Appeal from the Circuit Court of Jo Daviess County, Fifteenth
Judicial Circuit; the Hon. HELEN M. RUTKOWSKI, Judge, presiding.
Reversed and remanded.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 26, 1969.
Malcolm Ehrler, defendant, was convicted of murder after a jury trial and sentenced to serve 25 to 50 years in the penitentiary.
On appeal he claims a right to a new trial because his motion for substitution of judge was refused, and because of alleged trial errors. He also argues that it was reversible error to refuse his motion for a directed verdict by reason of insanity.
The facts, bearing on the initial claim, impel us to find that prejudicial error was committed in the refusal of the motion for substitution of judge.
Defendant first appeared on a complaint before Judge Gundry, the resident associate judge for Jo Daviess County, on July 19th, 1968. He was advised of the nature of the charge and the cause was continued to July 22nd to allow the opportunity to secure an attorney. On July 22nd defendant again appeared before Judge Gundry and claimed indigency, and the cause was continued for investigation to the date of July 23rd. The defendant appeared before Judge Gundry on July 23rd and it was determined that he was indigent and the court appointed counsel to represent him.
An indictment charging defendant with murder in one count and voluntary manslaughter in a second count was returned on July 30th, 1968.
On August 8th, defendant was arraigned before Judge Gundry, and on his counsel's motion the matter was continued without plea until August 15th for the purpose of studying the indictment and the statements furnished to the defendant.
Defendant appeared again before Judge Gundry on August 15th and filed a written motion to dismiss the indictment. Without ruling on the motion and on Judge Gundry's suggestion that a plea be entered, the defendant pleaded not guilty. Judge Gundry thereupon set the case for trial for October 8th, 1968.
On August 29th, pursuant to defendant's notice, he appeared before Judge Gundry and presented a motion for a psychiatric examination and for inspection and discovery of certain evidence. Over the State's objections, and upon defendant's waiving extradition, Judge Gundry ordered the examination of defendant in Iowa in the office of a Dr. Piekenbrock. The State then orally moved for a competency hearing, whereupon defendant's counsel advised the court that no question was being raised as to defendant's competence to stand trial, but that the examination requested by defendant was to prepare a defense. The court advised the State's Attorney to file a written motion and stated "we will have a hearing on it and pass on it in due time." The court also ruled on the motion for inspection and discovery at the August 29th hearing.
Thereafter, the State noticed in the defendant to appear before "The Honorable Helen M. Rutkowski, Circuit Judge of said Court, or any other Judge sitting in her stead," on September 18th, 1968. Judge Rutkowski ordered the competency hearing (pursuant to Ill Rev Stats 1967, c 38, § 104-2) for October 7th.
On September 25th, defendant appeared before Judge Rutkowski pursuant to defendant's notice and moved for a substitution of judge other than Judge Rutkowski. *fn1 The motion was denied for the stated reason that it had not been made within ten days "after the case was assigned to me." The court indicated that it would not hear contrary arguments on the allegation of prejudice because "it has already ruled on a motion which goes to the merits of the case, specifically, a motion for a competency hearing." *fn2 No order of assignment or rule of practice governing assignment in the circuit is found in the record.
It is the position of the defendant, with which we agree, that the motion for substitution of judge was improperly denied under the provisions of Ill Rev Stats 1967, c 38, § 114-5. *fn3 On the record, defendant could not be charged with knowledge of the assignment of the case to Judge Rutkowski for trial until September 18th, 1968, and his request seven days later was within the ten-day period.
Nor do we consider that when, on September 18th, upon her first appearance in the case, Judge Rutkowski set the competency hearing over defendant's argument that none was necessary, her order went to the "merits of ...