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In Re Armour

OCTOBER 17, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH C. MOONEY, Judge, presiding.


This appeal arises from an adjudication of delinquency which was based upon two delinquency petitions charging the respondent with attempted robbery and murder. Two petitions were filed against the respondent on July 3, 1971, and on the same day respondent was brought before the juvenile court for a detention hearing. The court ordered the detention hearing continued to July 9, 1971. On July 9, 1971, the court ordered the respondent released from custody and set the petitions for an adjudicatory hearing on August 4, 1971. This was 32 days from the date the delinquency petitions were filed. On August 4, 1971, the juvenile court granted respondent's motion for a continuance to September 16, 1971. Subsequent to September 16, 1971, there was a series of continuances and the adjudicatory hearing was not actually commenced until February 29, 1972. There was a total of 16 continuances in this juvenile proceeding. Some of the continuances were the result of the court's own orders, some were granted by agreement, some on motions of the State and some at the request of the respondent's counsel.

At the adjudicatory hearing, Charles Carter, age 14, testified for the State that on June 15, 1971, at about 8:30 P.M. he was playing baseball in a parking lot on 56th Street between Indiana and Michigan avenues. There were no lights in the parking lot, but Carter stated he was able to see the ball during the game. At this time Carter observed a man running through an alley toward 56th Street, with three boys pursuing him. The man exited the alley and stopped on 56th Street, across the street from Carter. The witness testified that two of the pursuing boys stopped at the mouth of the alley where it intersects 56th Street. The third boy turned east, away from the man, and stopped on the grass located at the southeast corner of the intersection of the alley and 56th Street. Carter identified this boy on the grass as the respondent, Anthony Ray Armour, and stated that he had seen the respondent playing in the area ten or fifteen times prior to June 15, 1971.

When the man had stopped on 56th Street, Carter walked over to the front of his house which was located adjacent to the parking lot and across the street from where the man was standing. The distance was approximately 30 to 40 feet. Carter testified that he heard the man say he did not have any money and then one of the boys standing in the alley took out a gun and handed it to the other boy in the alley who then shot and killed the victim. The respondent did not handle the gun. After the shooting, the three boys ran away in the same direction.

The respondent testified that on June 15, 1971, he was in a playground on 56th Street at 8:00 P.M. About 8:30 P.M., as was his custom, he went next door to his aunt's house and remained there for approximately 30 minutes fixing his bicycle. The respondent stated that he saw the police driving on 56th Street and left his aunt's house to see what happened. The respondent's brother who was at the scene told him a man had been shot and the respondent then went directly home.

The respondent's aunt and uncle testified as alibi witnesses. The uncle testified that the respondent usually left his bike in his hallway and would return to get it between 8:30 and 9:00 P.M. The witness stated: "He was at the house working on the bike or at least I thought he was working on the bike in the hallway and he left there between 8:30 and 9:00 P.M." On cross-examination the uncle testified that the respondent left between 8:00 and 8:30 P.M. The aunt testified that the respondent came to her house at 8:30 P.M. and fixed his bicycle. She said she knew it was 8:30 P.M., because she looked at her watch. The aunt stated the respondent left about 9:00 P.M.

At the conclusion of the adjudicatory hearing, the juvenile court found the respondent delinquent on the charges of attempted robbery and murder. The respondent who was seventeen at the time of the adjudicatory hearing was committed to the Department of Corrections, Juvenile Division, until he attains the age of twenty-one.

The first issue raised by the respondent-appellant in this appeal is that the juvenile court lost its jurisdiction over the appellant by its failure to comply with section 704-2 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 701-1 et seq.). This section states that: "When a petition has been filed, it shall be set for an adjudicatory hearing within 30 days." Appellant contends that the language of section 704-2 is mandatory and therefore since the adjudicatory hearing was held 32 days after the petitions were filed the juvenile court acted without jurisdiction in finding the appellant delinquent. The resolution of this issue requires a construction of the first sentence of section 704-2 and presents, as far as can be ascertained, a case of first impression in Illinois. In its brief the petitioner-appellee cited the case of In re Interest of Nyce, 131 Ill. App.2d 481, as being dispositive of the jurisdictional issue. The court in its opinion stated, at page 486:

"Similarly, we do not find the allegations with respect to the failure to comply with sections 703-5 and 704-2 of the Act, though they are factually supported by the record, to bear upon the question of jurisdiction."

However, the Nyce case was predicated upon a neglect petition and was not a proceeding to determine the delinquency of a minor. The court recognized the difference when it stated at page 486, "* * * This is not that type of juvenile proceeding which is likely to have an outcome substantially similar to a criminal proceeding, i.e., confinement for a term of years." The instant appeal, however, does present a juvenile proceeding which did result in confinement for a term of years and therefore requires a careful scrutiny of the purpose and nature of the Juvenile Court Act and the language of section 704-2. For the reasons hereinafter stated, this court is of the opinion that the language of section 704-2 of the Juvenile Court Act is not mandatory but rather directory and thus the court below did not act without jurisdiction when it held the adjudicatory hearing 32 days after the delinquency petitions were filed.

• 1 As previously stated, the jurisdictional issue raised by the appellant in this appeal requires a construction of the first sentence of section 704-2 of the Juvenile Court Act. The standard to be applied in construing legislation was stated in People v. Gibbs, 413 Ill. 154, at 163:

"Courts will construe the details of an act in conformity with its dominating general purpose, will read text in light of context, and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy. (Securities and Exchange Com. v. Joiner Leasing Corp., 320 U.S. 350.) The object of the legislature must be ascertained from a consideration of the entire act. (Blattner v. Dietz, 311 Ill. 445.)"

The Illinois Supreme Court has also stated in Corrigan v. Illinois Liquor Control Com., 19 Ill.2d 230, at 233:

"In determining the intent of the legislature consideration must be given to the entire statute, its nature, objects and the consequences which would ...

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