APPEAL from the Circuit Court of Sangamon County; the Hon.
CREEL DOUGLASS, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
Defendant-appellant Jerome Johnson was charged, in an eleven count indictment, with the crime of murder. He was convicted in a bench trial and sentenced to an indeterminate term of 20 to 30 years in the penitentiary.
The victim of the crime was Thomas Porter, a 12-year-old child with whom defendant, an admitted homosexual, became acquainted while defendant was employed at the Boys' Club in Springfield, Illinois. Defendant confessed that the deceased came to his home, that he was "playing" with the boy, that the boy became excited and wanted defendant to quit, that the boy was laughing and giggling whereupon defendant placed a pillow over the boy's head in an effort to quiet him. Defendant then buried the child's body in his basement where it was found, in an advanced state of decomposition, after defendant had confessed. Defendant, in his confession, stated that he did not intend to kill the boy, and that he tried to revive him. The defendant did not testify in his own behalf. Defendant urges several assignments of error, only one of which we will consider at this time.
At the trial the defendant maintained that he was insane at the time of the commission of the acts which resulted in Porter's death, and this was his sole defense. He urges that the denial of his motion for continuance, on grounds that his only witnesses in support of the defense were unavailable, was error. The record on this issue is confused, muddled and incomplete. On October 20, 1970, at the conclusion of trial before a jury which found defendant competent to stand trial, the defendant was arraigned and entered a plea of not guilty to the charges. On Wednesday, January 6, 1971, Judge William H. Chamberlain, who had presided over the competency hearing, set trial on the indictments before Judge Creel Douglass commencing Monday, January 11, 1971. On the following day, Thursday, January 7, 1971, the defendant filed a verified motion for continuance under the provisions of Ill. Rev. Stat. 1969, ch. 38, pars. 114-4(a), 114-4(b)(3), which in pertinent part provides: "The defendant * * * may move for a continuance. If the motion is made more than 30 days after arraignment the court may require that it be supported by affidavit * * * A motion for continuance made by defendant * * * may be granted when: * * * A material witness is unavailable and the defense will be prejudiced by the absence of his testimony; however, this shall not be a ground for continuance if the State will stipulate that the testimony of the witness would be as alleged; * * *."
The motion for continuance stated that both of defendant's psychiatrists would be unavailable to testify in defendant's behalf at the trial scheduled to commence on the following Monday, January 11, 1971. The motion stated that Dr. Baumann was ill, and confined to St. John's Hospital, and that the other psychiatrist was then in the State of Florida. The motion continued that the testimony of both doctors was crucial to the defense, that the defendant would be prejudiced by being tried without such testimony, and prayed that trial be postponed for at least 30 days. On the same day that the motion was filed, January 7, 1971, Judge Douglass heard the motion for continuance. At the hearing defense counsel stated that he was willing to go to trial on Monday, January 11th with the understanding that later in February, when his two psychiatrists were available, the court would receive their testimony. The State's Attorney objected saying "I don't think the defense has the right to divide this case." He also objected to the allowance of the motion because it did not ask for "* * * some specific trial setting * * *." At this juncture both the State's Attorney and defense counsel commenced talking about two "suggested stipulations" which were appended to the motion for continuance. During the subsequent trial they were introduced into evidence as defendant's exhibits 1 and 2 and are as follows:
STIPULATION OF THE TESTIMONY OF DR. DAVID V. HICKS
If Dr. David V. Hicks was called he would testify that he is a licensed physician authorized to practice in the State of Illinois, and that he is also a licensed psychiatrist authorized to practice in the State of Illinois. He limits his practice to the field of psychiatry. He has obtained and received all the necessary background and education which would qualify him as an expert in the field of psychiatry and capable of testifying as to the sanity of Jerome Johnson.
He would further state that he had an opportunity to personally interview Jerome Johnson. He had available to him numerous tests that were run on Jerome Johnson for psychological evaluation. That based on his examination and based on the tests that were run on Jerome Johnson he came to his conclusion as an expert in the field of psychiatry that Jerome Johnson was at the time of his interview an insane person.
He would further testify that at this time Jerome Johnson is insane and that at the time of the alleged homicide on June 26, 1970, Jerome Johnson was an insane person.
He would further testify that at the time of the occasion of the alleged offense on June 26, 1970, the symptoms of this mental disease would be much more prevalent than they are today.
Jerome Johnson has a schizophrenic profile. He is a person that is insane and was not criminally responsible on June 26, 1970, as a result of this mental disease.
He lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law because of this mental disease.
STIPULATION OF THE TESTIMONY OF DR. MILTON C. BAUMANN
If Dr. Milton C. Baumann was called to testify he would state that he is a licensed physician authorized to practice in the State of Illinois. His practice is limited to neurology and psychiatry. He is a licensed psychiatrist having extensive education and training in the field of psychiatry. He would qualify in every respect as expert in the field of psychiatry, and would show by his testimony that he ...