People v. Stowers
| Decision Date | 21 June 1912 |
| Citation | 254 Ill. 588,98 N.E. 986 |
| Parties | PEOPLE v. STOWERS et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Perry County; Louis Bernrueter, Judge.
Paul Stowers and another were convicted of crime, and they bring error. Affirmed.John L. Flannigen and N. B. Layman, for plaintiffs in error.
W. H. Stead, Atty. Gen., A. R. Dry, State's Atty., Joel C. Fitch, and Sprigg & Gilster, for the People.
Plaintiffs in error were found guilty of the crime of rape at the November term, 1911, of the circuit court of Perry county, and sentenced to imprisonment in the reformatory at Pontiac. The indictment upon which they were tried consisted of three counts; the first charging that plaintiffs in error, being male persons of the age of 17 years and upwards, feloniously and unlawfully made an assault upon one Eva Crane, a female child of the age of 10 years, and her, the said Eva Crane, did then and there carnally know and abuse. The second count charged that plaintiffs in error, being male persons of the age of 16 years and upwards, made an assault upon one Eva Crane, a female child under the age of 16 years, to wit, of the age of 10 years, and did ravish and carnally know her, forcibly and against her will. The third count charged plaintiffs in error with having made an assault upon Eva Crane with intent to commit upon her the crime of rape. A motion to quash the indictment was overruled, and the cause was tried by a jury, which returned a verdict, finding plaintiffs in error guilty in manner and form as charged in the second and third counts of the indictment, and found their ages to be, ‘at the time the crime was committed,’ as follows: Paul Stowers 16 years, and Carl Farmer 18 years. On this verdict sentence was pronounced.
It is first contended that the indictment is defective, for the reason it fails to allege that the said Eva Crane was not the wife of either of plaintiffs in error, and that the court should have sustained the motion to quash.
[1][2][3] The statute defining the crime of rape and fixing the punishment for its commission is as follows: Hurd's Rev. St. 1911, c. 38, § 237.
At common law the carnal knowledge of a female, forcibly and against her will, by a male 14 years of age or upwards, constituted the crime of rape. Force was an essential ingredient of the crime. Our statute has changed the common-law rule in two respects. The first sentence of our statute is a definition of what constitutes rape at common law. That is followed by a clause which provides that carnal knowledge by a male of the age of 17 years or upwards, of any female under the age of 16 years, not his wife, whether with or without her consent, constitutes the crime of rape. Prior to that enactment, carnal knowledge of a female under 16 years of age by a male, of whatever age, was not rape, if the act was committed without force and with her consent. The new element introduced by the statute is that, if a male, who is 17 years old or upwards, has sexual intercourse with a female under 16, who is not his wife, without force and by her consent, he is guilty of the crime of rape. An indictment under that clause of the statute should aver that the female was not the wife of the accused. People v. Trumbley, 252 Ill. 29, 96 N. E. 573. Following the clause referred to is a proviso ‘that every male of the age of sixteen years and upwards who shall have carnal knowledge of a female forcibly and against her will shall be guilty of the crime of rape.’ This is merely the common-law definition of rape, but raises the age at which a male may be guilty of the crime from 14 years, as it was at common law, to 16 years. Under the proviso, no one under the age of 16 years can commit the crime of rape. The proviso also makes it clear that the age limit fixed in the second clause of the statute, making carnal knowledge by a male 17 years old or upwards, of a female under 16 years, not his wife, with her consent, rape, was not intended to apply in a case where the act was committed forcibly and against the will of the female. Sutton v. People, 145 Ill. 279, 34 N. E. 420. At common law it was not necessary for the indictment to aver that the female was not the wife of the accused; and it is not made necessary by our statute to do so, except where the indictment is under the second clause of the act. The second count of the indictment was a good count for rape under the proviso of the statute referred to. The third count is also a good count for assault with intent to commit rape. There was no error, therefore, in overruling the motion to quash. Thomas v. People, 113 Ill. 531.
[4] It is further contended by plaintiffs in error that the trial court erred in overruling their motion to quash the panel of jurors. It appears from recitals in the record written by the clerk that when the case was called for trial but 20 jurors of the regular panel were present. The court directed the sheriff to fill the panel by summoning 4 persons from the body of the county. Thereupon the plaintiffs in error presented a motion to quash the panel; but the motion was overruled, and they excepted. The contention of plaintiffs in error is that the panel should have been filled by drawing the...
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