23 N.E.2d 343 | Ill. | 1939
Appellant filed, in the criminal court of Cook county, a motion in the nature of a writ of error coram nobis under section 72 of the Civil Practice act, seeking to review and set aside a judgment entered against him on a verdict of guilty on trial of a charge of crime against nature. The petition was denied and appellant seeks review here. The original judgment of conviction was reviewed by this court and affirmed. People
v. Dabbs,
In substance, the petition here under consideration alleges that on the trial on the original charge the verdict and judgment were based upon the uncorroborated testimony of one George Hughes, with whom, it was alleged, the crime charged was committed. The indictment alleges the crime to have been committed on April 8, 1937. Dabbs was arrested the next day and this petition alleged that on April 12, following, Hughes was examined by two psychiatrists appointed by the municipal court at the instance of the State's attorney. The petition alleges that these doctors found Hughes to be a mental defective with delinquent trends; that he had an intelligence quotient of 70 by one test, and of 65 by another, which, the petitioner avers, amounts to no more than a medium low grade moron. The petition also alleges that within thirty days after the judgment of conviction against Dabbs, while Hughes was still under the control of the court, a petition was filed to have Hughes adjudged a feeble-minded person and to have him incarcerated; that the same two psychiatrists were appointed, examined Hughes and found him to be a feebleminded person, and recommended that he be committed, which was done. *162
The petition charges that the State's attorney did not inform the petitioner nor the court which tried him, of the facts set forth in the petition, and that he did not know them until in January, 1939, and could not have ascertained those facts; that he did not suspect Hughes to be a feeble-minded person during the time he knew him in April and May, 1937, and that because the State's attorney concealed those facts, such concealment amounted to a fraud upon the court and a deprivation of the petitioner's liberty without due process of law, contrary to State and Federal constitutions. The petition avers that if the court had known the facts it would have held Hughes to have been an incompetent witness to testify against petitioner, and as there was no other testimony, the petitioner would have been discharged.
No written answer was filed to this petition by the State's attorney, who stated that he would answer it orally during the hearing. Counsel for Dabbs say that the State's attorney admitted the statements made in the petition. The record shows that prior to the beginning of the taking of testimony, counsel for Dabbs asked the assistant State's attorney if he had any question about the allegations of the first two paragraphs of the petition, to which the assistant State's attorney replied: "No, I told you yesterday I do not question your whole petition." Counsel for the People say that this amounted to an admission of the facts stated in the petition but not the conclusions drawn therefrom, or charges made in the petition, and that is correct. The State's attorney, during the course of the hearing on this petition, offered testimony tending to show that one found to have an intelligence quotient of 70, as disclosed by the testimony and reports made of Hughes, has sufficient intelligence to testify in a proceeding such as was brought against Dabbs. Neither of the physicians presented by Dabbs on the hearing on this petition gave an opinion that Hughes was incompetent to testify and all agreed that in *163 the case of Hughes an intelligence quotient of 70 gave him an intelligence age of something over eleven years.
Appellant comes directly to this court on the ground that a constitutional question is presented, in that the facts set forth in this petition show a fraud which deprived him of his liberty without due process of law. They say, also, that Hughes was a feeble-minded person at the time of the trial and incapable of understanding the nature of any criminal accusation against him, and was therefore incapable of incriminating any one else and his testimony was incompetent.
Counsel for the People argue, first, that a defendant may not have a review under section 72 of the Civil Practice act where this court has affirmed a conviction. They also contend that no fraud was practiced and that the testimony of Hughes was not incompetent.
Section 72 of the Civil Practice act (Ill. Rev. Stat. 1937, chap. 110, par. 196) abolishes the writ of error coram nobis and provides that: "All errors in fact, committed in the proceedings of any court of record, and which, by the common law could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice." This section also excludes from the period of limitation such time as the person entitled to make the motion may be an infant, noncompos mentis or under duress.
The question whether such motion may, under section 72 of the Civil Practice act, be first filed in the trial court rendering the judgment, where the judgment of conviction had been affirmed by this court, is new in this State. The People argue that this appeal should be dismissed because a criminal court lacks jurisdiction to review and examine the proceedings of this court, and to annul or interfere with its judgment by motion under said section 72. They *164
cite, in support of this contention, People v. Superior Court,
A Federal and a State court have held that the Supreme Court having affirmed a judgment, the trial court is under duty to execute the mandate, and before attacking such judgment oncoram nobis leave must be given by the reviewing court. (Strong
v. United States,
It will be noted that under the provisions of section 72 of the Civil Practice act, errors of fact may be corrected by the court in which the error was committed, upon a motion made at any time within five years after rendition of final judgment in the case, upon reasonable notice. It cannot be doubted that the statute contemplates the filing of the petition in the first instance in the court which heard the trial of the cause. Such motion or petition is the filing of a new suit and is civil in its nature. (People v. Green,
The statute confers on this court no original jurisdiction ofcoram nobis or to grant or deny leave to file a motion in the nature of writ of error coram nobis in the trial *166
court, and as the proceeding does not constitute an attack on the judgment of this court it does not come within the inherent power of this court to protect its appellate jurisdiction. On the other hand, the statute contemplates the petition shall, as we have said, in the first instance be filed in the trial court. A motion in the nature of writ of error coram nobis is an appropriate remedy in criminal cases as well as civil and lies to set aside a conviction obtained by duress or fraud, or where, by some excusable mistake or ignorance of the accused and without negligence on his part, he has been deprived of a defense which he could have used on his trial, and which, if known to the court, would have prevented conviction. People v.Green, supra; People v. Crooks,
The statute granting the remedy places the limitation upon it at five years. It in nowise expressly or by implication requires, in a case where the original judgment has been affirmed, that the consent of the reviewing court be first had. To hold such consent necessary would be to render the provisions of this section of the Civil Practice act repugnant to those provisions of the statute fixing time limitations for review of judgments in other cases, and the effect would be to definitely curtail the period of limitation fixed by section 72 of the Civil Practice act, and that without any express or implied intention in the statutes so to do. An appellant, under such a construction, must file his motion before final review to insure its consideration by the court. The statute on reviews does not give five years for appeal.
In the early case of Mains v. Cosner,
For these reasons, and for the reason that the petition in this case is not an attack upon the judgment affirmed by this court, the People's contention as to jurisdiction of the trial court cannot be sustained.
We come then to a consideration of appellant's contention, first, that he was fraudulently deprived of his liberty by failure of the State's attorney to inform the court that Hughes was feeble-minded, and therefore an incompetent witness against the defendant. The petition sets up that shortly after the arrest of Dabbs and before his indictment, an inquiry was made, at the suggestion of the State's attorney, as to the mental competency of Hughes. The record discloses an examination by two competent physicians, using what is known as the Otis test and the Benet test, with the result, as we have seen, of an intelligence age of something over eleven years. These doctors were appointed by the municipal court where the inquiry as to Hughes' competency was being conducted, in April, 1937, after Dabbs' arrest and before he was indicted. The diagnosis then given by these doctors, as shown by the record in this case, is as follows: "A diagnosis of Borderline intelligence. No evidence of a committable psychosis or constitutional psychopatia sexualis was made and he is accordingly returned to your court for disposition. The following is recommended: No specific psychiatric recommendation." It can scarcely be said that had the court, trying the charges against Dabbs, been informed of these proceedings, it would have held Hughes incompetent to testify. It may also be observed that the inquiry took place in a court of record and defendant must be held to have had at least constructive notice *168 of it. The examination and report of these physicians tend to establish that Hughes had the intelligence of an eleven-year-old boy. It is not contended that a boy of eleven years would not be competent to testify. Nor do the physicians who made the tests in the municipal court say, on their examination in this record, that in their opinion the result of those tests showed Hughes was not competent as a witness. There is, on the other hand, positive testimony of a psychiatrist offered on behalf of the People on this hearing, that an eleven-year-old boy is mentally competent to testify in a lawsuit.
But, counsel for Dabbs say, on December 10, thirty days after the judgment was entered in the criminal court, Hughes was committed to Dixon as feeble-minded, and that since the statute relating to feeble-mindedness contemplates a condition arising at birth, he must be now held to have been feeble-minded when he testified, and so incompetent. The record in this case shows that Hughes' father, after Dabbs was convicted, filed a petition to have Hughes declared feeble-minded and committed, giving as reasons that he had been arrested twice for delinquency, once as a "Peeping Tom" and the other relating to a sexual offense, evidently the Dabbs case. The same physicians who examined him in the previous proceedings in April, were appointed as commissioners. There is no evidence of what further examination or tests they applied or that further tests were applied. They reported finding a diagnosis of mental defective middle grade level with delinquent trends and recommended that he be committed to the Dixon State School and Colony for Feeble-minded. An order of the municipal court was entered accordingly.
The effect of such a report of the psychiatrists and order of the municipal court entered on December 12, could scarcely be considered as tending to show fraud on the part of the State's attorney in offering Hughes as a witness. *169 The record shows, on the contrary, that the State's attorney used precaution to determine whether he would be competent before offering him as a witness. There is no evidence of fraud on his part and the conviction of Dabbs was not procured by fraud, for, as we have said, had the trial court known of the proceedings in the municipal court in April, 1937, it could not have held him incompetent as a witness. Nor is the fact that Hughes was, on December 10, committed to Dixon as a feeble-minded person, sufficient to show him incompetent as a witness at the time of the trial against Dabbs. It is evident from the testimony of the psychiatrists, who recommended the commitment of Hughes to Dixon, that they were moved to make such recommendation principally by reason of his delinquent tendencies. We have reexamined the abstract of evidence on the original trial against Dabbs, which constitutes a part of the files of this court, and are convinced that the long examination in chief, cross-examinations, re-direct and re-cross of Hughes, disclose nothing to indicate that he was incompetent as a witness.
For the reasons herein given we are of the opinion that no fraud was exercised in using Hughes as a witness and, therefore, appellant's constitutional rights of due process were not violated, and had the trial court, on the trial against Dabbs, been informed of all that had taken place pertaining to inquiry as to Hughes' mental competency, it would not have been justified in holding Hughes incompetent as a witness. Therefore it was not error on the part of the trial court to deny the motion and petition in this case, and its judgment is affirmed.
Judgment affirmed. *170