LeBeau

Vernon LeBeau was convicted of possessing narcotics in violation of section 11500 of the Health and Safety Code, and he appeals from the judgment and an order denying his motion for a new trial. Defendant does not contend that the evidence is insufficient to support the verdict, but he claims that the court erred in admitting evidence and in permitting the prosecution to impeach its own witness.

A police officer testified that he searched defendant’s room and discovered two capsules of cocaine in the pocket of a jacket which defendant admitted was his. LeBeau took the stand in his own defense and testified on direct examination that he had not seen the capsules before the officer discovered them, that he never had narcotics in his possession, “wouldn’t know narcotics,” and had “never been in contact with any of them. ’ ’ On cross-examination defendant was asked without objection if he had not been using narcotics for many years prior to his arrest, and he answered that he had not. He was then questioned as follows: “Q. You are acquainted with Nancy Teeples, known as Nancy McDowell ? A. I know Nancy. Q. Do you know who I am referring to? A. Yes, I do. Q. Isn’t it a fact that on…

I dissent.

It is here held by the majority that the State may impeach its own witness by another witness on the basis of a claimed prior contradictory statement, even though the answer of the impeaching witness was not damaging or adverse to the prosecution. That result is reached by a process of reasoning that otherwise the state could be accused of harassing defendant by asking questions about prior contradictory statements without any basis—without showing that such statements had been made. This is directly contrary to People v. Newson, 37 Cal.2d 34 [ 230 P.2d 618 ], and other decisions of the court and the District Court of Appeal. The rule is thus stated in *150 the Newson case: . . [T]he prior statements inconsistent with the witness’ present testimony can only be considered for the purpose of neutralizing and counteracting the effect of Ms statements upon the trial. The purpose of the statute is to allow a party to wipe out, as nearly as possible, the evidence which has been given. Where a witness states no fact against the party calling him, there is nothing to counteract. The testimony which may be contradicted must be prejudicial and detrimental, otherwise the previous…

I concur in the reasoning and conclusion of Justice Carter.

Vernon LeBeau was convicted of possessing narcotics in violation of section 11500 of the Health and Safety Code, and he appeals from the judgment and an order denying his motion for a new trial. Defendant does not contend that the evidence is insufficient to support the verdict, but he claims that the court erred in admitting evidence and in permitting the prosecution to impeach its own witness.

A police officer testified that he searched defendant's room and discovered two capsules of cocaine in the pocket of a jacket which defendant admitted was his. LeBeau took the stand in his own defense and testified on direct examination that he had not seen the capsules before the officer discovered them, that he never had narcotics in his possession, "wouldn't know narcotics," and had "never been in contact with any of them." On cross- examination defendant was asked without objection if he had not been using narcotics for many years prior to his arrest, and he answered that he had not. He was then questioned as follows: "Q. You are acquainted with Nancy Teeples, known as Nancy McDowell? A. I know Nancy. Q. Do you know who I am referring to? A. Yes, I do. Q. Isn't it a fact…