Anthony

In this case the defendant was indicted by the grand jury of the city and county of San Francisco for the commission of the felony defined in 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 II of this code, upon or with the body, or any part or member thereof, of a child under the age of 14 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.”

Upon his trial defendant was convicted, and he appeals from the judgment and from an order denying him a new trial.

In the lower court the defendant interposed a demurrer to the indictment as it was originally returned by the grand jury, but before the demurrer could be heard and disposed of the district attorney, of his own motion, amended the indictment in minor matters of dates. This was done under -the authority of a recent amendment to section 1008 of the Penal Code, [Stats. 1911, p. 436], which in part reads as…