Appeal from the Circuit Court of Macon County; the Hon. ALBERT
G. WEBBER, III, Judge, presiding. Reversed and remanded.
Defendant was convicted of burglary by a jury and sentenced to a term of two to ten years. His motion for a new trial was denied. He appeals the conviction.
The defendant had been found guilty by a jury at a prior trial upon the same offense, but such conviction was reversed upon appeal. People v. Cox, 74 Ill. App.2d 342, 220 N.E.2d 7.
At this trial the prosecution undertook to prove defendant's guilt by introducing into the record a portion of the transcript of the testimony of one Vernon Hall at defendant's prior trial. This was the only evidence connecting the defendant with the offense.
Prosecution's Exhibit No. 1 offered in evidence was a certified record of certain proceedings in the Circuit Court of LaSalle County, Illinois, consisting of (1) a petition for hospitalization on court order of the said Hall, alleged to be in need of mental treatment, then found at the Illinois Industrial School for Boys, Sheridan, Illinois, (2) an order for examination of Hall by a Commission, (3) a report of the Commission's examination, (4) a notice of hearing on such petition for hospitalization served on Hall, (5) an order for the hospitalization of Hall as being in need of mental treatment, and (6) a writ for such hospitalization at the Illinois Security Hospital. The several items referred to are prepared on a set of printed forms purporting to be authorized under the Mental Health Code, chapter 91 1/2, § 3-2, and supplied by the Department of Mental Health.
The report of the Commission's examination found Hall to be immature, impulsive, unable to master hostile, aggressive feelings and liable to act upon slight provocation, so that he was considered dangerous. The diagnosis was an emotionally unstable personality in a brain damaged person. The court ordered mental treatment and immediate hospitalization at the Illinois Security Hospital. This order also provided:
"It is further found and ordered that Vernon Dale Hall is legally incompetent."
People's Exhibit No. 2 was the transcript of the testimony of Vernon Hall at the prior trial. Defendant objected to People's Exhibit No. 1 being admitted in evidence and objected to the admission of People's Exhibit No. 2 as being hearsay, irrelevant, and prejudicial and denying to defendant the right to cross-examine the witness. Such objections were preserved upon a motion for a new trial. Here, the defendant urges that the admission of such transcript into the evidence violates article II, § 9 of the Illinois Constitution in its provision that the accused shall have the right to meet witnesses face to face.
The latter provision is a constitutional command which regulates specific aspects of judicial procedure and the objections were sufficient to raise the constitutional issue. People v. Nastasio, 19 Ill.2d 524, 168 N.E.2d 728.
Before the trial court, the prosecution urged that the transcript was admissible as an exception to the hearsay rule which permits the introduction into evidence of testimony at a former trial where the witness is dead, insane or so ill as to preclude travel to the current trial. Cleary, Handbook of Illinois Evidence, 2nd ed, § 17.8; Gard, Illinois Evidence Manual, Rule 161. Authorities upon this theory were argued before the court, and after taking the matter under advisement and reviewing the authorities, the court ruled Exhibit No. 2 admissible.
It was the hypothesis of the prosecution, and the trial court, that the finding of the Circuit Court of LaSalle County, Illinois, that Hall was legally incompetent, made him incompetent as a witness at this trial. It appears that such finding of legal incompetence was equated with insanity for purposes of the so-called hearsay exception cited.
This is not the law in Illinois under the authorities as we find them.
The test of competence to testify as a witness is the capacity to observe, recollect and communicate. People v. Dixon, 22 Ill.2d 513, 177 N.E.2d 224; People v. Lambersky, 410 Ill. 451, 102 N.E.2d 326; Cleary, Handbook of Illinois Evidence, 2nd ed, § 8.2; Guttmacher v. Weifhofen, Psychiatry and The Law, 1952, W.W. Norton & Co.
Sanity is not the test of competence to testify as a witness and an insane person may be acceptable as a witness if he has the several capabilities. People v. Enright, 256 Ill. 221, 99 NE 936. Persons adjudicated to be feebleminded may be competent to testify, People v. Lambersky, 410 Ill. 451, 102 N.E.2d 326. An idiot may be a competent witness, Truttmann v. Truttmann, 328 Ill. 338, 159 N.E. 775. In Oswald v. Civil Service Commission, 406 Ill. 506, 94 N.E.2d 311, it was held that the trial court, sitting in administrative review, erred in presuming that witnesses adjudicated to be feebleminded were, as a matter of law, incompetent to testify. See also People v. Nash, 36 Ill.2d 275, 222 N.E.2d 473. In Schneiderman v. Interstate Transit Lines, 394 Ill. 569, 69 N.E.2d 293, plaintiff suffered injuries which affected his powers to speak coherently and his ...