Odom

An information charged Tiny Odom with assault with intent to commit murder against James Lynn Maxwell. After a trial before a jury, the Kern County Superior Court convicted defendant of the lesser, but necessarily included, offense of assault with a deadly weapon. (Pen. Code, 245.) After denying defendant's request for probation, the trial court entered judgment and sentenced defendant to state prison for the term prescribed by law (10 years maximum). [fn. 1]

[1] We hold that the conviction must be reversed because the trial court committed prejudicial error in admitting certain prior, inconsistent, extrajudicial statements of a witness as substantive evidence of the truth of the matters asserted therein. In People v. Johnson, 68 Cal.2d 646 [ 68 Cal.Rptr. 599 , 441 P.2d 111 ], we held that such extrajudicial statements admitted as substantive evidence against a criminal defendant violated his Sixth Amendment right to confront the witness. In the present case, the court admitted evidence of prior, inconsistent, extrajudicial statements of a witness, without an instruction limiting the jury's use of these statements to impeachment. In the light of our holding in…

An information charged Tiny Odom with assault with intent to commit murder against James Lynn Maxwell. After a trial before a jury, the Kern County Superior Court convicted defendant of the lesser, but necessarily included, offense of assault with a deadly weapon. (Pen. Code, §245.) After denying defendant’s request for probation, the trial court entered judgment and sentenced defendant to state prison for the term prescribed by law (10 years maximum) , 1

*712 We hold that the conviction must be reversed because the trial court committed prejudicial error in admitting certain prior, inconsistent, extrajudicial statements of a witness as substantive evidence of the truth of the matters asserted therein. In People v. Johnson, 68 Cal.2d 646 [68 C'al.Kptr. 599, 441 P.2d 111 ], we held that such extrajudicial statements admitted as substantive evidence against a criminal defendant violated his Sixth Amendment right to confront the witness. In the present case, the court admitted evidence of prior, inconsistent, extrajudicial statements of a witness, without an instruction limiting the jury’s use of these statements to impeachment. In the light of our holding in Johnson , the court…

I dissent. Petitioner’s felonious assault was shown by abundant eyewitness testimony wholly independent of the statement used to impeach the witness Stanfill. That petitioner was not acting in self-defense when he commenced his sudden knife attack upon the victim Maxwell was clearly shown by the testimony of the bystanders.

I find no reasonable doubt that the jury’s consideration of the impeaching statement as substantive evidence was harmless under the application of the Chapman test. (Chapman v. California, 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710 , 87 S.Ct. 824 ].)