APPEAL from the Circuit Court of Winnebago County; the Hon.
ARTHUR V. ESSINGTON, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
The defendant was indicted in Winnebago County for attempt to commit the offense of forgery. A jury trial resulted in a guilty verdict and the defendant was sentenced to a term of one to five years in the penitentiary. He has appealed directly to this court on the grounds that a question has arisen under the sixth and fourteenth amendments to the United States constitution and under section 9 of article II of the constitution of Illinois. Specifically defendant, an indigent, contends that the trial judge's refusal to provide him with funds with which to obtain the services of a questioned document examiner deprived the defendant of due process in that he was not allowed to call witnesses in his favor. Along with the constitutional issue, defendant alleges several other grounds for reversal, the most important of these being the court's refusal to allow defendant to offer evidence that a check similar to that which the defendant was accused of attempting to forge was forged and cashed after he was in custody.
In August, 1965, Stanwood Trein purchased some $50 worth of American Express traveler's checks. Later, on the day of the purchase, Trein picked up a stranger in his automobile and gave him a ride from Rockford to Dixon, Illinois. When Trein arrived home, he noticed that $30 or $40 of the traveler's checks were missing. Some days thereafter a person entered a Rockford tavern and asked the bartender to cash a ten-dollar traveler's check. The person presenting the check signed it in the bartender's presence, but since the name signed was not the same as that on the top of the check, the bartender called the manager who inquired about the disparity of signatures. After a short conversation, the person attempting to cash the check left the tavern, leaving the check behind. The manager then called the police.
The following day two police officers brought the defendant to the Rockford tavern and at that time both the bartender and the manager identified the defendant as the person who had tried to cash the check the day before. During the trial, the defendant was also identified as the person who had ridden in the Trein car from Rockford to Dixon and the check was identified as one of those purchased by Trein.
Prior to trial the defendant, through his court-appointed attorney, filed a motion requesting the court to provide him with funds, because of his indigency, in order to obtain the services of a questioned document examiner. Attached to the motion was an affidavit of defense counsel stating, in substance, that the charge was attempted forgery of an American Express traveler's check, that the State would produce a witness who will testify that the check was signed by the defendant in his presence, that the State has not obtained the opinion of an expert as to whether defendant signed the check or whether his fingerprints appear thereon, that an examination of the check by a qualified expert will show that defendant did not sign it and that his fingerprints do not appear thereon, and that in his opinion the testimony of such an expert is essential to provide defendant with an adequate defense and to establish his innocence. The State contended, in urging the motion be denied, that since the charge against the defendant was attempt to commit forgery by delivery of a forged check, the handwriting of the defendant was not in issue. Furthermore, the State contended that the motion should be denied since there is no statutory authority for appointment of expert witnesses in non-capital cases. After arguments, the court denied the motion.
During the course of the trial defense counsel requested the court to order the prosecution to produce a check which the defense believed was also one of Trein's and which was signed and cashed after defendant was in custody. The court refused to order the production of the other check on the ground that it was irrelevant and immaterial to the question of defendant's guilt with regard to the check presented in the Rockford tavern.
At the outset, it is the opinion of this court that defendant should not have been precluded from offering evidence to prove that a similar traveler's check was forged and cashed after the defendant was in custody. Although the indictment charges defendant with attempt to commit forgery by delivery of a forged check, the prosecution's own witness testified that defendant signed the check in the presence of the bartender. If then, the signature on a check cashed subsequent to defendant's being placed in custody, was the same as that on the check defendant is accused of attempting to deliver, the jury could infer that defendant could not have signed or attempted to deliver either one. In making his offer of proof defense counsel indicated that he could summon witnesses to testify that this other check was signed in the presence of a drug store employee. Surely the signatures on both checks deserve comparison, for if they were both signed by the same person, defendant might have a complete defense. Even though he is not charged with signing the check, the facts of the case point out that if he did not sign it, he did not deliver it. A person charged with a crime should be allowed to make all proper defense and if the evidence offered is competent, it should be permitted to go to the jury for all it is worth. (People v. Colegrove, 342 Ill. 430.) Since the question of whether defendant did sign the check at the Rockford tavern is crucial to his defense, the trial court should have allowed the admission of evidence showing that another of Trein's checks was cashed at a later date. The jury could have reached another verdict had the evidence been allowed and therefore we conclude that its rejection constituted reversible error. People v. Wolff, 19 Ill.2d 318.
Because of our ruling on the admission of evidence relating to the other check, it is necessary to turn to the constitutional issue raised by the defendant. It is foreseeable that an expert witness will be necessary to compare the signatures on the two checks and therefore we must determine whether or not defendant, as an indigent, can look to the court for the funds with which to hire a questioned document examiner.
It has long been a major goal of our entire judicial system to see that all persons charged with a crime "stand on an equality before the bar of justice in every American court." (Chambers v. Florida, 309 U.S. 227, 241, 84 L.Ed. 716, 724.) Such cases as Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792, and Griffin v. Illinois, 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585, have gone far to achieve this goal by assuring indigent defendants, even in non-capital cases, the right to counsel and to appellate review. The problem now facing the court concerns the production of witnesses on behalf of indigents. The Illinois constitution provides, in section 9 of article II, that in criminal prosecutions the accused is entitled to have process to compel the attendance of witnesses in his behalf. In almost identical language the sixth amendment to the United States constitution provides that the accused in criminal cases is entitled to have compulsory process for obtaining witnesses in his favor. Thus it is at once apparent that the right to summon witnesses is fundamental to our legal system. It is defendant's contention that a right so fundamental should not be made to depend upon the financial circumstances of the defendant. We share this view.
The court recognizes that there is a distinction between the right to call witnesses and the right to have these witnesses paid for by the government, but in certain instances involving indigents, the lack of funds with which to pay for the witness will often preclude him from calling that witness and occasionally prevent him from offering a defense. Thus, although the defendant is afforded the shadow of the right to call witnesses, he is deprived of the substance.
The value of an expert witness's testimony lies in his experience and, more particularly, in his preparation. Although a subpoena would suffice to compel his appearance at trial, this appearance by itself would be of no value unless he had been able to make findings upon which to base his testimony. It is the cost of making these preparatory findings which the defendant feels should be borne by the government.
Indeed, the State legislature has taken a similar view but only in certain instances, the most pertinent of these being in capital cases where the court is allowed to order the county treasurer to pay a reasonable fee, not to exceed $250 for each defendant for expert witnesses in support of the accused. (Ill. Rev. Stat. 1965, chap. 38, par. 113-3(e).) While we commend this legislative policy, we are of the opinion that in certain instances this policy should be extended to non-capital felonies. The constitutional provisions for compelling the attendance of witnesses make no distinction between capital and non-capital cases and neither should the safeguards for a fair trial.
Whether it is necessary to subpoena expert witnesses in order to assure a fair trial will depend upon the facts in each case. There are instances in non-capital cases where an expert might be necessary to establish a defense. Here a handwriting expert could give a professional opinion as to whether the defendant signed the check he is accused of attempting to deliver, and could compare the signature on that check with the signature on the check which was signed and delivered while defendant was in custody. If it is his opinion that defendant could not have signed it, then the jury could be permitted to draw the conclusion that defendant is innocent. Despite the language of the indictment, the issue of handwriting goes to the heart of the defense. The opinion of a handwriting expert in this case then may have been crucial, and defendant's lack of funds prevented him from presenting to the jury evidence which may have established his innocence. We hold that under the facts presented in this case defendant was entitled to a reasonable fee for the purposes of hiring a questioned document examiner. Recognizing that the payment of expert witness fees is an appropriate subject for the legislature, as is the payment of legal costs and fees, (see People ex rel. Conn v. Randolph, 35 Ill.2d 24,) we trust the General Assembly will consider the expansion of section 113-3(e) to include non-capital cases where expert testimony is deemed by the trial judge to be crucial to a proper defense. Such a step has been taken by the California legislature, (Cal. C.C.P.A., sec. 1871,) and appears to have met with satisfactory results. In view of our decision regarding the admissibility of the subsequently presented check and the defendant's right to an expert witness, this cause must be remanded for a new trial.
We shall briefly consider some of the other points raised by the defendant since they relate to matters which foreseeably might arise at the new trial. He first contends that the indictment charging him with attempt fails to charge an offense since "failure" was not alleged. Section 8-4 of Criminal Code of 1961 clearly points out that all that need be shown in a charge of attempt is the intent to commit a specific offense and an overt act constituting a substantial step toward commission of the crime. (People v. Richardson, 32 Ill.2d ...