People v. Cox

• Decision Date: 01 November 1967
• Docket Number: Gen. No. 10870
• Citation: 230 N.E.2d 900,87 Ill.App.2d 243
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John R. COX, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 900

230 N.E.2d 900

87 Ill.App.2d 243

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John R. COX, Defendant-Appellant.

Gen. No. 10870.

Appellate Court of Illinois, Fourth District.

Nov. 1, 1967.

Albert E. Hurt, Public Defender, Decatur, for appellant.

Basil G. Greanias, State's Atty., Decatur, Franklin E. Dove, Decatur, of counsel, for appellee.

TRAPP, Justice.

Defendant was convicted of burglary by a jury and sentenced to a term of two to ten years. His motion for a new trial was denied. He appeals the conviction.

The defendant had been found guilty by a jury at a prior trial upon the same offense, but such conviction was reversed upon appeal. People v. Cox, 74 Ill.App.2d 342, 220 N.E.2d 7.

At this trial the prosecution undertook to prove defendant's guilt by introducing into the record a portion of the transcript of the testimony of one Vernon Hall at defendant's prior trial. This was the only evidence connecting the defendant with the offense.

Prosecution's Exhibit No. 1 offered in evidence was a certified record of certain proceedings in the Circuit Court of LaSalle County, Illinois, consisting of (1) a petition for hospitalization on court order of the said Hall, alleged to be in need of mental treatment, then found at the Illinois Industrial School for Boys, Sheridan, Illinois, (2) an order for examination of Hall by a Commission, (3) a report of the Commission's examination, (4) a notice of hearing on such petition for hospitalization served on Hall, (5) an order for the hospitalization of Hall as being in need of mental treatment, and (6) a writ for such hospitalization at the Illinois Security Hospital. The several items referred to are prepared on a set of printed forms purporting to be authorized under the Mental Health Code, Chap. 91 1/2, § 3--2, and supplied by the Department of Mental Health.

The report of the Commission's examination found Hall to be immature, impulsive, unable to master hostile, aggressive feelings and liable to act upon slight provocation, so that he was considered dangerous. The diagnosis was an emotionally unstable personality in a brain damaged person. The court ordered mental treatment and immediate hospitalization at the Illinois Security Hospital. This order also provided:

'It is further found and ordered that Vernon Dale Hall is legally incompetent.'

People's Exhibit No. 2 was the transcript of the testimony of Vernon Hall at the prior trial. Defendant objected to People's Exhibit No. 1 being admitted in evidence and objected to the admission of People's Exhibit No. 2 as being hearsay, irrelevant, and prejudicial and denying to defendant the right to cross-examine the witness. Such objections were preserved upon a motion for a new trial. Here, the defendant urges that the admission of such transcript into the evidence violates Art. II, § 9 of the Illinois Constitution, S.H.A. in its provision that the accused shall have the right to meet witnesses face to face.

The latter provision is a constitutional command which regulates specific aspects of judicial procedure and the objections were sufficient to raise the constitutional issue. People v. Nastasio, 19 Ill.2d 524, 168 N.E.2d 728.

Before the trial court, the prosecution urged that the transcript was admissible as an exception to the hearsay rule which permits the introduction into evidence of testimony at a former trial where the witness is dead, insane or so ill as to preclude travel to the current trial. Cleary, Handbook of Illinois Evidence, 2d Ed., § 17.8; Gard, Illinois Evidence Manual, Rule 161. Authorities upon this theory were argued before the court, and after taking the matter under advisement and reviewing the authorities, the court ruled Exhibit No. 2 admissible.

It was the hypothesis of the prosecution, and the trial court, that the finding of the Circuit Court of LaSalle County, Illinois, that Hall was legally incompetent, made him incompetent as a witness at this trial. It appears that such finding of legal incompetence was equated with insanity for purposes of the so-called hearsay exception cited.

This is not the law in Illinois under the authorities as we find them.

The test of competence to testify as a witness is the capacity to observe, recollect and communicate. People v. Dixon, 22 Ill.2d 513, 177 N.E.2d 224; People v. Lambersky, 410 Ill. 451, 102 N.E.2d 326; Cleary, Handbook of Illinois Evidence, 2d Ed., 8.2; Guttmacher v. Weifhofen, Psychiatry and The Law, 1952, W. W. Norton & Co.

Sanity is not the test of competence to testify as a witness and an insane person may be acceptable as a witness if he has the several capabilities. People v. Enright, 256 Ill. 221, 99 N.E. 936. Persons adjudicated to be feeble-minded may be competent to testify, People v. Lambersky, 410 Ill. 451, 102 N.E.2d 326. An idiot may be a competent witness, Truttmann v. Truttmann, 328 Ill. 338, 159 N.E. 775. In Oswald v. Civil Service Comm., 406 Ill. 506, 94 N.E.2d 311, it was held that the trial court, sitting in administrative review, erred in presuming that witnesses adjudicated to be feeble-minded were, as a matter of law, incompetent to testify. See also People v. Nash, 36 Ill.2d 275, 222 N.E.2d 473. In Schneiderman v. Interstate Tr. Lines, 394 Ill. 569, 69 N.E.2d 293, plaintiff suffered injuries which affected his powers to speak coherently and his capacity to give consistent, intelligent answers. The Supreme Court held that the Appellate Court erred in concluding that his mental condition made him incompetent as a witness, and in refusing to consider his testimony.

In People v. Enright, 256 Ill. 221, 99 N.E. 936, and People v. Dixon, 22 Ill.2d 513, 177 N.E.2d 224, the Supreme Court speaks of this rule for determining the competency of witnesses as applying in the absence of a statute. From the record it appears that the prosecution argued, and the trial court believed, that the Mental Health Code had changed the rule followed by the Supreme Court.

Our search has not disclosed any statute relating to the competency of witnesses to testify because of defects of intellect or mentality, or by reason of adjudication regarding such defects. Chapter 51 (Ill.Rev.Stat., 1965) relates to the competency of witnesses, but has no reference to mental qualifications. Chapter 3, § 112 (Ill.Rev.Stat., 1965) defines an incompetent as one incapable of managing his person or estate. Such persons have been held competent to testify as witnesses. Oswald v. Civil Service Comm., 406 Ill. 506, 94 N.E.2d 311; Champion v. McCarthy, 228 Ill. 87, 81 N.E. 808, 11 L.R.A., N.S., 1052.

The Mental Health Code, Chap. 9 1/2, (Ill.Rev.Stat., 1965), does not define the term 'legally incompetent'. Section 1--8 of the Code defines a 'Person in Need of Mental...