APPEAL from the Circuit Court of Cook County; the Hon. JAMES
P. PIRAGINE, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Mr. PRESIDING JUSTICE GOLDBERG delivered the opinion of the court:
The juvenile division of the circuit court adjudged Marvin B. Frazier (respondent) to be delinquent and committed him to the Department of Corrections. Respondent appeals. He urges here that the trial court lacked jurisdiction over the subject matter of this case in that no evidence of respondent's age was received. Therefore, he argues, the trial court was unable to make the jurisdictional finding that he was under 17 years of age at the time of the alleged act of delinquency. (Ill. Rev. Stat. 1973, ch. 37, pars. 702-1, 702-2.) Respondent also claims as error the failure of the trial court to enter an order adjudicating respondent a ward of the court. Ill. Rev. Stat. 1973, ch. 37, par. 704-8(2).
The petition for adjudication of wardship contained allegations that respondent committed aggravated assault and unlawful use of a weapon. It also alleged that respondent was born on January 2, 1960, which, if true, means that he was approximately 15 1/2 years old in August 1975, when the petition was filed.
At trial, Frazier's attorney entered a general denial of the allegations in the petition. No evidence was ever given by either side with respect to respondent's age.
The Juvenile Court Act grants special statutory jurisdiction to the circuit court to hear juvenile cases (Ill. Rev. Stat. 1973, ch. 37, par. 701-1 et seq.). One essential fact which must be shown in a juvenile proceeding is that the respondent is "delinquent, otherwise in need of supervision, neglected or dependent * * *." (Ill. Rev. Stat. 1973, ch. 37, par. 702-1.) A delinquent minor is defined as "any minor who prior to his 17th birthday has violated or attempted to violate * * * any federal or state law * * *." Ill. Rev. Stat. 1973, ch. 37, par. 702-2.
1 The record before us contains no evidence from which the court could have determined the respondent's age. Without proof of this essential statutory fact in the record, it does not appear the trial court had statutory authority to enter the order appealed from. In re Brown (1977), 49 Ill. App.3d 580, 583, 364 N.E.2d 657, affirmed on other grounds (1978), 71 Ill.2d 151, 374 N.E.2d 209.
2 The respondent's second contention, regarding an adjudication of wardship is disposed of by In re Jennings (1977), 68 Ill.2d 125, 368 N.E.2d 864. From the record before us it "becomes readily apparent that the findings and adjudication in the order of the trial court [as regards an adjudication of wardship] comply * * *" with the requirements of the statute. Jennings, 68 Ill.2d 125, 133.
The cause is remanded with directions that the trial court hear evidence to determine the age of respondent at the time the act occurred upon which the finding of delinquency was predicated. If it be determined that the respondent was over 17 years of age on that date, the trial court is directed forthwith to dismiss the proceedings for lack of statutory authority. If the trial court determines that defendant was under the age of 17 on that date, the trial court shall proceed with implementation of the order of commitment which is the subject of this appeal.
Cause remanded with directions.
McGLOON and O'CONNOR, JJ., concur.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
Respondent's petition for rehearing cites two opinions by other divisions of this court, passing upon the same issue. Both of these opinions reverse orders of juvenile delinquency because the trial courts> failed to make a finding of the respondents' ages. (In re Greene (1978), 59 Ill. App.3d 286, 374 N.E.2d 1322, and In re Eicher (1978), 59 Ill. App.3d 1021, 376 N.E.2d 697.) We have given detailed thought and consideration to these opinions and we are impelled respectfully to differ with them and to reaffirm our original decision.
3 The petition for rehearing first raises an issue of double jeopardy and urges that remandment of the petition to the trial court would be tantamount to permitting an appeal by the State after an acquittal. We disagree. The petition cites Breed v. Jones (1975), 421 U.S. 519, 44 L.Ed.2d 346, 95 S.Ct. 1779. In our opinion, Breed is in no sense comparable to the situation before us. In Breed, the respondent was adjudicated a delinquent but was subsequently found unfit for treatment as a juvenile. The Supreme Court held that a subsequent attempt to try him as an adult for the same offense constituted double jeopardy. The court also pointed out that to hold otherwise would mean that the respondent would be subjected to the rigors of a subsequent trial for the same offense. These factors do not exist here. We have not remanded the petition for a completely new trial but have simply sought to protect the rights of the respondent by requiring the trial court to determine his age.
The matter of age was one which respondent should have proved for his own benefit to avoid prosecution as an adult. All persons concerned with this appeal will undoubtedly agree that respondent as a living person was born upon a specific date and consequently had attained a specific age at the time the offense was committed. Based upon this unimpeachable premise, ...