
    Jones v. The State of Ohio.
    
      Indictment for rape — Section 6816; Rev. Stat. — Evidence—Relief of others as to guilt — Corroboration of r'ecollection by memorandum.
    
    1. An indictment under -section 6816, Revised Statutes, for carnally knowing a female child under fourteen years of age need not aver that she is not the daughter or sister of the accused. (Howard v. The State, 11 Ohio St., 328, distinguished. )
    2. On the trial of the issues joined by the plea of not guilty it is error to admit evidence whose only effect is to show that others believe the accused guilty.
    3. The recollection of a witness concerning a fact in issue cannot be corroborated by the contents of a memorandum made by himself, long after the circumstance, showing his recollection at a former date.
    (Decided January 21, 1896.)
    Error to the Circuit Court of Wayne county.
    The plaintiff in error was tried in Wayne county common pleas and found guilty upon the following count: That he “being then and there a male
    person of the age of eighteen years and upward, did unlawfully and carnally know and abuse one Mary W. with her consent, she, the said Mary W., then and there being a female child under the age of fourteen years, to-wit: of the age of' thirteen years, contrary to the form of the statute in such ease made and provided and against the peace and dignity of the state of Ohio. ’ ’
    A motion for a new trial was overruled, and sentence of imprisonment in the penitentiary for three years, and the judgment was affirmed by the circuit court.
    Rulings of the trial court upon the admission of evidence are stated in the opinion.
    
      John O. Morr, H. B. Smith and John Mo Sweeney, for plaintiff in error.
    Statute 6817 provides a punishment. A person convicted of a rape upon his daughter or sister or a female person under twelve years of age, shall be imprisoned in the penitentiary during life, and the person convicted of rape upon any other female person shall be imprisoned in‘the penitentiary not more than twenty years nor less than three years.
    Now the crime of rape may be committed in two ways. First, by force and against the will of the female over fourteen years of age, and when the male person is over eighteen years of age and the female person under fourteen years of age, by her consent. Next we contend that not only can it be committed two ways and each be separate and distinct crimes, but it can be committed either way upon different classes of person sand thereby make separate and distinct crimes. Whiting v. The State, 48 Ohio St., 234; Fouts v. The State, 8 Ohio St., 98,
    We find that there are four requisites to an indictment. The first is, that the special manner of the-whole fact ought to be set forth with such certainty, and so specifically, that it may judicially appear to the court what judgment is to be pronounced. Had the defendant, Jones, entered a plea of guilty, how could the court have passed sentence under that count in-the indictment? The rule clearly knocks out all idea of hearing evidence, and rightly too, because the question of relationship is one that the defendant might be entitled to a trial by jiiry.
    The second requisite to an indictment as laid down in the same authority is, “That the accused may clearly and distinctly know what charge he is called upon to answer.”
    Upon the reading of that indictment how could the defendant tell whether or not the state intended to charge him with having committed the crime upon a sister or even a .daughter?
    Thirdly, it is laid down in the same authority, “That the record must clearly furnish a bar to the defendant against a second prosecution for the same offense.
    . Looking at this count in this indictment, suppose poor Jones serves his term of three years' in the penitentiary, he is brought back charged with committing the same act upon Mary Weafler, and charging that Mary Weafler is a sister of his, can he plead this present conviction in bar ?
    Fourth, the next rule that is laid down is, “That posterity may know what law is to be derived from the record.”
    The court on the trial permits the mother to testify as to what her daughter told her and as to who her daughter told her was guilty of this alleged crime. The court also permits the prosecuting witness to give a conversation she had with Mrs. Jones, the wife of Jones, in the absence of the defendant, on the same theory that it was outcry testimony. We contend that the rule is too well settled in the case of Dunn v. State, 45 Ohio St., 249, to admit of any testimony, and that this evidence was all incompetent and very prejudicial to the defendant.
    Again, we contend that the court erred in the admission of the evidence o:| Peter Weafler and permitting him to testify from a paper purporting to be a memoranda of the time of the birth of his children, when it shows that the paper was prepared about twelve or thirteen years after the birth of his child. There is considerable conflict in the evidence as to the age of this girl. 19 Ohio St., 55; Swan’s Treatise, 121, 166; Wharton’s Evidence, vol. 1, sec. 654; Phillips’ Evidence; vol. 1, note on page 252 ; 3 Wendell, 379; Abbott’s Criminal Brief, sec. 669.
    
      J. K. Richards, Attorney General, and Ross IF. Funch, Prosecuting Attorney, for defendant in error.
    
      First — As to sufficiency of indictment. Indictment for rape. Revised Statutes, sections 6816, 6817 ; Wilson Criminal Code, 31, 35.
    
      There are two counts in the indictment; on the trial the jury saw fit to convict said Jones, under the first count, which is ‘ ‘with her consent, ’ ’ the second count being “without her consent.”
    That a negative averment Ms not necessary unless it enter into and become a part of the description of the offense. Hirn v. The State, 1 Ohio St., 15; Becker v. The State, 8 Ohio St., 392; Stanglein v. The State, 17 Ohio St., 453; Billingheimer v. The State, 32 Ohio St., 435.
    In the case at bar the negative averment claimed to be necessary to the sufficiency of the indictment is surely not a part of the description of the offense, because the offense is in one section and the penalty in another. It is generally safe, and all that is necessary in an indictment is to follow the language of the statute, which is certainly done in this case. Spencer v. The State, 13 Ohio 407; Davis v. The State, 32 Ohio St., 24.
    
      Second — As to supposed errors complained of during the trial.
    The admission of testimony as what the little girl told her mother and Mrs. Jones about this transaction is not error and is competent as outcry testimony, if you wish to call it that. McHugh v. The State, 42 Ohio St., 154; Kilbourn v. Fury, 26 Ohio St., 153; Black v. Hill, 32 Ohio St., 313; Cook v. Slate Co., 36 Ohio St., 135.
    As to error complained of in permitting Peter "Weafler to show why and how he knew the age of the girl from a piece of paper, and how he made the paper, and if you choose to call it that to refresh his .memory from this piece of paper as to the age of the girl. The court will notice that in all the citations by plaintiff in error on this subject and the Ohio decisions on refreshing memory, to-wit: 39 Ohio St., 616 ; 23 Ohio St., 130; 21 Ohio St., 653 (and not cited by plaintiff in error), are all as to records on which the witness had no other memory or the record was not made by the witness as in 3 Wendell, 379.
    As to all the errors complained of during the trial about all are as to the admissions of testimony, and even if it would be technically incompetent, it is scarcely necessary to cite this court to authority that, incompetent testimony having been received, the court will not reverse the verdict or judgment if there is • enough testimony that is competent to sustain the finding of the court or jury, as there certainly is in this case. 26 O. S. 153-162, Kilbourn v. Fury, 32 O. S., 313, Black v. Hill; 26 O. S., 135 -9, Cook v. Slate Co.
    
    Also error must be prejudicial in criminal as well as civil cases to be a ground of reversal. 42 O. S., 154, McHugh v. The State.
    
   Shauck, J.

The first contention of counsel for the plaintiff in error is that the indictment is fatally defective because it does not aver either that Mary W. is, or that she is not, the sister or daughter of the accused. In support of that view they rely on Howard v. The State, 11 Ohio St., 328. It was there held that the crime of having “carnal knowledge of a daughter or sister forcibly and against her will, ’ as defined in the fourth section of the act of March 7, 1835 (S. & C. Stat., 404), and the crime of having “carnal knowledge of any other woman or female child than his daughter or sister, as aforesaid forcibly and against her will,” as defined in the fifth section of the same act, where distinct crimes, and not merely distinct grades of the same crime, and that in charging the latter crime, it was essential for the indictment to state that the woman or female child upon whom the offense was charged to have been committed was not the daughter or sister of the accused. The report contains only the conclusions of the court, but we suppose thejr were supported by the view that the indictment must con-, tain a complete description of-the offense, each of the sections referred to containing' a complete description of an offense and providing a penalty therefor.

But the statute governing the present case is found in sections 6816 and 6817 of the Revised Statutes. Section 6816 is as follows: “Whoever has carnal knowledge of a female person forcibly and against her will; or being' eighteen years of age, carnally knows and abuses a female child under fourteen years of age with her consent, is guilty of rape. ’ ’ The crime described in the latter clause of the section is that described in this indictment. To hold that the indictment must either aver or negative the supposed kinship, would be to add to the requirements of the statute. The case cited can have no application to the present case, because of the chang'e in the statutory description of the offense.

But counsel further contend that since the former of the sections referred to contains no penalty, and since for the purpose of ascertaining the penalty appropriate to the crime, reference must be had to section 6817, the same difficulty is met as in the former statute. Section 6817 provides : “A person convicted of rape upon his daughter, or sister, or a female child under twelve years of age, shall be imprisoned in the penitentiary during life; and a person convicted of rape upon - any other female shall be imprisoned in the 'penitentiary not more than twenty nor less than three years. ’ ’ The latter section contains no definition of the crime, but each of its clauses adopts the definition of the previous section. To the imposition of the severer penalty provided in the first clause of the latter section it is necessary that there be either the kinship or the age' of less than twelve years. To the proposition that no sentence could have been imposed, upon a plea of guilty to this indictment it is a sufficient answer that notwithstanding the omission from the indictment of either of the circumstances justifying the severer penalty provided by the first clause of section 6817. it contains the general description of the crime for which the penalty is provided'in the second clause of the latter section; that is, upon one “convicted of rape upon any other female. ”

Under the present statute there are distinct grades of the same crime. We do not agree with counsel for the state that upon a plea of guilty to an indictment of this character, the court might hear evidence to enable it to determine whether the penalty of the first clause of section 6817 or that of the second clause would be appropriate. For, upon the question of kinship or age, contemplated by the former clause, the defendant would be entitled to the verdict of a jury. In that case the affirmative averment of kinship or age would be necessary. In this case no negative averment is necessary, because without it there is a complete description of an offense for which the penalty imposed in this case is provided.

On the trial, the mother of the child was permitted to testify in answer to questions by counsel for the state and against the objections of the accused, that after the commission of the alleged offense and before the arrest she went to the residence of Jones and, not finding him at-home, inquired of his wife .concerning him; that Mrs. Jones told.her where he was, and then declared to her in substance that if the friends of the child did not send him to the penitentiary she would. If the belief of Mrs. Jones in the guilt or innocence of her husband were material, that declaration, if made, would have'justified the inference that she believed him guilty, though it would have been, impossible to learn the sources or character of the information upon which her belief was founded. But as the object of the trial was to ascertain whether competent evidence would create such belief in the minds of the jurors, her belief was not only irrelevant, but prejudicial.

It is said by counsel for the state that if the court erred in admitting this portion of the mother’s testimony, the error was cured by the testimony of Mrs. Jones that she did not make such declaration. But the incompetent evidence introduced an irrelevant inquiry, and in prosecuting that inquiry the jury may have believed either witness.

The state having offered evidence tending to show that the child was under fourteen years of age at the date of the alleged offense, the defendant offered evidence tending to show that she was then more than fourteen years of age. Thereupon, her father being upon the stand and having a memorandum of the dates of. the births of his children, the memorandum having been made by himself from memory a few months before the trial, was permitted to testify that it appeared from the memorandum that Mary was born January 3,1881. This paper had no quality which entitled it to consideration as substantive evidence. The witness had been permitted to testify fully as to his recollection of the date of her birth, and his recollection at another time was not corroborative.

For errors in the admission of evidence the judgments of the circuit court and court of common pleas ewe rever sed.  