law that a municipal corporation was not liable to an individual for neglect to keep a highway in repair, where he suffered an injury in using it. (2 Cooley on Torts,3d ed.—1310.) In most jurisdictions in this country, however, a municipality is liable for failure to keep its streets in safe condition for public use. (Tiedeman on Mun. Corp. sec. 342; 4 Dillon on Mun. Corp.-5th ed.—sec. 1665.) This is the rule, as we have seen, in this State.

The operation of an automobile by city employees in the class of work shown here, on principle is very like the proper exercise of the city's powers in caring for and keeping the streets in repair. We find no decisions directly in point on the question of the liability of a municipal corporation for the negligent operation of any vehicle, whether horseless or otherwise, on the public highways under such circumstances. The conveyance of books from one library building to another, by means of an automobile, along the public highways by employees of the city is plainly a ministerial duty. For that reason, if for no other, we hold the city liable in this case.

What is here said is not intended to apply to the negligent acts of municipal employees in exercising the police power of the State or municipality on the public streets.

In view of the conclusion we have reached we do not find it necessary to consider or decide the question raised. in the briefs as to whether the Chicago Public Library, in performing any of its duties, is a public charity, as that term is used in the law, and whether for certain acts of said library's employees the city might not be liable.

The judgment of the Appellate Court will be affirmed.
Judgment affirmed.

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. HORACE L. SMITH, Plaintiff in Error.

Opinion filed April 19, 1913-Rehearing denied June 5, 1913.

1. CRIMINAL LAW-when variance in christian name of victim is fatal. Where the indictment for the crime against nature alleges that the christian name of the victim was Rosetta and the proof is that the name of the girl upon whom the crime was committed was Rosalia the variance is fatal, and it is not material that the question of variance was not raised on trial.

2. SAME-when doctrine of idem sonans does not apply. Where the indictment alleges the christian name of the victim of a crime to be Rosetta but the proof shows that the name of the girl upon whom the crime was committed was Rosalia the doctrine of idem sonans does not apply.

3. SAME what does not constitute the crime against nature. Proof that the accused inserted his tongue in the private parts of a female child does not establish the crime against nature, which involves an unnatural use of the male organ, but the offense established by the proof is within the act of 1907, to define and punish crimes against children.

CARTER, J., dissenting.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. THOMAS G. WINDES, Judge, presiding.

ERBSTEIN & VAN BEAVER, RICHARD H. PETERSON, JAMES A. SCOTT, and LOUIS JAFFIE, for plaintiff in error.

P. J. LUCEY, Attorney General, MACLAY Hoyne, State's Attorney, and ARTHUR R. Roy, for the People.

Mr. CHIEF JUSTICE DUNN delivered the opinion of the

court:

The plaintiff in error, Horace L. Smith, was convicted, in the criminal court of Cook county, of the crime against nature and sentenced to imprisonment in the penitentiary for the term of five years.

The christian name of the victim of the crime was alleged to be Rosetta. The proof was that her name was Rosalia. The variance is fatal. (Davis v. People, 19 Ill. 74; Penrod v. People, 89 id. 150.) It is suggested that the question of variance was not raised on the trial, but this is immaterial. The indictment charged a crime against a certain person, but the proof failed to show it and did show a crime, if any, against another person. The doctrine of idem sonans is invoked but is not applicable. The difference in the sound of the two names, even when they are carelessly spoken, is pronounced, and they are clearly distinct names.

The act of the plaintiff in error which was testified to as constituting the crime was the insertion of his tongue in the private parts of the little girl, who was eleven years old. It is insisted that this proof did not establish the offense charged and that the unnatural use of the male sexual organ is an essential element of the crime. Sodomy was not proved, but we have held that the crime against nature, as that expression is used in our statute, is more extensive than sodomy. (Honselman v. People, 168 Ill. 172.) In all the cases in which convictions have been sustained of which we have knowledge, the male sexual organ was involved. It was necessarily so at common law, for both. penetration and emission were essential elements of the offense. By statute 9 George IV, (chap. 31, sec. 18,) it is provided, after reciting the fact of the frequent escape of offenders because of the difficulty of the proof of the completion of the crime, that proof of penetration, only, should be sufficient for conviction. Our statute provided, in 1827, that it shall not be necessary to prove emission to convict any person of the crime of rape or of the crime against nature, applying the same rule to both crimes. (Laws of 1827, sec. 49, p. 132.) Acts such as that testified to do not constitute the offense for which defendant was sentenced, but the law has provided for their punishment by the act

to define and punish crimes against children. (Laws of 1907, p. 266.)

The judgment will be reversed and the cause remanded.
Reversed and remanded.

Mr. JUSTICE CARTER, dissenting:

I do not concur in the foregoing opinion. The alleged variance was not raised in the trial court. The name of the complaining witness given in the indictment was Rosetta May. She testified that it was Rosalia May. She identified plaintiff in error as the person who had enticed her to his room. He himself admitted that she had been in his room as she claimed but denied her story as to what was said and done there.

Under the earlier authorities, where the name of a third person was necessary to the identity of an offense, proof of a different name raised a fatal variance, and this rule was strictly applied. If the names were not idem sonans the variance was held fatal. Under the modern rule, however, in most jurisdictions it is held that the question is one of identity, and where the identity of the party in evidence as the one named in the indictment is established the variance will not be held fatal. (14 Ency. of Pl. & Pr. 287; Bennett v. State, 84 Ark. 97.) This is what law and reason should require-the substance and not the shadow.

Under many authorities it might well be argued that the names "Rosalia" and "Rosetta" were idem sonans. (See Rivard v. Gardner, 39 Ill. 125; Guertin v. Mombleau, 144 id. 32; Barnes v. People, 18 id. 52; People v. Spoor, 235 id. 230.) But if it be conceded that the two names are not idem sonans, in my judgment the variance, on this record, should not be held fatal. The basis of the rule of idem sonans is, that the person is the same though the name may be spelled differently. In reason, however, what must necessarily be required under any proper criminal procedure is, not identity of sound in the name but identity

of person. Even though the names are alike, both in sound and in spelling, if there are two persons of the same name that fact can be proven.

In Bennett v. State, supra, the first name of the deceased in a homicide case was given as "Mooney," some evidence tending to show that he was so known and other evidence that he was called "Monte." The court held that on the evidence in the record there could be no question as to the identity of the person referred to in the evidence with the one named in the indictment, and affirmed the case.

In State v. Tillotson, 85 Kan. 577, an information described the person having charge of a certain child as Lottie Bleakley while the evidence tended to show that her name was Charlotte Bleakley. The court held that the two names were identical, the name "Lottie" being a diminutive of "Charlotte;" that whether that were true or not, the difference was immaterial, as it was clear from the record that the accused had not been misled or hampered in any way by the difference in names.

In People v. Plyler, 121 Cal. 160, the crime was alleged to have been committed upon one Charles Harris. That person testified that he had been known by that name but that his right name was Isaac Crossley. The court there held that there was no variance, stating (p. 163): “There was an absolute identity of names and person, and the fact, disclosed upon the trial for the first time, that the complaining witness' true name was something different did not constitute a variance and could not have injured defendant in the slightest degree."

In Rutherford v. State, 79 Tenn. 31, the indictment charged the accused with killing John Bledsoe while the evidence merely showed that the person killed was named John, some of the witnesses speaking of him as John and others as "the deceased." The court there held that the failure to give the full name was not material after verdict, as there was no contest during the trial on that point.