Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. WALTER P. DAHL, Judge, presiding. Judgment
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
The defendant, Richard Davis, was found guilty of armed robbery after a bench trial, and sentenced to a term in the penitentiary of not less than four nor more than twelve years. On appeal, he contends: (1) that the indictment was constitutionally defective; (2) that the court committed reversible error in denying his petition for a bill of particulars; (3) that the State failed to prove beyond a reasonable doubt that he was sane at the time of the alleged acts; (4) that the court was in error in ordering stricken a defense witness' answer to a hypothetical question; and (5) the court erroneously permitted three witnesses to testify a second time in rebuttal over the objection that the rule of exclusion had been invoked and the witnesses had remained in the courtroom after testifying the first time.
The record reveals that at about 3:30 p.m. on December 26, 1962, the defendant entered a clothing store at 63rd Street and Ellis Avenue in Chicago. After spending about forty-five minutes selecting many garments, he gave the proprietor, Max Gillman, a deposit of $30 and told Gillman he would return the following Friday to pick up the merchandise. Defendant then pulled a pistol from his coat pocket, announcing, "This is a stick-up," and instructed Gillman to wrap the package containing the clothing he had selected. He then took over $100 in cash from Gillman, which included the $30 deposit he had just paid, and instructed Gillman, another clerk, and a customer to go to the back of the store. After ripping two telephones from the wall, defendant left the store and hailed a taxi. As Gillman watched from the sidewalk in front of the store, defendant rode in the taxi for about two blocks, and then entered a hotel. Gillman called the police from a neighboring store, and about fifteen minutes later accompanied two officers to the hotel. Gillman saw the defendant in the third-floor hallway, and identified him. The officers recovered a pistol and over $100 in currency from the defendant's pockets, and when Gillman asked him, "Where is the merchandise?" the defendant pointed to a closet, where the police found a package containing the clothing taken from the store. A police officer testified that, when Gillman saw the defendant at the police station later that day, defendant said, "All of [the money taken from defendant's pocket] didn't belong to Mr. Gillman. Some of that money is mine. I had it before I went into the store." Gillman also testified as to this statement by the defendant. From the money taken from the defendant, the police turned over to Gillman the $95 claimed by him, and returned the balance to the defendant.
Defendant was indicted for this offense on January 9, 1963, and the Public Defender was appointed to represent him. Upon motion, he was examined in the Behavior Clinic of the Criminal Court of Cook County. The result of this examination, performed by Dr. William H. Haines, was a diagnosis of, "suspected schizophrenic reaction," and on January 30, 1963, a sanity hearing jury found the defendant at that time to be insane. He was thereupon committed to the Illinois Security Hospital at Chester, where he remained until he was released pursuant to his petition about January 1, 1964. The indictment was reinstated on January 17, 1964, and on February 6, 1964, a sanity hearing jury found the defendant, "competent." After a series of continuances, defendant filed a petition in September of 1964 for a bill of particulars and for an order appointing a private psychiatrist to examine him at the State's expense. The petition was denied; and in February of 1965 the defendant was tried and convicted.
Defendant first contends that the indictment was constitutionally defective because it was so lacking in specificity as to render him unable to prepare his defense. The indictment alleged that, ". . . on the 26th day of December 1962 at and within [Cook] County Richard Davis committed the offense of robbery, in that he, by the use of force, and while armed with a dangerous weapon, took one hundred sixteen dollars in United States currency, robe, hat, two pair of pajamas and a tie set from the person and presence of Max Gillman. . . ." Defendant complains specifically of the failure to state the street address of the premises robbed, the approximate time of the offense, the citation of the statute violated, or the nature of the dangerous weapon. In light of the opinions of our Supreme Court in People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97, and People v. Reed, 33 Ill.2d 535, 213 N.E.2d 278, we conclude that this indictment was sufficiently specific to satisfy constitutional and statutory requirements.
Defendant further assigns as error the court's denial of his petition for a bill of particulars, claiming that without the information requested therein he was unable to prepare his defense. In his petition, defendant alleged that he had no recollection whatsoever of anything which transpired on the date in question, and requested information as to the address at which he was arrested (not that of the premises robbed), the kind of "dangerous weapon" used, and the time of day of the alleged robbery.
[2-4] Section 111-6 of the Code of Criminal Procedure (Ill Rev Stats, c 38, § 111-6 (1963)), provides that the court may require the State's Attorney to furnish the defendant with a bill of particulars when the indictment, although valid, ". . . fails to specify the particulars of the offense sufficiently to enable the defendant to prepare his defense. . . ." After a careful examination of the record in this case, we have concluded that the trial court's denial of defendant's motion did not hinder the defendant in the preparation of his defense. The evidence identifying the defendant as the robber and describing his actions was so overwhelming that we are convinced the information which he requested could not have formed the basis for any defense to the charges. Defendant's only line of defense at the trial was that he was insane at the time of the acts and had no recollection of the events on the day of the crime. The information requested did not relate in any way to the preparation of such a defense. Whether the prosecution shall be required to give a bill of particulars in a given case rests in the discretion of the trial court, and only a clear abuse of that discretion in the denial of a motion is error. People v. Sims, 393 Ill. 238, 242, 66 N.E.2d 86; see also the Committee Comments following SHA, c 38, § 111-6 (1963). Under the circumstances of this case, we conclude that the denial of defendant's petition was not such an abuse of discretion.
The defendant next contends that his conviction should be reversed because the State failed to satisfy its burden of proving beyond a reasonable doubt that the defendant was sane at the time of the alleged acts. Insanity is defined in § 6-2 of the Criminal Code (Ill Rev Stats, c 38, § 6-2 (1963)) as follows:
(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(b) The terms "mental disease or mental defect" do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.
In People v. Skeoch, 408 Ill. 276, 96 N.E.2d 473, our Supreme Court stated the presumptions and burdens of proof relating to an insanity defense as follows:
Under the law of this State the presumption [of sanity] is overcome by evidence, tending to prove the insanity of the accused, which is sufficient to raise a reasonable doubt of sanity at the time of the commission of the act for which the accused is sought to be held accountable. When that is done the presumption of sanity ceases and the prosecution is then required to prove the sanity of the accused beyond a reasonable doubt, as a necessary element of the crime charged. People v. Patlak, 363 Ill. 40; People v. Casey, 231 Ill. 261, 266, 267. (408 Ill at 280).
Counsel for the defendant argues that the peculiar nature of the defendant's actions at the time of the robbery, taken with the testimony of the defendant and that of two psychiatrists, raises a reasonable doubt as to his sanity at the time of the robbery; and that thereafter the State did not introduce evidence sufficient to prove his sanity beyond a reasonable doubt. A review of each of these factors is necessary in evaluating this contention. Counsel characterizes as "peculiar conduct" the fact that defendant originally gave Gillman $30 in cash, which he later took back; that he made no attempt to restrain the persons in the store from observing his escape or from following him; that he hailed a taxi and rode only two blocks; and that at the time of the arrest he neither resisted, attempted to escape, nor concealed the bundle of stolen clothing. The record shows, however, that the defendant, at gunpoint, ordered all persons in the store to the rear, and according to the testimony of Gillman told them, "You stay in the back. You are not going to get hurt." He then ripped two telephones from the wall and escaped. Due to the prompt and brave action of Gillman, within minutes the defendant was faced with two police officers coming toward him on the stairs outside his ...