APPEAL from the Circuit Court of Cass County; the Hon. RICHARD
MILLS, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendants were each convicted of arson upon jury verdicts of guilty. Sentences imposed were: Wright, two to five, Hoke, three to ten and Rahn, three to ten. They appeal.
It is urged: (1) that Wright was not proven guilty beyond a reasonable doubt; (2) that it was error to deny Wright's motion for severance; (3) that the trial court erred in refusing to require the State's Attorney to file a petition requesting that Rahn, then 16 years old, be treated as an adult rather than a juvenile and in refusing to hold a hearing on whether Rahn should be treated as an adult, and (4) that the trial court erred in admitting evidence of another crime allegedly committed shortly prior to the arson.
Charges against defendants followed the burning of a church on the early morning of March 8, 1971. Investigation supported a conclusion of arson. On March 12, 1971, Wubker, a deputy sheriff, took statements from each of the defendants. No issue of the sufficiency of the Miranda warnings is raised. Defendants' statement in evidence through the testimony of Wubker coincide as to the fact that all defendants were driving about the countryside in Wright's truck drinking beer and whiskey.
The statements of Hoke and Rahn included admissions that they had carried a container of gasoline into the church, had "horsed around", and had spread the gasoline in the church and lighted it. They also admitted breaking the windows at the Hagener Town Hall prior to the activities at the church. As placed in evidence, the statements of Hoke and Rahn did not suggest that Wright participated at either the Town Hall or at the church.
The statement of Wright placed into evidence, coincides with that of Hoke and Rahn in that he was travelling in the truck in its wanderings. The truck was his, or provided by him. He stated that sometime after 10:00 P.M. they stopped at a gasoline station in Beardstown to purchase gasoline. He admitted that he and Hoke stole gasoline from a farmyard filling a one gallon gasoline can. This gasoline, or a portion of it, was carried into the church. Other evidence indicates that this farm was about six miles from the church. Both Wright's statement to Wubker and his testimony at the trial is to the effect that at both the Town Hall and the church he was ill from drinking whiskey and beer and got out of the truck to vomit and to relieve himself. His statement indicates that he remembered hearing the breaking of glass at the Town Hall and seeing the church fire, but he remembered little else. He testified that he did not believe that Hoke and Rahn got out of the truck while he was vomiting in the church cemetery.
The times and places where Wright was driving the truck are not clearly stated. In rebuttal, Wubker testified that Wright had stated that the church was on fire when they left and that at the church Hoke and Rahn had said that they were going to light him and put him in the church.
The witnesses, White and Hickenbottom, testified that they taught at the Beardstown High School and that on the afternoon of March 8, 1971, Wright and Rahn spoke of the first and stated, "(T)hat was really something we did". At that time the witnesses had not taken the remarks seriously.
• 1 It is urged that the court erred in permitting the testimony concerning another crime, i.e., the breaking of the windows at the Town Hall. No objection to such testimony was made at the trial, and the issue was not raised in either post-trial motion. Here, it is said that the testimony was "plain error" within the provisions of Supreme Court Rule 615(a). In People v. Thompson, 48 Ill.2d 41, 268 N.E.2d 369, it is said that objections to evidence may be waived by failure to interpose objections. There is, in fact, no prejudice to defendants. As to Wright, there is no testimony suggesting that he participated in the assault upon the Town Hall. Hoke and Rahn made statements which admitted starting the fire at the church. As to them a judgment of conviction will not be set aside where there is no evidence other than that of their guilt and the challenged evidence could not affect the verdict. (People v. Douglas, 130 Ill. App.2d 938, 267 N.E.2d 43.) Such evidence could have no reasonable effect upon the verdict. People v. Black, 52 Ill.2d 544, 288 N.E.2d 376.
• 2, 3 Wright contends that it was error to deny his motion for severance. The motion was founded upon the hypothesis that Hoke and Rahn had made confessions implicating him, and that such would be inadmissible hearsay. The proposition was not preserved in Wright's post-trial motion probably by reason of the fact that no hearsay testimony concerning the statements of Hoke and Rahn implicating Wright with the arson was placed into evidence. Wright admits travelling in his truck with Hoke and Rahn, and to being within the vicinity of the church with them. We find no hostility in the interests of Wright and his co-defendants and no antagonistic defenses as in People v. Johnson, 13 Ill.2d 619, 150 N.E.2d 597. There was no abuse of discretion within the language of People v. Lindsay, 412 Ill. 472, 481, 107 N.E.2d 614, 619, wherein the rule is stated:
"[W]here a motion for separate trial is made on the ground of confessions of others implicating the defendant making the motion, a severance should be ordered unless the state's attorney declares that the confessions or admissions will not be offered in evidence on the trial or unless there be eliminated from the confessions any reference to the complaining defendant." (Emphasis supplied)
Rahn was 16 years of age at the time of the fire. He urges that this conviction is void by reason of the failure of the State's Attorney to file a petition pursuant to Ill. Rev. Stat. 1969, ch. 37, par. 702-7(3). In the context of the argument, such petition is conceived to be a, "[P]etition to treat a juvenile as an adult offender". As a corollary the argument seems to require that a State's Attorney initiate a proceedings against a juvenile by filing a petition alleging delinquency, and thereafter a further petition alleging delinquency, and thereafter a further petition to treat the juvenile as an adult offender. Rahn argues that, "[A] reasonable interpretation of the statute requires that a petition be filed" by the State's Attorney. In People v. Shaw, 3 Ill. App.3d 1096, 279 N.E.2d 729, the court noted that there is no mandatory requirement that the State's Attorney file a petition alleging delinquency.
We note that Ill. Rev. Stat. 1969, ch. 37, par. 704-1(1) provides:
"Any adult person, any agency or association by its representative may file, or the court on its own motion may direct the filing through the State's Attorney of a ...