of the acts constituting other crimes; it is evident that either by legislative oversight or by clerical misprision the characters “II” were inserted for the character “I” in such section, and -that section 288 should be so construed. Such construction is warranted by the decision of our supreme court in

California Loan Co.

v.

Weis,

118 Cal. 497, [50 Pac. 697], wherein it was held that the word “June” was inserted, either by legislative oversight or clerical error, where “July” was intended, such construction being necessary to give effect to the plain intent of the legislature as deduced from the whole act then under consideration. The rules, of statutory construction embrace also "the correction of clerical errors by the insertion of the true word or words

(County of Lancaster

v.

Frey,

128 Pa. St. 593, [18 Atl. 478], cited in

California Loan Co