(dissenting).
I respectfully dissent. Because no objection was made to the introduction of the challenged testimony, I find it unnecessary to consider the government’s suggestion that our circuit depart from the orthodox rule that prior inconsistent statements of a witness may be used only to discredit a witness’ testimony and not as substantive evidence. In my view, the question considered in the majority opinion is not presented in this case.
The record reveals that no objection whatsoever was made to the introduction of this testimony as hearsay. The United States Supreme Court has observed that “when evidence of [hearsay] character is admitted without objection it is to be considered and given its natural probative effect as if it were in law admissible.” Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 252, 56 L.Ed. 500 (1912). See also Rowland v. St. Louis & S. F. R. R. Co., 244 U.S. 106, 108, 37 S.Ct. 577, 61 L.Ed. 1022 (1917); Opp Cotton Mills v. Administrator, 312 U.S. 126, 155, 61 S.Ct. 524, 85 L.Ed. 624 (1941). See generally 1 Wigmore, Evidence § 18 (3d ed. 1940); C. McCormick, Evidence § 52 (1954). Accordingly, in the absence of any objection, the questioned testimony was competent not only to impeach the declarant who denied having said it, but also to prove the assertions contained therein, and no cautionary instruction was required.
The proper rule to be derived from Lipscomb is this. If testimony of a prior inconsistent statement is admitted to impeach the declarant, upon objection that it is hearsay, the judge, even if not requested, must give a cautionary instruction advising the jury of its re*684stricted use. It is appropriate to require this action of a trial judge, once there is an objection, because the party objecting has not waived his right that the jury shall not consider the hearsay assertion for its truth. But I believe we should not approve a rule that wo.uld require a judge, sua sponte, to give a cautionary instruction whenever a prior extra-judicial inconsistent statement inculpating a defendant is proffered in the absence of either an objection to its admission or a request to restrict its use.
Under my view of this case, no error was committed by the trial judge, and, accordingly, I do not reach the question of “harmless error” determined by the majority. I observe, however, that although the majority concludes that the “error” was not harmless, I would determine that there is substantial independent circumstantial evidence indicating that appellant was guilty of the crime charged.