dissenting:
For the reasons set forth herein, I dissent and would reverse and remand the judgment of the circuit court of Cook County.
To establish a motive for the crime the State attempted to prove that defendant was having an illicit affair with a nurse named Shirley Hudson and that defendant and his wife were not happily married. It is the examination of Maxine Brown on these matters that defendant contends was improper and highly prejudicial:
“Prosecutor: Now, Mrs. Brown, do you know a woman by the name of Shirley Hudson?
Mrs. Brown: Yes.
Prosecutor: Who is Shirley Hudson?
Defense Counsel: Objection.
The Court : Sustained.
Prosecutor : Do you know what Dr. Branion’s relations were with Shirley Hudson?
Defense Counsel: Objection.
* * *
Prosecutor : Following the death of Mrs. Branion on the 22nd day of December, 1967, did you accompany the defendant on a trip to Colorado ?
Defense Counsel: Object.
The Court: Objection sustained.
Prosecutor: Did you go, on the 24th day of December ’67, two days after the death of Mrs. Branion, to Vail, Colorado?
The Witness : No.
* * *
Prosecutor : As far as you know, was Shirley Hudson the girl-friend of the defendant, John Branion?
Defense Counsel: Object.
The Court : Sustained.
Prosecutor: Do you know what, if any, relationship Shirley Hudson bore to the defendant ?
The Witness: They were friends.
* * *
Prosecutor: And were you aware of the marital relationship, or state of the marital status prior to her [Mrs. Banion] death?
The Witness : The way it appeared to me, is that what you are asking me ?
Prosecutor: Yes.
The Witness : Yes, I had an opinion of the appearance.
Prosecutor: Would you consider it to be a happy normal marriage or normal releationship ?
Defense Counsel : Obj ect.
The Court : Sustained.
* * *
Prosecutor: Did you know of any difficulty between Dr. Branion and his wife prior to her death ?
Defense Counsel : Object.
The Court : Sustained.
Prosecutor : Did you know of any plans for divorce by Mrs. Branion or Dr. Branion prior to her death ?
Defense Counsel : Obj ect.
The Court: Sustained.”
As stated by the majority, the evidence in this case is entirely circumstantial. In People v. Wilson, 400 Ill. 461, 480, the court held: “If the evidence is wholly circumstantial it possibly may prove his guilt beyond a reasonable doubt, but it must be closely scrutinized, and if, when fairly considered, it presents another hypothesis consistent with innocence, the latter must be adopted in preference to guilt.” The court further stated: “* * * guilt must be established by legal and competent evidence, uninfluenced by bias or prejudice raised by irrelevant evidence, or by unjustified aspersions or insinuations tending to inflame the minds of the jury.” (400 Ill. at 481.) While there is a strong case of circumstantial evidence, I do believe that the jury was prejudiced by an improper questioning.
The prosecution was attempting to establish a motive for the crime but the testimony of Maxine Brown indicated only that defendant and Shirley Hudson were friends and that he had a conversation with Miss Hudson the day after his wife was murdered. The examination did not tend to establish a motive. However it did suggest that Dr. Branion and Shirley Hudson were having an illicit affair and that the defendant and his wife were not happily married and were contemplating divorce. It also suggested that the defendant was a cold, insensitive person who would take a trip with another woman to a vacation resort immediately following his wife’s death. Many of these questions were without foundation and exceeded the limits of proper examination. Even though it was apparent at this point that the witness was uncooperative and often unresponsive, the prosecution persisted in leading, suggestive questioning in the presence of the jury. Sustaining of the objections alone could not remove the prejudicial effect of the constantly repeated insinuations. I therefore believe that the verdict was influenced by prejudice raised by irrelevant evidence and unjustified insinuations. For this reason I would reverse and remand the cause for a new trial.