(dissenting).
I do not think that there is any merit in Bill of Exception No. 4. In my view, the defendant in a criminal case is not entitled to the production of a prior written statement of a State’s witness in the hands of a police officer or the district attorney simply because on cross-examination by the defense the witness answers in the affirmative the question of “whether a copy would refresh his memory”.
In State v. Weston, 232 La. 766, 95 So. 2d 305, to which the majority opinion in the instant case refers, this court in discussing Bill of Exception No. 6 reserved there made it clear that the defense is entitled to the production of a prior written statement of a State’s witness in the hands of the district attorney or the police only where a proper foundation for the impeachment of the witness has been laid by a showing that the statement sought is contrary to the sworn testimony of the witness, and that when such a foundation is laid, production of the document can be had for the purpose of impeachment.
In the instant case, however, the majority opinion does not say that a foundation was laid to impeach the witness by a showing that the witness had made prior inconsistent statements.
I dissent also from the holding of the majority on Bills of Exception Nos. 1 and 5. The reasons for disagreeing with the majority given by Justice McCALEB in his concurring opinion are correct, and I fully agree with his views on these bills.