People v. Love

JAMES, J.

was convicted of having accomplished the crime described in section 288 of the Penal Code, by committing certain lascivious acts with a boy with intent as specified in the section referred to. As punishment for the offense the trial judge ordered that he be imprisoned in the state prison for a long term of years. The appeal is from that judgment and from an order denying the motion for a new trial.

The evidence offered in support of the allegations of the information was in the main given by the boy in question, who described in detail very shocking acts alleged to have been committed with him by appellant. Appellant was the keeper of a merchandise store in the city of San Diego and the father of the Mexican boy named in the information was a patron of his store. In the rear of the store appellant had a bedroom for his own use, he appearing to be an unmarried man. It was in this room that the alleged criminal acts are said to have been committed. The father of the boy testified that upon going into the front of the store to make some purchase he failed to find the appellant there, and discovered him in the bedroom lying upon the bed in company with the boy, his body being in contact with that of the boy. He was not able to see what act the two were committing, for appellant immediately arose from the bed and the boy went through a rear door. Upon being questioned by the father, the son told the latter what he and appellant had been doing in the room, and the arrest followed. While on the witness-stand the boy, in addition to describing the acts committed with him, stated that the same kind of acts had been upon prior occasions practiced between the two. There was testimony given' by other witnesses that the boy had been seen in and about the store and rooms of the appellant.

It is first claimed that the evidence established a different offense from that alleged in the information, in that the acts described by the boy constituted an offense under section 288a

[523]

of the Penal Code, and therefore could not be proved under a charge framed agreeable to the provisions of section 288 of the same code. The section under which appellant was prosecuted makes punishable acts of a lascivious nature “other than the acts constituting other crimes provided for in part two of this code.” It is a sufficient answer to this contention, as is properly stated by the attorney-general, that section 288a, referred to by counsel for appellant, was not a law at the time of the commission of the offense alleged. The information and proof made fixed the date of the alleged crime as of the 15th of April, 1915. Section 288a was a new section enacted by the legislature of 1915, which did not become effective until August of that year.