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People v. Beshears

DECEMBER 15, 1965.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FRANCIS BESHEARS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County; the Hon. RICHARD T. CARTER, Judge, presiding. The judgment declaring the defendant Francis Beshears a sexually dangerous person, is reversed.

EBERSPACHER, P.J.

This defendant was arrested and placed in the St. Clair County jail on August 25, 1963. On November 27, 1963, the State's Attorney of St. Clair County filed an information charging that the defendant, Francis Beshears, on the 25th day of August, A.D. 1963, within the County of St. Clair, did contribute to the sexual delinquency of a certain child, in that defendant, performed lewd fondling and touching of said child with intent to arouse and satisfy the sexual desires of said child and the defendant. On the same date the State's Attorney also filed a petition to have defendant declared a sexually dangerous person in which it was alleged that defendant had been charged with the crime of contributing to the sexual delinquency of a minor child, as stated above, and that he was suffering from a mental disorder which had existed for at least one year immediately prior to the filing of the petition, and that the mental disorder was coupled with criminal propensities to the commission of sex offenses. The petition alleged that defendant had been arrested on July 22, 1956 on a charge of statutory rape for having, allegedly, had sexual intercourse with a seven-year-old girl, and that he had been arrested again on September 20, 1959, for having, allegedly, molested an eleven-year-old girl. The petition prayed that the court appoint two qualified psychiatrists to make a personal examination of the defendant in order to ascertain whether he was sexually dangerous.

An order was entered on November 27, 1963 appointing Doctors Groves B. Smith and John H. McMahan to examine the respondent in order to ascertain whether he was sexually dangerous.

On May 20, 1964, a hearing was held in the Circuit Court of St. Clair County. Prior to this time Mr. Beshears had been represented by retained counsel who had evidently withdrawn from the case at this time, and the Public Defender in St. Clair County, was appointed to represent the defendant. At this time the Public Defender made a motion that the defendant be discharged on the basis of the "four months" rule since he had been incarcerated in the County Jail in excess of 120 days. The court stated that this was a civil proceeding and the civil rule would apply and the motion would be denied.

At the hearing, a witness testified that he was a Sergeant on the East St. Louis Police Department and that on July 22, 1956, he had had occasion to arrest the defendant. The Sergeant further testified that at that time this defendant had freely and voluntarily given a statement and the said statement was offered into evidence. The nature of the complaint at that time, which was made either by the minor girl or by her mother, was that the girl had been molested by defendant.

Another witness testified that on September 20, 1959, he was employed as an usher at the Majestic Theatre in East St. Louis. While working that day he received a complaint that the defendant was bothering some small girls in the show. He went upstairs in the balcony and watched him over the side where he saw the defendant bothering some small girls and the police were called to the scene. Mr. Beshears was not arrested at the Majestic Theatre since he had already left the scene. However, he was arrested on the street near the theatre. The witness testified that he saw the defendant touch the legs of one little girl but he could not tell if her dress was up or disarranged, nor did he see him touch any other part of her body.

Another Sergeant testified that on September 20, 1959, he was a member of the East St. Louis Police Department and that on that date he received a call to investigate a molestation of a child at the Majestic Theatre. After arriving at the theatre the police were told that the defendant had left and walked down Collinsville Avenue toward Missouri and they went out and subsequently placed him under arrest in the 400 block of North Fifth Street. He was brought back to the Majestic Theatre and identified by the girl and then taken to the police station. No oral or written statement was taken at that time. The girl had told the police that the defendant was playing with her legs but the Sergeant did not remember whether or not she stated that he had his hand under her dress or on her knee or thigh.

Disposition of neither of these charges is shown in the record, and no record of conviction on either of these two charges was introduced into evidence.

The defendant was called by the State's Attorney under Section 60 of the Civil Practice Act. A timely objection was made to calling him under this section on the basis of the privilege against self-incrimination; the motion was overruled. After reading his statement of July 22, 1956, defendant testified that it bore his signature but that he was not sure whether it was correct since it had been such a long time ago; that he had a propensity to want to touch and fondle little girls since he came back from Korea; that on Sundays he drank quite heavily and that is when he usually got into trouble. That all he did to the girls was to kiss them several times, and never went any farther. That he was examined by two doctors but he did not know who they were or what they were.

The psychiatric reports of Dr. Smith and Dr. McMahan were introduced into evidence. Neither defendant nor his attorney was ever given a chance to examine these reports; and when the court commented that the defendant should be furnished copies, the Assistant State's Attorney stated that their office only had one copy.

The psychiatric report of Dr. McMahan, states that,

"There is no psychiatric disorder. In my opinion the above has sufficient mental capacity to understand the charges made against him and to aid and dispate in his own sense."

It has been suggested that the last five words were probably intended to be "participate in his own defense."

The psychiatric report of Dr. Smith, after reciting a number of admissions and statements which tended to incriminate defendant, concludes,

"Diagnosis-sexually dangerous person under the meaning of the Sexually Dangerous Act; inadequate personality with definite character changes of a sex deviate type."

After hearing the evidence the court declared the respondent to be a Sexually Dangerous Person and committed him to the care and custody of the Director of Public Safety.

Defendant by his court appointed attorney, has most capably and studiously presented to this court by both brief and oral argument, 5 assignments of error.

He urges first, that the psychiatric reports did not establish that defendant was a sexually dangerous person and that the order finding him to be sexually dangerous was against the manifest weight of the evidence; Second, that defendant should have been furnished copies of the psychiatric reports prior to the time of the hearing on the petition; Third, that the court erred in forcing defendant to testify at the hearing as an adverse witness under the provisions of Section 60 of the Civil Practice Act; Fourth, Beshears should have been discharged from custody by the trial court because he was held in jail in excess of 120 days in violation of Chapter 38, Sec 103-5, Ill Rev Stats 1963; and lastly, that error was committed when testimony concerning defendant's two prior arrests on similar charges was allowed into evidence.

In support of the first contention, appellant cites People v. Howell, 12 Ill. App.2d 84, 138 N.E.2d 691, where the question of whether or not the defendant was a sexually dangerous person was tried before a jury. The evidence revealed that one doctor filed his report, which stated it was his opinion that the defendant did classify as a sexually dangerous person, and recommended that defendant be tried under the Sexually Dangerous Persons Act. The report of the other doctor concluded that defendant was an exhibitionist, and stated that he did not believe defendant was sexually dangerous. The only other persons testifying were the defendant, who contended that he was changing his trousers while seated in his automobile on a country road, and the County Jailer, who testified that during the months ...


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