400 Ill. 240 | Ill. | 1948
Plaintiff in error, Victor Burke, was indicted and tried in the criminal court of Cook County for the crime of incest. He entered a plea of not guilty, waived a jury trial and, after a hearing by the court, was, on April 13, 1943, sentenced to the penitentiary for a term of one to twenty years. *241 Burke has sued a writ of error out of this court to review his record of conviction. The cause is submitted on the common-law record with two assignments of error: first, that the judgment order and sentence was contrary to law, and, second, that the indictment was faulty in substance because it failed to describe the act done or recite the address in Cook County where the alleged incest took place. No bill of exceptions has been filed.
The first contention of plaintiff in error is that the trial court sentenced him to the penitentiary for a definite term of twenty years, whereas section 156 of division 1 of the Illinois Criminal Code, (Ill. Rev. Stat. 1943, chap. 38, par. 374,) provides that the crime of incest between father and daughter is punishable by imprisonment for a term of not less than one year and not exceeding twenty years. This contention is based solely on an apparent clerical error in one portion of the record certified to plaintiff in error by the clerk of the trial court wherein the sentence is described as being for twenty years. The correct sentence is recited in two other portions of the judgment order included in the record filed by plaintiff in error. In addition, counsel for the People, on leave of this court, have filed a corrected copy of the judgment order, certified to by the clerk, so that the record now filed shows the correct sentence in all parts of the judgment order. Contentions based on a faulty record are without merit where an additional transcript shows the true state of the record. People v. Webb,
The last contention of plaintiff in error is that the indictment fails to describe the act committed, and fails to allege the address where the incest took place. Section 156 of division 1 of the Criminal Code, (Ill. Rev. Stat. 1943, chap. 38, par. 374) defining the crime of incest of father with daughter, provides as follows: "If a father shall rudely and licentiously cohabit with his own daughter, he shall be imprisoned in the penitentiary for a term of not less *242
than one year and not exceeding twenty years." Count 1 of the indictment here complained of recites that on May 6, 1943, in the county of Cook, in the State of Illinois, Victor Burke, father of Dorothy Burke, did "unlawfully, feloniously, rudely and licentiously cohabit with and have carnal knowledge of the body of said Dorothy Burke," etc. Count 2 describes the crime in the same language except the words "and have carnal knowledge of the body of the said" were omitted therefrom. Plaintiff in error seeks to invoke the rule followed by this court in People v.Rice,
The judgment of the criminal court of Cook County is affirmed.
Judgment affirmed.