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In Re Ephriam

OPINION FILED MAY 9, 1978.

IN RE DONZELL EPHRIAM, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

DONZELL EPHRIAM, A/K/A EPHRIAM DONZELL, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS M. WALSH, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 15, 1978.

On August 22, 1974, Donzell Ephriam (respondent) was placed on three years juvenile probation; and on September 4, 1975, he was found in violation of that probation. Responent's probation was revoked when the court found he had committed the offense of unlawful possession of firearms. (Ill. Rev. Stat. 1973, ch. 38, par. 24-3.1(a)(1).) On review respondent appeals from the court's revocation of his probation and from his subsequent commitment to the Department of Corrections. He contends that (1) the evidence was insufficient to prove his guilt; (2) the statute in question is unconstitutional; and (3) the lower court lacked jurisdiction to enter a dispositional order because the court failed to make an adjudication of wardship.

A verified petition for adjudication of wardship was filed on July 30, 1974, alleging that respondent had committed armed robbery. The petition alleged that respondent was born on February 17, 1960. On August 8, 1974, he was found to be a delinquent. On August 22, 1974, he was placed on probation for three years. Thereafter, on July 24, 1975, a petition for supplemental relief was filed, which alleged that respondent had violated the terms and conditions of his probation by the commission of the offense of unlawful possession of firearms. It also alleged that respondent was then 15 years of age. On September 4, 1975, a hearing was held on the allegations of the petition for supplemental relief.

Prior to calling witnesses, the court stated that the matter involved a supplemental petition which alleged, "that on or about June 5th of this year, unlawful possession of a firearm 45 Caliber Automatic Pistol, and respondent being 15 years of age." Samuel Ransom, Jr., was then called by the State and testified that on June 5, 1975, he was a security office for the Chicago Housing Authority. As Ransom was leaving his office to begin patrol, he observed, from a distance of 20 feet, respondent and another young man. Respondent was holding a gun which Ransom identified as a .45-caliber automatic. Ransom said that he knew what kind of gun it was because he had been assigned one when he was in Vietnam.

When Ransom's partner yelled, "Halt," the two security officers began to chase the unidentified young man, but stopped when he ran into a nearby building. Respondent went into another building with the gun still in the waistband of his pants. In the interim, Ransom called the Chicago police. Ransom and the police officers then chased respondent into the building and caught him on the second floor. At this time, respondent had no gun. Respondent was then arrested. Although the police officers searched several apartments, no gun was ever recovered.

On cross-examination, Ransom testified that although he paid little attention to the size of the gun's handle or barrel, he was certain it was a .45. When Ransom later observed the weapon in the waistband of respondent's pants, respondent was approximately 40 to 45 feet away. Once the State rested its case, the defense moved for dismissal on the ground that the prosecution had failed to introduce any evidence establishing that respondent was under 18 years of age. The defense contended that such proof of age was an essential element which the State had to prove pursuant to the unlawful possession of firearms charge. In denying the motion, the court commented that at the time of the arraignment and at the commencement of trial, the court had asked the respondent his age.

In his own defense respondent testified that on the day in question he had a conversation with several individuals. One of them hit him in the jaw. As respondent ran away, he picked up a pipe which was actually part of a chair with a curved top. All of this occurred near the office of the building. When he heard the police coming, respondent ran into a building where he dropped the pipe. Respondent explained that the pipe or chair was about 13 or 14 inches long with a curve of about 12 inches. Lastly, respondent denied that Ransom had seen him more than once that day.

In finding that respondent had violated the terms of his probation, the court specifically commented that it had listened to the testimony on both sides and had observed the demeanor of both witnesses. Respondent was thereafter committed to the Department of Corrections. This appeal followed.

I.

A.

• 1 Respondent initially contends that the evidence was insufficient to prove his guilt because the State failed to prove that the object respondent held was a firearm. We disagree. The security officer Ransom identified the object not only as a firearm, but as a specific type of firearm: a .45-caliber automatic pistol. Although respondent argues that Ransom identified only a gun barrel and not other particular characteristics of a gun, the record clearly reflects that the witness identified the object as a .45. Ransom's testimony indicated his familiarity with the type of weapon from past military experience and his knowledge of the particular weapon in question from the two occasions he had to view it. The issue turns on credibility; and the uncorroborated testimony of one credible witness can be sufficient to sustain a conviction even when contradicted by the accused (In re Winslow (1st Dist. 1977), 46 Ill. App.3d 962, 967, 361 N.E.2d 622). While no firearm was recovered here, we note that similar convictions have been upheld where the firearm was not introduced into evidence. (See People v. Ortiz (1st Dist. 1973), 18 Ill. App.3d 431, 305 N.E.2d 418; People v. Herrera (1st Dist. 1972), 6 Ill. App.3d 898, 287 N.E.2d 87; People v. Halley (5th Dist. 1971), 131 Ill. App.2d 1070, 268 N.E.2d 449.) The absence of a weapon actually introduced into evidence was merely an additional factor for the trial court to weigh.

• 2 In finding a violation of probation, the court made it clear that it had listened to all testimony and observed the demeanor of both Ransom and respondent. Under these circumstances we will not disturb the court's finding. A finding of violation of probation will not be disturbed unless the testimony is contrary to the manifest weight of the evidence and not where the ...


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