PROSECUTION FOR RAPE.

Court of Appeals for Crawford County.

#### Edward Driscoll v. The State of Ohio.*

Decided, April 21, 1921.

*Criminal Lato*— Elements *Necessary to a Conviction of Raye*— Charge *of Court*— Section 12413.

In a prosecution for rape it is reversible error for the court, in its enumeration to the jury of the elements necessary to a conviction, to fail to include the requisite fact that the person upon whom the rape was committed was “a person other than a daughter or sister of the accused, or a female person under twelve years of age.”

*Edward J. Meyers¡*for plaintiff in error.

*Chester A. Meek,*for defendant in error

*

 Affirmed by the Supreme Court, December 13, 1921.

Crow, J.

This is a proceeding in error to reverse the judgment of the court of common pleas of Crawford county, Ohio, entered on a verdict of guilt of rape.

The indictment charges rape on the body of a person therein named, “then and there being a female person other than the daughter or sister of plaintiff in error, such person being of the age of fourteen years, to-wit, of the age of seventeen years.”

There is evidence tending to prove all the material ingredi*428ents of the crime, and the record does not show any concession by the accused of the existence of any of said elements.

1. The first assignment of error is that the verdict is not supported by sufficient evidence.

The court has carefully read and studied all the testimony, with the result that there is not such unanimity of opinion on this question, as will permit the judgment to be disturbed.

2. Error in the charge submitting the case to the jury'is relied on in two particulars:

*(a)*In failing to charge that defendant could be convicted of assault and battery.

This feature can be 'at once disposed of on the ground that no request was maae for such an instruction. 88 O. S., 447, syllabus.

*(b)*In the enumeration of the elements necessary to a conviction, there was omitted the requisite fact that the person upon

^wliom the rape was committed was a person other than the daughter or sister of the accused, or a female person under twelve years of age.

This assignment of error must be sustained for the reason that such fact was of tne substance of the offense charged; that is, it was matter of description. 11 O. S., 328.

Section 12413 of the General Code defines two distinct offenses, one punishable by imprisonment in the penitentiary during life, and the other by imprisonment in the penitentiary not less than three years, or more than twenty years. The indictment in the present case is for the offense punishable as last stated.

The reasoning of the case in 11 O. S., 328, is as valid now as it was when the decision was announced, and in no reported case has the correctness of that decision been questioned.

The trial court enumerated five facts which if found by the jury, would warrant conviction. One essential of the offense charged was omitted, namely; that the subject of the rape was a female person other than the daughter or sister of the accused, or a female person under twelve years of age.

For this omission the judgment must be reversed, the verdict set aside, and the cause remanded for a new trial and further proceedings according to law.”