State v. Ditzel, 2727
| Decision Date | 20 August 1957 |
| Docket Number | No. 2727,2727 |
| Citation | 314 P.2d 832,77 Wyo. 233 |
| Parties | The STATE of Wyoming, Plaintiff and Respondent, v. Charles DITZEL, Defendant and Appellant. |
| Court | Wyoming Supreme Court |
No appearance for appellant.
Thomas O. Miller, Atty. Gen., Ellen Crowley, Asst. Atty. Gen., and Walter B. Phelan, Pros. Atty. of Laramie County, Cheyenne, for respondent.
Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.
The state has filed its petition for rehearing. The grounds relied on are much the same as the points and arguments previously advanced in resistance of the defendant's appeal. They will not again be considered.
It is also claimed we disregarded a long established rule and substituted our judgment for that of the trial court. This contention indicates a failure to recognize that the reversal in this case was due to error of law rather than disagreement with the court's determination of facts. We reversed because the lower court erroneously denied defendant an opportunity to have proper evidence submitted to the jury. No assumption was made as to what answers the defendant would have given. We merely held that defendant had the right to testify relative to any approval given him by the entruster and that such testimony would not be hearsay.
Petitioner also says the defendant failed to make an offer of proof, and, therefore, the exclusion of the evidence was not reversible error. This overlooks the rule that when the nature of expected testimony, otherwise clearly appears, an offer of proof is unnecessary. In this case the questions left unmistakable the subject matter of the expected testimony irrespective of the answers being of an affirmative or negative character. See 88 C.J.S. Trial §§ 73, 75, pp. 179, 180, 181; 53 Am.Jur. § 101, p. 90, together with authorities cited.
The reason for the rule which ordinarily requires an offer of proof in order to preserve objection to the improper exclusion of valid evidence is the necessity of apprising both the trial and the reviewing court of the competency, relevancy and materiality of the expected evidence. However where this is disclosed by the interrogation itself the reason for the rule disappears.
The exclusion of the evidence by the lower court on the ground that it would be hearsay, plainly shows the court misconceived the law with respect to its competency. Such an exclusion does not indicate the court was unaware of the nature of the expected testimony or of its relevancy or materiality. Under these circumstances, the reason for the rule requiring an offer of proof is not present and hence an offer was not required.
Counsel cite several cases from this State as supporting its position, namely, Jenkins v. State, 22 Wyo. 34, 58, 134 P. 260, 135 P. 749, where the record gave no indication that the question was material; State v. Rouse, 58 Wyo. 468, 477, 134 P.2d 1116; State v. Boner, 42 Wyo. 36, 40, 41, 288 P. 13; and State v. Goettina, 61 Wyo. 420, 448, 158 P.2d 865, in each of which cases the interrogation did not disclose the nature of the expected...
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People v. Marsh
...Evidence of this character is not objectionable as hearsay.' (220 F.2d at pp. 563-564.) In State v. Ditzel, 77 Wyo. 233, 311 P.2d 961, 314 P.2d 832, an embezzlement case, the court held it was reversible error for the trial court to exclude evidence offered by defendant as to what his emplo......
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Connor v. State, 4444
...had no opportunity to rule or unless the question has been in some manner brought to the attention of the trial judge. In State v. Ditzel, 77 Wyo. 242, 314 P.2d 832, this court held that a defendant could raise the issue of the exclusion of questions directed at the defendant without an off......
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Padilla v. State
...to the jury where "nature of the expected testimony clearly appears" ); State v. Ditzel, 77 Wyo. 233, 311 P.2d 961, reh. den. 77 Wyo. 233, 314 P.2d 832 (1957) (exclusion of defendant's testimony in embezzlement trial as to whether diversion of funds was done with approval of representative ......
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Sidwell v. State
...rule regarding preservation of such questions on appeal. Connor v. State, 537 P.2d 715, 718 (Wyo.1975) (citing State v. Ditzel, 77 Wyo. 233, 243-44, 314 P.2d 832, 832 (1957)). One claiming improper exclusion of evidence must come to the appellate court armed with a record which is fleshed o......