Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. WALTER P. DAHL, Judge, presiding. Judgment
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
John E. Givans, otherwise called John E. Givins, was indicted for robbery. He was tried by the court and jury, found guilty and sentenced to serve a term in the penitentiary of one to eight years. The defendant is seeking a reversal of the conviction for the following reasons:
1. The prosecutor made prejudicial remarks to the jury during voir dire.
2. Defense Instruction #19 was improperly denied.
3. The Defendant was denied free transcript of preliminary hearing.
4. Testimony as to toy gun and its entrance into evidence was prejudicial.
5. Defendant was not appointed an attorney for the preliminary hearing.
6. Testimony of Dr. Geary should not have been allowed into evidence.
On May 27, 1964, at approximately 10:00 p.m., Powatan Fluker, a taxi driver employed by the Yellow Cab Company, accepted two young men at State and Randolph Streets in the city of Chicago to be driven to the south side of the city. As the cab neared the destination, one of the men pulled out a toy pistol and held up the driver, taking $21.80. The defendant and his partner then instructed Mr. Fluker to drive on and after a number of brief stops the defendant and his partner left the cab. Mr. Fluker reported the robbery to the police and described the robbers. The police officers and Mr. Fluker searched the area and found the defendant and his partner. Both men were arrested. The toy gun was found on the person of the defendant's partner and the money on the defendant. Mr. Fluker identified the defendant again in a lineup the next day.
On July 20, 1964, the trial judge ordered that defendant be examined by the Behavior Clinic of the Circuit Court of Cook County. On August 27, 1964, a jury found the defendant incompetent to stand trial and he was placed in a hospital. On January 21, 1965, a change of status statement from the hospital was received and the case was reinstated on the trial docket and set for trial on April 19, 1965.
The defendant claims that the State's Attorney remarked, during the examination of the jurors, that if they found the defendant not guilty by reason of insanity, he would walk the streets free. The defendant failed to object and there was no transcript made of the voir dire. However, the following day, in chambers, the trial judge did recall that the State, in its examination of prospective jurors, did say something similar to the remarks attributed to it by defense counsel. The judge also noted for the record that the defense asked the prospective jurors what they felt should be done with mentally ill persons. The answers were that they should be treated. Thus, in view of the overall examination of the jurors by both sides, the trial judge ruled that there had been no prejudice toward the defendant and that his right to a fair trial had not been interfered with. The record sustains the State's position that the defendant was not denied a fair trial.
The defendant also tendered the following instruction, Number 19:
"If you find the defendant not guilty by reason of insanity, the State could at that time petition for defendant's commitment to a mental institution, pursuant to the provisions of the Mental Health Act."
Defendant claims that the failure to allow this instruction prejudiced him and violated his right to due process of law. A general instruction on the defense of insanity was given. The type of instruction requested by the defendant was one that might have been given, if at all, at the time the remark was made by the State's Attorney. However, the trial judge had ruled that the remark was not prejudicial in light of the total voir dire and consequently it was not error to refuse to give the instruction ...