(dissenting).
I agree with the majority opinion in all respects save one, that is, the disposition it makes of the use of the child’s written statement to the police. As pointed out in the opinion the prosecution was entitled to take refuge in the "surprise” rule in order to cross-examine the child and to use her written statement to contradict her denial on the stand that defendant had abused her. Certainly the jury were entitled to know fully that she had made a prior inconsistent statement, though I have some question whether the whole statement in all its sordid details was admissible. See 6 Wigmore, Evidence § 1904 (3d Ed.). Laying aside, however, my doubts on this score, I think it was in any event reversible error to allow the prosecution to use the statement not merely for impeachment purposes, to which it is confined by our Code, § 14-104, but as substantive proof of the truth of its contents. It purported to describe in great detail the events which occurred. It was hearsay evidence as to those events and was not admissible to prove them under any exception to the rules excluding hearsay.1 True, the court admonished the jury that the statement was to be considered only on the question of the credibility of the child; but the use made of it, particularly in the closing argument of the prosecuting attorney, was by no means so limited. It was used explicitly as evidence of the truth of its contents. It does not seem to me that Smith v. United States, 57 App.D.C. 71, 17 F.2d 223, Bedell v. United States, 63 App.D.C. 31, 68 F.2d 776, or Di Carlo v. United States, 2 Cir., 6 F.2d 364, certio-rari denied 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168, supports such use. The situation is more akin to the abuse condemned in Rosenthal v. United States, 8 Cir., 248 F. 684, referred to in the Di Carlo opinion. While the statement was admissible to impeach the child notwithstanding its incidental evidentiary effect beyond that, when it was expressly used as substantive evidence against the defendant the consequence was no longer incidental. It was then, I think, erroneously used for a purpose for which it was inadmissible. This we should not countenance.
. Wigmore, while recognizing this as the settled rule of the courts, and admitting that it was his expressed view in an earlier edition, nevertheless rejects this application of the hearsay rule as unsound. 3 Wigmore, Evidence § 1018(b) (3d Ed.). His reasoning is that the rule excludes extrajudicial statements because made out of court by an absent person not subject to cross-examination to test the basis for the former statement; whereas in such a situation as we have here the witness is present and subject to cross-examination. Even were we persuaded by this later view of Wigmore our Code would not permit its adoption.