Found to be a sexually dangerous person under the provisions of our Sexually Dangerous Persons Act, 111 Rev Stats 1965, c 38, par 105-1.01 et seq., the defendant appeals from an order of the Circuit Court committing him to the custody of the Director of Public Safety as required by the Act. He levels a one-two punch against his conviction on the theory that he was deprived of his constitutional rights in that procedural due process and his privilege against self-incrimination were each denied him.
He was charged with the crime of public indecency. Ill Rev-Stats 1965, c 38, § 11-9. A warrant was duly issued and he was arrested. The arresting officer testified that he told the defendant why he was under arrest and that the defendant did not have to talk to him. The defendant said he didn’t need a lawyer, that he would not say anything he did not want to, and that he would go to the lady’s house to see if he was the right man. The complaining witness in the pending case was not at home and the officer then advised him that he had had several complaints about public indecency and exhibitionism and took him then to nine other young girls for purposes of identification. This occurred on May 19, 1966. On May 26, the State’s Attorney filed a petition charging the defendant with being a sexually dangerous person. On this same day he was taken into court and an order appointing two psychiatrists to examine him was entered. On June 3, he was taken to Quincy, Illinois, and examined by the two appointed psychiatrists. On June 7,1966, an attorney was appointed by the court to represent him. The reports of the psychiatrists were filed in court and the trial on the sexually dangerous persons charge began on August 12. The petition filed by the State’s Attorney alleged five different acts of exhibitionism occurring on various previous dates at various different places before various people. Defendant apparently talked freely to the psychiatrists and they both testified that the defendant told them in substance that he was charged with exposing himself to young girls; that he was under sentence and on probation for similar occurrences in Missouri; that he was unable to state why he did these things; that he was aware they were wrong, but was unable to control his behavior. Over objection, both were allowed to express the opinion that he was a sexually dangerous person. The defendant asserted in the trial court and here that prior to the appointment of his attorney, he was never advised by anybody of his statutory and constitutional rights in this proceeding.
It is conceded by the State’s Attorney that the information given to the psychiatrists by the defendant was self-incriminating and subjected him to possible multiple prosecutions under the Public Indecency Statute. Instead of prosecuting these, the State’s Attorney elected to file a petition under the Sexually Dangerous Persons Act setting forth five different circumstances or occurrences. We thus come face to face with a question of procedural due process and the constitutional privilege against self-incrimination.
Section 105-3.01 of the Sexually Dangerous Persons Act declares the proceeding to be civil in nature and our Supreme Court has so construed it. People v. Sims, 382 Ill 472,
In the instant case, counsel was not appointed until after the psychiatric examination. The defendant had not then been advised of his constitutional privilege against self-incrimination in his statements to the psychiatrists as our Supreme Court requires. People v. English, 31 Ill 2d 301,
Miranda articulates the requirements that must be met before statements made by a defendant in an in-custody interrogation are admissible against him in a criminal case. Decisionally, Miranda is restricted to a criminal case. It is urged by the State that Miranda should not apply to a proceedings such as this, civil in nature, and should be confined only to a criminal case in its specific pronouncements. It is urged that Miranda would be more appropriately applicable to criminal prosecutions arising out of criminal prosecutions for the underlying sex acts, occurrences, and transactions. Our Legislature has granted immunity from prosecution after discharge on any outstanding information or indictment which formed the basis by which the original commitment was made. Ill Rev Stats 1965, c 38, § 105-9. There is no purported protection against self-incriminating testimony based on other occurrences of sexual crimes not yet ripened into either an information or indictment. Thus, in the meantime, the defendant enjoys his indeterminate confinement awaiting a discharge when on these subsequent prosecutions he may then exercise his constitutional privilege against self-incrimination and then enjoy due process of law. The end result is a practical prostitution of constitutional rights and privileges. We have already observed that whether the commitment is civil or criminal, the strait jacket on the freedom of the individual is judicially imposed. Neither sound logic nor fundamental justice dictates that the constitutional protectives may be ignored in the one and must be followed in the other. In re Gault,
The defendant was in custody when this proceeding was instituted. He was entitled to his constitutional privilege against self-incrimination and to the appointment of counsel prior to psychiatric examination unless these rights were knowingly and understanding^ waived. This record shows no such waiver. Accordingly, this case must be reversed and remanded to the trial court for a new trial in accordance with the views herein expressed.
Reversed and remanded with directions.
CRAVEN, P. J. and TRAPP, J., concur.