#### People v. Maxon.

*(Supreme Court, General Term, Third Department.*

July 7, 1890.)

1. Indictment—Description of Offense.

Under Code Grim. Proc. N. Y. § 276, which requires an indictment to state both the name of the crime, and the facts whereby it was committed, a substantial variance between the crime charged and the facts charged is fatal to the indictment.

1 Rape—Sexual Intercourse with Female under Sixteen Years of Age.

Pen. Code FT. Y. § 278, defines rape “as an act of sexual intercourse with a female, not the wife of the perpetrator, committed against her will or without her consent. ” It then provides for the punishment of a person committing the crime of rape, “or an act of sexual intercourse with a female not his wife, where the female is under the age of sixteen. ” Held, that an indictment charging defendant with having committed the crime of rape, describing it as sexual intercourse with a female, not defendant’s wife, under the age of 16 years, is fatally defective, as an essential element of rape is sexual intercourse committed “against the will, or without the consent, of the female. ”

Appeal from court of sessions, Ulster county.

Indictment of Daniel Maxon for rape. He was convicted and sentenced, and now appeals.

Argued before Learned, P. J., and Landon and Mayham, JJ.

*D. M. Be Witt,*for appellant. *J. N. Vanderlyn,*Dist. Atty., for the People.

Landon, J.

The defendant was found guilty upon an indictment containing two counts. In each count it is alleged that the “grand jury of,” etc., “accuse Daniel Maxon, late of,” etc., “of the crime of rape, committed as follows.” In the first count the acts charged as constituting the crime charge a rape as defined in section 278 of the Penal Code, namely, “An act of sexual intercourse with a female, not the wife of the perpetrator, committed against her will, or without her consent.” In the second count the acts charged as constituting the crime charge an act of sexual intercourse with a female, not the wife of the defendant, under the age of 16 years. The testimony given did not tend to establish the acts charged in the first count, but did tend to establish the acts charged in the second count. The point was distinctly presented upon the trial, that the crime charged in the second count was rape; and the facts charged did not constitute the.crime of rape, but did constitute the crime of the act of sexual intercourse with a female, not the wife of the defendant, under the age of 16 years. The court was thereupon requested to hold that under this count the defendant could not be convicted. The court refused so to hold. We think the request was a proper one, and that its refusal was error. Section 278 of the Penal Code defines “rape” as follows: “Rape is an act of sexual intercourse with a female not the wife of the perpetrator, committed against her will, or without her consent.” Ho other definition of “rape” is given. The section continues: “A person perpetrating such an act, *[i. e.,*rape,] or an act of sexual intercourse with a female not his wife, (1) when the female is under the age of sixteen years;” then follow several other conditions not material here, the section concluding, “is punishable by imprisonment for not less than five, nor more than twenty, years.” Since the statute makes it an essential of the crime of rape that the act of sexual intercourse must be committed “against the will, or without the consent, ” of the female, any other criminal sexual intercourse which does not embrace that essential must be other than rape. The section in question makes the acts of criminal sexual intercourse other than rape equally punishable with rape, but it does not make them rape; and itdis*594tinguisbes them from rape, not only by the differences in definition, but also by separating them from each other by the disjunctive “or” in the sentence, “A person perpetrating such an act, *[i. e.,*rape,] or an act of sexual intercourse, ” etc. The defendant was therefore accused in the second count Of the indictment of rape, and was charged with acts, as constituting it, which did not in fact constitute it. The accusation of crime was not supported by a charge of acts constituting that crime. The crime charged was not supported by the acts proved. The defendant was found guilty of rape without having been proved guilty of rape. He may have been proved guilty of the “carnal abuse of a.child,” if we may adbpt the language of the title of the chapter in which section 278 of the Penal Code is placed, or of “an act of sexual intercourse with a female, not his wife, under the age of sixteen years,” if we use, as we think is preferable, the language of the section itself; but he was not accused in the indictment of this crime.

Section 276 of the Code of Criminal Procedure requires that the indictment shall state both the accusation of the crime, and the facts whereby it was committed. A substantial variance between the crime charged and the facts charged is fatal. *People*v. *Dumar,*106 N. Y. 502, 13 N. E. Rep. 325. The judgment of conviction and sentence must be reversed, and the case be remitted to the sessions of the county of Ulster for such proceedings as may be proper. All concur.