Opinion
Crim. No. 2.
May 29, 1905.
APPEAL from a judgment of the Superior Court of San Bernardino County and from an order denying a new trial. B. N. Smith, Judge.
The facts are stated in the opinion of the court.
Curtis Curtis, for Appellant.
U.S. Webb, Attorney-General, and J. C. Daly, Deputy Attorney-General, for Respondent.
The defendant was charged with the offense defined in section 288 of the Penal Code, convicted thereof, and sentenced to five years in the state prison. He appeals from the judgment and from an order denying a new trial.
Defendant contends on this appeal that 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," etc., is unintelligible in that part II of the code referred to relates solely to criminal procedure and in no way describes acts constituting other crimes, and that where a new offense is sought to be created by a section of the code it should have greater certainty in its terms. It is true that in part I, and not in part II, of the Penal Code is to be found the statement of the acts constituting other crimes; it is evident that either by legislative oversight or by clerical misprision the characters "II" were inserted for the character "I" in such section, and that section 288 should be so construed. Such construction is warranted by the decision of our supreme court in California Loan Co. v. Weis, 118 Cal. 497, [50 P. 697], wherein it was held that the word "June" was inserted, either by legislative oversight or clerical error, where "July" was intended, such construction being necessary to give effect to the plain intent of the legislature as deduced from the whole act then under consideration. The rules of statutory construction embrace also the correction of clerical errors by the insertion of the true word or words ( County of Lancaster v. Frey, 128 Pa. St. 593, [18 A. 478], cited in California Loan Co v. Weis, 118 Cal. 497, [50 P. 497].) Under this construction section 288 is intelligible and certain.
It is further contended that the court erred in overruling defendant's objection to the competency as a witness of the infant upon whose body the acts were charged to have been committed, as well as in refusing to strike out her testimony after the same had been given. We perceive no error in either ruling. Whether or not she was an incompetent witness on account of her age was a question within the discretion of the court. (Code Civ. Proc., sec. 1880; People v. Stouter, 142 Cal. 151, [ 75 P. 780].) The court having determined that she was a competent witness, the weight and effect of her testimony was properly left to the jury. The testimony of the child, with the corroborating testimony, sufficiently proves the corpus delicti. The testimony of the father in relation to the education and obedience of the child, and her characteristics as to pleasure, in her love for pictures, her traits as to boldness or timidity with strangers, might well have been omitted, but no prejudicial error is apparent in its admission.
The venue was sufficiently proven. While no witness testified in words that the offense was committed in San Bernardino County, it does appear that it was committed in the township of Ontario, which is a legal subdivision of San Bernardino County, California, and the whole testimony, taken together, leave no room for a reasonable doubt that the offense was committed in the county. ( People v. Manning, 48 Cal. 338.)
Judgment and order affirmed.
Gray, P. J., and Smith, J., concurred.