People v. Smith , 258 Ill. 502 ( 1913 )

Mr. Chief Justice Dunn

delivered the opinion of the court:

The plaintiff in error, Horace D. Smith, was convicted, in the criminal court of Cook county, of the crime against nature and sentenced to imprisonment in the penitentiary for the term of five years.

The Christian name of the victim of the crime was alleged to be Rosetta. The proof was that her name was Rosalia. The variance is fatal. (Davis v. People, 19 Ill. 74; Penrod v. People, 89 id. 150.) It is suggested that the question of variance was not raised on the trial, but this is immaterial. The indictment charged a crime against a certain person, but the proof failed to show it and did show a crime, if any, against another person. The doctrine of idem sonans is invoked but is not applicable. The difference in the sound of the two names, even when they are carelessly spoken, is pronounced, and they are clearly distinct names.

The act of the plaintiff in error which was testified to as constituting the crime was the insertion of his tongue in the private parts of the little girl, who was eleven years old. It is insisted that this proof did not establish the offense charged and that the unnatural use of the male sexual organ is an essential element of the crime. Sodomy was not proved, but we have held that the crime against nature, as that expression is used in our statute, is more extensive than sodomy. (Honselman v. People, 168 Ill. 172.) In all the cases in which convictions have been sustained of which we have knowledge, the male sexual organ was involved. It was necessarily so at common law, for both penetration and emission were essential elements of the offense. By statute 9 George IV, (chap. 31, sec. 18,) it is provided, after reciting the fact of the frequent escape of offenders because of the difficulty of the proof of the completion of the crime, that proof of penetration, only, should be sufficient for conviction. Our statute provided, in 1827, that it shall not be necessary to prove emission to convict any person of the crime of rape or of the crime against nature, applying the same rule to both crimes. (Raws of 1827, sec. 49, p. 132.) Acts such as that testified to do not constitute the offense for which defendant was sentenced, but the law has provided for their punishment by. the act to define and punish crimes against children. (Paws of. 1907, p. 266.)

The judgment will be reversed and the cause remanded.

Reversed and remanded.