dissenting:
As this case went to the jury the issue was one of identification. The complaining witness was positive in her identification of the defendant, and she had had an opportunity to observe the man who committed the crime. On the other hand, the defendant’s alibi was corroborated by several witnesses, and it was more convincing than is usually the case. The defendant was entitled to a clean and fair trial'of this issue, and in our opinion he did not receive it.
The opinion of the court concedes that it was error to admit the testimony of two other women as to attempted attacks upon them by the defendant. From the record we can not escape the conclusion that these witnesses were produced and their testimony offered in a deliberate and unfair effort to prejudice the jury against the defendant. And this error was compounded when the defendant was not allowed to deny the irrelevant charges with which he was thus unexpectedly confronted.
Repeated questions as to the defendant’s whereabouts on specific dates in February and March culminated in the question, “Did you attend school between February 17 and March 1st, 1951 ?” It seems to us that the court is being unusually naive when it says that the defendant volunteered the answer that he was under arrest at that time. We think that the prosecutor’s repeated questions about this irrelevant matter were intended to elicit exactly the response that they did elicit.
It may well be that the complaining witness’s statement that she selected the defendant’s picture from a book containing pictures of “known sex offenders” was not anticipated by the prosecution. But after that statement was made, the book itself was marked for identification as an exhibit, and the defendant’s picture taken from that book was admitted in evidence over the defendant’s objection. What purpose it served, other than to generate prejudice, is not apparent. The defendant testified, so that the prosecution had an opportunity to impeach him by showing prior convictions if there were any. No such evidence was offered.
The defendant did not, in our opinion, receive a fair trial on the issue of his guilt. In this case, moreover, the jury fixed the penalty. In such cases this court has consistently reversed and remanded when incompetent and prejudicial evidence was put before the jury, on the ground that “Nobody can know what the jury would have done had they the opportunity to fix the punishment upon an acquaintance with only competent and admissible evidence.” (People v. Smith, 413 Ill. 218, 223; see also People v. Dukes, 12 Ill.2d 334; People v. Jackson, 9 Ill.2d 484; People v. Crump, 5 Ill.2d 251; People v. Stanton, 1 Ill.2d 444.) We think that course should be followed here.