Writ of error to the Circuit Court of Kane county; the Hon.
WIN G. KNOCH, JUDGE, presiding. Heard in this court at the
February term, 1951. Writ of error dismissed. Opinion filed
September 27, 1951. Released for publication October 15, 1951.
MR. JUSTICE ANDERSON DELIVERED THE OPINION OF THE COURT.
Plaintiff in error was found to be a criminal psychopathic person by order of the circuit court of Kane county on November 10, 1949, by a verdict of the jury, and was ordered committed by the court to the Psychiatric Division of the Illinois State Penitentiary at Menard, Illinois. He sued out a writ of error to the Supreme Court to review the proceedings. (People v. Ross, 407 Ill. 199.) The Supreme Court there held that it did not have jurisdiction either by writ of error or appeal, and the cause was transferred to this court.
Among the errors urged to obtain a reversal of this order are that the petition does not allege or set forth sufficient facts, that one of the examining phychiatrists failed to meet the qualifications prescribed by the statute, that the examining psychiatrists failed to make recommendations, that the court refused to admit proper evidence, and that the verdict was contrary to the law and to the evidence.
The record discloses that the plaintiff in error is an unmarried Negro about thirty years of age, who was indicted by the grand jury of Kane county, on September 13, 1949, for the infamous crime against nature with another male. He commenced perverted sexual activities at the age of seven and persisted therein to the time of his indictment.
The testimony offered on behalf of the people shows that the defendant had admitted to several witnesses his various acts of perversion occurring at different and many times throughout his life. The two phychiatrists who were appointed to examine him stated this in their preliminary reports and also by their testimony at the inquest. Further testimony was offered on behalf of the people by witnesses who testified that they had taken part in various acts of perversion with the defendant. The defendant's witnesses did not deny any acts of perversion, but only testified that they believed him to be an ordinary, normal, and sane individual. The testimony further discloses that he was convicted of the crime against nature in 1942 and was sentenced to the penitentiary. He engaged in homosexual activities while there. In their written reports the examining psychiatrists found him to be a criminal sexual psychopathic person.
The petition upon which the proceedings are based was filed on October 7, 1949, by the state's attorney of Kane county, wherein it was alleged that the plaintiff in error had been indicted for the crime against nature, that he had prior to that time been convicted of such a crime, and that for many years he had been given over to abnormal and unnatural sex habits and practices. All of this history shows that he is a criminal psychopathic person. The petition prayed for an appointment of two qualified psychiatrists.
The first question presented here is whether a review of these proceedings will lie to this court, either by writ of error or by appeal. The statute upon which the proceedings are based provides for no appeal. (Ill. Rev. Stat. 1949, chap. 38, par. 820-825 inclusive [Jones Ill. Stats. Ann. 37.665(1)-37.665(6)].)
Section 1 of the statute defines who is a criminal sexual psychopathic person, and states: "All persons suffering from a mental disorder, and not insane or feebleminded, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sexual offenses, are hereby declared to be criminal sexual psychopathic persons."
Section 3 of the statute provides that when any person is charged with a criminal offense and it shall appear to the attorney general and the state's attorney of the county in which the person is so charged, that such person is a criminal sexual psychopathic person, the attorney general or state's attorney "may file with the clerk of the court in the same proceedings wherein such person stands charged with a criminal offense a petition in writing setting forth facts tending to show that the person named is a criminal sexual psychopathic person."
Section 4 of the statute provides the court may appoint two qualified psychiatrists to examine the accused, to file their report with their recommendations. This section further provides that a qualified psychiatrist means a reputable physician licensed to practice in Illinois, and who has exclusively limited his professional practice to the diagnosis and treatment of mental and nervous disorders for a period of not less than five years.
Section 5 of the statute provides that before the criminal offense is heard, a hearing shall be had on the petition before a jury for them to determine whether the person is a criminal sexual psychopathic person.
Section 6 of the act provides that after commitment, a petition may be filed to ascertain whether the person has recovered. This hearing is also provided to be before a jury and if the person is discharged by the verdict of a jury and an order of the court from the place of his commitment, he is brought back for trial on the criminal charge against him.
The Supreme Court in 1943 in the People v. Sims, 382 Ill. 472, held the statute constitutional. The Supreme Court said on page 476 of the opinion: "This is a statute evidently enacted for the purpose of preventing persons suffering from a mental disorder, though not insane or feebleminded, being punished for crimes they commit during the period of such mental ailment, and is therefore in its operation not unlike the statutes providing for an inquiry into the sanity of one charged with crime before trial on the indictment." The court further says on page 477 of the opinion: "It is to be noted also that this is not a criminal proceedings in which the accused is entitled, under the rules as announced by this court, to a trial free from evidence of criminal proceedings theretofore had against him."
In the People v. Redlich, 402 Ill. 270, the Supreme Court had occasion to discuss this statute permitting commitment of criminal sexual psychopathic persons, supra. In that case the Supreme Court discusses the fact that this statute is similar in nature to the statute providing for inquiry by jury into the sanity of one charged with crime before trial on indictment, as enacted in Sections 12 and 13 of Division II of the Criminal Code (Ill. Rev. Stat. 1949, chap. 38, pars. 592 and 593) [Jones Ill. Stats. Ann. 37.553, 37.554]. On page 275 the Supreme Court says:
"The rule at common law was that an insane person or an idiot could not be required to plead to an indictment or be placed upon his trial for the crime charged. (4 Blackstone, 24.) Our legislature by enacting the provisions of sections 12 and 13 has declared its intention not to abrogate the common law in this respect, and by the enactment of the statute with which we are here concerned (Ill. Rev. Stat. 1947, chap. 38, pars. 820 to 825, incl.) has enlarged the scope of the common law so as to include any person charged with a criminal offense who, although not insane or feebleminded, is suffering from a mental disorder of the character described in the statute. Sections 12 and 13 have provided a method for determining whether a person against whom criminal proceedings are pending is insane or feebleminded; and the said act of 1938 has provided a similar method for determining whether an accused who is not insane or feebleminded is suffering with the mental disorder defined by the act. The trial of the question of his insanity, feeblemindedness, or psychopathy, as defined by statute, is no part of the criminal proceedings, has no connection with his guilt or innocence, and is not in aid of a determination of that question, but the sole object of the proceeding is to ascertain the mental condition of the ...