*1 (No. 39829. People Illinois, vs. Appellee, State
Larry Watson, Appellant. Opinion December 1966. filed *2 House, J., specially concurring.
Underwood, J., concurring part and dissenting part. Rockford, court, David R. of Nissen, appointed by for appellant. General,
William G. of Attorney Clark, Springfield, Rockford, and William R. State’s of Nash, Attorney, Philip General, G. Assistant Attorney Leach, (Fred G. Assistant State’s Reinhard, of Attorney, counsel,) the People. Solfisburg
Mr. delivered of Justice court:
The defendant was indicted Winnebago County to commit the of A offense trial re- attempt forgery. jury sulted in a verdict guilty and the defendant was sentenced to a term оf one to five in the years He has penitentiary. to this court on the appealed directly that a grounds ques- tion has arisen under the sixth and fourteenth amendments to the United States constitution and under section 9 article II of the constitution of Illinois. defend- Specifically ant, an indigent, contends that the trial refusal judge’s funds with obtain services with
provide the defendant of a examiner deprived document call he due that was not allowed process issue, constitutional favor. Along reversal, the most several other alleges grounds impor- allow tant these the court’s refusal to being that which the de- that a check similar to offer evidence fendant was accused'of attempting forge forged after he cashed custody. Trein some Stanwood August, 1965, purchased Later, of American traveler’s checks. worth Express
$50 Trein picked stranger day up purchase, him a ride from Rockford to his automobile and gave home, he Dixon, Illinois. Trein arrived noticed When Some of the traveler’s checks were missing. $40 $30 tavern thereafter a entered Rockford days person to cash a ten-dollar traveler’s check. asked the bartender the check it in bartender’s presenting person *3 was not the same as but since the name signed presence, check, man- the bartender called the that the top After about the inquired disparity signatures. who ager conversation, to cash the a the short person attempting tavern, The check the the check behind. manager left leaving then the called police. two officers the de- brought
The day following police at that time both the to the Rockford tavern and fendant the the defendant as bartender and the identified manager Dur- had tried to cash the check the before. day who person trial, the also identified as the the defendant was persоn ing Dixon in the Trein car from Rockford to had ridden who as one those purchased and the check was identified Trein. defendant, his through
Prior to trial the court-appointed the filed a motion court requesting provide attorney, funds, his to obtain the because of order with indigency, to' examiner. Attached a document services of the motion affidavit of defense counsel stating, was substance, of an that the was forgery charge attempted check, American that would traveler’s the State Express that check was witness who will the produce testify signed has not his State presence, obtained of an as to whether defendant the opinion thereon, the check or whether signed his fingerprints appear that an examination of the will check by qualified expert show that defendant did his fingerprints sign thereon, do not his appear opinion of such an is essential to defendant with an provide defensе and to The adequate establish innocence. State contended, denied, be motion that since urging the defendant was to commit charge against attempt check, of a forgery by delivery forged handwriting Furthermore, defendant was not in issue. the State con- tended that the motion should denied since there is no authority statutory appointment cases. After the court denied the arguments, motion. the course of trial
During defense counsel requested the court to order produce check which prosecution the defense believed was also one of Trein’s and and cashed after defendant was in custody. court to order refused of the other check production on the that it was irrelevant and immaterial to the ground of defendant’s check question guilt regard pre- sented the Rockford tavern. outset,
At it is the of this court that defend- ant should not have been from evidence precluded offering similar traveler’s check prove forged cashed after the defendant inwas custody. the in- Although *4 dictment defendant with to commit charges attempt forgery check, aof by delivery own wit- forged prosecution’s ness testified that defendant check signed presence then, If the bartender. on signature a check cashed was the to defendant’s being custody,
subsequent placed of attempt same as that on the check defendant is accused deliver, could could infer ing jury either one. not have to deliver signed attempted counsel indicated that his offer of defense making proof this other he could summon witnesses to testify store check was drug employee. signed presence on both checks deserve Surely signatures comparison, same for if were both they person, he defense. Even is though have complete might check, the facts of the case with point chargеd signing it, A not deliver it. person out that if he did not he did sign all be allowed to make with crime should proper charged if is should the evidence offered competent, defense all it worth. v. to the jury (People permitted go of whether de Since the Ill. Colegrove, 430.) question the check at the Rockford tavern is crucial fendant did sign defense, court should have allowed the ad the trial checks that another of Trein’s of evidence mission showing an have reаched at a later date. The could jury was cashed been allowed and therefore had the evidence other verdict reversible error. constituted rejection conclude its v. People Wolff, 19 318. of evidence re- of our admission ruling
Because check, turn to the con- it is necessary to the other lating It is foreseeable issue raised the defendant. stitutional witness will be necessary compare sig- that an expert must checks and therefore we determine natures on the two defendant, can look to the as indigent, or not whether which to hire a docu- the funds with court for examiner. ment of our entire major judicial
It has been goal long a crime “stand that all to see persons charged system bar of American every before the justice on an equality Florida, L. Ed. 227, 241, v. U.S. court.” (Chambers U.S. Wainwright, Such cases Gideon 716, 724.)
233 Illinois, L. Ed. 2d S. Ct. 335, 792, 799, Griffin 83 12, far L. Ed. S. Ct. have gone U.S. 891, 585, 351 to defendants, even achieve this goal by indigent assuring cases, counsel and to to right appellate noncapital review. The now court concerns the pro- problem facing on behalf of The Illinois duction witnesses indigents. II, constitution of article section provides, criminal is entitled to have accused prosecutions process the attendance of witnesses in his behalf. In al- compel most identical sixth amendment to the United language States constitution the accused provides criminal cases is entitled to have for compulsory process obtaining witnesses his favor. Thus it at once apparent to summon witnesses is fundamental our right legal It system. is defendant’s contention that a so funda- right mental should be made to depend upon the financial circumstances the defendant. We share this view. The court that there recognizes is distinction between call witnesses and the right have wit- right these for nesses paid but in government, certain instances the lack of funds involving indigents, with which to for pay the witness will often preclude from calling that wit- ness and occasionally him from prevent defense. offering Thus, although defendant is afforded the shadow of witnesses, call he is deprived the substance.
The value of an witness’s lies in his and, more experience in his Al- particularly, preparation. though subpoena would suffice to his compel appearance trial, at this itself appearance by would of no un- value less he had been able to make which to base findings upon It is the cost of testimony. these making preparatory which the defendant feels should findings be borne government.
Indeed, the State has taken legislature a similar view instances, but in certain only the most pertinent these cases where the being capital court is allowed to order the fee, exceed treasurer a reasonable not to county pay $250 witnesses each dеfendant support Rev. (Ill. 38, par. 3(e).) accused. Stat. chap. 113 — are of the this While we commend legislative policy, ex in certain instances this should be policy tended to felonies. The constitutional provisions noncapital no attendance of make distinc compelling neither should cases and tion between capital *6 a trial. the fair safeguards is to necessary expert Whether subpoena fair the facts a trial will upon order assure depend to. an cases where each case. There are instances a to establish a Here be defense. necessary might expert a to could as handwriting give opinion expert professional accused of the the check he is whether signed deliver, could the on and signature attempting compare the check which was check with the signature signed that If it was in and while defendant custody. delivered it, then that not have the could opinion to draw the conclusion defend could be jury permitted indictment, the of ant is innocent. Despite language of to the heart the defense. issue of handwriting goes then have may of a in this case handwriting crucial, him defendant’s lack of funds been and prevented evidence which have estab may jury from presenting hold that under the facts presented lished his innocence. We reasonable fee in this case defendant was entitled document examiner. of hiring the purposes of fees is an payment Recognizing for the is the legislature, payment subject appropriate ex Conn v. Ran rel. fees, (see People of costs legal Assembly trust General will 24,) Ill.2d dolph, non- section to include 3(e) consider expansion 113 — is deemed the trial by cases where expert capital been Such a has to be crucial defense. step proper judge C.C.P.A., sec. (Cal. taken the California lеgislature, met results. to have 1871,) satisfactory appears view our decision regarding admissibility check and the defendant’s presented subsequently witness, must remanded a new this cause be trial.
We shall consider some of other raised briefly points the defendant since relate matters fore they at arise trial. He first contends that seeably might new the indictment him with fails to charging attempt charge offense since “failure” was Section alleged. 8—4 Criminal Code of out that all that need clearly points in a shown is the intent to charge attempt commit offense and an overt act a substantial specific constituting toward commission of the step crime. v. Richard (People son, As the committee to the 497, 502.) comments out, it is no law in statutory provision point longer Illinois that the must fail. attempt
The defendant contends that the indictment misnames substantial resulted therefrom. Al- injustice defendant was named though the indictment as he “Lаrry Watson” asserts that his true name is Donald McCain. areWe unable to ascertain from the just record *7 how this names occurred but note the in- mix-up dictment was returned and the defendant and arraigned, a pretrial motion to dismiss on the that the indict- grounds ment failed to allege offense was filed and denied before the defendant’s “true name” was revealed his motion re- the court to order funds questing to hire an enabling witness. fact that this motion for Despite funds reveаled de- name, fendant’s true until four later that days defense counsel renewed his motion dismiss indict- ment on the additional that the ground defendant was mis- This named. motion was likewise denied. note that
We throughout of the State’s presentation case the defendant was referred to as Watson” “Larry
236 not until the defense its
without It was objection. presented to the sole witness that defendant’s true name was disclosed After the trial defendant filed on direct examination. jury a a motion arrest of judg- a motion for trial and new mis- ment, neither which mentioned challenged Both of motions nomer. these were denied. resulted no
It is our conclusion misnaming Moreover, both defendant. since substantial to the injustice record, be sub- in the defendant could not names do appear however, the sake to double For of clarity, ject jeopardy. to the defendant will indicate we trust future reference name. his true that the court
Another contention of the defendant is
erred in
officer to
that a witness had
allowing
testify
police
as the
who
and
pre
identified
defendant
person
the check in
officers
sented
defendant’s presence.
police
Although
further testified that defendant remained silent.
hear
in the
conversation
ordinarily
presence
inadmissible, there is a
say
exception
recognized
mute in the face of an ac
cases where
defendant stands
When,
here,
as
is made
сusation.
statement
incriminating
accused,
and such state
presence
hearing
to,
is neither denied nor
both the statement
objected
ment
the fact of his failure to
are admissible as evi
deny
Norman,
of the truth of the accusation.
v.
(People
dence
Braverman,
v.
We make
Ill.
77; People
525.)
the fact that
to the
note of
sentenced prior
Arizona,
U.S.
436,
effective date Miranda
New Jersey,
L. Ed. 2d
determined
Johnson v.
694,
The defendant also court to оrder the made from police ing production report made one of notes which officer while interviewing police Defendant that this witnesses. contended identifying and, on our was a “statement” made relying *8 People cert. den. 318, decision v. Wolff, 364 Ed. L. 2d 874, 96, police report U.S. requested In the case announced our be turned over to him. Wolff in Palermo v. adherence to the Federal rule stated States, L. United Ed. 2d (Codified 343, U.S. 1287. 18, U.S.C., A Title sec. review this rule will 3500.) point out * * tеrm “a the “statement” includes stenographic * * * * thereof, aor recording transcript ais an oral verbatim recital of statement substantially made re- said witness to of the agent government corded with the of such oral making contemporaneously U.S.C., statement.” subsection (Title e.) sec. 3500, this case the officer testified his notes contained police what the witness him and that exactly told the report case, made from the notes. up Such being report contained a “statement” to which the defendant en- titled. defendant was Although supplied copy report trial, before the close of the he was entitled to have it dur- of the witness from whom ing it was taken. The error was harmless view of defendant’s later obtain- ing but was report, nevertheless error.
The court has examined other raised points defendant, and finds them to be without merit. of the trial court is reversed and judgment
cause remanded for a new trial accordance with the views in this expressed opinion.
Reversed and remanded. Mr. House, specially concurring. Justice I concur with the that defendant under holding the cir cumstances of this case was entitled to have an wit document, ness examine the I but do believe has far majority too when it gone apparently equates in section legislative pronouncement 3(e) 113— Procedure, Code of Criminal Rev. Stat. (Ill. 1965, chap. 38, with the par. 3(e),) of duе I requirements process. 113 — feel that the in this case had the to have
238 but experts,
check examined handwriting fingerprint fee for the T do think is to a reasonable he “entitled examiner”. of a purposes questioned-document hiring cases, in “In addi- capital Section 3(e) provides, 113— counsel, the defendant that tion to if the court determines the court is the court the with may, filing indigent upon rendered, the county order verified statement services wit- expert of trial to nеcessary treasurer of county pay stated in for defendant reasonable nesses compensation defendant.” The legis- order not to exceed for each $250 To cases. seen fit to limit this to lature has capital provision to this of this section cover force expand philosophy case to judicial legislate by metaphysics. to that the refusal have held on several occasions
We an or wit an with witness indigent furnish in addition to those already People nesses produced due not constitute denial of the same issue does process the absence showing People’s than their honest and or witnesses other unprejudiced gave their and examina based special knowledge opinion upon ; Peo tion. v. Ill.2d People Carpenter, (psychiatrist) Nash, v. People (psychiatrist); ple Myers, 35 post (ballistics). case no this the People produced whether defendant the check whether finger- case, the facts of this have on it. Under
prints appeared decided that there is a reasonable doubt of defendant’s guilt in order to con- that such evidence is opinion necessary no vict our should defendant. It seems me go should further than To hold that defendant hire this. examiner is effect him to asking questioned-document If do such testi- himself innocent. prove People produce and Nash be- Carpenter, then mony, Myers rulings come operative. reason, I think that
For still another the majority opin- ions of due process has beyond requirements gone law. It holds that the defendant should be indigent provided with funds hire a This is examiner. questioned-document contrast with constitutional sharp provision guaran- counsel, never been teeing has construed mean funds should be an paid indigent with which to counsel of his choice. The pay legislature section shall has trial court 3(b) providеd 113— not that appoint attorney defendant and indigent the court furnish funds which an retain indigent may counsel.
I think this court than should no further to state that go defendant was not a reasonable doubt proved guilty beyond *10 and reverse and remand the cause for new trial. my has exceeded the bounds of opinion, majority judicial in restraint treasurer to fees of county ordering pay an by hired defendant. expert in Mr. and dis- concurring part Underwood, Justice senting part: I that this case must be remanded for trial a new agree because of the trial court’s error precluding from evidence that a similar traveler’s check was offering cashed after defendant but I forged custody, .and cannot with the extension of the agree defendant’s to right the assistance of witnesses is expert by accomplished the majority opinion.
The General has Rev. Stat. Assembly (Ill. 1965, chap. of a provided par. 3(e)) public payment 113 — maximum as fеes to witnesses for necessary expert $250 It defendants in seems to me that cases. indigent capital this of the extent to which the State expression legislative must witnesses for defendants is indigent expert provide this court unless we are binding prepared say upon either the State or Federal constitutions such give persons No United States Court decision right. Supreme greater I am this of which aware so holds. The majority opinion case cites deсisions of that court in which (Gideon, Griffin) there found to be constitution were rights proclaimed but here do ally guaranteed, majority specifically hold the announced defendants newly indigent rights witnesses at to be constitutional expert public expense Nor, nature. in the absence of a Court compelling Supreme decision, reached, such conclusion for we could easily cases, recent in the have indicated three contrary term, last of which the last only adopted Nash, 275; People Myers, v. v. (People post 311; People none of which are even Ill.2d 470), Carpenter, mentioned, over-ruled, If much less herein. majority by correct, be, I believe them the sole these decisions are is for the those who remaining basis majority opinion concur therein with the wisdom disagree legislative action it as too restrictive. such That they regard case further evident from the “trust” announced seems that “thе General will consider Assembly majority of section include 3(e) expansion 113- — the trial testimony judge cases where is deemed be crucial to a defense.” proper bare I do not with the majority premise quarrel value, is of little subpoena the value without pre-trial preparation opportunity be, likelihood, in all sub- would expert’s And, may undoubtedly reduced. while stantially *11 me there be and seems to subpoenaed compelled appеar, are constitutional substantial (deprivation prop- questions com- as a court may without due to whether erty process) him to his time his expertise and pre- pel expend apply trial examination of documents without compensating But these factors not invalidate the legislative therefor. do limitation in which assistance expert case upon type unless shall be available to defendants indigent fact, are, There thereto is constitutional dimension. un- It be for such limitations. would reasons compelling in the majority opinion realistic to assume that the holding that there are “instances in cases” where experts in other must be furnished will result defendants indigent than a for such defendants such assistance by request most could cases issues which upon involving aware, are from the sub- We conceivably employed. us, stantial number of records before coming trial or courts refer to clinics defеndants frequently private examina- for physicians competency purpose pretrial cases, tions. In all of such defend- indigent presumably, ant will now also be entitled examination own by psy- chiatrist or or both. psychologist Cases involving sig- natures, ballistics, chemical and prints, finger analyses few, mention only will automatically may qualify every case field State any appears either as a or assists investigative pretrial activities. preparаtory
While it is not intention to make an my ad terrorem it seems presentation, out the substantial proper point the result arguments against reached with- majority out any constitutionally imposed necessity so doing, in the face of decision legislative contrary.
I Nash, would abide our earlier indications Carpenter Myers the trial court’s action in uphold denying defendant’s request assistance.
(No. 39849. Dahlke, vs. Appellee, Hawthorne, Arthur Lane & J.
Company, Appellant. Opinion 28, Oct. Rehearing denied Jan. filed 1966. 1967.