(concurring).
I concur in affirming the judgment. However, I am not in accord with any implication that courts or judges are sacrosanct or that the proceedings in question would not have been available for the use of the defendant to impeach the witness, Samuelson, under proper circumstances. If the latter had on any prior occasion made statements on a material issue in conflict with his present testimony, it could have been used for impeachment.
The court stated to the defense counsel: “And you were particularly offering that portion wherein the court expressed an opinion that he thought this defendant was harboring somebody.” Mr. Hatch: “That is correct, and I further wish to have this portion read with respect to the credibility of the witness in his denying a conversation with the cour.t. * * * ”
The trial judge correctly indicated that any statement he had made would have been hearsay. He had no direct knowledge of the facts and whatever he said would have added no substance to the evidence *396in the instant case. It was further particularly appropriate for the trial judge to exclude the evidence because of his apprehension that it might contain statements made by him relating to the guilt of the defendant herein which would have redounded to his prejudice before the jury.
There was no separate proffer of proof concerning the matter purporting to impeach the witness, Samuelson. In fact, counsel did not appear to know just what had been said and was on somewhat of a fishing expedition concerning the former colloquy between the court and Samuelson. It is open to serious doubt that any statement by the trial judge to Samuelson that he “expected him to cooperate with the State” is of any material significance, whether it was made or not. It could have been material only on the question as to whether any promise, threat or inducement was made or offered him which would have tended to persuade him to tell an untruth or color his testimony against Gillen to protect himself. Even if such a statement was made, it was not improper or untoward in any way because it indicated nothing other than that the witness would be expected to tell the truth about the matter.
No proper foundation having been laid and no proper offer having been made as a basis upon which to impeach the witness, the trial court did not abuse its discretion in not complying with the defendant’s request that the reporter be required to read the colloquy between the court and the witness on a prior occasion as part of the evidence in this trial. I, therefore, agree that there was no error prejudicial to the rights of the defendant which would warrant a reversal of the conviction. We are under mandate to disregard error unless it is substantial and prejudicial.1
. Section 77-42-1, U.C.A.1953; State v. Woods, 62 Utah 397, 220 P. 215.