APPEAL from the Circuit Court of Cook County; the Hon. JAMES
P. PIRAGINE, the Hon. RICHARD K. COOPER, and the Hon. ERWIN L.
MARTAY, Judges, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
In these three consolidated appeals the minor-respondents Dyess, Murff and Strickland were alleged to be under 17 years of age at the time of the commission of their respective offenses, but no proof of age was produced at the respective hearings. They were found to be delinquent, and each was committed to the Department of Corrections.
The common issue for review is whether the juvenile court had jurisdiction to make a finding of delinquency when the State presented no proof of age. Further, in the case of respondent Michael Strickland it is argued that the State failed to prove him guilty of forcible rape beyond a reasonable doubt when it did not offer proof he was over 14 years of age and that the court erred by failing to explicitly adjudicate him as a ward of the court.
In case No. 77-397, respondent Gordon Dyess was alleged to have been born on January 19, 1960, and he was found to have committed aggravated battery on November 22, 1975. In case no. 77-940, respondent Darnell Murff was alleged to have been born on December 9, 1959, and he was found to have committed armed robbery and unlawful restraint on February 7 and 8, 1976. In case No. 77-578, respondent Michael Strickland was alleged to have been born on January 10, 1960, and he was found to have committed the offenses of rape and robbery on November 3, 1975.
All respondents contend that because the State produced no proof that each was under 17 years of age, the juvenile court was without jurisdiction to find them to be delinquent. They also contend that proof of age on remand is not appropriate because of double jeopardy restrictions.
Several other First District opinions have all held that the State must offer proof of age to confer jurisdiction on the juvenile court under the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 701-1 et seq.). In In re Brown (1st Dist. 1977), 49 Ill. App.3d 580, 364 N.E.2d 657, aff'd on other grounds (1978), 71 Ill.2d 151, 374 N.E.2d 209, the appellate court held that proof of age under 17 was one of the elements of delinquency as set forth in section 2-2 of the Act which must be proved, and the court reversed the case without remand. Of consequence to the resolution of Brown was section 2-2 of the Act which provides:
"Those who are delinquent include any minor who prior to his 17th birthday has violated or attempted to violate, regardless of where the act occurred, any federal or state law or municipal ordinance; and (b) prior to January 1, 1974, any minor who has violated a lawful court order made under this Act." (Ill. Rev. Stat. 1975, ch. 37, par. 702-2.)
Further, the court also relied on section 4-6 of the Act which refers back to section 2-2 as follows:
"At the adjudicatory hearing, the court shall first consider only the question whether the minor is a person described in Section 2-1. The standard of proof and rules of evidence in the nature of criminal proceedings in this State are applicable to section 2-2. * * *". (Ill. Rev. Stat. 1975, ch. 37, par. 704-6.)
Finally, section 2-1 entitled "Jurisdictional Facts" provides as follows:
"Proceedings may be instituted under the provisions of this Act concerning boys and girls who are delinquent, otherwise in need of supervision, neglected or dependent, as defined in Sections 2-2 through 2-5." (Ill. Rev. Stat. 1975, ch. 37, par. 702-1.)
The appellate court in Brown concluded that if age were not required as an element of proof, an individual over the age of 17 could remain mute throughout the proceedings and be adjudicated as a juvenile and that such a possibility is inconsistent with the purpose and policy of the Act as set forth in section 1-2(1) which denominates the legislative policy for the treatment of juveniles.
Our supreme court affirmed the decision in Brown, based on the factual issue that the State had not proved guilt beyond a reasonable doubt. With respect to the issue of age, the supreme court merely found that there was sufficient proof of age based on the allegation of age in the petition of delinquency, which was not denied other than in a pro forma blanket denial of allegations of the delinquency petition, and based upon Brown's testimony at a pretrial motion to suppress wherein he had stated he was 15 years old.
In the case of In re Frazier (1st Dist. 1978), 60 Ill. App.3d 119, 376 N.E.2d 643, the court relied on the appellate court opinion in Brown and held that proof of age was a jurisdictional fact, but the case was remanded with directions to determine the age of the respondent at the time the act occurred. If respondent was less than 17, the trial court was directed to proceed with the implementation of the order of commitment, and if ...