APPEAL from the Circuit Court of Kane County; the Hon. CASSIUS
M. POUST, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 16, 1967.
A constitutional question of due process is concerned in this appeal from an order entered by the circuit court of Kane County denying defendant's petitions for a writ of habeas corpus, for a writ of error coram nobis and for a post-conviction hearing, which petitions had been consolidated for hearing.
The defendant, Wayne F. McLain, urges that preceding and at the time of his trial for armed robbery there were facts present which had they been known to the trial court would have raised a bona fide doubt as to his sanity. He argues that if these had been presented to the trial court, under our rulings a jury would have had to have been impaneled for the purpose of determining the defendant's capacity to understand the nature and object of the charge against him and to co-operate with counsel before proceeding to trial. See Ill. Rev. Stat. 1965, chap. 38, par. 104-2; People v. Anderson, 31 Ill.2d 262; People v. De Simone, 28 Ill.2d 72.
The defendant was arrested on November 19, 1958, by police of the city of Elgin. It was alleged that the defendant hired a cab to take him from Chicago to Elgin and that he gave the driver a check for $25 to pay for the trip. In Elgin, a short distance from his ex-wife's home he allegedly robbed the driver of $40 and took back the check. The victim remembered the defendant's name as the drawer of the check and consequently the police took the defendant into custody at his former wife's home.
On November 28, 1958, the defendant attempted to hang himself in the Kane County jail. The same day he was brought to the Elgin State Hospital as an emergency admission. On November 29, 1958, the sheriff's office formally petitioned for the defendant's commitment and on December 10, 1958, the county court adjudged that the defendant was a mentally ill person and ordered him to be committed to the Elgin State Hospital.
A physician who examined the defendant on November 28 found him agitated, depressed and not responsive to questions. Another physician on December 3 described his opinion of defendant's condition as "Impression: acute psychotic reaction-Schizophrenia." A Dr. Nasvytis of the Elgin State Hospital staff who examined the defendant on December 4 and December 8 also formed the impression of schizophrenia "catatonic type." This physician subsequently testified at the hearing on the defendant's petition herein concerned that the defendant at the time of the examinations was a "mentally sick person."
Medical reports prepared principally by Dr. Nasvytis and received into evidence at the hearing before the circuit court described the defendant on the occasions of examinations by Dr. Nasvytis on December 4, 8 and 14, 1958, as mute, preoccupied and tense. On December 14, Dr. Nasvytis prescribed a dosage of 100 mgs. of thorazine, a tranquilizer, to relieve the defendant's tension, and on January 25, 1959, raised the dosage to 150 mgs. as the defendant "has been increasingly tense * * * and is walking the corridors continuously." On January 8, 1959, the defendant was interviewed while under the influence of sodium amytal in an effort to determine whether he was malingering or was actually ill. Asked about the robbery of which he was accused the defendant stated that he did not know anything about it.
At the hearing the defendant introduced evidence that in 1956 while awaiting trial on a confidence game charge he had attempted suicide in the same jail of Kane County and had been committed by court order to the Elgin State Hospital at that time as a mentally ill person. While a patient he tried to escape by leaping through an open window to a concrete walk fifteen feet below and sustained several fractures. The defendant at this hearing, also, denied any recollection of the robbery of November 19, 1958, and testified that since incarceration he had been assigned to the psychiatric division of the penal institution.
The matter of the November 19, 1958, robbery was presented to the Kane County grand jury, and an indictment charging the defendant with armed robbery was returned on January 5, 1959. The capias which was issued on the same day was not served, as the defendant, pursuant to the county judge's order, was confined to the Elgin State Hospital. McLain was released from the hospital on February 9, 1959, and the hospital records indicated: "Released on Absolute Discharge as: Improved."
McLain was taken into custody upon his release on February 9. He was arraigned the same day and the public defender was appointed to represent him.
On March 2, 1959, the defendant waived a jury and was found guilty in a bench trial and sentenced to a term of 5 to 20 years in the penitentiary. Neither the defendant nor the public defender requested a sanity hearing to determine the defendant's competency at the time of his trial.
The then State's Attorney had formed the opinion, prior to trial, that the defendant was a malingerer and on February 13, 1959, he had requested a Dr. Ross, a psychiatrist, to examine the defendant. A written report was apparently not prepared by Dr. Ross until March 4, 1959, but the examination was conducted on February 15, 1959, and evidently an oral report was made to the State's Attorney. Dr. Ross's opinion was that the defendant was legally sane, that he knew the nature of the charge against him and was able to co-operate with counsel. The State's Attorney at the hearing on defendant's consolidated petition testified that he advised the public defender of Dr. Ross's opinion prior to trial.
The record does not disclose that the trial court knew of Dr. Ross's examination or of the defendant's ...