DOOLING, J.
— Defendant appeals from judgments of conviction of lewd and lascivious conduct with one Roger De Vries, a 2-year-old child (Pen. Code, § 288), and kidnaping said child (Pen. Code, § 207), following jury verdicts finding him guilty of both offenses.
On November 13, 1958, about 3:30 p. m. Roger’s mother sent him to play in an alley behind their home. About that time a parking lot attendant found defendant sitting in a car on the lot and ordered him to leave. The attendant testified that defendant was “obviously drunk.” At about 4 p. m. the attendant saw defendant walking down the alley leading Roger by the hand. About 5 p. m. a lady living in the area heard a baby crying and upon investigation found defendant and Roger sitting behind a 5-foot fence. Defendant had a bottle of liquor in his hand and was seated and leaning over Roger and talking to him. So far as she could observe both appeared to be fully clothed. Defendant’s voice was “thick” and “unintelligent” and it appeared to her that defendant “was trying to soothe the baby.” She immediately called the police.
Two officers arrived about 15 minutes later. They looked over the fence and saw Roger and defendant lying beside each other on the ground. Both were undressed from the waist down and the baby was crying. The officers observed that defendant had an erection and he was stroking the baby’s right leg with his right hand. Defendant saw the officers and started to run, pulling up his trousers as he ran. The officers subdued him after a struggle. The defendant told the officers that he did not remember where he got the baby, it was “somewhere down the street.” Defendant also said that “we were just up here playing with each other. He’d play with me, and then I’d play with him . . . but he guessed the baby didn’t *764want to anymore, so he was going to take him back home.” The officers testified that defendant had been drinking but was not intoxicated enough to justify his arrest for that reason. “It was second degree drunk.” Defendant “clearly answered” their questions but they could “smell alcohol.” The jury was properly instructed on the effect of intoxication as a defense to the charge of violating Penal Code, section 288, and although defendant testified that he was so drunk that he could not remember the events of that afternoon, the evidence was sufficient to support the jury’s finding that defendant was not so intoxicated that he could not form the specific intent required by that section to establish his guilt. The facts above recited which the officers testified that they observed upon looking over the fence were sufficient without more to support the verdict of guilty of violating section 288. The fact that the sun had set and it was twilight cannot be said to make the testimony of the officers so improbable that the jury was not entitled to believe this testimony. There is no basis in the record for defendant’s claim, not joined in by his appointed counsel, that there was perjured testimony, and under the familiar rule any inconsistencies in the testimony were for the jury to resolve.
The conviction of the charge of kidnaping presents a more serious question. The trial court instructed the jury: “To constitute the crime of kidnaping . . . there must be a carrying, or otherwise forcible moving, for some distance of the person who, against his will, is stolen or taken into the custody or control of another person. . . .
“This form of kidnaping does not involve as an essential element any specific intent or purpose, as distinguished from ordinary criminal intent, and hence proof of the intent or purpose of the defendant, beyond criminal intent as defined in my instructions, or that he had any certain purpose, is not necessary to support a conviction.”
The jury was elsewhere instructed: 1 ‘ The intent to do the forbidden thing constitutes the criminal intent.”
So far as any evidence shows, the baby went willingly with defendant. The parking lot attendant at 4 p. m. saw defendant walking down the alley leading the baby by the hand. Defendant and Roger were next seen by a witness about 5 p. m. behind the fence where the officers also found them 15 minutes later. It is true that the baby was too young- to give his legal consent to being taken by the defendant. (State v. Hoyle, 114 Wash. 290 [194 P. 976, 977]; John v. State, 6 Wyo. *765203 [44 P. 51, 53]; State v. Farrar, 41 N.H. 53, 59; Burdick, Law of Crime, vol. 2, § 392, p. 62; cf. People v. Williams, 12 Cal.App.2d 207, 209 [55 P.2d 223].) It is equally true that the forcible moving of a person against his will, where such person is capable of giving consent, is kidnaping under Penal Code, section 207, without more, and 11 [t] he purpose or motive of the taking and carrying away [is] immaterial in prosecutions for kidnaping.” (People v. Sheasbey, 82 Cal. App. 459, 465 [255 P. 836]; see People v. Bruno, 49 Cal.App. 372, 374-376 [193 P. 511].) Counsel for defendant argues that the application of this rule to the ease of a child too young to give a legal consent “could result in the conviction . . . of persons who merely escort a small child from point A to point B without a wrongful or any purpose. ’ ’ There is much force to this argument. Many situations readily suggest themselves under which a minor, unable to give his consent because of his immature years, might be forcibly taken and transported by an adult for a good or innocuous purpose, and in which it would be unthinkable that the adult should be held guilty of kidnaping. If I find a young child alone on the highway and take him into my automobile, whether he resists or goes with me passively, intending to transport him to a police station or to his home; if I find such a child at the edge of a body of water in which he might drown or at the edge of a precipice over which he might fall and seize him even brusquely, whatever his resistance, and forcibly carry him to a place of greater safety; if I find such a child on the sidewalk and take his hand and walk along with him out of friendliness or a fondness for children or any other innocent or innocuous reason with no malign or evil purpose, nobody could reasonably believe that it was the intention of the Legislature that for any of these acts I could be convicted of the crime of kidnaping. On the other hand, if I find such a child under any of the supposed circumstances and transport him in exactly the same manner with an evil and unlawful intent, everybody would equally agree that my conviction of kidnaping would fall within the legislative purpose.
Similar instances as readily suggest themselves in which the intent with which an adult person, who by reason of extreme intoxication, delirium or unconsciousness from injury or illness is unable to give his consent, is forcibly carried by another, should determine whether such forcible carrying is or is not kidnaping within the legislative purpose. If I *766forcibly carry a helplessly intoxicated man lying in the middle of the highway to a place of greater safety, if I forcibly take a delirious man or one who is unconscious to a hospital or to a doctor, nobody again could reasonably believe that it was the intention of the Legislature that for any of these acts I could be convicted of kidnaping. But if I forcibly take one of such persons and carry him in the same manner for an evil and unlawful purpose, everybody would again agree that my conviction of kidnaping would fall within the legislative design.
The rule governing the forcible carrying of conscious persons capable of giving consent, which makes a person who forcibly carries such a person and transports him against his will guilty of kidnaping, however good or innocent his motive or intent may otherwise be, can only lead to obvious injustice and a perversion of the legislative purpose if blindly and literally applied where the person who is forcibly transported, because of infancy or mental condition, is incapable of giving his consent. The courts are not powerless to read exceptions into the law when confronted by a criminal statute which literally interpreted would lead to the conviction of crime in cases to which it is obvious that the Legislature cannot have intended the statute to apply.
The governing rule of construction in cases of this character was stated by this court in Ex parte Lorenzen, 128 Cal. 431, at pages 438-440 [61 P. 68, 79 Am.St.Rep. 47, 5 L.R.A. 55] : “ [I]t is to be remembered that the letter of a penal statute is not of controlling force, and that the courts, in construing such statutes, from very ancient times have sought for the essence and spirit of the law and decided in accordance with thorn, even against express language; and in so doing they have not found it necessary to overthrow the law, but have made it applicable to the class of persons or the kind of acts clearly contemplated within its scope. The rule was thus early expressed in Bacon’s Abridgment: ‘A statute ought sometimes to have such an equitable construction as is contrary to the letter. ’ The oft-cited instance of the Bologna law, which enacted that whoever drew blood in the streets should be punished with the utmost severity, was wisely held not to apply to the barber who opened the veins of a sick man to aid in his cure. The statute of Edward II, declaring guilty of a felony any person who broke prison, was held upon considerations of the most ordinary common sense not to apply to one who did so to escape from a burning jail. The law *767declaring it a felony to lay hands upon a priest, hy the same principles of common sense reasoning, was held not to apply to one who did so by way of kindness or warning, but only to those who acted with illegal or improper intent. In United States v. Kirby, 7 Wall. (U.S.) 482 [19 L.Ed. 278], the act provided: ‘ That if any persons shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier, etc., . . . for every such offense shall pay a fine not exceeding one thousand dollars.’ A mail carrier was arrested by a state officer on an indictment for murder. The act came within the letter of the law. Mr. Justice Field, delivering the opinion of the court, discusses the exemption of mail carriers from detention under civil processes, but declares that they are liable to arrest and detention under criminal process for acts malum in se. Therefore, notwithstanding the fact that the defendant had ‘knowingly and wilfully’ retarded the mail carrier, it is said: ‘When the acts which create the obstruction are in themselves unlawful, the intention to obstruct will be imputed to their author, although the attainment of other ends may have been the primary object. The statute has no reference to acts lawful in themselves, from the execution of which a temporary delay to the mail unavoidably follows. ... All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice or oppression or an absurd consequence. It will always be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.’ ... In Holmes v. Paris, 75 Me. 559, it is said: ‘It has been repeatedly asserted in both ancient and modern cases that judges may in some cases decide upon a statute even in direct contravention of its terms.’ In all of these cases the apparent defect of the statute is cured by making it apply according to its spirit to the act in its nature illegal or fraudulent.' ’ (Citing and following Ex parte Lorenzen, supra, see: People v. Ventura Refining Co., 204 Cal. 286, 290-292 [268 P. 347, 283 P. 60]; Ex parte McClain, 134 Cal. 110, 111-112 [66 P. 69, 86 Am.St.Rep. 243, 54 L.R.A. 779]; Southern Pacific Co. v. Robinson, 132 Cal. 408, 420 [64 P. 572, 12 L.R.A. N.S. 497]; People v. Kelley, 27 Cal. App.2d Supp. 771, 774-775 [70 P.2d 276]; In re Hayes, 134 Cal.App. 312, 317 [25 P.2d 230]; People v. Kaufman, 49 Cal. App. 570, 574 [193 P. 953]; People v. Earl, 19 Cal.App. 69, 71-72 [124 P. 887].)
*768Penal Code, section 207, as applied to a person forcibly taking and carrying away another, who by reason of immaturity or mental condition is unable to give his legal consent thereto, should, following the rule of Lorenzen herein-above quoted, be construed as making the one so acting guilty of kidnaping only if the taking and carrying away is done for an illegal purpose or with an illegal intent. So construed the legislative purpose will be preserved and furthered, and innocent persons who cannot have been within the legislative intention in adopting section 207 will be excluded from the operation of the law. It results that the instruction above quoted upon the intent necessary to constitute the crime of kidnaping under the facts of this case was erroneous. It also appears under the facts of this case to have been prejudicial. The defendant was more or less intoxicated. He was with the child from 4 p. m. to 5 p. m., when the lady first saw them together behind the fence. At that time both appeared to her to be fully clothed. Fifteen minutes later the police found them in the compromising position which they described. It seems highly improbable, if the defendant had the violation of section 288 in mind while he was leading the child, that he would have waited an hour to accomplish that purpose. Given an instruction that the defendant’s purpose or intent must have been an illegal one in taking the child to the point where they were later discovered in order to render him guilty of kidnaping, it seems reasonably probable that the jury would have found that defendant had no such illegal purpose or intent in leading the child, and only formed the intent to violate section 288 at some time between 5 p. m. when they were observed fully clothed and 5:15 p. m. when the officers observed them partially undressed.
The judgment of violation of Penal Code, section 288, is affirmed. The judgment of kidnaping is reversed.
Gibson, C. J., Traynor, J., Peters, J., and White, J., concurred.
Government Code, section 27706, provides that "The public defender shall perform the following duties: (a) . . . [H]e . . . shall prosecute all appeals to a higher court or courts of any person who has been convicted, where, in Ms opinion, the appeal will or might reasonably bo expected to result in the reversal or modification of the judgment of conviction. ’ ’