The court extended the statute to certain noncapital felonies and allowed a reasonable fee for the purposes of hiring the expert; however, "[w]hether the $250 limit stated in section 113[(d)] is the limit of the reasonable allowance is left somewhat uncertain by the opinion." ( People v. Vines (1976), 43 Ill. App.3d 986, 989, 358 N.E.2d 72, 74.) A discussion of pre Watson cases on the issue is found at Annot., 34 A.L.R.3d 1256, 1264 n. 12 (1970).
Though it is unlikely that the legislature contemplated the series of events that occurred here in enacting this section, the language of both subsections shows clearly that the legislature intended that, if the law has changed before a defendant has been sentenced, the defendant will receive the benefit of the lesser sentence. People v. Williams (1975), 60 Ill.2d 1; People v. Vines (1976), 43 Ill. App.3d 986. We recognize that the unusual circumstances here create the ambiguity, as both subsections have been triggered by the defendant's improper and lengthy absence from this State. Consistent with the legislature's expressed intent that a defendant receive the benefit of the lesser sentence when the law is changed, however, we must reject the State's estoppel and waiver arguments.
( People v. Watson (1966), 36 Ill.2d 228, 233-34; In re Petition for Fees (1981), 93 Ill. App.3d 848, 852, aff'd sub nom. People v. Johnson (1981), 87 Ill.2d 98; see also People v. Glover (1971), 49 Ill.2d 78 (expert witness' fee recoverable only if the expert's testimony is necessary to prove a crucial issue in the case); People v. Vines (1976), 43 Ill. App.3d 986 (same).) In People v. Watson this court held that the trial court was required by the sixth amendment right to summon witnesses (U.S. Const., amend. VI; Ill. Const. 1870, art. II, sec. 9) to permit an indigent defendant to call a handwriting expert at county expense where he did not have an attorney and it was shown that the expert's testimony was necessary to support the defendant's contention that he did not forge a check.
Although this is a consideration the legislature could take into account when it debated the passage of the statute, defendant's contention alone is not enough to render the statute unconstitutional. Moreover, Illinois has provided that appointed counsel for an indigent defendant can receive reimbursement from the State or county for funds spent to obtain expert witnesses. Ill. Rev. Stat. 1985, ch. 38, pars. 104-13(a), (e); Ill. Rev. Stat., 1986 Supp., ch. 38, par. 113-3(d); see People v. Kinion (1983), 97 Ill.2d 322, 454 N.E.2d 625; In re Petition for Fees (1983), 117 Ill. App.3d 744, 453 N.E.2d 949; People v. Vines (1976), 43 Ill. App.3d 986, 358 N.E.2d 72. • 14 In summary, we hold that section 3-2, which requires a defendant to prove his insanity by a preponderance of the evidence, does not violate the constitutions of the United States or Illinois.
The defendant has cited numerous cases wherein the courts have held that where amendments to the Unified Code have become effective during the course of a defendant's prosecution, the defendant is entitled to sentencing in accordance with the act most favorable to him. People v. Williams (1975), 60 Ill.2d 1, 322 N.E.2d 819; People v. Vines (1976), 43 Ill. App.3d 986, 358 N.E.2d 72. • 10 At this juncture the choice before us is to modify the sentences to run concurrently or to reduce the minimum sentences to total no more than 28 years.
"In capital cases, in addition to counsel, if the court determines that the defendant is indigent the court may, upon the filing with the court of a verified statement of services rendered, order the county treasurer of the county of trial to pay necessary expert witnesses for defendant reasonable compensation stated in the order not to exceed $250 for each defendant." Notwithstanding the express limitation in section 113-3(d) to capital cases, the supreme court has held that the trial court has inherent power to award expert witness fees in noncapital cases where necessary to protect the constitutional rights of indigent defendants to compel the attendance of witnesses. ( People v. Watson (1966), 36 Ill.2d 228, 221 N.E.2d 645; see People v. Vines (1976), 43 Ill. App.3d 986, 358 N.E.2d 72.) We noted in Vines that Watson left uncertain whether the $250 limit stated in section 113-3(d) would be the limit of reasonable expert witness fees granted pursuant to the trial court's inherent power.
The Watson rule has been clarified by later cases which indicate that a defendant is entitled to funds for expert testimony only if it is evident that the testimony is necessary to prove a crucial issue and that the defendant will be prejudiced if the testimony is not obtained. See People v. Glover (1971), 49 Ill.2d 78, 273 N.E.2d 367; People v. Vines (1976), 43 Ill. App.3d 986, 358 N.E.2d 72. • 4 We hold that under the circumstances of this case it was error for the court to refuse funds to defendant for a new examination to determine his sanity at the time of the offense.