People v. Geary

• Decision Date: 22 June 1921
• Docket Number: No. 14108.,14108.
• Citation: 298 Ill. 236,131 N.E. 652
• Parties: PEOPLE v. GEARY.
• Court: Illinois Supreme Court

298 Ill. 236

131 N.E. 652

PEOPLE

v.GEARY.

No. 14108.

Supreme Court of Illinois.

June 22, 1921.

Error to Criminal Court, Cook County; Charles A. MacDonald, Judge.

Eugene Geary was convicted of murder in the first degree and sentenced to death. From a judgment finding the defendant sane and refusing to stay the execution of sentence, defendant brings error.

Reversed and remanded, with directions.Thomas E. Swanson and Michael J. Ahern, both of Chicago, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., Edward C. Fitch, Edward E. Wilson, Stephen A. Malato, and William Scott Stewart, all of Chicago, for the People.

DUNCAN, J.

Plaintiff in error (hereafter referred to as defendant) was tried and convicted on an indictment charging him with the murder of one Harry Reckas, and the jury by their verdict fixed his punishment at death. Judgment was entered on the verdict November 10, 1920, in which the date of the execution was fixed for December 17, 1920, in accordance with the provisions of our statute. A writ of error was allowed for the review of the judgment by this court at our February term, 1921. The writ of error was made a supersedeas, and all further proceedings on the judgment were stayed until the further order of this court. At the April term, 1921, the decision of this court was filed, affirming the judgment of the criminal court, and the clerk of this court was directed to enter an order fixing the period between 9 o'clock in the forenoon and 4 o'clock in the afternoon of June 17, 1921, as the time when the original sentence of death entered in the criminal court should be executed. People v. Geary, 297 Ill. 608, 131 N. E. 97. Defendant's petition for a rehearing by this court was denied June 9, 1921, of the term now in session.

On May 19, of the May term, 1921, of the said criminal court, Thomas D. Nash, who has been acting as one of the attorneys for the defendant since his indictment filed a petition in said court, verified by his affidavit, representing therein, in substance, that since said judgment and sentence defendant has been and is now confined in the common jail of said county of Cook, and that since the entry of the judgment and sentence aforesaid against him in that court he has become and is now insane, and is afflicted with paresis, and is incapable of realizing or comprehending the fact that he is under sentence of death, and must suffer the same unless he shall show some good and sufficient cause why the penalty ought to be postponed or not executed. The petitioner prayed on behalf of the defendant that the court order a jury to be impaneled to try the question as to his sanity or insanity at the time of impaneling the jury, and that a day be set for the hearing. He also prayed that an order be entered directing the sheriff to stay execution of the death sentence until such time as the jury so impaneled should return its verdict, and that the jailer of the county permit examination of defendant by physicians on request of petitioner, so that the evidence may be offered to the jury by which the truth with reference to his alleged insanity may be determined.

This petition was supported by sworn statements of facts therein made by petitioner, and also by another affidavit of August F. Bahr, one of the guards at said jail, stating many of the same facts alleged in the affidavit of petitioner, and other facts within his knowledge, tending to show that since said judgment and sentence the defendant is insane, and has delusions that he is a victim of persecution by his guards and other persons, who are punishing and torturing him to prevent him from sleeping and resting, and are fouling and poisoning his food; that as a result of his insanity and delusions he refuses to eat sufficient food, and has fallen off many pounds in weight, and has become violent and dangerous, and is growing more so day by day, so that the guards are required to keep him confined and locked up in his cell to prevent him from doing violence to others.

Upon the filing of the petition and affidavits aforesaid three alienists were appointed by the court, by agreement of counsel, who were to, and did, examine defendant for the purpose of determining if he were sane or insane, and to testify to their findings on the trial of the issues to be determined, and the hearing was set for May 31, 1921. On that day the defendant, with his counsel, and also the state's attorney, appeared in court for the trial, and the court refused to grant the request of the defendant's counsel to enter any order to prolong the time for the execution of the death sentence or to impanel a jury to try the issue as to the defendant's insanity, but over the objections of the defendant's counsel proceeded to examine the said three witnesses with reference to their competency to testify as alienists by interrogatories propounded to them by himself, and also to examine them with reference to their opinions as to defendant's insanity based upon their examinations of him. Only two questions were propounded by the court to the alienists, outside of other questions by him to them touching the matter of their competency to testify as alienists. Those two questions were propounded to each of the three alienists, and are in their order as follows:

‘Question 1. In your opinion, Doctor, did Eugene Geary, at the time of your examination of him, have sufficient intelligence to understand that he had been indicted, charged with the murder of Harry Reckas, that he was tried in the criminal court of this county on such charge, that he was convicted and sentenced to be hanged therefor, and that said sentence of death is about to be carried into execution?

‘Question 2. In your opinion, Doctor, did Eugene Geary, at the time of your examination of him, have sufficient understanding to know any facts that might exist, which, if known, would exonerate him or mitigate his punishment, and the intelligence requisite to convey such information if any, to his attorneys or to the court?’

The answer to each of those questions was the same by each and every one of the alienists, to wit, ‘He did.’ Counsel for the defendant objected to the questions, both as to form and substance, and for the further reason that they did not embody the correct legal test of insanity, and were constructed on lines too narrow for this inquiry, and also upon the further ground that the inquiry or trial was before the court, and not by a jury, as provided by the statute. The court in each instance overruled the objections. At the conclusion of the examination counsel for defendant again moved the court that a jury be impaneled for the purpose of determining the sanity or insanity of the defendant, but the motion was denied, and the court also denied the defendant's counsel the right to cross-examine the witnesses; the court stating that the examination was one conducted by the court, that the investigation had been made, and that it satisfied the court that the petition should be denied—and the court entered judgment, dismissing the petition and striking the affidavit filed in support thereof from the record, to which action of the court exceptions were taken and are preserved by the bill of exceptions.

On June 7, 1921, counsel for defendant filed in this court the record of said final order and judgment in this cause, refusing to prolong the time of the execution of the original judgment and sentence and to impanel a jury to try the question whether or not the accused has become insane or lunatic since the judgment. A writ of error has been granted, and the same was made a supersedeas by this court.

Section 13 of division 2 (paragraph 285) of our Criminal Code (Hurd's Stat. 1917, p. 1016), provides as follows:

‘A person that becomes lunatic or insane after the commission of a crime or misdemeanor shall not be tried for the offense during the continuance of the lunacy or insanity. If, after the verdict of guilty, and before judgment pronounced, such person become lunatic or insane, then no judgment shall be given while such lunacy or insanity shall continue. And if, after judgment and before execution of the sentence, such person become lunatic or insane, then in case the punishment be capital, the execution thereof shall be stayed until the recovery of said person from the insanity or lunacy. In all of these cases, it shall be the duty of the court to impanel a jury to try the question whether the accused be, at the time of impaneling, insane or lunatic.’

The contention of defendant's counsel that under the provisions of the foregoing statute he was entitled to a trial by a jury of the question whether or not he had become insane or lunatic after the original sentence of death had been entered against him is clearly right. The statute is plain and mandatory that it is the duty of the court in all the cases in said section mentioned to impanel a jury to try ‘the question whether the accused be, at the time of impaneling, insane or lunatic.’ The question of such insanity was raised, and properly so, by the petition, in which it was alleged that the defendant had become insane, as aforesaid, since judgment and sentence, as it was supported by the affidavits of two persons detailing the facts upon which they based their judgment as to such insanity. The court treated the question as properly raised before him, and having done so could only try it legally in the manner provided by statute. In the absence of a statute requiring a jury trial, it has been the practice of a number of courts of this country to try the question with or without a jury, and where a doubt has arisen as to a defendant's...