Johnson v. People
| Citation | 202 Ill. 53,66 N.E. 877 |
| Parties | JOHNSON v. PEOPLE. |
| Decision Date | 18 February 1903 |
| Court | Supreme Court of Illinois |
Error to circuit court, Tazewell county; T. N. Green, Judge.
John E. Johnson, alias Jack Johnson, was convicted of rape, and brings error. Affirmed.
This is an indictment against the plaintiff in error at the September term, 1902, of the Tazewell county circuit court, for the crime of rape, alleged to have been committed on Leah Hickman, a female child of the age of eight years. The jury returned a verdict, finding the plaintiff in error guilty in manner and form as charged in the indictment, fixing his punishment at five years in the penitentiary, and finding his age to be 39 years. Motions for new trial and in arrest of judgment were overruled, and the court entered judgment upon the verdict, and sentenced plaintiff in error to confinement in the penitentiary for five years. The present writ of error is sued out for the purpose of reviewing the judgment so entered.
The indictment consistend of three counts. The first count alleges: ‘The grand jurors,’ etc., ‘upon their oaths, present that John E. Johnson, alias Jack Johnson, a male person over the age of sixteen years, late of said county, on the 18th day of February, in the year of our Lord one thousand nine hundred and two, at and within the said county of Tazewell and state of Illinois aforesaid, in and upon one Leah Hickman, a female child under the age of ten years, to wit, of the age of eight years, feloniously did make an assault, and her, the said Leah Hickman, then and there feloniously did unlawfully and carnally know and abuse, contrary to the form of the statute,’ etc.
The second count, after the formal part, etc., alleges, etc., ‘that John E. Johnson, alias Jack Johnson, a male person over the age of sixteen years, late of said county, on the 18th day of February, in the year of our Lord one thousand nine hundred and two, at and within the said county of Tazewell and state of Illinois aforesaid, did unlawfully and feloniously make an assault in and upon one Leah Hickman, then and there being a female person under the age of fourteen years, to wit, of the age of eight years, and her, the said Leah Hickman, then and there wickedly, unlawfully, and feloniously did ravish and carnally know, contrary to the * * * statute,’ etc.
The third count alleges: ‘The grand jurors,’ etc., ‘present that John E. Johnson, alias Jack Johnson, a male person of the age of sixteen years and upwards, late of said county, on the 18th day of February, in the year of our Lord one thousand nine hundred and two, at and within the said county of Tazewell and state of Illinois, aforesaid, in and upon one Leah Hickman, a female child under the age of ten years, to wit, of the age of eight years, feloniously did make an assault, with intent her, the said Leah Hickman, then and there feloniously to carnally know and abuse, contrary to the * * * statute,’ etc.W. B. Cooney, for plaintiff in error.
H. J. Hamlin, Atty. Gen., G. W. Cunningham, State's Atty., and George B. Gillespie, Asst. Atty. Gen., for the People.
1. Plaintiff in error made a motion to quash the indictment, which motion was overruled by the trial court; and the first error here assigned is that the court below erred in refusing to quash the indictment, for the reason that it does not aver that, at the time the crime sought to be charged was committed, plaintiff in error was of the age of 16 years and upwards. The contention of the plaintiff in error is that the indictment is so drawn as to make the allegation of age apply to the time when the indictment was found, rather than the time when the offense is alleged to have been committed. We do not think that the three counts in the indictment, which are set forth in the statement preceding this opinion, are justly subject to such an interpretation. The section of the Criminal Code under which the indictment is found is as follows: 1 Starr & C. Ann. St. (2d Ed.) p. 1339; Cr. Code, div. 1, § 237. Under this statute, when the male person charged with the crime is of the age of 16 years and upwards, and the female person is under the age of 14 years, the crime of rape is committed, whether the act is done with or without the consent of such female person. The position of plaintiff in error is that the acts constituting the offense are all set forth so as to show that they were done with the consent of the prosecutrix, and it is claimed to be an essential element of the crime in charging this offense that plaintiff in error was of the age of 16 years and upwards, and that the indictment must aver that such was the age at the time of the commission of the crime, and not at the time the indictment was found. Bishop on Statutory Crimes (3d Ed.) sec. 486. In the first and second counts of the indictment the age of the plaintiff in error is alleged to be over 16 years, and in the third count the age is alleged to be 16 years and upwards. It is true that the indictment does not contain a formal averment that John E. Johnson ‘was' a male person over the age of 16 years, or of the age of 16 years and upwards. But John E. Johnson is referred to as ‘a male person over the age of sixteen years,’ and ‘a male person of the age of sixteen years and upwards.’ This designation does not refer to the time when the indictment was found, but relates to the time when the crime was committed, to wit, on February 18, 1902.
The indictment is in the language of the statute creating the offense. It states ‘that John E. Johnson, alias Jack Johnson, a male person over the age of sixteen years, late of said county, on the 18th day of February, in the year of our Lord one thousand nine hundred and two, * * * in and upon Leah Hickman, a female child under the age of ten years, to wit, of the age of eight years, feloniously did * * * carnally know,’ etc. Section 6 of division 11 of the Criminal Code provides: ‘Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.’ 1 Starr & C. Ann. St. (2d Ed.) p. 1389. It has been held by this court that where the offense is statutory-that is, where the statute specifically sets out what acts shall constitute the offense-it is, as a general rule, sufficient in an indictment to charge the defendant with acts, coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter. Loehr v. People, 132 Ill. 504, 24 N. E. 68;Scott v. People, 141 Ill. 195, 30 N. E. 329. As a general rule, it is not necessary in an indictment for the crime of rape to aver the age of the person charged with committing the rape. People v. Ah Yek, 29 Cal. 576; 2 Bishop's New Crim. Proc. sec. 954.
We are of the opinion that no error was committed in overruling the motion to quash the indictment for the reasons stated.
Counsel for plaintiff in error insists that section 237, above quoted, has been repealed by an act approved April 19, 1899, entitled ‘An act to punish the seduction of females.’ Laws Ill. 1899, p. 148. The act of 1899 provides that any person who shall seduce, etc., any unmarried female under 18 years of age, etc., shall, on conviction, be punished by a fine or by imprisonment in the county jail, etc. Section 237, as above quoted, and the act of 1899, relate to different subjects. The statute on the subject of seduction cannot be held to have repealed any portion of the statute against rape. Under the statute of 1899, the crime of seduction may be committed upon any female of previous chaste character under the age of 18 years, while under the statute against rape the offense may be committed upon a female under the age of 14 years without respect to the character of her previous life, and without reference to the fact whether the assault was committed with or without consent.
[202 Ill. 59]2. Before the jury was impaneled the plaintiff in error made a motion to instruct the sheriff to motify the plaintiff in error's witnesses that they would have a right to receive the same fees as witnesses for the people, under the rule of the board of supervisors of said county. This motion was supported by affidavits of the plaintiff in error and of his counsel. From these it appears that, under a resolution adopted by the county board of supervisors of Tazewell county, witnesses were paid fees for attending before the grand jury, and for three days' attendance in criminal trials in courts, when subpoenaed by the people. The resolution provided that witnesses subpoenaed by the prosecution in cases before the circuit or county court, be allowed their actual railroad fare the same as witnesses before the grand jury, and $1 per day for not to exceed three days. The plaintiff in error contended that, as this resolution provided for the payment of the fees of witnesses for the prosecution by the county, be was in some way prejudiced, unless the sheriff was notified that his witnesses would be entitled to the same fees as the people's witnesses. We pass no opinion upon the validity or legality of this resolution, but it is not made to appear in any way that this resolution...
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