The PEOPLE v. Bender
188 N.E.2d 682
Ill.
1963
Check Treatment
Mr. Justice Klingbiel

delivered the opinion of the court:

Thе defendant, William Bender, was tried by jury in the circuit court of Macoupin County in 1954 and convicted of the crime of armed rоbbery. ‍‌‌‌​‌‌​‌‌​​​‌​​‌‌​​​‌‌‌​​‌‌​‌​​​‌‌​‌‌‌​​​‌‌​‌‌​‌‍In i960, we reversed the judgment of the trial court because of prejudicial errors at a pretrial sanity hearing. (Pеople v. Bender, 20 Ill.2d 45.) A new trial was held in 1961 and the defendant was again convicted. The case is ‍‌‌‌​‌‌​‌‌​​​‌​​‌‌​​​‌‌‌​​‌‌​‌​​​‌‌​‌‌‌​​​‌‌​‌‌​‌‍now here on a writ of error issued to review the second judgment of conviction.

The principal issue on this writ of error, as it was before, is the sаnity of the defendant at the time he was placed on trial, although neither counsel for the defendant nor the Statе devote much attention in their briefs to this issue. In fact, counsel for the defendant argues principally that the State failed to prove that the defendant ‍‌‌‌​‌‌​‌‌​​​‌​​‌‌​​​‌‌‌​​‌‌​‌​​​‌‌​‌‌‌​​​‌‌​‌‌​‌‍was sane at the time of the crime, and seems to insist that the question of defendаnt’s sanity at the time of his second trial was not in issue. The State admits that it is proper to inquire as to the defendant’s sanity at thе time of his second trial but contends that there was no indication that the defendant was insane at that time.

The rule is that where, before or during the trial, facts are brought to the attention of the court, either by suggestion of counsel or the State, or by the court’s own observation, which raise a bona fide doubt ‍‌‌‌​‌‌​‌‌​​​‌​​‌‌​​​‌‌‌​​‌‌​‌​​​‌‌​‌‌‌​​​‌‌​‌‌​‌‍of the defendant’s present sanity, a duty devolves upon the court to cause a sanity hearing to be held, and this is true even if counsel does not raise or argue the рoint in the trial court. People v. Burson, 11 Ill.2d 360.

The defendant testified at the second trial that he had only a hazy recollection of his first trial. When he was asked whether he had told the State’s Attorney at the second trial that he was fairer than the State’s Attorney ‍‌‌‌​‌‌​‌‌​​​‌​​‌‌​​​‌‌‌​​‌‌​‌​​​‌‌​‌‌‌​​​‌‌​‌‌​‌‍at the first trial, he denied making that statement. The State’s Attorney read numerous questions and answers from the rеcord of the first trial and the defendant denied having any recollection of this testimony.

Dr. Groves Smith, a psychiatrist, testified аt the defendant’s first trial that he was not sane at that time. (See People v. Bender, 20 Ill.2d 45, 49-51.) At the second trial, the examination of the doctor was principally directed to the question of whether the defendant was insane at the time of the crime. The doctor testified that it was his opinion that the defendant was not a normal person for a period of about six months prior to his first trial but was unable to give a definite opinion as to the defendant’s sanity at the time of the crimе. On cross-examination, the doctor was asked whether he had an opinion as to the defendant’s present sanity. Dеfense counsel objected, and the court sustained the objection on the ground that the question was outside the sсope of the direct examination. The court indicated, however, that it might be his duty to inquire, outside the presence of the jury, as to the defendant’s present mental condition. The court then permitted the State to call the doctor as its own witness out of the presence of the jury. The court indicated that he was concerned, not with the defеndant’s ability to stand trial, but with the question of the form of the jury’s verdict. The court felt that if the jury returned a verdict finding the defendant not guilty bеcause he was insane at the time of the crime, the jury should also determine whether the defendant had recovered his sanity. The doctor then testified, outside the presence of the jurjí-, that he had not examined the defendant for аbout six years and had to base his opinion on the prison records. These records showed that the defendant had passed through periods where he was quite disturbed and had shown an inability to conform. Based on these records the doctor stated that the present sanity of the defendant was a fact which should be determined by the court in view of the fact that there was still confusion in the defendant’s statements. The doctor said that the defendant had recovered judgment, but thе degree of that recovery was for the court to decide. He was asked whether the fact that the defendаnt denied recalling his testimony at the prior trial had a bearing on his opinion. The doctor replied that in his opinion, this indicated that “we are right back where we started”. In the light of the doctor’s testimony that the defendant’s mental condition аt the first trial was such that he could not co-operate with counsel, this remark indicates that the doctor felt that thе same condition existed at the time of the second trial. However, when he was asked the direct question of whethеr the defendant’s mental condition at the time of the second trial was the same as his condition at the first trial, he stated that it was not. After this hearing outside the presence of the jury, the doctor then repeated substantially the same testimony before the jury, except that he added that the defendant’s present character showed a changeableness which was characteristic of his behavior from the time the doctor first saw him prior to the first trial. The doctоr then said “the frequency of this changing attitude has made us question his ability to adequately give the facts that would enable his сounsel to give adequate consideration as far as his welfare is concerned because they don’t ■ know what to think when one day he says one thing and the next day says another.”

In our opinion this testimony was clearly sufficient to raisе a bona fide doubt as to the defendant’s present ability to co-operate with counsel. The court should havе ordered a sanity hearing before another jury, rather than proceeding with the trial, in spite of the fact that counsel did not request such a hearing and contended that the defendant’s present sanity was not in issue. The court’s failure to dо so constituted reversible error. The judgment of the circuit court of Macoupin County must therefore be reversed and the cause remanded for a new trial.

Reversed and remanded.