Schramm v. People
77 N.E. 117
Ill.
1906
Check Treatment
Mr. Justice Wilkin

delivered' the opinion of the court:

Thе indictment in this case consists of two counts, each charging that the defеndant, “being a male person of the age of fourteen years and upwards, unlawfully and feloniously did make an assault in and upon one Etta Swallow, then and there being a female person under the age of fourteen, to-wit, five and one-half years, and her, the said Etta Swallow, then and there wickedly, unlawfully ‍‌‌​​​​​‌​​‌​​​​​‌​​​‌‌​​​​​‌‌‌​‌​​‌​‌​​​​​​‌‌​​‌‍and feloniously did ravish and carnally know, contrary to the statute,” etc. By motions to quash and in arrest of judgment the point was made that the indictment, аnd each count thereof, was fatally defective, in that it failed to allege that the defendant was, at the time of the commission of the crime, “of the age of sixteen years and upwards.” Both motions were overrulеd.

Counsel for plaintiff in error rely upon ‍‌‌​​​​​‌​​‌​​​​​‌​​​‌‌​​​​​‌‌‌​‌​​‌​‌​​​​​​‌‌​​‌‍the recent case of Wistrand v. People, 213 Ill. 72, as sustaining their contention that the indictment is not sufficient. It is conceded that it is held in that case that the defendant’s age in such case is a material element of the crime and ‍‌‌​​​​​‌​​‌​​​​​‌​​​‌‌​​​​​‌‌‌​‌​​‌​‌​​​​​​‌‌​​‌‍must be proved by the People in order to authorize a conviction, but it is claimed that the Wistrand case is in conflict with the settled law of this State as announced in Sutton v. Peoplе, 145 Ill. 279, and other cases. In the Sutton case the indictment charged the offense as at common law,—that is, as having been committed forcibly and against the will of the female,—and it was held that the averment of the defendant’s age was mere surplusage and need not be proved by the Peoplе; that his age, if under fourteen, was a matter of defense. This, however, is a diffеrent case. The attempt in this indictment is to charge the statutory offense of rape without force,—that is, with or without the consent of a female child under the age of fourteen ‍‌‌​​​​​‌​​‌​​​​​‌​​​‌‌​​​​​‌‌‌​‌​​‌​‌​​​​​​‌‌​​‌‍years. The statute defining that crime is: “Every male person of the age of sixteen years and upwards, who shall have carnal knowledge of any female person under the age of fourteen years, either with or without her consent, shall be adjudged to be guilty of thе crime of rape.” (Hurd’s Stat. 1903, chap. 38, par. 237.) By the terms of the statute no рerson can commit the offense except he be of the agе of sixteen years or upwards. We do not think there is any necessary conflict in our former decisions and the Wistrand case. Johnson v. People, 202 Ill. 53, simрly holds that the indictment in that case, which did aver the age of the defendant to be sixteen or upwards, was sufficient, being substantially in the language of the statute. It is true that decisions of other courts are to be found holding that, evеn under statutes like ours as above quoted, the indictment need not aver ‍‌‌​​​​​‌​​‌​​​​​‌​​​‌‌​​​​​‌‌‌​‌​​‌​‌​​​​​​‌‌​​‌‍the age of the defendant ; but they are in conflict with Wistrand v. People, suprа, at least to the extent of holding that the age is a mere matter of defense, our holding being that it is of the body of the crime and must be proved by the People. It would seem to necessarily follow that the indictment should aver that fact.

We are furthermore of the opinion that the conviction of plaintiff in error was not authorized, by the evidence in any view of the sufficiency of the indictment. The proof is all to the effect that the defendant was under the age of sixteen, and his father testified, without contradictiоn, that he was at the time of the commission of the offense under fourteеn years of age. There is nothing whatever in the record tending to prove that force or violence was used or that the crime was committed without the consent of the child.

The judgment of the circuit court must be reversеd, and as no conviction can be had under this indictment the cause will not be remanded.

Judgment reversed.