Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Will County,
the Hon. Robert R. Buchar, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 1, 1980.
Ronald Jones was found guilty of armed robbery and attempted murder by a jury in the circuit court of Will County, and sentenced to concurrent prison terms of 10 to 20 years and 20 to 40 years, respectively. Defendant, 15 years old at the time a juvenile delinquency petition was filed in the instant case, was tried as an adult. The appellate court affirmed the conviction for armed robbery but reversed and remanded for a new trial on the attempted-murder charge. (68 Ill. App.3d 44.) We allowed the State's petition for leave to appeal (65 Ill.2d R. 315). Two issues are raised. First, whether the convictions must be overturned because the circuit court's order permitting the defendant to be tried "under the criminal laws" (Ill. Rev. Stat. 1973, ch. 37, par. 702-7) was entered after the grand jury indicted the minor defendant. Second, whether the circuit court's attempted-murder and definitional murder instructions were in error so as to necessitate reversal of the conviction for attempted murder.
On November 5, 1975, defendant and George Williams, an adult who pleaded guilty to armed robbery and was found guilty of attempted murder in a separate trial, were armed with a shotgun and revolver, respectively, when they stopped their car behind the car of David Barker in a park. Barker, who was waxing his car when defendant and Williams approached, testified that the two took his wallet, and ordered him to drive his car with Williams seated beside him, and to follow the defendant, who drove the other car. After arriving at an abandoned house and as Barker was marched toward it, he felt several blows on the back of his head. He fell to the ground, where he felt another blow on the back of his head. He recalled being dragged, losing his glasses, being held in front of a flight of stairs, yelling for help, breaking a window, lying in the front yard of the abandoned house, and being in the hospital.
Barker's treating physician testified Barker suffered four gunshot wounds at the back of his head, and his "back was peppered with buckshots." An Illinois Bureau of Investigation expert witness said that, although tests were inconclusive, the defendant had more than normal amounts of the residue of firearms on his hands.
The defendant admitted participating in the robbery but denied participating in the shooting. He testified as follows. After taking Barker's wallet, Williams and the defendant brought Barker to the abandoned house. Williams struck Barker on the back of the head with his gun. Both of them dragged Barker to the house, where Williams pushed Barker down a flight of stairs. Williams then gave the defendant a shell for the shotgun the defendant held and told the defendant to shoot Barker. The defendant refused, fled in Barker's car, abandoned it, but returned to it with Williams, whom he encountered after leaving Barker's car. The defendant said he did not know what Williams would do or had done after he left the abandoned house.
We turn to the first issue. On November 6, 1975, a juvenile delinquency petition was filed against the defendant. On November 19, 1975, the State moved to prosecute the defendant under the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 1-1 et seq.). The grand jury returned a true bill of indictment for armed robbery and attempted murder on December 12, 1975. The circuit court, on December 29, 1975, held a hearing on the State's motion to transfer. Defendant moved to quash the indictment for violation of the Juvenile Court Act's prohibition against criminal prosecution of minors (Ill. Rev. Stat. 1973, ch. 37, par. 702-7). The defendant contends the circuit court's failure to quash, and the appellate court's affirmance, are reversible error. We disagree. Section 2-7(3) of the Juvenile Court Act provides:
"(3) If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, and, on motion of the State's Attorney, a Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine such motions, after investigation and hearing but before commencement of the adjudicatory hearing, finds that it is not in the best interests of the minor or of the public to proceed under this Act, the court may enter an order permitting prosecution under the criminal laws.
(a) In making its determination on a motion to permit prosecution under the criminal laws, the court shall consider among other matters: (1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority. * * *" (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 37, par. 702-7(3).)
We believe error has been committed by the return of an indictment prior to the circuit court's rendering a decision on the transfer motion, but we do not believe this error is reversible error here. The record unequivocally shows that the circuit court, in the course of its hearing on the motion and on the basis of its specific conclusions, made its findings "independent of" the grand jury's indictment. Moreover, the court specifically applied the six factors set out in section 2-7, emphasizing the first factor: "whether there is sufficient evidence upon which a grand jury may be expected to return an indictment." The evidence the court had before it at the time of the hearing, the record again unequivocally shows, justified the court's transfer even though subsequent to the indictment. We do not condone this action, but it just is not reversible error here. The "ultimate determination" of prosecuting a juvenile as an adult is a judicial function; and the judiciary made that determination here, unlike in People v. Rahn (1974), 59 Ill.2d 302, 304. We agree with the appellate court on this issue. 68 Ill. App.3d 44, 49.
The second issue, addressed by the appellate court, involves the propriety of the specific instructions given on attempted murder. The State argues this issue has been waived because the defendant failed to preserve it in his post-trial motion. The State concedes, on the basis of People v. Harris (1978), 72 Ill.2d 16, that the instructions were erroneous because the definitional instruction on murder as distinguished from the "issue" or directive instruction on attempted murder refers to both intent to do bodily harm and knowledge that one's acts may cause, or create the possibility of, bodily harm. Nevertheless, the State contends the error was not so plain, substantial or grave as to warrant our taking notice of it (58 Ill.2d Rules 451(c), 615(a)). (People v. Roberts (1979), 75 Ill.2d 1.) The intent to kill, the State continues, was clearly evidenced by the acts of the perpetrator and conceded to have existed by the defense, and only the factual question of whether the defendant was the perpetrator was at issue; the evidence was such that the defendant would have been found guilty even if correct instructions had been given (People v. Ward (1965), 32 Ill.2d 253, 256). Because this issue remains a significant one and because the defendant here, unlike in Roberts above, objected to the instruction, we address ourselves to it.
Three instructions, affecting the charge of attempted murder, were given. First, the definitional attempted-murder instruction:
"A person commits the crime of attempt who, with intent to commit the crime of murder, does any act which constitutes a substantial step toward ...