People v. Babb

VALLEE, J.—

Defendant was charged in one count with the infamous crime against nature. He was convicted by the court sitting without a jury of vagrancy as an offense necessarily included within the offense charged. He appeals from the judgment and the order denying his motion for a new trial.

Defendant’s assignments of error are: (1) Subdivision 5 of section 647 of the Penal Code does not state an offense under the law. (2) Subdivision 5 of Penal Code section 647 is not an offense necessarily included within the infamous crime against nature as defined by section 286 of the Penal Code.

Penal…