APPEAL from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
The defendant was charged in a two-count indictment with the offenses of deviate sexual assault and indecent liberties with a child. At a subsequent bench trial he was found not guilty of deviate sexual assault but guilty of the indecent liberties count. He was sentenced to the penitentiary for a term of four to twenty years. He appeals his conviction.
The trial in this case occurred on June 16, 1969. At trial it was established that the date of the offense was September 29, 1968. The complaining witness, who was allegedly nine years old at the time, testified that his was playing outside his apartment building at about 2:00 A.M. His parents and older brother, with whom he lived, were absent. He was approached by the defendant who engaged him in conversation. Shortly thereafter he went upstairs to his apartment. The defendant followed and pushed him inside. The defendant commanded the complaining witness to take off his clothes, and he did. The defendant then took him into his mother's bedroom, placed grease on his rectum, and forced him to perform an act of oral copulation. Thereupon, the complaining witness's older brother returned home and began grappling with the defendant. During the course of the struggle, defendant dropped a gun he had apparently been carrying on his person. He picked up the gun and managed to escape.
The complaining witness's older brother testified for the State, and his testimony corroborated that of the complaining witness as to the events occurring after he came home and began grappling with the defendant.
The police officer who arrested the defendant some ten days subsequent to the offense testified that he took the defendant to police headquarters where he was identified by the complaining witness. At this point in the trial there was a stipulation between opposing parties that the then present age of the defendant was 17.
That stipulation was as follows:
"MR. VON ZEYL: Judge there would be a stipulation entered into at this time between the defendant, William Harvey, in his own private person by and through his counsel, the Public Defender's Office of Cook County, and the People of the State of Illinois represented by Edward V. Hanrahan, through the State's Attorney's Office of Cook County, that the events that have been testified to here occurred in the County of Cook, State of Illinois, and the age of the defendant, William Harvey, is presently 17. Is that correct?
MR. SHCHEFFLER: So stipulated."
The State then rested its case. Thereupon, the defendant, without giving a reason, moved for a directed finding of not guilty on both counts, and this motion was denied.
The defense called as witnesses the defendant and his mother. The defendant testified he had never seen the complaining witness prior to their confrontation at the police station. The defendant's mother testified that the defendant was at home at the time of the incident. On cross-examination she testified that defendant was born on May 9, 1951. At the close of all the evidence the defendant renewed his motion for a directed finding of not guilty on both counts and this motion was again denied.
During the hearing on aggravation and mitigation which followed the rendition of the verdict, the defendant stated that he was then 18 years old.
On appeal the first issue raised by the defendant is that the State failed to establish the material elements of the offense of indecent liberties with a child, to-wit: the age of either the accused or the victim.
With regard to proof of the defendant's age, he notes that the statute defining indecent liberties with a child requires a defendant to be 17 years or older at the time of the offense. Defendant argues that the defendant moved for a directed finding of not guilty at the close of the State's case-in-chief. There was no evidence in the record at that time as to defendant's age at the time of the offense. There was only a stipulation that he was then, at the time of trial, which occurred nine months ...