Appeal from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding. Affirmed in part and reversed in
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Nathaniel McGuirk was sentenced to twenty to thirty years in the penitentiary after being found guilty, in a non-jury trial, of rape and indecent liberties.
The prosecutrix, a nine-year-old girl, was mistreated and raped by McGuirk who was the janitor of the building in which she lived. In the early afternoon of August 14, 1964, he pulled her down the basement stairs and into his apartment. After he overcame her resistance and raped her, she hid under the bed. A woman who lived in an apartment adjoining McGuirk's heard a girl say, "You hurt me" and McGuirk reply, "If you do what I tell you to do I won't hurt you any more." She went to McGuirk's kitchen door and looked through the keyhole. She saw him standing naked beside his bed and saw blood on the bedspread. The child's voice was coming from under the bed. The woman forced the door open and hurried back to her apartment to get a knife. When she returned she saw McGuirk, who had put on some clothing including a bloody shirt, take the prosecutrix from under his bed and carry her into the boiler room. The woman locked the boiler room door to prevent his escape.
In the meantime, another resident of the building had heard the disturbance and went to the front door of McGuirk's apartment. When he heard a little girl cry out, "No, you are going to hurt me," he ran to get the police. More neighbors gathered and a policeman came. The officer entered the boiler room and found McGuirk behind the furnace trying to put on his pants. His underclothing and the lower front part of his shirt were bloody.
The child's underclothing and dress were also bloody. She was taken to a hospital and was still bleeding when she arrived there. The examining doctor testified that no sperm was found in her vagina but that her hymen was torn and there were fresh lacerations between her vagina and rectum.
It is not disputed that the evidence established the defendant's guilt beyond reasonable doubt but it is contended, among other things, that the State failed to prove him sane at the time of the crime and that the court erred in not conducting a hearing as to his competency to stand trial.
The defendant testified that he finished school at the end of the sixth grade and worked off and on thereafter until he entered the army (in 1943). He served for three years and received an honorable discharge. In February 1949 he was convicted of indecent liberties and the rape of a young girl and was sentenced to the penitentiary for 17 to 20 years. He was released in 1959 and worked at various jobs until 1963, when he was again arrested. He was confined in the Mental Health Clinic of Cook County following his arrest and was discharged early in 1964. He started working as the janitor of the building in which the prosecutrix lived in March 1964 and, although married, was living alone at the time of the assault.
He further testified that he decorated a room in the building the night before the assault and did not finish until 6:00 or 7:00 a.m. He and a friend drank a half pint of whiskey and when his friend left about 11:00 a.m. he went to bed. He said he awakened in the afternoon, ran to the boiler room to fire the boilers and while there cut his toe on a piece of glass. He brought the bleeding toe up to his body to examine it and was returning to his apartment to take care of it when he was confronted by a policeman and his next-door neighbor. He denied being naked at any time and said that as far as he knew the blood on his clothing came from his toe.
The defendant argues that his testimony tended to prove that he had "blacked out" at the time of the offense and that his "amnesia" came from a mental disorder. He argues further that this, plus his prior confinement in the Mental Health Clinic, was sufficient to raise the affirmative defense of insanity and that the State failed to sustain its burden of proving him sane beyond a reasonable doubt.
Section 6-2(b) of the Criminal Code states that a person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity to either appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Ill Rev Stats 1963, c 38, par 6-2(b). The defense of insanity is an affirmative defense (c 38, par 6-4) and if the State's evidence does not raise the issue of an accused's sanity the burden is on him to do so. Once evidence of insanity is introduced, the burden devolves on the State to prove beyond a reasonable doubt that at the time of the crime the accused was sane. Chapter 38, paragraph 3-2(a), (b); People v. LeMay, 35 Ill.2d 208, 220 N.E.2d 184 (1966).
The State's evidence did not create any doubt of the defendant's sanity, and if he wished to raise the issue as an affirmative defense it was his obligation to present some evidence in this regard. This he did not do. There was no opinion testimony as to his mental condition and he did not testify that he blacked out. He testified that after having had no sleep the night before he went to bed at eleven in the morning and slept until shortly before he was accused of the crime. He said, in effect, that he did not commit the crime because he was sleeping at the time it was supposed to have taken place. The defendant's argument amounts to this: the evidence of his guilt is so overwhelming that he must have blacked out if he did not remember committing the crime. This argument not only contradicts his own testimony but presupposes that he was telling the truth when he testified that he did not remember having anything to do with the prosecutrix. Further, although he had been sent to the Mental Health Clinic following his arrest for arson in 1963, he was discharged after nine days of observation and remanded to the custody of the police. This evidence did not rebut the presumption of sanity. The trial court was justified in finding that McGuirk was sane beyond a reasonable doubt and did not err in denying his motion for a finding of not guilty on this issue.
Different factors enter into the defendant's contention that the court erred in not holding a hearing as to his competency to stand trial. Upon the defendant's motion, made before trial, the court ordered an examination by the Behavior Clinic of the Criminal Court of Cook County. The resulting report found that the defendant had a sociopathic personality disturbance but that he knew the nature of the charge against him and was able to cooperate with his counsel. It also stated that he was not committable to an institution for the mentally ill or the mentally defective. A supplemental report revealed that he had been examined in 1963 by the Psychiatric Institute of the Municipal Department of the Circuit Court, was diagnosed as "Schizophrenic Reaction, Paranoid Type" and was certified to the Mental Health Clinic. At the clinic he was diagnosed as not psychotic and was discharged. After his arrest in August of 1964 he was again referred to the Psychiatric Institute and was examined by two psychiatrists. The diagnosis was that he had a schizoid personality, was not psychotic, could have a potential primitive, impulsive behavior, but was able to cooperate with counsel. He had been married twice and had two children by his second wife. He was separated from her and it was reported that he had a personality change after the separation. A sister of his thought he was deteriorating from living alone. He was described as active, shy, sympathetic, good-natured, generous, able to get along well with others, restless, easily led and reliable. The supplemental report concluded that he knew the nature of the charge and was able to cooperate with counsel.
At the defendant's request the court also ordered an examination by two psychiatrists of the defendant's own choosing, and the trial was postponed pending the examination. The examination was held but the report was not submitted to the court.
Nothing was said about a competency hearing until both sides had rested. In moving for an acquittal, the defendant's attorney for the first time said that there was a "serious question of the competency of this defendant to stand trial." It is argued in this appeal that the Behavior Clinic report, the history of the defendant and his testimony, raised a bona fide doubt of the competency of the defendant and that the court should have ordered a competency hearing on ...