
    The People, Resp’ts, v. Daniel Maxon, App’lt.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    1. Rape — Sexual intercourse with female under sixteen is not.
    Defendant was convicted under an indictment which charged him with rape in two counts, one for sexual intercourse with a female not his wife against her will, and the other for sexual intercourse with a female not his wife under the age of sixteen years. The evidence tended to establish the acts charged in the second count, but not those in the first Reid, that the conviction was erroneous; that the acts charged in the second count did not constitute the crime of rape, and that there was a substantial variance between the crime charged and the facts charged to support it, which was fatal.
    
      2. Same — Penal Code, § 278.
    While § 278 of the Penal Code makes such offense equally punishable with rape, it does not make it rape.
    
      Appeal by the defendant from a judgment of conviction and sentence upon an indictment accusing the defendant of rape, upon trial at the Ulster county sessions.
    
      D. M. De Witt, for app’lt; J. N. Yanderlyn, dist. att’y, for rerp’ts.
   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, epo., 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 § 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 sixteen 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 sixteen 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.” No 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 it distinguishes 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 adopt the language of the title of the chapter in which § 278 of the Penal Code is placed, or of “ an act of sexual intercouse 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; 11 N. Y. State Rep., 19.

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.

Learned, P. J., and Mayham, J., concur.  