Appeal from the Circuit Court of Cook County, Juvenile
Division; the Hon. DANIEL J. McNAMARA, Judge, presiding. Judgment
finding boy to be delinquent affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 29, 1966.
Robert F. Urbasek, an eleven-year-old boy, was found to be a delinquent by the Juvenile Division of the Circuit Court of Cook County on October 1, 1965. The petition alleging delinquency charged that he did "violate a State law." At the hearing, evidence was introduced of the murder of an eleven-year-old girl with whom he had been playing approximately four hours prior to the discovery of her body. The finding of delinquency was based on the use of the "preponderance of the evidence rule."
On appeal, the principal questions are: (1) Where the hearing and determination of delinquency were prior to the effective date of the present Juvenile Court Act, should the proceedings have been governed by the "preponderance of the evidence rule" or by the "beyond a reasonable doubt rule," since personal liberty was at stake? (2) Was the delinquent entitled to all the constitutional safeguards possessed by adults exposed to criminal prosecution? (3) May an expert witness on direct examination be questioned about learned treatises on which he is not specifically relying? (4) Was there an illegal search and seizure and, if so, was the right to suppress the fruits thereof waived?
On August 26, 1965, between 7:00 and 8:00 p.m., the body of Karen Mitchell was found in the locked Urbasek garage. Karen had been missing since about 3:00 p.m., and her mother had been searching for her. She had questioned Robert several times and finally insisted that Robert and his older sister allow her to look for Karen in their garage. The garage was opened, and the girl's body, with seven stab wounds, was found in the crawl space at the far end of the garage. A 6-inch knife was found near her head, and on her left wrist was "a strapping with perforated holes and a combination lock and a piece of twinelike substance around her neck." The immediate cause of death was stab wounds of the lungs and liver. Karen's mother testified as to what happened when she found the body: "I saw Karen's knees. I looked, and I said, `There she is, Bobby. . . . Why did you do it?' He said, `I don't know.'"
Later that evening, Robert was questioned both at home and at the Village of LaGrange police headquarters. The record indicates that Edward F. Vyzral, an attorney, was present during part of the questioning at the police station, and that he represented Robert at the court hearing. Robert cooperated with the police and answered all questions. He denied seeing Karen after 3:20 p.m., when "she went around the side of the house" while he was filling a lawn mower with gasoline.
A State's witness, a Chicago Police Department micro-analyst, testified that he made an examination of a sample of the decedent's blood, which he received from the morgue, and determined that "it was human blood, Group A." He also examined reddish brown stains on the knife and on Robert's T-shirt and found they were "human blood of Group A." One strand of hair found in the hand of the decedent was compared with hair strands submitted from the head of Robert, and a comparison determined that both hairs were similar. On the one strand was found a reddish brown flake, which was found to be blood. He also testified, "I found nothing on the boy's socks, nothing on his undershirt. I found nothing on his undershorts, they were clean. The fingernail scrapings were negative. There were no fingerprints on the knife, there were no fingerprints on the strap iron, there were no fingerprints on the lock, there were no fingerprints on the tape or the rope."
Robert testified and was cross-examined extensively at the hearing. His testimony was substantially the same as related by the various police officers who had questioned him on the day of the occurrence. He denied killing Karen and was steadfast in his statement that he did not see her after she left him at 3:20 in the afternoon.
The trial court, in announcing its findings, remarked: "I was and am convinced that the youngster committed the act. I believe that the State met their burden of establishing the preponderance of evidence. I don't know that they met, if it is a requirement of proof beyond a reasonable doubt. I don't think that was met. . . . Since I have entered the finding of delinquency, and since I was convinced he was and I am convinced the youngster committed the act, I have felt that long term placement was in need."
Initially, we consider whether at the hearing on the delinquency petition, the court should have required proof beyond a reasonable doubt that Robert murdered Karen, which was the basis of the charge and finding of his delinquency.
The authorities submitted by respondent include In re Madik, 233 App. Div. 12, 251 NYS 765, where the charge of delinquency was based on arson, and the court said (p 767):
"In the case of an adult, proof of guilt beyond a reasonable doubt would be required. The district attorney concedes and we think that such proof is required here.
"Undoubtedly suspicion points to the boy's guilt, but suspicion is not proof beyond a reasonable doubt, and we think that the boy's guilt has not been sufficiently shown under the rule."
In In re James Rich, 86 NYS2d 308, the charge of delinquency was that the minor was responsible for the death of another person. There the court said (p 311):
"The rule of law is that a charge of crime must be established beyond a reasonable doubt. If there is a reasonable doubt as to the perpetration of the crime, that reasonable doubt must be resolved in favor of the person charged with having committed the ...