People v. Dabner

CHIPMAN, P. J.

The defendant was convicted by a jury upon an amended indictment in which it was charged that, on or about October 15, 1913, at the county of Napa, he ‘‘ did then and there willfully, unlawfully and feloniously commit a certain lewd and lascivious act upon and with the body, and certain parts thereof, of one Crystal Davidson, a female child under the age of fourteen years, to wit, of the age of eight years, by the said Anton Dabner then and there inserting and placing his hands up under the clothes and through and inside of the drawers of said Crystal Davidson, with intent then and there of arousing, appealing to and gratifying the lust, passion and sexual desires of him, the said Anton Dabner, contrary,” etc.

The crime charged is defined by section 288 of the Penal Code, which reads: “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 intent of arousing, appealing to, or gratifying the lust or passion or sexual desires of such person or of such child, shall be guilty, ’ ’ etc.

The only point made in defendant’s brief is' “that the act described does not constitute a lewd and lascivious act under the provisions of section 288 of the Penal Code; that that act could only be committed upon or with the body, or some part or member thereof, of a child under the age of fourteen years. There is no allegation in the indictment that the defendant herein ever placed his hands upon or in any way violated or touched the body, or any part or member thereof, of the said Crystal Davidson. It is not even charged that the clothes and the drawers mentioned in said indictment were upon the person of the said Crystal Davidson.”

[632]

Furthermore, it is claimed that defendant did not waive this infirmity in the indictment by failure to demur to the indictment for the reason, as is claimed, that where the indictment fails to state a public offense the failure to demur, specially or otherwise, cannot be deemed a waiver of an objection based upon such ground. Citing

People

v.