Schramm v. People

• Decision Date: 21 February 1906
• Citation: 220 Ill. 16,77 N.E. 117
• Parties: SCHRAMM v. PEOPLE.
• Court: Illinois Supreme Court

220 Ill. 16

77 N.E. 117

SCHRAMM

v.PEOPLE.

Supreme Court of Illinois.

Feb. 21, 1906.

Error to Circuit Court, McLean County; Colostin D. Myers, Judge.

Harry Schramm was convicted of rape, and he brings error. Reversed.Pierce & Pierce, for plaintiff in error.

William H. Stead. Atty. Gen., and W. R. Bach, State's Atty., for the people.

WILKIN, J.

The indictment in this case consists of two counts, each charging that the defendant, ‘being a male person of the age of 14 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 14, to wit, 5 1/2 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, and 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 16 years and upwards.’ Both motions were overruled.

Counsel for plaintiff in error rely upon the recent case of Wistrand v. People, 213 Ill. 72, 72 N. E. 748, 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. People, 145 Ill. 279, 34 N. E. 420, and other cases. In the Sutton Case the indictmentcharged 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 people; that his age, if under 14, was a matter of defense. This, however, is a different 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 14 years. The statute defining that crime is: ‘Every male person of the age of 16 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 the crime of rape.’ Hurd's Rev. St. 1903, c. 38, § 237. By the terms of the statute no...