Writ of error to the Circuit Court of Saline County; the Hon.
C. ROSS REYNOLDS, Judge, presiding. Judgment of conviction
On November 30, 1956, defendant, Eugene Potts, was indicted in a two-count indictment returned by the Grand Jury in and for Saline County. Count I charged defendant with the crime of rape. Count II, based on the Habitual Criminal Act, (c 38, § 602, Ill Rev Stats 1955) charged that defendant had previously been indicted for, and convicted of, the crime of armed robbery. The circuit court appointed counsel, defendant was tried by jury, and found guilty on both counts. In its verdict convicting the defendant of rape, the jury fixed the sentence at 3 years. Under the second count, the circuit court imposed a sentence of life in the penitentiary.
Upon defendant's petition filed pro se, the Supreme Court issued its writ of error and appointed counsel. Upon motion of The People, the Supreme Court, holding that the record presented no substantial constitutional question, transferred the cause to this court.
The complaining witness is the defendant's sister. Her testimony is to the effect that the rape occurred on October 1, 1956, that defendant had a gun, and that being in fear of his using the gun, she submitted to the act of intercourse. The occurrence was reported to the sheriff on October 3, 1956, and to the State's Attorney on October 4, 1956.
Defendant has briefed and argued several alleged errors, only two of which need be discussed since, in our opinion, they require the reversal of the judgment.
The selection of a jury was commenced on January 2, 1957, and continued until court was adjourned for the day. On January 3, prior to resuming the selection of the jury, the court stated that he understood that defendant had requested that he be given a "lie detector test," that the State had agreed, and that the parties had stipulated that the result of the test be admitted in evidence. After some colloquy between the court and counsel, it was stipulated that if the operator who administered the test could make a written report, he would not be called to testify, and the report would be admitted in evidence.
On January 4, 1957, a report, identified as a People's Exhibit, was offered, and "pursuant to stipulation entered into between the parties," was admitted into evidence. The report recites that on January 3, 1957, in the Saline County Court House, defendant was given three polygraph tests. The portions of the report headed "Results" and "Conclusion" are as follows:
"The graphs in this subject's tests show a heavy emotional disturbance throughout. The graphs in the subject's tests further indicate deception to revelent (sic) questions and muscle movement which may or may not have been indulged in for the purpose of beating the test. The subject was requested to refrain from such acts at numerous intervals throughout his test. His graph recordings indicate that he was not too cooperative under test."
"After the studying of the graph in the subject case the examiner is of the opinion that the subject lied under test. Namely, to having had sexual intercourse with his sister, Minnie, on or about October 1, 1956. Subject's graphs further indicate that he forced her to have sexual intercourse with him."
In People v. Zazzetta, 27 Ill.2d 302, 189 N.E.2d 260, the Supreme Court reviewed many of the cases throughout the country involving the admissibility of the results of so-called lie-detector tests. A number of cases are discussed in an annotation in 23 ALR2d at page 1292. In State of New Mexico v. J.T. Trimble, 68 NM 406, 362 P.2d 788, the Supreme Court of New Mexico held inadmissible the testimony of a witness who administered a polygraph test, even though the defendant had signed a waiver agreeing to be bound by the results of the test. In State of Arizona v. Valdez, 91 Ariz. 274, 371 P.2d 894, pursuant to a written stipulation entered into by the defendant, his counsel, and the county attorney, the defendant submitted to a polygraph (lie-detector) examination. The stipulation provided that the results of such examination would be admissible at the trial. The Supreme Court of Arizona, after an extensive review of the authorities said (371 P.2d 894) at page 900: "Accordingly, and subject to the qualifications announced herein, we hold that polygraphs and expert testimony relating thereto are admissible upon stipulation in Arizona criminal cases. And in such cases the lie-detector evidence is admissible to corroborate other evidence of a defendant's participation in the crime charged. If he takes the stand such evidence is admissible to corroborate or impeach his own testimony.
"The `qualifications' are as follows:
"(1) That the county attorney, defendant and his counsel all sign a written stipulation providing for defendant's submission to the test and for the subsequent admission at trial of the graphs and the examiner's ...