APPEAL from the Circuit Court of Cook County; the Hon. PETER
F. COSTA, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Respondent was charged with the crime of aggravated battery in a petition filed in the juvenile division of the circuit court of Cook County. The petition alleged that respondent had been born on April 3, 1959. Respondent appeals from the court's finding that he was a delinquent child having committed the offense of aggravated battery on a date prior to his 17th birthday. On appeal he contends: (1) that the State did not meet its burden of proving that respondent had committed an offense before his 17th birthday; and (2) that respondent was not proven guilty beyond a reasonable doubt.
On December 10, 1974, Anthony Calloway was engaged in a sewing lesson at the Brainerd Field House in Chicago, Illinois, when he suffered a gunshot wound to his thigh. This wound necessitated the amputation of his leg.
Leroy Williams was arrested at 11 p.m. on December 10, 1974, in the home of an acquaintance and charged with the shooting of Anthony Calloway. Williams, however, told the police that respondent was the man who fired the gun at Calloway. Subsequently respondent was arrested at his parents' home at 4 a.m. on December 11, 1974.
After the State requested that respondent's case be transferred to criminal court, a hearing was conducted under the Juvenile Court Act. (Ill. Rev. Stat. 1973, ch. 37, par. 701-1 et seq.) A probation officer testified that respondent was 15 years old, and the court determined the case was not appropriate for criminal court.
At his pretrial motion to quash the arrest and suppress the evidence, respondent testified that he was 15 years old.
At the adjudicatory hearing the State alleged that respondent had committed a criminal offense prior to his 17th birthday and called two witnesses. Calloway testified that he had been shot on December 10, 1974, and that he had known respondent prior to the shooting. He further related the extent of his injuries but could not identify the person who fired the gun. Four women present at the time of the shooting were not called to testify.
Leroy Williams, the only identification witness, acknowledged that he had been arrested at 11 p.m. on December 10, 1974, and "charged with the shooting of Anthony Calloway." He claimed that he knew respondent from school and saw him twice on the day of the shooting, once at 4:30 p.m. and once between 5:30 p.m. and 5:45 p.m. At the second encounter Williams testified that respondent was carrying a sawed-off shotgun and claimed he "was going to off a stud." According to Williams he then followed respondent to the field house where he saw respondent joined by another person as the two walked to the field house door. He testified that from where he stood, more than the "length of a courtroom" from the door, he saw the unidentified person open the door. At one time Williams related that he did not see the firing of the gun. At another time he identified respondent as the man who fired the gun. On cross-examination he testified that on an earlier occasion, in the presence of counsel for both sides, he had said that either respondent or the unidentified person with him could have fired the gun. According to Williams, after one of the two fired the gun through the opened door, respondent ran from the building with his companion. Williams had known respondent prior to the shooting but could not identify respondent's companion.
Three alibi witnesses, respondent's girl friend and two of her girl friends, testified that respondent had spent the afternoon and evening in question with them at his girl friend's house.
The court then found respondent to be delinquent, adjudicated him a ward of the court and committed him to the Illinois Department of Corrections. This appeal followed.
Respondent contends that the State failed to prove its case when it did not establish respondent's age at the adjudication hearing. The State makes no claim that it proved respondent had committed the offense alleged in the delinquency petition before his seventeenth birthday. Rather it asserts that no proof of age is required under the Juvenile Court Act. (Ill. Rev. Stat. 1973, ch. 37, par. 701-1 et seq.) We find otherwise.
The State relies primarily upon In re Williams (1st Dist. 1974), 24 Ill. App.3d 593, 321 N.E.2d 281, wherein we found the burden to be on the respondent to prove he was below the minimum age required by section 11-1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 11-1(a)). Section 11-1 of the Criminal Code (the rape statute) as construed by Williams, however, is not applicable to the facts at bar. The statute structure of the Juvenile Court Act with its many sections differs from that of the rape statute with its one section.
When an individual is charged with the crime of rape, the State has the burden of proving beyond a reasonable doubt all the elements of the crime of rape as set forth in section 11-1 of the Criminal Code. (People v. Qualls (1961), 21 Ill.2d 252, 171 N.E.2d 612.) The burden is then on the defendant to prove he is under the age of 14, and the State neither has to prove ...