APPEAL from the Circuit Court of Peoria County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
The defendant Clifford Samuel Smith was charged with the offenses of attempted murder and aggravated battery. On Oct. 18, 1971 a competency hearing was held and the defendant was found competent to stand trial. A jury trial began Nov. 1, 1971 and defendant was found guilty of both charges in the Circuit Court of Peoria County. He was sentenced to a term in the Penitentiary of not less than nine nor more than twenty years.
At the arraignment proceedings, the defendant being indigent, the court offered to appoint the Public Defender. The defendant refused the offer and requested counsel appointed from the Bar Association. This was done. Later, this attorney filed a written motion requesting an examination be made of defendant to determine his competency to stand trial. In support of the motion, the attorney alleged the defendant to be unco-operative, refuses to take advice, and maintains he is the victim of a conspiracy.
The defendant requested this attorney withdraw and on July 19 informed the court that he had retained private counsel. The original attorney then was allowed to withdraw.
On Oct. 18, 1971 the competency hearing was about to commence when defendant demanded a jury trial, in fact he at least three times personally asked for a jury trial. He also wished to discharge his retained counsel who he claimed to be incompetent.
The court asked the State's Attorney for advice and was told that "if proper demand is made through his attorney * * * I believe they have that right." Defendant's attorney said nothing. Defendant stated, "I am entitled to a jury trial."
The court thereupon proceeded without a jury. Only two witnesses testified. Dr. Ian Wickram, a practicing psychologist and a member of the faculty of the Medical School, University of Illinois, had examined defendant on three occasions and had conducted extensive tests. His opinion was that defendant was incompetent to stand trial. He stated that "defendant understood the nature of the proceedings but will have problems in assisting with his defense" and that "the nature of his disturbance is such that he it would be militant against meaningful collaboration with his defense." He was disturbed to a significant extent having delusions of a paranoia nature. "He is in need of mental treatment * * *."
The accused also testified. He stated that he had been misrepresented by his former attorney who was in collusion with the State's Attorney. He felt that he was competent and he knew right from wrong.
Article 104 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, sec. 104), deals with incapacity to stand trial. Section 104-1 defines an incompetent as follows:
"For the purposes of this Article, `incompetent' means a person charged with an offense who is unable because of a mental condition:
(a) To understand the nature and purpose of the proceeding against him; or
(b) To assist in his defense; or [Emphasis supplied]
In People v. McKinstray, 30 Ill.2d 611, the opinion of the expert witness was that defendant although understanding the nature of the crime of which he was charged was unable to co-operate with counsel. The only other witness there was defendant who opined that he was able to co-operate with his counsel in his defense. The court said, "To accept defendant's opinion * * *, when the purpose of the hearing is to determine that very fact, would ...