APPEAL from the Circuit Court of Cook County; the Hon. SAUL A.
EPTON, Judge, presiding.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:
Defendant, Clarence Brown, was charged with the offense of murder. After a jury trial, he was convicted and sentenced to serve not less than 100, nor more than 150 years in the Illinois State Penitentiary. Defendant appeals his conviction and presents the following issues for our review:
1. Whether defendant was denied due process of law when the trial judge denied defendant's request for a continuance;
2. Whether defendant was denied due process of law when the trial judge refused to allow defendant to present an insanity defense;
3. Whether defendant was denied due process of law when the trial judge denied defendant's motion for substitution of judges without a hearing;
4. Whether defendant was denied due process of law when the trial judge conducted a competency hearing without impaneling a jury;
5. Whether defendant was denied equal protection of the law when the trial judge denied his request for a continuance but indicated that the request would be treated differently if the defendant were not in custody; and
6. Whether defendant was denied a fair trial when the court refused to instruct the jury on the issue of involuntary manslaughter.
The facts are as follows:
On October 20, 1970, at approximately 2:35 A.M., Julius Stepter was in a candy store located at 749 S. Kedzie Avenue, in Chicago, when defendant entered the store and poured gasoline over Mr. Stepter. The gasoline ignited and Mr. Stepter subsequently died of his injuries. There was some dispute at trial as to whether defendant lit a match which ignited the gasoline on Mr. Stepter, or whether a space heater in the room set off the flames.
Defendant was indicted for murder on December 17, 1970, and was arraigned on December 23, 1970, at which time his counsel filed his appearance. On February 8, 1971, defendant filed a motion for discovery and inspection and the court at that time ordered the State to comply with the discovery request.
From February 8, 1971, until May 18, 1971, when the defendant was ordered to trial, there were four requests for continuances, one by the court's own motion, two continuances at defendant's request and the fourth continuance by agreement between the State and defendant. On May 18, 1971, the State first requested leave of court to file its response to the discovery motion and order of February 8, 1971. The response consisted of a list of 28 witnesses and a request of the defense for a notice of any alibi defense. The State refused to answer 9 of the 17 requests in the original defense motion. This response by the State was mailed to defense counsel on April 26, 1971, and was received on April 28, 1971, 20 days before the court ordered defendant to proceed to trial.
Defense counsel stated that upon receiving a list of witnesses from the State, he immediately hired a private investigator to interview the witnesses. An affidavit of the investigator was filed in a written request for a continuance in which the investigator stated that he was hired one day after defense counsel received the list of the State's witnesses, but that he could not complete his investigation of the 28 witnesses in the short time allotted.
Defense counsel requested a continuance on May 18, 1971, based upon the short interval of time allowed to investigate the list of witnesses. He further informed the court that in the past three weeks he had tried three jury cases, appeared in two appellate cases and had in fact just finished a jury trial in the late hours of May 17, 1971. Counsel for defendant also related that when he had informed the prosecutor prior to trial that he would not be prepared, the prosecutor told him, ...