(dissenting) — The majority opinion is based upon a misconception of the law as applied to the involved situation. I subscribe to the rule relied upon to sustain the *671opinion: that a party who is surprised at the prejudicial testimony of his own witness may, after laying the proper foundation, impeach the witness. Such rule has no application here, however, because the witness sought to he impeached had given no testimony prejudicial to the appellant. The lack of prejudicial testimony has ingrafted an exception upon the rule permitting the impeachment of one’s own witness by variant prior statements, which is as firmly established as the rule itself.
The purpose of impeaching testimony is to destroy the weight of adverse testimony. When there is no adverse testimony there is nothing to destroy. The witness had testified that he did not have sexual intercourse with the prosecuting witness. He also denied that the attempted intercourse consisted of acts which counsel for appellant incorporated into the questions, and which it was claimed the witness communicated to counsel. It is claimed this testimony was a surprise to the defendant, and an offer is made to prove variant prior statements. These variant statements, if admitted, would not establish the fact that the witness did have such intercourse, nor could it properly be considered by the jury for that purpose. If the jury believed these contradictory prior statements had been made, it would not establish the fact of the previous intercourse. The only purpose served by the impeaching testimony would be to enable the defendant to get the naked declaration of the witness before the jury. Viewed in every light, this would be pure hearsay. Its character as such cannot be disguised by calling it an impeachment. People v. Wallace, 89 Cal. 158, 26 Pac. 650.
The majority opinion is in direct conflict with State v. Simmons, 52 Wash. 132, 100 Pac. 269, and State v. Catsampas, 62 Wash. 70, 112 Pac. 1116. In the first of these cases it is said, in ruling upon this particular point:
“Had the witness testified to some affirmative fact prejudicial to the appellant, the ruling complained of would perhaps be erroneous. . . . But the witness testified to a *672mere negative, and had he been ever so successfully impeached the only effect would be to destroy testimony which was in itself worthless.”
In the second case it is said:
“The object of the testimony not being to affect the credibility of a witness concerning any affirmative statement by him, which would be prejudicial to the state’s interest, the only effect it could have would be to get before the jury the alleged statement of a discredited witness.”
That such is the established rule is supported by the weight of authority. 40 Cyc. 2696; Culpepper v. State, 4 Okl. Cr. 103, 111 Pac. 679, 140 Am. St. 668; Langford v. Jones, 18 Ore. 307, 22 Pac. 1064; People v. Jacobs, 49 Cal. 384; Mercer v. State, 41 Fla. 279, 26 South. 317; Hull v. State ex rel. Dickey, 93 Ind. 128; Champ v. Commonwealth, 2 Metc. 17, 74 Am. Dec. 388; Saylor v. Commonwealth, 17 Ky. Law 959, 33 S. W. 185; State v. Reed, 60 Me. 550; People v. Mitchell, 94 Cal. 550, 29 Pac. 1106; In re Kennedy’s Estate, 104 Cal. 429, 38 Pac. 93.
In citing Wigmore on Evidence and Ency. of Evidence, the majority opinion cites only the rule, but fails to observe the exception based upon the negative and nonprejudicial character of the testimony sought to be impeached. The exception is noted in both texts. 2 Wigmore, Evidence, § 904, subd. 8, and § 1043; Ency. of Evidence, 31. State Bank of Washington v. Spokane-Columbia River R. & Nav. Co., 53 Wash. 528, 102 Pac. 414, also cited, is not applicable for it refers to a situation where it was permitted to impeach affirmative or prejudicial matter.
For these reasons, the ruling complained of was correct and should be affirmed. I therefore dissent.
Fullerton, J., concurs with Moréis, C. J.