ple, 144 Ill. 458; Snell v. City of Chicago, 133 id. 413; City of Joliet v. Drainage District, 222 id. 441.) The general rule is, that one municipality cannot levy a tax for an improvement to be made within the limits of another municipal corporation. (Town of Ottawa v. Walker, 21 Ill. 605; People v. LaSalle County, 111 id. 527; Loeffler v. City of Chicago, supra.) The statute conferring authority, in general terms, upon commissioners of highways in country districts to maintain and control roads and bridges within their respective towns will not be construed to authorize its exercise within the territorial limits of incorporated cities and villages in such towns. (People v. Chicago and Northwestern Railway Co. 118 Ill. 520; Shields v. Ross, 158 id. 214; People v. Chicago and Alton Railroad Co. 172 id. 71.) This same rule would necessarily be applied in the construction of a statute which gave, in general terms, the power to one municipality to construct and maintain roads in another municipality. In Snell v. City of Chicago, supra, it was held that where part of a toll road formerly in the country was brought within the boundaries of an incorporated city by the annexation of territory, the authority of the toll road company would thereafter cease and the portion of the road thus taken into the city would thenceforward be under the control of the city. Applying this doctrine to this case, when the road in question was included, in 1884, within the incorporated limits of East Peoria the authorities of that village thereafter had control over that part of the toll road within its limits, and the deed conveying the bridge and road to the city of Peoria two years thereafter would convey subject to those conditions.

Appellants contend that the city of Peoria was not made a party to this proceeding and therefore cannot be bound by any decision here as to its rights in this suit. This must be conceded, but we do not see how appellants can take advantage of that question in this proceeding. If property

not assessed should have been assessed for this improvement, appellants should have raised that question in the county court before confirmation. (Hurd's Stat. 1911, sec. 47, p. 417; Jones v. Town of Lake View, 151 Ill. 663; Doran v. City of Murphysboro, 225 id. 514.) Furthermore, if it be urged that the city of Peoria owns the fee to the street in question, that is no objection in this collateral proceeding to the levying of an assessment to pay for a local improvement constructed thereon. (People v. Sass, 171 Ill. 357.) Such an objection, under section 53 of the Local Improvement act of 1897, should be made on application to confirm the assessment and cannot be raised collaterally. (People v. Talmadge, 194 Ill. 67.) Had the objection that the city of Peoria should be a party been made before confirmation and insisted on in the county court on that hearing, an entirely different question would then have been presented from that now before the court. It is conceded by the allegations of the bill that appellants were notified of the proceedings in the county court before confirmation and conferred with the members of the board of local improvements as to certain changes. They do not,. and cannot on the showing made by their bill, charge that the proceedings in the county court were fraudulent and therefore void.

Counsel for appellants argue, if the court does not agree with them in the contentions as to the point heretofore considered, that the ordinance should be held invalid in this proceeding because unreasonable, in that the proposed improvement will tend to destroy West Washington street, as the ordinance only provides for paving 174 feet on each side of said street, leaving the portion occupied by the street railway company unpaved. The allegations of the bill, however, show that the railway company is required to pave that portion of the street occupied by it. The fact that the railway company is not made a party does not render the proceedings invalid. The usual prac

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tice is to make no provision for paving the street railway right of way under a local improvement ordinance of this kind where the ordinance granting the franchise to the street railway company provides that it shall pave its right of way. City of Lincoln v. Harts, 250 Ill. 273, and cases cited.

The objection that the present grade of the pavement on the right of way of the street railway company is a foot or more lower than the grade established for this new pavement is also without force, as the bill shows that the street railway company is required to pave, at its sole expense, its right of way in like manner and with the same kind of material and at the same time as the village of East Peoria paves other parts of West Washington and other streets involved in said franchise.

The objection that the village was without authority to fix the amount of public benefits by ordinance cannot be sustained. Birket v. City of Peoria, 185 Ill. 369; City of East St. Louis v. Illinois Central Railroad Co. 238 id. 296.

The argument that misleading statements were made by the board of local improvements to complainants affords no excuse for the latter not filing objections in the county court. Cosgrove v. City of Chicago, supra; Haugan v. City of Chicago, supra.

Other objections raised, as well as those already considered, could have been urged in the county court. The power of courts of equity to set aside and invalidate judgments of law should be exercised according to fixed rules. It is no ground for relief in equity that a judgment is wrong in fact or in law, if the complaining party had an opportunity to make a defense at law and failed to do so. Martin v. McCall, supra; Haugan v. City of Chicago, supra.

The demurrer to the bill was properly sustained, and the decree of the circuit court will be affirmed.

Decree affirmed.

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. FRANK SCHULTZ, Plaintiff in Error.

Opinion filed October 28, 1913.

I. CRIMINAL LAW-when age of one accused of rape is a matter of defense. If one count of the indictment charges rape with force and all the evidence shows that if the accused is guilty he is guilty of a forcible rape, the age of the accused, if he is under the age of sixteen years, must be proved by him as a matter of defense, notwithstanding the indictment alleges him to be older. (People v. Sutton, 145 Ill. 279, followed; Wistrand v. People, 213 id. 72, and Schramm v. People, 220 id. 16, distinguished.)

2. SAME-proof of penetration is essential to establish crime of rape. Proof of penetration is essential to establish the crime of rape, but slight penetration is sufficient, and the same may be proved by circumstantial evidence.

3. SAME-physician should not be allowed to give an opinion that a rape was committed. A physician who examined the person of the prosecuting witness shortly after the alleged rape upon her may state the conditions found with reference to inflammation, laceration and the like, but he should not be allowed to usurp the province of the jury by giving an opinion that such conditions were produced by a rape.

4. SAME―what evidence should be excluded as tending to prove other offenses. It is proper, in a criminal case, to inquire into the occupation of the accused and other matters tending to enable the jury to determine what weight shall be given to his testimony, but evidence merely showing that he had a police record and "had had his picture taken twice" should be excluded on motion.

5. SAME-jury should be left free to pass upon credibility of witnesses. The jury should be left free to pass upon the credibility of witnesses and determine for themselves the weight to be given their testimony, and while it may be proper for an instruction in a rape case to enumerate things which the jury may consider in weighing the testimony of the prosecuting witness, the instruction should not state that such things "should" be considered by them.

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

JOHN J. SONSTEBY, for plaintiff in error.

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

Mr. JUSTICE CARTER delivered the opinion of the court:

Plaintiff in error was indicted in the criminal court of Cook county for the crime of rape. He was found guilty and the punishment fixed at thirty years in the penitentiary. Motion for new trial was overruled and he was sentenced accordingly. This writ of error was then sued out.

The prosecuting witness was a young girl who at the time of the alleged assault was eleven years of age. She then resided with her step-father and her mother on West Ohio street, in Chicago. She testified that on the evening of February 11, 1911, she left her home about six o'clock and purchased a newspaper at a near-by news stand, and when returning along Osborne street she was caught by the plaintiff in error and dragged by him through a passageway to a small house standing upon the rear of a lot and up some steps to a room, in which there was a bed; that despite her screams and struggling he threw her on the bed, put his hand over her mouth, and then took a big knife from a table and told her if she did not keep still he would kill her; that he then committed an act of assault; that when he let her go he told her he would kill her if she told anyone; that she then went home and told her mother. Her step-father was working a short distance away as a night watchman. The testimony shows that the mother called a young man who worked at the same factory with the step-father, who went with the little girl to get him; that the step-father started with her on the street car for the police station, but seeing a policeman they got off the car and told him, and the three went together to the house where plaintiff in error lived and found him there. Plaintiff in error's brother was also at the house at that time. The little girl pointed out the plaintiff in error as the man who had assaulted her. He was then arrested by the police