WRIT OF ERROR to the Circuit Court of Lake County; the Hon.
RALPH J. DADY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
The defendant, Ernest Hubert Pugh, an eighteen-year old sailor, was indicted for rape in the circuit court of Lake County on November 1, 1945. Upon a jury trial the defendant was found guilty and his term of imprisonment was fixed at 50 years. By this writ of error the defendant seeks from this court a review of the record of conviction and sentence.
At about 8:00 o'clock in the evening of August 10, 1945, the prosecuting witness, about 20 years of age, went to the Victory Memorial Hospital in the city of Waukegan to visit her mother and later the girls in the nurses' home. It was approximately 10:30 in the evening when she left the hospital, intending to go to the corner of Sheridan Road and Glen Flora Avenue to catch a bus which was due momentarily for Zion, Illinois. Soon after reaching the intersection, where a street light was burning, she noticed, approaching her from the south, a young man dressed in a sailor's uniform, whom she later identified as the defendant. He inquired of her: "Is this where you catch the bus to Zion, Illinois?" She answered: "Yes, it is." Only a short interval of time elapsed until the bus appeared and at that time she felt his arm go around her neck, whereupon she was choked into unconsciousness and dragged into a schoolyard where she was ravished, beaten and completely disrobed. She was his victim for about one-half hour. It would serve no useful purpose to defile the reports of this court with a complete account of the revolting details of the attack. Suffice it to say that the proof indicated a type of sexual perversion and sadism where pleasure is apparently derived from the act of being cruel to another.
After prosecutrix had regained consciousness and discovered that the defendant was in the act of lowering his trousers, as if to have sexual intercourse a second time, she ran away from him and was successful in her flight to the hospital. Then Dr. George B. Callahan, a specialist in the field of gynecology, and a member of the staff of the hospital, was immediately called. Upon examination, he found the girl was in severe shock; bruised about the neck in such manner that strangulation was suggested; bleeding from abrasions on various parts of the body and the nose; also a bleeding from a tear in the vagina and from the perineum body; he found that the hymen had been ruptured and it was his opinion that it had not been disturbed before. Her condition was so critical that Dr. Callahan remained with her throughout the night.
There were several witnesses called by the State who testified concerning the condition of the prosecuting witness when she returned to the hospital, nervous, exhausted, bleeding, and completely nude.
A Waukegan police officer also testified that he had received a report of this criminal assault and immediately went to the school ground where the events had occurred. Inside the gate he found a change purse. Deeper in the schoolyard he found a watch, pieces of clothing, a brassiere, a girdle, and a white dress "all torn in pieces and strewn all over the ground." He also found signs of a struggle and pools of blood.
Apparently, the defendant became involved in some difficulty in Oak Park on October 24, 1945, and as a result was arrested and questioned by Captain of Police, Thomas P. Kearin. He was asked about the occurrence of August 10 in Waukegan. This led to a complete confession by the defendant. The following day he accompanied the Oak Park and Lake County officials to Waukegan where he very candidly pointed out the various places in the schoolyard and stated with accuracy what he did on the night of August 10.
Counsel for plaintiff in error present a voluminous brief containing many assignments of error and hundreds of citations, many of which we found not in the least helpful.
The defendant claims that he was rushed into trial summarily and hastily, without an opportunity for adequate preparation. On this subject, the record discloses the following: He was indicted on November 1, after being apprehended on October 24; he was brought before the court on November 10 and the cause was continued to November 14, on which day defendant appeared with his counsel. At that time a motion to quash was entered, which was overruled and a plea of not guilty entered. On December 7, the defendant, with his counsel, again appeared before the court and presented a motion that he be taken to Chicago in custody of the sheriff for the purpose of being examined by a psychiatrist. This was denied. Then the prosecution moved for a setting of the cause for trial on December 12. The defendant asked for an order that would authorize a psychiatrist to examine him privately. This was allowed, but no effort was made by defendant's counsel or anyone in his behalf to cause such an examination to be made. Then defendant's counsel, indicating a shortage of money to employ a mental expert, asked that the State supply the defense with a complete report from their psychiatrist. The court ordered the State's Attorney to furnish defendant's attorney with a copy of such report. No written motion for continuance, supported by affidavits, was ever filed. There were 28 days intervening between the time defendant appeared in court with his counsel and the day the cause was set for trial. Orally, the defendant's counsel asked for further time because of their inability to obtain an alienist to testify. The defense was fully aware of the necessity for such proof early in the proceeding, and it appears that they could not procure the services of an expert either because of lack of funds, or because of their inability to find one who would testify favorably. The court was without authority to appoint an expert to examine the defendant. People v. Scott, 326 Ill. 327, 345.
On December 7, the trial court and defense counsel engaged in an extended colloquy touching the propriety of the setting of the cause for trial on the following Wednesday and the right of the defendant to withdraw his plea of not guilty and request a hearing under section 12 of division II of the Criminal Code, (Ill. Rev. Stat. 1949, chap. 38, par. 592,) which authorizes the court to impanel a jury to ascertain whether or not said person is insane. The prosecuting witness was leaving for school and would not be available as a witness after the week of December 12. The court was aware of the fact that the defense had let three weeks go by without making a very serious effort to obtain the services of a psychiatrist, and that the defense still had an opportunity to present the insanity issue on the trial of the cause. The record discloses that the court most studiously and earnestly considered all the pros and cons of defense motions preliminary to trial, and we are convinced that he did not act arbitrarily or abuse the discretion vested in him in overruling defendant's motion for continuance and for leave to withdraw his plea of not guilty. People v. Geary, 298 Ill. 236.
On the trial, the only evidence adduced on behalf of defendant which touch the issue of insanity was as follows: Joseph Zumbardt testified that he had known the Pugh family in Chicago for about nine years; that he saw the defendant six or seven times a year; that he had occasion to observe his conduct when other people were around; that his appearance was neat, but that he seemingly preferred to be around with the fellows and would always shy away from women and prefer to be with men and talk on sport questions. Pearl Weeks testified that she had known defendant since childhood and in recent years saw him three or four times a year; that he was involved in a serious automobile accident in 1934 in which he suffered head injuries that resulted in his nose being severed; that he was conscious of his facial disfiguration and never seemed to be friendly toward girls, and that he was always very bashful. Ruth Virginia Pugh, the mother of defendant, testified that her son was prematurely born and lived in an incubator for two months immediately upon his arrival; that he was undernourished and under a doctor's care for a considerable time after his birth; that her husband had abandoned her when Ernest was a mere baby; that the burden of caring for her son and earning a living was not a simple one; that he was involved in an automobile accident in March, 1934, and that he had worn a plastic nose since then; that he has always been a good boy, but shy around people; that he was ashamed of his personal appearance; that he would frequently be heard saying "I am nothing handsome to look at and anyway if they have anything to do with me it would be just because they are sorry for me." She also testified that he was quite athletic in high school where he played football; that he was five feet ten inches in height and weighed 148 pounds. The defendant took the witness stand and summarized his difficulties as follows: "I felt sort of abnormal around girls. I felt like they were sort of looking at my nose I don't know I didn't feel comfortable around girls."
The foregoing is a complete resume of all the evidence introduced at the trial relevant to defendant's alleged insanity. The court refused to give any of defendant's tendered instructions on the insanity issue and refused to permit defendant's counsel to discuss that issue in his closing argument to the jury. In this connection the court said "I am refusing the instruction on insanity because there is no evidence, in my opinion, tending to show insanity sufficient to leave it to the jury." This ruling by the trial court is assigned as error.
There was no evidence as to defendant's mental condition on the date when the crime in question was committed. All the testimony offered on the subject was concerning his unfortunate accident when he lost his nose and was compelled to go through life with its replacement, and that, consequently, he was embarrassed in the presence of females. There is absent from the record any testimony that would indicate that the defendant was in any way mentally disturbed; or that he was ever subnormal or weak mentally; or anything that remotely suggests that defendant was incapable of discerning right from wrong. In the absence of proof of lack of such understanding, one accused of crime cannot avail himself of the defense of insanity. (People v. Redlich, 402 Ill. 270; People v. Marquis, 344 Ill. 261.) In the Marquis case the defendant sought to show by an expert witness, in answer to a charge of murder, that he had a mental capacity similar to that of a child of twelve years; it was held that the court properly refused such testimony to be admitted. The court said, on page 267: "There is no merit in this alleged error. Criminal responsibility depends upon whether the accused knows the difference between right and wrong, can understand his relation to others and that which others bear to him, and has knowledge of the nature of his act so as to perceive its consequences to himself and others."
In the instant case, the record shows that the defendant immediately after committing the act in question removed his stained clothes and sent them to the laundry and within a very short time thereafter moved to another section of the State. In addition thereto, just before the prosecutrix escaped a second attack which he attempted, he told her in effect that he would not let her go because she would run to the "coppers." He was not apprehended for some considerable length of time and continued to perform his daily duties in the navy at the base where he was stationed. After he was apprehended he made a complete confession, directed the officers to the scene of the crime and traced for the officers every circumstance and ...