APPEAL from the Criminal Court of Cook County; the Hon. HAROLD
G. WARD, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
This appeal is upon the common-law record alone, from an order of the criminal court of Cook County, denying petitioner's motion in the nature of a petition for a writ of error coram nobis. The petition sets forth that Casimer Jablonski was brought before the municipal court of Chicago on an inquiry to determine his mental condition, that an order was entered therein that the said Casimer Jablonski be examined by two physicians; that as a result of their examination the court found the said Jablonski to be feeble-minded and entered an order committing him to the Lincoln State School and Colony for the feeble-minded at Lincoln, Illinois; and that on December 14, 1928, he was admitted into that institution. The petition further sets forth that on June 15, 1929, the said Casimer Jablonski escaped from the Lincoln State School for feeble-minded; that on December 28, 1931, while at large, he was arrested on the charge of robbery while armed; and that although he had been judicially declared to be a feeble-minded person and had never been judicially restored to his reason, he was held to trial in the criminal court of Cook County; and that court was never informed as to his mental condition; and that he was allowed to plead to indictment number 63694. It also sets forth that thereafter he was tried and found guilty and sentenced to a term provided by statute; that at no time during the proceedings in the case number 63694 in the criminal court of Cook County was it ever called to the attention of the court that Jablonski was under any mental disability.
The record before us discloses that on February 27, 1946, the State filed a motion to dismiss this petition, alleging, first, that the petition was filed by someone who was not a party injured by the judgment; second, that the petition was not made within five years after the rendition of a final judgment; third, that it was through his own negligence and carelessness that his mental condition was not brought to the attention of the trial court, and that he was not prevented from presenting such facts at the time of his trial either by duress, fraud or excusable mistake; and, fourth, that the facts alleged in the petition were insufficient to give that court jurisdiction. This motion of the State was granted by the criminal court and upon appeal to the Appellate Court for the First District the judgment was reversed. (Jablonski v. People, 330 Ill. App. 422.) It was determined by that court that there was merit in Jablonski's petition if it was capable of proof, and the cause was therefore remanded for further proceedings, ordering the State to plead and to proceed to trial upon the issues made by such pleadings. More recent support for the Appellate Court's determination can be found in the cases of People ex rel. Wiseman v. Nierstheimer, 401 Ill. 260, and People v. Samman, 408 Ill. 549.
Thereafter, on April 18, 1947, the State filed an amended answer which admitted the finding of feeble-mindedness; the commitment to a feeble-minded institution; no showing of restoration of sanity; and no showing that the petitioner's mental condition was ever at any time brought to the attention of the criminal court when he pleaded to indictment number 63694 nor at any time during his trial of that cause. Then we are compelled to turn to the additional abstract of record filed on behalf of the State to find the following: "Admits that Casimer Jablonski did escape from a mental institution in June, 1929, and that he had not been judicially restored to reason by any court of Cook County but denies that the defendant was mentally incapable of pleading to indictment number 63694." The omission of this most important part of the record by the plaintiff in error is quite inexcusable.
Then the record in this cause proceeds: "The court hearing the testimony of witnesses, it was ordered that the motion in the nature of petition for writ of error coram nobis be denied." A motion for a new trial was filed on behalf of the petitioner, a hearing on this motion was continued a few times, and after being given due consideration by the court, was overruled.
In light of the foregoing it is apparent that the petitioner herein filed a petition which was adjudged to state a prima facie case. However, the respondent had raised an issue of fact when it was denied that the petitioner was mentally incapable of pleading to the indictment charging him with robbery, (People v. Crooks, 326 Ill. 266,) and once there have been issues raised by the pleadings it is incumbent upon the petitioner to prove, by a preponderance of the evidence, those facts alleged in his petition which have been denied by the respondent. "As we pointed out in the Crooks case, the real question to be determined, where an issue of fact has been presented, is whether or not the defendant has by the greater weight of the evidence proved that there were such errors of fact committed in the trial as were set up in his motion." (Greene v. People, 402 Ill. 224, 226.) However, in the instant case we are not favored with a bill of exceptions, so it is impossible for us to determine if the petitioner sustained this burden of proof. Where the sufficiency of the evidence is questioned, and there is only the common-law record, it must be presumed that the evidence was sufficient to support the judgment of the court. (People v. Bailey, 391 Ill. 149.) Having no opportunity to review the evidence and ascertain otherwise, we are forced to the conclusion that the trial court did not err in denying appellant's petition.
Subsequent to the filing of the foregoing opinion of the court as delivered by Mr. Justice Bristow, we granted a rehearing, appointed counsel for the petitioner, Casimer Jablonski, and granted leave for a further brief to be filed in his behalf in order that we could further exhaust and evaluate the merits of the issues presented.
In the additional brief filed, counsel contends that the judgment denying Jablonski's petition should be reversed and a new hearing granted, or, in the alternative, that a bill of exceptions, previously lacking, should now be settled in the trial court and brought to this court in order that a review may here be had based upon the evidence introduced in the court below. Both contentions, as made and presented, recognize, as we had determined in our original opinion, the necessity for this court to have a bill of exceptions before it in order to review the issues presented by the appeal.
To hold that petitioner is now entitled to a new hearing in the trial court would do violence to the long-established rule which states that where the sufficiency of the evidence is questioned on review, it will be presumed, in the absence of a bill of exceptions, that the evidence introduced in the trial court was sufficient to support the judgment of the court. Petitioner's counsel recognizes this but suggests that the nature of the case is such that it presents a cumulation of distinctive circumstances which would permit the relief of a new hearing without imperiling the presumption of regularity ordinarily applicable. The circumstances suggested are these: (1) That the rights asserted by petitioner are of a most fundamental nature; (2) that it is possible to determine from the common-law record alone that petitioner has gone far to establish his central contention of mental incapacity; and (3) that the trial court's decision in this cause was rendered before the comprehensive discussion on the presumption of mental incapacity appearing in People ex rel. Wiseman v. Nierstheimer, 401 Ill. 260.
While it may be conceded that petitioner is asserting fundamental rights, there is nothing in the record at this stage of the proceedings involved which shows that such rights were ever denied him or that he has been without a remedial means to assert them. Where the question of mental incapacity to plead to a criminal charge has arisen, both this and the Federal courts have held that a prior adjudication of insanity or feeble-mindedness is only prima facie, and not conclusive, evidence of criminal irresponsibility. (People v. Samman, 408 Ill. 549; People ex rel. Wiseman v. Nierstheimer, 401 Ill. 260; People v. Varecha, 353 Ill. 52; United States ex rel. Samman v. Ragen, 167 Fed.2d 543.) Still another familiar rule is that the duty and responsibility for raising mental incapacity rests with the accused and his counsel. (People v. Haupris, 396 Ill. 208; People v. Wagner, 390 Ill. 384.) The record here shows that petitioner has made a prima facie showing that he was entitled to the rights which accrue to one who has been adjudicated a feeble-minded person, but it also shows that the facts upon which the right now claimed is based were not made known to the court in which he pleaded to a criminal charge. It has not been until this collateral proceeding, commenced approximately fifteen years after the criminal charge, that petitioner has sought to assert the rights he claims. Once asserted and brought before the bench, the record indicates that petitioner was afforded due process of law on the issue so belatedly raised and that he was represented by counsel in the matter. We find no irregularity or suggestion of a deprivation of rights which would now entitle petitioner to the extraordinary relief of a new hearing.
The circumstance that the common-law record goes far to establish petitioner's central contention of mental incapacity is likewise, in our opinion, unpersuasive in pointing to the necessity for a new hearing. Sifted down, the contention in effect asks us to hold, as a matter of law, that the three-year period of time existing between the adjudication of feeble-mindedness and the criminal act charged against petitioner, makes a conclusive showing of an insufficient period of time to remove or weaken the presumption of continuing feeble-mindedness. A somewhat similar contention was raised in People v. Maynard, 347 Ill. 422, where we held that whether the presumption arising out of an adjudication of insanity had been overcome was a question of fact requiring evidence, and that we knew of no authority which holds that, in the absence of proof, lapse of time is alone sufficient to remove the presumption. Conversely, we cannot say, as a matter of law, that any given lapse of time is, ...