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In Re Dow





APPEAL from the Circuit Court of Cook County; the Hon. PETER F. COSTA, Judge, presiding.


On September 11, 1976, petitions for adjudication of wardship were filed in the Juvenile Division of the Circuit Court of Cook County, Illinois, alleging that Peter Dow, age 11, and his brother, Patrick Dow, age 9, committed the offense of aggravated battery against Paul Mueller in violation of section 12-4(a) (Ill. Rev. Stat. 1975, ch. 38, par. 12-4(a)). After an adjudicatory hearing, the respondents were found delinquent. Respondent Patrick Dow appeals that finding. We affirm the trial court.

The main issue presented for review is whether a minor under the age of 13 years may be adjudicated a delinquent in Illinois.

Paul Mueller testified at the adjudicatory hearing that on September 10, 1976, he and a friend were playing in a football field. At approximately 6 p.m., he was approached by Peter and Patrick Dow and invited to see their clubhouse. Paul rode on Peter's bicycle to a truck yard next to the football field.

Paul stated that after they arrived the respondents locked him inside the truck, climbed on top of the truck, and told him to remove his clothes. Paul would not comply until the boys opened the truck door and threatened to undress him. After he removed his clothes, the respondents began to hit him in the face. He received further injuries from a dog who was in the truck and who jumped on Paul at the direction of respondents. Peter and Patrick threatened Paul with further beating if he did not perform the act of fellatio. Paul complied but was, nevertheless, subjected to further beating by respondents. Peter and Patrick then ordered Paul to go into the Chicago River and get a duck. Paul told them he could not swim, but they still commanded him to enter the water. Shortly thereafter, when Paul noticed they had gone, he came ashore. Paul called his father, the police were notified, and Paul was taken to the hospital where he was given shots and X rays. He was confined to the hospital for 6 days, the first 2 of which were spent in the intensive care unit. The police brought Peter and Patrick Dow to the hospital where Paul identified them as the offenders.

Roger Mueller, Paul's father, testified that on September 10, 1976, he received a telephone call from his son and was told that someone had pushed him into the river. He met his son, saw the lacerations, and transported him to the hospital.

Three witnesses were called by the respondents. Geraldine Dow, respondents' 12-year-old sister, testified that on September 10, 1976 she saw Peter and Patrick going home at 4:45 p.m. Mrs. Dow, the respondents' mother, testified that Peter and Patrick returned home at approximately 5:25 that evening. Art Rogers, Mrs. Dow's husband, testified that on the date in question he returned home from work at 5:30 p.m. and saw Peter and Patrick at that time, but then did not see them again until 6:30 p.m.

On December 7, 1976, the trial court found both respondents delinquent and adjudged them wards of the court. The respondents filed a motion to vacate the findings of delinquency or for a new trial. The motion was denied on January 27, 1977.

Peter Dow alleged that the judge was in error as to the burden of proof at his fitness hearing and cited People v. McCullum (1977), 66 Ill.2d 306, 362 N.E.2d 307, to support his position. The People agreed and filed a confession of error as to appellant Peter Dow. The confession of error was allowed on June 1, 1978, and this appeal relates only to Patrick Dow.

The issue presented for determination by this court arises from the assertion by appellant that a minor under the age of 13 years may not be adjudged a delinquent. We cannot agree with appellant's contention.

Appellant contends that section 6-1 of the Criminal Code (Ill. Rev. Stat. 1975, ch. 38, par. 6-1) forbids conviction of a minor under 13 years of a criminal offense, and it therefore must forbid finding him delinquent as well because a finding of delinquency is based on a violation or attempted violation of a criminal law.

We do not agree with appellant's view of the law and, instead, believe the State's position is correct.

The State contends that both the Criminal Code and the Juvenile Court Act prohibit criminal prosecution of a person under 13, but the delinquency provisions of the Juvenile Court Act were established as an alternative to criminal prosecution.

Section 6-1 (Ill. Rev. Stat. 1975, ch. 38, par. 6-1), reads, "No person shall be convicted of any offense unless he had attained his 13th birthday at the time the offense was committed." Under the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-2), a delinquent minor is defined as, "Those who are delinquent include any minor who prior to his 17th birthday has violated or attempted to ...

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