Appeal from the Circuit Court of Cook County; the Hon. SHELDON
BROWN, Judge, presiding. Judgment reversed.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT.
In a three-count indictment, defendant Thomas D. Ball, and a Richard Collier who is not in this appeal, were charged with rape and indecent liberties with a child. Prior to trial, defendant moved to dismiss count three of the indictment on the ground that it failed to charge an offense. The motion was denied. A jury trial followed. Collier was acquitted of all charges. Defendant was acquitted of rape charged in count one and of indecent liberties by sexual intercourse with a child under sixteen years charged in count two; but the jury returned a verdict of guilty of indecent liberties with a child charged in count three. Defendant was admitted to three years' probation, the first six months to be served in the House of Correction of the City of Chicago. He appeals; and in support of reversal submits four issues for review. Disposition of this appeal requires discussion only of defendant's contention that the trial court erred in overruling his motion to dismiss count three of the indictment because it did not charge an offense.
Count three of the indictment alleged that:
Thomas D. Ball and Richard Collier, each a person of the age of seventeen years and upwards, committed the offense of indecent liberties with a child, in that they, with the intent to arouse and satisfy the sexual desires of himself and Sandra Gaydos, a child under the age of sixteen years, in violation of Chapter 38, section 11-4(1-3) *fn1, of the Illinois Revised Statutes 1965, . . . .
The relevant parts of the statute in question provide that:
(a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child:
(1) Any act of sexual intercourse; or
(2) Any act of deviate sexual conduct; or
(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both.
Ill Rev Stats 1965, c 38, § 11-4(a) (1), (2), (3).
[1-4] A material element of every offense is a voluntary act. Ill Rev Stats 1965, c 38, § 4-1. The kind of voluntary act which is a material element of indecent liberties with a child is described in paragraph (a) of section 11-4 (performs or submits) and in subsections (1), (2) or (3). To satisfy constitutional and statutory requirements, an indictment must allege the commission of an offense by "[S]etting forth the nature and elements of the offense charged; . . . ." Ill Rev Stats 1965, c 38, § 111-3(a)(3). An indictment that does not allege the material elements of an offense will not support a conviction. People v. Moore, 368 Ill. 455, 14 N.E.2d 494; People v. Trumbley, 252 Ill. 29, 96 N.E. 573; People v. Billingsley, 67 Ill. App.2d 292, 213 N.E.2d 765.
Count three of the indictment failed to allege the act or acts by which defendant allegedly committed the offense of indecent liberties with a child, but set forth only the necessary statutory intent. Therefore, the indictment did not allege the commission of an offense. Although the jury found defendant "[g]uilty of the offense of indecent liberties lewd fondling and touching . . .," the indictment did not allege that defendant by ". . . lewd fondling and touching . . ." committed the offense of indecent liberties with a child.
Defendant cannot be lawfully convicted of a crime not charged in the indictment. People v. Brown, 312 Ill. 63, 143 NE 440; People v. Edward Martin, 62 Ill. App.2d 97, 210 N.E.2d 587. The trial court erred in overruling defendant's motion ...