Appeal from the Criminal Court of Cook County; the Hon.
CHARLES R. BARRETT, Judge, presiding. Order affirmed.
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 27, 1964.
This is an appeal from an order entered in the Criminal Court of Cook County on February 17, 1964, revoking probation granted the appellant after he had been found guilty of the crime of aggravated battery.
The appellant, Edward McDonald, was found guilty in a trial without jury of the crime of aggravated battery on February 11, 1964, the offense taking place on May 10, 1963, when the appellant stabbed a man five times. The testimony at the trial is in conflict as to whether there was any provocation on the part of the victim, but the court found that the testimony taken even in the light most favorable to the appellant did not show provocation sufficient to warrant his using a knife in his defense. The appellant's claim of self-defense was, therefore, rejected by the court.
The report of the Behavior Clinic describes the appellant as having a "paranoid stance" and continued by stating that he "is probably capable of unprovoked homicidal acting out without forewarning." The report states that a psychologist who examined the appellant considered him a "dangerous individual capable of homicidal aggression and indicated that the patient is a schizophrenic who at present has very superficial controls," although "he knows the nature of the charge and is able to cooperate with counsel."
On February 11, two weeks after the court announced its finding, there was a hearing at which the appellant was placed on probation for five years with the condition:
"That the defendant shall make no further threatening phone calls and upon his release, present himself at the Fairview Hospital, 2828 Prairie Avenue for psychiatric therapy; subject to remain in hospital until hospital submit a report to Judge Barrett before release."
On February 14, three days later, the appellant entered Fairview Hospital, but did not remain there, leaving the same day. There is some confusion as to what occurred when the appellant went to the hospital, but there is no doubt that he did not submit to psychiatric therapy there. On February 17, six days after probation was granted, a hearing was held at which the court revoked the probation and sentenced the appellant from two to five years in the Illinois State Penitentiary.
The appellant was represented by counsel of his own choosing at the trial and at both post-trial hearings.
The appeal states two main points: first, that it was not proper for the court to commit the appellant to a hospital, and second, that the court abused its discretion in revoking the probation. We feel the appellant to be wrong in both his contentions.
The Code of Criminal Procedure of 1963, Chapter 38, Paragraph 117-2(b), states in relevant part:
"A person admitted to probation may be subject to the following conditions: (5) Perform or refrain from performing such other acts as may be ordered by the court."
The appellant claims that this does not give the court below the power to put as a condition to probation that he enter a mental hospital for treatment.
It is clear that the probation provision lessens the penalty in the discretion of the court, to the benefit of the convicted. We see no reason to impose a strict construction on this provision. Superior Laundry & Linen Supply Co. v. Edmanson-Bock Caterers, Inc., 11 Ill. App.2d 132, 136 N.E.2d 610 (1956). The appellant claims the condition to the probation providing that he enter a hospital for psychiatric treatment is an illegal form of imprisonment. The record shows, however, that the above condition was suggested to the court by the appellant's counsel and the appellant expressly agreed to this condition. Paragraph 117-2(b) (5) allows the court discretion in granting probation. This was the case law interpreting the section in force before the new Code was adopted. People v. Molz, 415 Ill. 183, 113 N.E.2d 314 (1953). It is clear from the use of ...