WRIT OF ERROR to the Circuit Court of Cook County; thet Hon.
ALEXANDER J. NAPOLI, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 17, 1967.
Dana Horton Nash was convicted in the circuit court of Cook County of the Murder of John Kilpatrick and sentenced to the penitentiary for a term of 99 years to 150 years. We have jurisdiction to directly review this case.
The principal witness against the defendant was William Triplett. Triplett is about 8 years younger than defendant and is the defendant's nephew. They were both living in Detroit in October, 1961, and he asked to use defendant's car to drive to Chicago and visit his friends. Triplett testified defendant said that a man named Ralph Polk who works for a union in Chicago wanted him to come to Chicago and impose a beating on a man who had testified against Polk's boss, Inciso, because the beating of this man had been "muffed" by someone else and that he would get $500 for the job. Triplett said that defendant agreed to give him $250 for helping administer the beating.
They arrived in Chicago about 4:00 o'clock A.M. on October 19, 1961, and went to the home of Gloria and Chester Nietupski. After visiting for a while, the Nietupskis, Triplett and defendant went to a restaurant for breakfast. While they were in the restaurant, a car pulled up in front of the restaurant and defendant went out and talked with some people in the car. The Nietupskis then left for work and Triplett and defendant left to go to the home of the man they were to beat. Defendant told Triplett that he had seen Polk and that the man's habits and routine were the same as defendant had known them to be. After seeing the intended victim, John Kilpatrick, leave his home, they drove to his office and parked across the street. There was a heavy rain at the time and while they were parked there, a woman ran up and knocked on the window of the car. She said that she had an accident and her newborn baby was home alone. She asked if defendant would drive her home which he did. Defendant and Triplett then returned to the union office and they made their plan for the following day. That evening they stayed at the Nietupski home and watched television. They left the next morning about 7:30 o'clock and went to the same restaurant as the day before and the defendant made a telephone call. They then went to the union office. Triplett got out of the car and defendant parked up the street. When Kilpatrick arrived, Triplett entered his car and asked him if he knew a certain street, and told him to slide over. Triplett had a gun in his hand and told the victim to look out the window of the passenger side. He drove about 200 feet into an alley where defendant was waiting. Defendant opened the door on the driver's side and took the gun from Triplett. Triplett leaned forward and defendant shot the victim in the back of the head. Triplett threw the keys from the victim's car into some shrubbery, and he and defendant drove away in defendant's car.
Defendant and Triplett then drove to a tavern and Triplett put the gun in the flush tank of a toilet in the men's washroom. Defendant left to get the money from Polk. Triplett, after having several drinks, returned to the Nietupski home. Later defendant arrived at the home and he and Triplett cut up the blood-stained clothing Triplett had worn and flushed the material down the toilet.
It is strenuously argued that the trial judge should have ordered a psychiatric examination of Triplett before the trial and allowed the psychiatric findings to go to the jury. Defendant filed a petition alleging that Triplett is a psychopath and asked that he be given a psychiatric examination at the State's expense in order to determine his competency as a witness. There is a letter attached to the petition addressed to defendant's attorney, signed by the Supervisor of Records of the State Prison of Southern Michigan. The letter deals with the several periods of Triplett's confinement in Michigan penal institutions between 1943 and 1962 when the letter was written. The letter also states that on January 18, 1955, a prison psychiatrist said that "He (Triplett) seems to be perfectly clear mentally and gives me the impression as being a true psychopath who will probably most always be involved in a great deal of difficulty in the free world."
Defendant's contention is based on the premise that a person having a psychopathic personality is a pathological or psychopathic liar, unworthy of belief. He argues that psychiatric testimony should be permitted to impeach a principal uncorroborated prosecution witness. The land mark case in this area, he states, was the prosecution of Alger Hiss where the trial judge permitted psychiatric tests to impeach the credibility of the government's witness Whittaker Chambers. United States v. Hiss, 88 F. Supp. 559.
We note at the outset that our research indicates the psychiatrists are not entirely agreed as to what constitutes a psychopath or what characteristics and attributes a psychopath possesses. In 1952 authors of Psychiatry and The Law stated, "The term `psychopath' is probably the most abused word in the whole psychiatric vocabulary. Etymologically, the word itself is nonspecific; it merely means a sick mind. Such ambiguous terms are readily subject to misuse. When a vague term is employed, it usually means that the concept which it represents is vague, and unfortunately, this is true of psychopathy. Some psychiatrists go so far as to suggest that both the term and the concept are completely meaningless and should be abandoned." Guttmacher and Weihofen, Psychiatry and The Law, (1952) p. 86.
It is well established that if a witness has the capacity to observe, recollect and communicate, he is competent. (People v. Dixson, 22 Ill.2d 513.) A psychopath has the capacity to observe, recollect and communicate and is therefore a competent witness. The question is whether it is permissible to show that he is a psychopath in order to impeach his credibility. Defendant argues that this type of evidence should be allowed in order to show that the person is untruthful. This assumes, of course, that a psychopath tends to be more untruthful than other persons, a matter upon which the psychiatrists are not in agreement.
It has always been permissible to show that a witness, including the accused in a criminal case, if he takes the stand, has a bad reputation for truth and veracity. (People v. Melnick, 274 Ill. 616; People v. Lehner, 326 Ill. 216.) It would seem unnecessary to raise the issue of whether a witness is a psychopath, from which a jury could infer that he possesses the characteristic of untruthfulness, when direct evidence of a witness's reputation for truthfulness is admissible. The motivation of a psychopath to lie may be different from a normal person, (see Davidson, Forensec Psychiatry, (1952) p. 219) but the fact that he does lie, be he psychopath or not, is sufficient for the jury. We hold that the trial court did not err in denying defendant's petition for psychiatric examination of Triplett to determine whether Triplett was a psychopath.
It is next argued that the trial judge should have ordered the attendance of certain out-of-state witnesses. The defendant filed a petition under section 3 of the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings, (Ill. Rev. Stat. 1961, chap. 38, par. 690.1-690.6, now sections 156-1 to 156-6 of the Code of Criminal Procedure of 1963,) alleging that Dr. David P. Phillips, John W. Martin, Pauline Watson, Ronnie Watson and Conrad Mikulin are material and necessary witnesses, that his defense cannot properly be presented without the testimony of those witnesses, that those witnesses are outside of the State of Illinois and their attendance cannot be compelled without the aid of the court.
The Uniform Act was enacted by the Illinois legislature in 1959 and has been adopted in some 45 states as well as the District of Columbia, the Panama Canal Zone, Puerto Rico and the Virgin Islands. (S.H.A. chap. 38, § preceding 156-1.) We have not heretofore been called upon to construe this act. Its purpose is to provide a method of compelling attendance of witnesses in criminal proceedings who are outside of the State a procedure which was unknown to the common law. Section 156-3 which deals with securing the attendance of witnesses from another State summoned to testify in this State, by its own terms, covers only material witnesses and should only be applied to material witnesses.
The petition filed by the defendant does not state any facts whatsoever showing that the witnesses named therein are material to his defense, nor did he or his counsel put any evidence in the record showing the materiality of the persons named. We hold that the trial judge was justified in refusing to certify that the persons named in defendant's petition were material witnesses when he has nothing before him but the names ...