Dant

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:

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 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:

In People v. Grinnell, 9 Cal. App. 238, 240 [ 98 Pac. 681, 682 ], it is said: “The indictment, neither by a particular…