APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Murder is always tragic, and the circumstances which give rise to this appeal are especially so. They involve an unfortunate victim, Johnny H. Travis, shot down in front of his wife on South State Street near 47th Street in Chicago by a stranger to the couple. The shooting occurred while Mr. and Mrs. Travis were walking to her sister's wedding reception, and Mr. Travis died 4 days later. The tragedy is heightened by the age of the assailant 13 years. He was convicted by a jury of the murder and attempt armed robbery, and sentenced to confinement for a term of 20 to 40 years.
A hearing was held in the juvenile division of the circuit court on October 25, 1972, pursuant to section 2-7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, § 702-7(3)), on a motion of the State's Attorney to transfer the defendant to adult criminal jurisdiction. The court entered an order of "no objection to transfer." The defendant was indicted on November 29, 1972, by the extended October 1972 grand jury. His trial took place in 1973 after he had reached the age of 14.
The statute under which the transfer hearing was held was amended effective January 1, 1973, to provide for a mandatory hearing at which the juvenile division of the court is required to find that it is not in the best interests of a minor or the public to proceed under the Juvenile Court Act *fn1 before prosecution of the minor may take place under the criminal laws. (Ill. Rev. Stat. 1973, ch. 37, § 702-7(3).) The Act as amended sets forth the matters the court shall consider in reaching its determination. *fn2 At the time of defendant's hearing in 1972, the statute then in effect provided for a hearing in instances where the State's Attorney determined that a minor should be prosecuted in criminal proceedings and the juvenile court judge objected, but did not specify the matters to be considered. Although the record shows no objection by the juvenile court judge, the hearing referred to above was nevertheless held. The defendant was represented by court-appointed counsel. A motion by the defendant to dismiss the transfer petition was denied. A police officer called by the State testified about information furnished to him by the victim's wife who witnessed the homicide and the defendant's juvenile record was introduced. The defendant offered no evidence, but his attorney argued against the transfer.
The defendant relying on Kent v. United States (1966), 383 U.S. 541, contends that he did not receive the type of hearing in the juvenile division contemplated by that decision, and accordingly was denied due process of law. Similar contentions have been considered by the Illinois Supreme Court which distinguished the District of Columbia statute involved in Kent from the Illinois statute in effect in 1972 and concluded that neither due process requirements, nor the Illinois statute mandated such a hearing in this jurisdiction: People v. Sprinkle (1974), 56 Ill.2d 257, 307 N.E.2d 161; People v. Reese (1973), 54 Ill.2d 51, 294 N.E.2d 288; People v. Hawkins (1972), 53 Ill.2d 181, 290 N.E.2d 231; People v. Handley (1972), 51 Ill.2d 229, 282 N.E.2d 131; People v. Bombacino (1972), 51 Ill.2d 17, 280 N.E.2d 697. The rationale of these decisions is that the Illinois statute vests the prosecutor rather than the court with the authority to determine whether to proceed against a juvenile as an adult while the District of Columbia statute places responsibility for that determination in the juvenile court. They also hold that it was constitutionally valid for the Illinois legislature to give the State's Attorney rather than the judiciary the authority to make that determination.
• 1 People v. Rahn (1974), 59 Ill.2d 302, 319 N.E.2d 787, in concluding that a minor could not be indicted by the State's Attorney without the concurrence of the juvenile court judge, held that the legislative intent in enacting the statute in effect in 1972, was that the ultimate determination with respect to transfer of a minor for criminal prosecution was to be a judicial one. To that extent it may be inconsistent with the above cases, but it is not applicable to the procedure followed with respect to this defendant because judicial consent to the transfer was given after the hearing described above rather than in isolation as in Kent. That hearing followed the outline for a proper hearing set forth in Kent except that the record does not contain a statement by the court of the reasons for the transfer. The differences between the Illinois statute in effect in 1972 and that involved in Kent and the four Illinois Supreme Court decisions distinguishing Kent lead to the conclusion that this omission does not require remand to the juvenile division for an additional hearing.
• 2 The defendant also contends that because the amendment to section 2-7 of the Juvenile Court Act referred to above became effective prior to his trial, although after his transfer and indictment, he should have been transferred back to the juvenile division for a new hearing under the amended statute. The answer to defendant's argument is found in section 4 of the statutory construction act (Ill. Rev. Stat. 1973, ch. 131, § 4), which limits the applicability of any new law to its effective date and provides that a new law shall not be construed to repeal or affect any right accrued under the former law or before the new law takes effect. The additional provision of that statute that proceedings after the new law takes effect "shall conform, so far as practicable, to the laws in force at the time of such proceeding" did not require an additional hearing since the proceeding in the juvenile division took place prior to the effective date of the new law. Nor does People v. Hollins (1972), 51 Ill.2d 68, 280 N.E.2d 710, on which the defendant relies, indicate that a second hearing in the juvenile division should have taken place in 1973; it deals with an amended sentencing code and is predicated upon the portion of section 4 (Ill. Rev. Stat. 1973, ch. 131 § 4) which excepts sentencing provisions from other types of statutes, thus permitting a defendant to elect not to be sentenced under the law in effect at the time of the offense if the new law provides a lesser penalty. There is no justification for retroactive application of the January 1, 1973, amendment to the statute governing transfer of juveniles to criminal court jurisdiction.
• 3 The defendant next argues that his indictment in November by the October 1972 grand jury, which had been extended to continue to function in November 1972, was improper. His position is that a grand jury when extended into a succeeding month has authority to consider only matters presented to it during the month in which it was impaneled and that defendant's indictment was not one of such matters. People ex rel. Carey v. Power (1975), 59 Ill.2d 569, 322 N.E.2d 476, held the portion of Rule .06(a) of the circuit court of Cook County which permitted the court to extend the term of any grand jury for the purpose of completing any matters then under consideration or investigation by the grand jury invalid insofar as it attempted to limit matters which an extended grand jury might consider. The effect of that decision is to leave an extended grand jury free to inquire into matters not previously considered by it, and the defendant's attorney conceded this at oral argument.
Defendant also contends the State failed to prove that he had the capacity at the time of the crime to distinguish good from evil, understand the nature and consequences of his conduct and appreciate that his conduct was wrong and, therefore, the State failed to discharge the burden of proof beyond a reasonable doubt. Prior to 1962, the Illinois statute provided for a presumption of incapacity to be applied to children under 14, *fn3 and also provided that no child under 10 should be found guilty of any crime or misdemeanor. *fn4 The presumption of incapacity, therefore, applied prior to 1962 to those who were 10 or older but younger than 14. The current statutes relating to criminal responsibility effective since January 1, 1962, contain no provision providing for a presumption of incapacity with respect to minors or reference to the ages of 10 and 14, but provide, instead, that no person below the age of 13 at the time he commits an offense shall be convicted. *fn5 Article 6 of the current statutes which deals with matters of criminal responsibility and capacity as affected by infancy, mental disorder and intoxication contains no definition of "sound mind" comparable to the statute (ch. 38, § 590) as it existed prior to January 1, 1962. However, section 6-2(a) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, § 6-2(a)) provides:
"A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."
• 4 The defendant's theory is that a rebuttable presumption of incapacity existed in the common law for those who were 13 years of age, and therefore the current statutes on criminal responsibility must be construed as continuing that common law presumption unless there is a clear and specific showing that the intention of the legislature was to eliminate it. Combining this with the rule that penal statutes as well as statutes in derogation of the common law are to be strictly construed and such construction is to favor the accused, the defendant argues that the current statutes failed to specifically provide that the presumption of incapacity was eliminated for those who were 13 years of age, and, since the current statutes permit their conviction, it continues for those of that age.
• 5, 6 Evidence of an intent to eliminate the common-law presumption is found within the current statutes which fix the only relevant age for conviction at 13 or older, dispense with the prior statutory reference to criminal capacity of an infant and set forth the circumstances applicable to those 13 years of age or over which relieve a person of criminal responsibility for his conduct. The committee comments section 6-1 of the Criminal Code (Ill. Ann. Stat. ch. 38, § 6-1 (Smith-Hurd 1972)) demonstrate that the 1962 statute was intended to eliminate the common law presumption of incapacity and replace it with a presumption of capacity for all persons who reach the age of 13. *fn6 It is proper to look to the committee comments to ascertain the purpose of a statute and its proper application. (People v. Plewka (1975), 27 Ill. App.3d 553, 558-59, 327 N.E.2d 457.) It was, therefore, unnecessary for the State to affirmatively prove defendant's criminal capacity at his trial; also, it was not error for the trial court to refuse the defendant's tendered instructions regarding proof of criminal capacity.
Additional objections raised by the defendant require an examination of factual matters relating to his arrest and trial.
The victim and his wife were walking north on the east side of South State Street between 47th Street and 46th Street at about 9 p.m. on October 14, 1972, when a boy walked up to them and asked the victim whether he wanted to buy some records. The couple turned around and Mr. Travis told the boy he had no money. As Mr. and Mrs. Travis commenced to walk off another boy walked up to them, and when standing in front of them announced a stickup, told them to stand still and not move and said he had a gun pointing at them. Mrs. Travis testified the boy had a "bitty" gun which "looked like a .25," that it was black and the boy was pointing it at her husband and at her, who were then standing close together. Mrs. ...