Grinnell

Defendant was convicted under an indictment charging him with the offense defined in section 288 of the Penal Code. He appeals from the judgment and an order «denying his motion for a new trial.

At the trial the defendant interposed an objection to the introduction of evidence upon the ground that the facts stated in the indictment did not constitute a public offense, which objection was overruled. Said section 288 is 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.”

The allegation in the indictment is that the defendant “did willfully and lewdly commit a lewd and lascivious act upon and with the body of a child under the age of fourteen years, , . . with the intent,” etc.

Respondent contends that defendant’s failure to demur to the…