The People v. Fathers , 322 Ill. 424 ( 1926 )

An indictment, consisting of a single count, and charging that Lloyd Fathers, a male person of the age of seventeen years and upwards, on September 2, 1925, unlawfully, willfully and feloniously made an assault upon Ilea Slade, a female person under the age of sixteen years, with the intent to ravish and carnally know her, was returned in the circuit court of Vermilion county. A motion to quash the indictment was made and overruled. Trial by jury followed and resulted in a verdict of guilty. Motions for a new trial and in arrest of judgment were made and overruled and Fathers was sentenced to the penitentiary. He prosecutes this writ of error for a review of the record.

Plaintiff in error contends (1) that the indictment is defective for the reason that it fails to allege that Ilea Slade was not his wife and that the trial court should have sustained the motion to quash the indictment; and (2) that the verdict is not justified by the evidence.

In a prosecution for an assault with an intent to commit rape, the specific intent charged is the gist of the offense. (People v. Makovicki, 316 Ill. 407.) The indictment must charge such an assault that if the purpose were accomplished the crime would be rape. Plaintiff in error was indicted for an assault with intent to commit rape without force. In an indictment for the crime of rape without force an allegation that the prosecutrix was not the wife of the accused person is essential. The omission of that allegation in such an indictment is fatal on motion to quash or in arrest of judgment. (People v. Stowers, 254 Ill. 588; People v.Kingcannon, 276 id. 251; People v. Okopske, 321 id. 32.) The indictment in the instant case contained no such allegation, and the motion to quash should have been sustained.

Since the indictment is fatally defective it is unnecessary to consider the second contention of the plaintiff in error.

The judgment of the circuit court is reversed.

Judgment reversed.