*1 I 22 not in clearly do know point. simply 162, what is meant the statement the majority opinion, “* * * it would had use made been appear proper report written the need the officers calling establish the contradiction would never have purported arisen.” The witness who had denied being impeached that he had stated to officers he had investigating been held two men. could not be com up Impeachment without the officers to whom the testimony pleted statement was made. contradictory alleged it In error to prejudicial the de- my opinion deny fendant the impeach opportunity occurrence witness offered only prosecution. J., join C.J.,
Klingbiel, Solfisburg, in this dis- sent.
(No. 38488. People Defendant in Er- Illinois, the State ror, vs. E. Plaintiff Error. Olmstead, Dale
Opinion March filed *2 J., dissenting. Schaefer, Rockford, appointed by Trawum,
Kenneth W.
court, for in error. plaintiff General, G. Attorney Clark, Springfield,
William Rockford, William R. State’s Attorney, Nash, General, Assistant (Fred G. and Wil- Leach, Attorney liam H. Attorney, counsel,) Assistant State’s Snively, the People, Solfisburg
Mr. delivered opinion Justice court: defendant, Olmstead, Dale with charged
crime of indecent in the liberties circuit court of Winnebago Thereafter the County. filed in the same State’s Attorney case a the defendant a petition adjudicate sexually Per dangerous to the person pursuant Sexually Dangerous sons Ill. Act. Rev. et 820.01 1961, chap. 38, pars. seq. Persons Act was Sexually Dangerous originally enacted in is now set out in Code of Criminal (Ill. Procedure. Rev. Stat. 1963, chap. pars. 105—1 It with when a 12.) provides charged 103— offense, Attorney General the State’s Attorney file criminal may original setting proceeding forth facts show that the tending person charged If and after sexually dangerous upon person. hearing, examination two the accused is qualified psychiatrists, found he must be com sexually dangerous person, *3 mitted the Safety' to of the Director of custody Public until recovered.
The act further that thereunder provides proceedings nature, shall be civil in have and that the shall respondent a to demand a trial and to be jury represented counsel. Act
Section 1 of the defines sexually dangerous person as follows: disorder,
"All from a mental which suffering persons mental has of than disorder existed for not less period the of immediately prior one to year, filing petition for, hereinafter with criminal provided coupled propensities offenses, to the sex commission of and who have demon- strated toward of sexual acts assault acts or propensities children, of of sexual molestation are sexu- hereby declared ally dangerous persons.” waived trial by defendant on the jury petition
was counsel. After a represented hearing, a sexually dangerous per- found defendant judge of him to the custody son entered order There- to act. the Director of Public Safety pursuant for habeas corpus after the filed writ defendant petition were all of which for writ of recovery, and two petitions the State. dismissed on motion of of com- order now from original
Defendant appeals his first and from the order mitment dismissing con- of his various writ of recovery deprivations alleging errors first consider alleged stitutional We will rights. commit- order original
on the hearing resulting in. not repre- Defendant claims that he was properly ment. counsel; he advised that prior sented by properly to of his against grand his waiver proceeded indictment; ad- that confessions were jury improperly mitted; accepted; waiver was improperly that the that he was a sexually dangerous finding law and the evidence. contrary claim that he was not represented
Defendant’s properly counsel to by counsel based failure of appointed upon statements, to object or the failure make opening closing and the failure to hearsay testimony psychiatrist, to the admission of defendant’s con objections persist in evidence. He therefore claims that utter fession amounted no of counsel representation competency v. the trial a farce under the rule of reduced People Simone, De Ill.2d these are called although agree proceedings nature, result they may deprivation liberty
civil be accorded the essential and a defendant must protections Capoldi, in a criminal trial. v. available (People *4 have therefore examined the record to determine 261.) We defendant’s representation. adequacy it the outset that trial counsel selected At was appears wife, and was the court when by defendant’s it was disclosed that his funds. was family without of the record indicates that the was well aware attorney ex- nature of his client’s He rights. proceeding his client’s to be indicted plained grand jury; he moved to motion information and made a quash for a list of intro- witnesses. When State attempted duce without defendant’s confessions one of calling officers counsel he informed objected. When present, that the officer out of town and case have would continued, he objection. Since there is withdrew no the confessions were do involuntary, we suggestion not consider counsel’s concession mark incompetency, but rather a court in courtesy requiring proof of an fact. undisputed
In the absence of or any assertion defend- objection ant that the confessions it were was unneces- involuntary, for the State to material con- sary witness produce every nected with the the confessions. were taking They prop- admitted in evidence. erly
One of the testified sub- examining psychiatrists the same matters contained in his stantially written report. that his contained grant statements. testimony hearsay However, counsel had access to the written and we report, cannot that an able say his client’s lawyer desiring protect could not determine that rights justice properly could best served by granting considerable latitude psychiatrist analysis defendant. presenting
From the it psychiatrist, appears counsel suggested defendant’s defendant be hospitalized “in mental institution to receive treatment.” appropriate Such defendant’s case does not in- suggestion indicate but on the contrary indicates sincere competency, desire to solve his client’s short of criminal problems conviction or an order him to the Director of Public Safety.
Nor do we believe that the failure make oral argument before judge the failure to introduce evidence indi-
311 defendant. not adequately represent that counsel did cates of no such abandonment us we find the before From record Simone, v. De in People as appeared defendant’s rights does not require Proper legal representation Ill.2d 9 none, the is when there a defense the manufacturing we in the case From the entire record facts. obfuscation of afforded adequate representa conclude that defendant was tion on the original petition. advised fully discloses that defendant was
The record to to right the his counsel as both court and indictment, it and jury appears against by grand proceeded court. in open waived such understandingly that he in that defend the record to also find indicate nothing jury to understand the of his ant was unable consequences waiver, it made. understandingly and must conclude was we not Palmer, The statute does v. Ill.2d 311.) (People waiver, re but a defendant to requires even jury require a (Ill. a such Rev. jury proceeding. quest Defendant, however, that 5.) 38, par. argues chap. 105— a accused under the Persons Sexually Dangerous person trial, to certainly Act stand and mentally incompetent a to waive his trial With incompetent by jury. do not The test of mental at agree. this we competence is whether defendant can understand hearing pretrial him charge the nature of aid against adequately Burson, of his defense. v. (People preparation A can be sexually dangerous under 360.) act, still be trial definition to stand competent this case jury. testimony affirmatively waive defendant had the mental indicates trial stand capacity jury. and to waive a understandingly We hold that not err in try court did failing impanel the issues raised by petition.
Defendant next that evidence did complains that he awas support finding sexually dangerous person. We have examined the carefully of one and the that psychiatrists other evidence and find
examining the evidence is sufficient to establish de prima facie fendant was from mental disorder for a suffering period of more than one year; he had criminal propensities offenses; the commission of sex and has demonstrated toward acts sexual assault or propensities molestation children. that he awás finding sexually dangerous person was therefore not to the law and the evidence. contrary *6 Il l. Rev. 1963, chap. 38, par. 105—1.01.
The statute two provides qualified psychiatrists shall be done, to examine the defendant. This and their filed in the cause. Both reports reports support the of the trial court and are a finding the court part record. findWe no in the act that both requirement psy- chiatrists shall we feel that the and testify, one case in may provide prima the absence of contra- facie It our dictory determination that the trial reports. court did not err defendant to be a finding sexually dangerous person. must
We next consider defendant’s claim that the trial court erred in his striking' first dismissing application for and in discharge, failing counsel and appoint grant defendant a trial. This jury demanded a trial petition set forth the jury, indigency petitioner requested of counsel. At the time of the first appointment applica- tion section act (par. 9) “An provided: ap- 9 105— forth setting facts plication writing that such showing sexually criminal dangerous person sexual psychopathic has recovered before filed person may court. The court shall set date for the Such hearing upon If the is found to have application. patient recovered court shall order that he be discharged.” Section act that “The 5) provided (par. respondent any 105— under this Act shall have the proceedings to demand a trial and to be jury represented counsel.” must first if consider section applies applica- tions for under the act. As we read the statute discharge there are only two under the act. The first proceedings the defendant a adjudicate sexually danger- ous If he is so he is committed to person. adjudicated, Director of Public for indeterminate time “until Safety has recovered and is released” as in the provided act. other only that the statute proceeding contemplates
is the for under application section Both discharge pro- involve the factual issue of the mental ceedings paramount defendant; condition of the both involve his One liberty. him of may the other is his
proceeding deprive liberty; method of statutory We believe that regaining liberty. when it referred to legislature, under “any proceeding Act,”
this in section 5, intended the to counsel trial to to both the apply original petition proceedings and the application discharge. however,
The State argues, since the of de- application fendant was dismissed on motion before issues were joined, there nowas need for a of counsel hearing, appointment or the of a We have impanelling jury. therefore examined defendant’s first under section which application he has *7 entitled “Petition document, for It is a Recovery.” prolix much immaterial containing matter and debat- many highly able of However, law.” “propositions the document filed defendant that alleged he had been confined from Octo- 10, ber December, to 1961, and that 1962, since his com- mitment he had with the rules and complied for regulations inmates, that he had displayed at- willing respectful titude of co-operation that he had submitting therapy, made efforts for work re- improvements progressed levels, that he sponsible had continued his education while confined, that he has corrected and his learned to control unwanted desires that led to his commitment and that he fully of capable resuming position society.
The State moved to strike on the ground indi-
that it facts circumstances to did not state sufficient that the allegations cate had recovered and petitioner The self conclusions of the serving petitioner. were these upon court the motion to strike and dismiss granted grounds. for dis- statute that the
While the requires application that the dangerous set forth facts sexually charge showing recovered, any we find it difficult to conceive has as- absence of of more statement recovery precise feel that this despite sistance counsel. We application, form, its and artless meets the requirements rambling, thereon. the act and section of requires hearing indeterminately has been this act the defendant Under statu- committed to the Director of Public Safety. only confinement is to establish route to freedom from tory It inconceivable that such sole under section recovery block in the fact the indigent should find road law or that he does is inarticulate the forms of defendant the affidavits of specialists support not have psychiatric his application. that, of defendant’s
It is our conclusion upon filing the trial court under section discharge application de- "counselto this indigent should have represent de- fendant and should have jury pursuant impaneled demand, if to determine fendant’s and held hearing from the had recovered disability responsible defendant commitment. To hold otherwise would for his original in confinement a defend- the State to forever hold permit at the sole discretion dangerous ant found sexually individual, as rights the officers the State. act, do not so intend. of this protected provisions of the trial court affirm the order original therefore of the Sexu- under the the defendant provisions reverse the Persons Act but judgment ally Dangerous the defendant’s first ap- trial court striking dismissing *8 act, with section of said under discharge plication de- counsel to indigent directions to represent appoint in accordance fendant in said and to proceedings proceed with the views this opinion. expressed in part and reversed part
Affirmed remanded, zvith directions. Mr. Schaefer dissenting: Justice
The under the Persons proceedings Sexually Dangerous Act of the characteristics a criminal sufficiently partake that the defendant must be accorded his con prosecution stitutional to confront the witnesses him. right against Nastasio, v. That (See, 524.) People case, denied to the defendant this and I think that the him to aas judgment committing custody sexually danger ous should therefore be reversed. statute two requires qualified psychiatrists to examine the
appointed alleged sexually dangerous per son. Their are to be filed with the court. reports Rev. (Ill. In 38, this case chap. par. 823.) two psy
chiatrists were and filed their one reports. Only available, of them testified. The other was not immediately and the Assistant State’s that he Attorney would suggested return to the city following day. how judge, ever, “Well, stated: can you rest without him. Let the rec ord show that the rest.” This action People of the trial court violated the my constitutional opinion of the de fendant to confront him, witnesses against and the must be set aside. judgment
The error is not cured the fact that report second who witness, was not psychiatrist, called as filed with the trial and “is judge of the court record.” part It is the fact that the unsworn and untested of that report is an essential psychiatrist record causes part the error.