After trial by jury, defendant was found guilty of rape as to one victim and not guilty of assault with intent to commit rape as to another person. Thereafter, the court granted defendant a new trial on the rape charge. At the second trial before a jury defendant was again convicted. A motion for new trial was denied and probation granted conditioned on imprisonment for the first six months in the county jail. Defendant appeals from such judgment.

The evidence for the prosecution was as follows: On April 3, 1962, while her husband was at work, the prosecutrix was washing her baby’s diapers on the service porch. She testified someone seized her from behind, held her arms and placed one hand over her mouth. During the struggle she noted it was defendant who had been a family friend. He forced her into the adjoining bedroom and disrobed her. She attempted to get free and to scratch him but could not. He pushed her on the bed and forcibly committed an act of sexual intercourse. A neighbor testified the prosecutrix came to her house, visibly upset and with a bleeding lip, and related the incident. The neighbor suggested calling the police which was done.

Defendant, who is an instructor in auto mechanics, testified that he had been asked to come to prosecutrix’ home to assist in starting her car. He denied having had intercourse, contending that he was invited into the victim’s bedroom and that they merely caressed and kissed each other.

The record discloses substantial evidence to support the verdict of the jury and as to that point our inquiry rests here. (People v. Newland, 15 Cal.2d 678, 681 [ 104 P.2d 778 ].)

Defendant complains of several specifications of misconduct on the part of the prosecutor which he contends constituted prejudicial error. With but one exception, these concerned matters of minor importance which would not warrant a reversal under the application of section 4% of article VI of the Constitution and do not merit discussion. However, as to one specification, prejudice to defendant undoubtedly resulted and necessitates reversal.

During the voir dire examination the prosecutor stated:

The probation officer was not called by the prosecutor during its ease in chief, but only belatedly near the end of the trial, on rebuttal. His testimony in no way tended to prove the commission of the crime but related only to the reason defendant had given for his visit to the home of the prosecutrix the day of the offense. As we have said, at his trial, defendant had stated he had been asked to come to the victim’s home to see if he could get her ear started. The probation officer testified that defendant had told him in July that the reason for such visit was that the prosecutrix and her husband were interested in buying another automobile. Both reasons could have been valid; the one does not preclude the other. Since the prosecutor stated, when objection was made during the examination of the probation officer, that the testimony was not offered for impeachment purposes, there does not appear to have been any proper purpose related to any disputed issue justifying the introduction of such testimony.

A portion of the direct examination of the probation officer by the prosecutor is as follows:

Objections and a motion for mistrial were thereupon made and denied by the court. This was error. Not only did the questions infer that defendant had been found guilty of the particular charges but there was a direct implication that defendant had been involved in other charges.

Defendant’s counsel cross-examined the probation officer, no doubt in an attempt to counteract the unfavorable effect of the probation officer’s very presence on the stand, but with disastrous results to his cause. Likewise, answers volunteered by the probation officer, which were not responsive to the questions asked, were very prejudicial:

Defendant contends that such conduct of the prosecution was prejudicial in that it constituted a calculated method of unfairly alluding to a former trial in which the defendant was involved and in which the jury could infer defendant was found guilty.

In People v. Solis, 193 Cal.App.2d 68, 77 [ 13 Cal.Rptr. 813 ], the court stated: “While the use of the probation officer as a witness under the circumstances was extraordinary and involved a practice not to be encouraged, it cannot be said that it constituted prejudicial error.” In the Solis ease an effect of the testimony of a probation officer was to disclose to the jury that the defendant had been convicted of the charged offense in a prior trial, but the court held that it was properly received because otherwise admissible in that it tended to prove knowledge of the character of marijuana, an essential element in the proof of guilt. The defendant had testified in substance that he was unfamiliar with marijuana cigarettes. “Any evidence which is necessary, pertinent, and material to proof of the crime charged, or which logically and by reasonable inference tends to establish any fact material to the prosecution, is not inadmissible merely because it may prejudice the accused by proof of his guilt of other crimes.” (People v. Castellanos, 157 Cal.App.2d 36, 39 [ 320 P.2d 152 ].)

Here, however, the respondent admits, commendably, that the testimony of the probation officer was unnecessary, stating in its brief, “In the Solis case, as here, the probation officer’s testimony was not essential to the People’s case.” The use of a witness, such as a probation officer, with all of the dangers involved by virtue of his previous contacts with defendant in his official capacity, was accordingly unjustified as the jury could have misused such evidence without good cause to defendant's disadvantage. “The rule is one of necessity and the risk of misuse should not be incurred if the evidence is not directed to a disputed issue in the ease.” (People v. Spencer, 140 Cal.App.2d 97, 105 [ 294 P.2d 997 ].)

Section 1180 of the Penal Code provides: ‘ The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading.” Such mandate applies here. The unnecessary calling and identifying of the probation officer as a witness was an indirect method of using and referring to defendant’s former trial; implying prior criminality, it could not have failed to prejudice defendant in the eyes of the jury. Unquestionably, it denied him a fair trial.

The judgment is reversed.

Jefferson, J., and Kingsley, J., concurred.