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District Court of Appeal, First District, Division 1, California.


Cr. 2192.

Decided: February 11, 1942

Raine Ewell, of San Francisco, for appellant. Earl Warren, Atty. Gen., and David K. Lener and Dennis Hession, Deputy Attys. Gen., for respondent.

Appeal from judgments and orders denying a new trial following the conviction of defendant on seven separately charged offenses. The informations charged the commission in the City and County of San Francisco of the following: Case No. 32,109, kidnapping on March 16, 1940, of Antone Burkard with intent to commit robbery; case No. 32,111, robbery on the same occasion; case No. 32,105, assault with force and violence on July 7, 1940, on Antone Burkard, with intent to rob; case No. 32,106 kidnapping on July 10, 1940, of Allen F. McLean, with intent to commit robbery; case No. 32,107, robbery of McLean on the same occasion; case No. 32,108, kidnapping on August 6, 1940, of Frances McLean and Allen F. McLean, with intent to commit robbery; case No. 32,104, robbery of McLean on the same occasion.

Each information charged that defendant, in the commission of the designated offense, was armed with a weapon, to–wit, a pistol; and each contained an allegation of previous conviction in California of a felony, to–wit, receiving stolen property, in connection with which a sentence was served; also of conviction in the State of Arizona of the crime of felony, to–wit, burglary, for which sentence was likewise served. Defendant entered pleas herein of not guilty, but admitted the prior convictions. Over his objection, the above cases were consolidated, and, following trial, he was found guilty as charged in each information.

The cases involve a series of kidnappings and robberies, the robberies being of two Safeway grocery stores, and the victims of the kidnappings, the managers thereof respectively; in one of the cases the wife of one of the managers was kidnapped with her husband. One of the cases involves an assault upon one of such managers, with intent to commit robbery.

It is contended by appellant that the court erred in consolidating the cases for trial. So far as pertinent to the facts herein, under the provisions of section 954 of the Penal Code, two or more indictments charging offenses connected together in their commission, or crimes or offenses of the same class, may, in the discretion of the trial court, be consolidated for trial or may be divided into two or more groups and each group tried separately.

For the purpose of convenient consideration, three of the informations may be referred to as the Burkard cases, the other four as the McLean cases. In each of the cases charging robbery, kidnapping was committed in furtherance and in consummation thereof, hence “connected * * * in their commission.” Penal Code, § 954; People v. Morales, 56 Cal.App. 270, 204 P. 1088. Among the Burkard cases there appears an offense of assault with intent to rob, alleged to have been committed upon the same victim four months after the original robbery and kidnapping perpetrated upon him. The felonious taking of personal property in the possession of another from his person or immediate presence, and against his will, accomplished by force or fear, is robbery. Penal Code, § 211. One who assaults another under circumstances set forth in section 211, with intent to commit the consummated offense, is guilty of an assault with intent to commit robbery. Both offenses are denounced in the Penal Code as crimes against the person. Pt. 1, tit. 8, chapters 4 and 6, §§ 211 et seq., and 220 et seq. Each offense is characterized by practically the same essential features, except that in robbery there must be a felonious taking of property.

Each information in the Burkard cases alleges the same perpetrator and the same victim. Up to this point the alleged offenses are sufficiently “connected.” In People v. Johnston, 114 Cal.App. 241, 299 P. 805, it was held permissible to include robbery and burglary in the same information. However, there is a difference in the alleged dates of commission, but it has been held that this contention standing alone, is without merit in the absence of proof of prejudice. In People v. Northcott, 209 Cal. 639, 289 P. 634, 70 A.L.R. 806, the indictment contained three counts of murder, the first alleged to have been committed on or about February 2, 1928, and the other two on or about May 16, 1928. In People v. Feigelman, 65 Cal.App. 319, 320, 223 P. 579, the court said: “The fact that the two crimes charged against the defendant were committed, the one more than a year after the other, does not in our opinion furnish any ground for the claim that the court abused its discretion in consolidating said actions and causing them to be tried at the same time.”

The conclusions herein relative to the Burkard cases may be considered as applicable to the McLean cases of kidnapping and robbery on July 10 and August 6, 1940. The only allegation of factual difference appearing in the informations is that in the kidnapping on August 6th it is alleged that Allen F. McLean and Frances McLean were enticed and forcibly taken away by the defendant with intent to restrain them and thereby commit a robbery. The evidence discloses that Frances McLean is the wife of Allen McLean. If appellant had been charged in a separate information with the offense of kidnapping the wife, Frances McLean, with intent to commit robbery of the husband, Allen, on the same date, the offenses would have been sufficiently connected to warrant consolidation.

The next point for consideration is the consolidation of the two groups, the Burkard and the McLean cases. Here we have offenses of the same general class, but alleged to have been committed upon different persons on different dates. The different offenses of robbery, and the accompanying offenses of the same class of crime under separate counts, could have been charged in different counts in one information. Technically the consolidation was without error, but the consolidation for trial of criminal informations or indictments must be “for good cause shown” and “in the interest of justice,” which presupposes that the consolidation must be without prejudice to the substantial rights of the accused. A defendant may be prejudiced if forced to stand trial on one charge with a codefendant or codefendants who are charged with a distinct and unconnected offense. The charges may be of the same class and therefore subject to consolidation, but if unconnected and dependent upon evidence of an entirely different state of facts, one defendant may be prejudiced by evidence introduced in support of an information charging a second defendant with a separate offense. This state of facts appeared in People v. Davis, 42 Cal.App.2d 70, 108 P.2d 85. See, also, People v. O'Connor, 81 Cal.App. 506, 254 P. 630; People v. Foward, 134 Cal.App. 723, 26 P.2d 532; People v. Aguinaldo, 3 Cal.App.2d 254, 39 P.2d 505; People v. Shepherd, 14 Cal.App.2d 513, 58 P.2d 970.

Based upon the above, as applied to the facts in the present case we find that no valid objection could be presented to the consolidation of the Burkard and McLean cases solely upon the difference in allegations of dates of commission of the offenses unless peculiar circumstances surrounding the transactions, which do not appear on this appeal, should of themselves indicate that the defendant would be prejudiced by the consolidation.

One further factual subject deserves consideration, namely, the perpetration of the crimes upon different victims. A consolidation under circumstances unnecessary to mention, which do not apply to the present case, may give rise to a reasonable conclusion that a defendant has in fact been prejudiced. However, the consolidation of indictments alleging different dates and different victims has been approved in this state. In People v. Kelly, 203 Cal. 128, 133, 134, 263 P. 226, 228, the offenses alleged in different counts presumably were committed on the same date. In that case the court said: “Appellant therefore argues that the provision of law (Pen.Code, § 954), under which the present indictment was filed, is unconstitutional in that it makes it possible for one, accused as he was, to be placed on trial at the same time, and with the same jury, on three separate and distinct charges of murder, committed at different times, at different places, upon different individuals, and requiring different evidence from different witnesses to establish each separate act. We know of nothing in the state or Federal Constitutions sustaining appellant's position, and we do not agree with his contention that two crimes of the same grade, or class, could not be joined in separate counts in one indictment at the common law.” In People v. Hanna, 100 Cal.App. 509, 280 P. 379, two defendants were charged jointly in one information with robbery, and in a second information with another robbery. One of the defendants pleaded guilty to one of the charges. The court properly granted a motion that the two defendants be tried separately, and that the two charges against one of them be consolidated. In People v. Northcott, supra, the defendant was charged with three crimes of murder on two separate dates. Evidence of separate and distinct crimes other than murder, having no direct connection with the charges of murder alleged in the indictment, was introduced for the purpose of establishing a general scheme or plan. Had Northcott been granted separate trials, the facts of one murder might with equal force have been introduced for the same purpose. In People v. Thorn, 138 Cal.App. 714, 734, 735, 33 P.2d 5, 15, the court said: “As we have seen the three groups of crimes joined are forgery, fraud in keeping accounts in corporate books, and presenting false claims of insurance. The Legislature, it seems to us, meant by the use of the words, ‘the same class of crimes or offenses,’ in such section, offenses possessing common characteristics or attributes, and it would seem that the different offenses set out in the information here do have many attributes in common. Fraud is involved in them all, and the purpose of each is to obtain property or credit by false writings. The inference drawn by the jury was that they were so used. The offenses charged were closely related in the plan and scheme of their commission, and the joinder saved useless repetition of evidence, time and expense, both to the state and to the defendant. We think the different offenses were properly joined.” In People v. Garcia, 2 Cal.2d 673, 42 P.2d 1013, the defendant was tried for two separate murders. At pages 680, 681 of 2 Cal.2d, page 1017 of 42 P.2d, the court said: “* * * the evidence when considered in its entirety suggests that the two homicides were the culmination of a plan on defendant's part to ‘get’ his two victims before they ‘got’ him.”

In the present case the defendant had developed a well defined plan to unlawfully and feloniously obtain the property of Safeway Stores, Inc. The assault by force, violence and intimidation, and the kidnapping of Burkard, McLean, and the latter's wife, were merely incidents to the accomplishment of his purpose. The methods used in the perpetration of the crimes were manifestly similar. The consolidation saved the state and the defendant the ordeal of possibly seven separate trials. The consolidation was not jurisdictional; merely procedural. People v. Thomas, 45 Cal.App.2d 128, 113 P.2d 706; People v. Aguinaldo, supra; People v. Shepherd, supra. It is incumbent upon defendant on appeal to show substantial prejudice to his rights. A bald declaration by his attorney is insufficient upon which to base error. “The determination whether a motion for severance of trial should be granted always rests within the sound discretion of the trial judge. There can be no clearly defined rule for determining when a defendant is entitled to a separate trial because the exercise of discretion means that the decision must be based upon a just and proper consideration of the particular circumstances which are presented to the court in each case. Only where an abuse of discretion is shown will the ruling of the trial court be disturbed upon appeal.” People v. Eudy, 12 Cal.2d 41, 46, 82 P.2d 359, 361. What has been said of severance is equally applicable to consolidation. An abuse of discretion herein is not shown––on the contrary the order of consolidation appears to be in the interest of justice.

The nature and character of many of the objections raised by the attorney for appellant cannot be definitely determined. In many instances reference to certain cross–examination is set forth as improper, the reviewing court being left to conjecture the basis of the claimed impropriety. However, in justice to the appellant, the entire record has been considered. It does not reveal misconduct on the part of the court or the district attorney, as contended by appellant, that could be the basis for a holding of prejudicial error. The evidence contained in the record––as to which, except that relating to alibis, there is little, if any dispute––is sufficient to uphold conviction of each offense charged.

There is testimony that appellant at the time of the commission of one of the offenses showed his victim a box which he said contained dynamite, stating that it would be used to blow up Burkard's home if he refused to obey appellant's orders. This evidence appears in proof of the allegations of the Burkard robbery and kidnapping cases. About the time of appellant's arrest, a package containing dynamite was removed from his car. Appellant's claims––that his statement that the box contained dynamite was no proof that it actually did, and that evidence of a test explosion of the dynamite by the police was fabricated to impress the jury––are without merit. At least the jury's implied finding is binding on this court.

A substantial conflict appears in each instance wherein appellant offered evidence tending to prove an alibi. The credibility of the witnesses in this as in other respects was a matter solely for the consideration of the jury.

Appellant contends that “another reversible error committed by the court is shown in the misconduct of the trial judge refusing to allow Mrs. Leila Leep * * * to testify as a witness.” This contention arises out of the following situation. At the outset of the trial the assistant district attorney, Mr. Skillin, invoked the rule that all witnesses be excluded from the court room. Appellant's defense was conducted by the assistant public defender, Mr. Toner. Mrs. Leep is an attorney, who had represented appellant in certain civil matters, and she had evidently taken an active part in the preparation of his defense. At no time did she request to be associated as attorney of record for appellant in these criminal actions, but during the progress of the trial she occupied a seat at his counsel table and frequently consulted with the public defender and the appellant. On cross–examination of some of appellant's witnesses Mr. Skillin asked the question, as he had the right to do, whether prior to taking the witness stand they had talked or consulted with Mrs. Leep. The last witness so interrogated was Mrs. Lucille Meegan, by whom with others, appellant sought to prove that he was at his home on the night of March 16, 1940, the night he is accused of having committed the crimes charged in action No. 32,109, to–wit, the kidnapping and robbery of Anton Burkard. At the conclusion of Mrs. Meegan's testimony Mr. Toner called on Mrs. Leep to take the witness stand, but Mr. Skillin objected to her testifying upon the ground that she had been present in the court room during the trial of the case; and the court sustained the objection. That portion of the reporter's transcript showing the cross–examination of Mrs. Meegan and the proceedings relating to the sustaining of Mr. Skillin's objection is as follows:

“Q. [by Mr. Skillin, cross–examining] You still think it is Saturday night. And * * * who, if anyone, did you discuss the testimony with you were going to give here to–day? A. I discussed it with Mrs. Leep, and I discussed it with Mr. Duane's wife.

“Q. When did you discuss it with Mrs. Leep? A. I am not certain.

“Q. Well, when? A. It was several weeks ago. I am not certain.

“Q. Not since then? A. No. I talked to her exactly once.

“Q. Did you talk to her to–day? A. Yes.

“Q. Where? A. Right outside.

“Q. Right outside? A. Yes.

“Q. This morning? A. This afternoon.

“Q. And this morning? A. I think we exchanged the time of day.

“Q. That is all, just the time of day? A. That is all.

“Q. Did you talk with her after Mrs. De Soto left the stand to–day? A. Yes.

“Q. Mr. Skillin: That is all.

“Redirect Examination.

“Mr. Toner. Q. Just one question: Did Mrs. Leep suggest any testimony that you were to give here this afternoon? A. No.

“Mr. Toner: That is all.

“Mr. Skillin: That is all. (Witness excused.)

“Mr. Toner: I would like at this time to ask Mrs. Leep to take the stand.

“Mr. Skillin: Well, of course we object, if your Honor please to Mrs. Leep being sworn or testifying in this matter.

“The Court: She interviewed all of the witnesses. I couldn't allow it. She has been sitting here in court all the time the witnesses were being examined.

“Mrs. Leep: It is really my fault. I forgot I wasn't the man's attorney, because I had acted as his attorney, and I really felt in my heart I still was his attorney, and I have been trying to help him, as you know, here.

“The Court: There is no need of making any speech here, Mrs. Leep.

“Mr. Toner: Well, I am calling her, if the Court please, in good faith, because I feel that she didn't at the time realize as she sat here at counsel table that she would be excluded and not allowed to come forward as a witness in this matter. And that is why I am calling her.

“The Court: I don't see how I can permit it, under the objection.” No statement or suggestion or offer of proof of any kind was made at any time during the trial as to the nature of the testimony Mrs. Leep intended to give, or as to the purpose for which she was called as a witness, or as to what testimony the appellant expected to elicit from her.

Although there may be some conflict in the decisions of other jurisdictions, it has been held in this state that disobedience of a trial court's order excluding witnesses from the courtroom may be punished as a contempt, but does not constitute ground for exclusion of the testimony of the witness. People v. Russell, 34 Cal.App.2d 665, 94 P.2d 400, and cases cited therein. But it is well settled that an appellate court is not warranted in reversing a judgment of conviction upon the ground of erroneous exclusion of testimony unless it affirmatively appears from the transcript on which the appeal is presented that the testimony sought to be introduced was material, relevant, not too remote, and not cumulative. Many of the later cases so holding are to be found in the 1940 supplement to vol. 7 of the New California Digest, Criminal Law (§ 1133). In other words, the rule is that it is incumbent upon an appellant seeking to set aside a judgment of conviction to present the appeal on a record affirmatively showing reversible error; that such error will not be presumed. It is evident, therefore, that since the transcript here is absolutely barren of any statement as to the nature of the testimony Mrs. Leep intended to or was expected to give, no legal ground for reversal has been established. The only suggestion as to the purpose for which she was called as a witness comes from appellant's brief, which was filed by his present counsel, who did not participate in the trial, and so far as the record shows was not present at any time during its progress. After setting forth the portion of the reporter's transcript hereinabove quoted, he says: “Thus it is shown that a biased and prejudiced Trial Judge refused to allow appellant the right to have a witness testify against the insinuations of Assistant District Attorney Skillin, constantly repeated as the record shows, in order to cast the reflection to the Jury that Mrs. Leep was advising these witnesses in which way to testify.” Even though we were permitted to accept the statement made by counsel in his brief that such was the purpose in calling Mrs. Leep as a witness, it could not be held that the exclusion of her testimony constituted ground for reversal because Mrs. Meegan on redirect examination stated that Mrs. Leep had made no suggestion to her as to the testimony she was to give, and obviously if Mrs. Leep had been sworn as a witness she would not have been permitted under the rules of evidence to relate the conversation she had with any of appellant's witnesses, including Mrs. Meegan.

Subsequently appellant testified in his own behalf, and as part of his story denying he had committed the crimes charged in actions 32,106 and 32,107, to–wit, the kidnapping and robbery of Allen McLean on the night of July 10, 1940, he testified that on that night he had been in Mrs. Leep's office and that she had driven him home in her car, arriving there between eleven and eleven–thirty o'clock, at which time and place they were met by appellant's wife. However, after appellant had testified, no attempt was made to call Mrs. Leep as a witness in corroboration of his story, nor his wife, who appeared as a witness but was not interrogated on this subject, and since the only time that Mrs. Leep was called as a witness was prior to the appearance of appellant, it cannot be said, in the absence of any offer of proof, that the trial court might have anticipated that she was being called upon to corroborate the story which appellant afterwards told. In fact appellant's counsel nowhere in his brief makes any claim that the purpose in calling Mrs. Leep as a witness prior to the time appellant testified was to corroborate the story afterwards told by him. Counsel's sole criticism of the trial court's ruling is that “* * * appellant was denied the testimony of Mrs. Leep to cast aside and to dispel the insinuations of the District Attorney, whose conduct in the examination of all defense witnesses was most over–bearing, tending to prejudice the Jury * * *.” It would appear, therefore, that in order to reverse the judgments of conviction in actions 32,106 or 32,107 upon the ground of erroneous exclusion of testimony, it would be necessary to go entirely outside of the record on appeal and even beyond any claims made by appellant in his brief and hold that if Mrs. Leep had been permitted to testify she might have given testimony in corroboration of appellant's story. Manifestly such a reversal would be based on pure conjecture, in which, of course, we have no right to indulge.

In action No. 32,105 appellant was charged with assault with intent to commit robbery, wherein it was alleged also that he was armed with a weapon, to–wit, a pistol, and the jury returned two separate verdicts, one finding appellant guilty of “assault with intent to commit robbery, as charged in the information,” and the second finding that “the charge of being armed with a weapon” was true. There is no direct proof that on this occasion appellant was armed with a pistol. There is evidence that he approached his victim, Burkard, menacingly; that Burkard ran, and that appellant ordered him to halt or be shot. Upon the calls of Burkard's wife for help, and the appearance of others at the scene, appellant disappeared. However, the charge of assault with intent to commit robbery is based on the provisions of section 220 of the Penal Code, and upon an examination thereof it will be found that in order to establish the crime denounced therein it is not essential to prove that the perpetrator was armed with a weapon. The charge that he was so armed was added and the separate verdict based thereon was returned to conform to the requirements of sections 969c and 1158a of the Penal Code; that is, for the benefit of the Board of Prison Terms and Paroles in fixing the minimum term of imprisonment. Therefore the insufficiency of the evidence to support the latter verdict does not serve as ground for reversal of the conviction based on said section 220. It appears, however, that after properly pronouncing sentence on this conviction, the trial court in the exercise of the authority conferred by section 669 of the Penal Code, made an order that the sentence run consecutively to those pronounced on certain other convictions. It is ordered, therefore, that the order so made be set aside and that a new order be entered by the trial court directing whether, in view of the present state of the record, the appellant shall serve the sentence heretofore pronounced on this conviction concurrently with or consecutively to any other sentence or sentences imposed; that said new order be made and entered within sixty days after the filing of the remittitur herein in the trial court, and that a copy thereof be forwarded to the warden of the state prison wherein appellant is imprisoned.

In accordance with the views above expressed it is ordered that the judgment of conviction in action No. 32,105 be modified by striking therefrom the words “while armed with a weapon,” and as so modified the judgment of conviction and the order denying the motion for new trial be and the same are affirmed. It is further ordered that the judgments of conviction and the orders denying new trials in each of the remaining actions be and the same are affirmed. It is further ordered that copy of the remittitur be served upon the Board of Prison Terms and Paroles.

I concur and dissent.

I agree that the consolidation for trial of the seven informations was proper. I also agree that the evidence is sufficient to sustain the respective convictions. I disagree, however, with the majority opinion in so far as it holds that the exclusion of Mrs. Leep's testimony was not prejudicial error. It is my opinion that the exclusion of this evidence requires a reversal in case 32,106 (kidnapping on July 10, 1940, of Allen F. McLean) and case 32,107 (robbery on July 10, 1940, of Allen F. McLean). I base this conclusion on the following matters disclosed by the transcript.

The record shows that defendant was charged with seven offenses. So far as the two offenses charged to have been committed on July 10, 1940, are concerned, his defense was an alibi. He testified that Mrs. Leep was his attorney in a civil suit then pending; that on July 10, 1940, he telephoned her about 11:00 a. m.; that at her direction he visited her office where he remained until 2:00 p. m.; that the two then visited San Rafael where they called on the deputy district attorney; that the two spent some time together in San Rafael and came back to San Francisco at about 5:00 or 6:00 p. m.; that they were together thereafter until 11:00 p. m. when Mrs. Leep drove him home where he arrived close to 11:30 p. m. McLean, the prosecuting witness, had testified that the offenses here under discussion had been committed by defendant just before or just after 11:00 p. m.

As pointed out in the majority opinion, at the outset of the trial the rule to exclude all witnesses was invoked. Mrs. Leep did not then disclose that she intended to testify. She had been the attorney for the defendant in a civil case and occupied a seat at the counsel table. When Mrs. Leep was called as a witness the trial court absolutely refused to permit her to be sworn––not because her testimony would be irrelevant, but because in its opinion, the witness by violating the exclusion order had rendered herself incompetent.

What is the proper rule to apply to such a situation? The majority opinion concedes that it was error to exclude her testimony. That this concession is in accordance with the law is supported not only by People v. Russell, 34 Cal.App.2d 665, 94 P.2d 400, but also by People v. Boscovitch, 20 Cal. 436; People v. Mack, 115 Cal.App. 588, 2 P.2d 209, and Mintzer v. Wilson, 21 Cal.App.2d 85, 68 P.2d 370. People v. Boscovitch, supra, is the leading case in this state. In that case the factual situation was identical with that presented in the instant case. On appeal the Attorney General confessed error. The Supreme Court held that reversible error had been committed, and, in this connection, stated:

“If the witnesses offered disregarded the rule of the court excluding their presence, until called, during the progress of the trial, the court might have punished them as for a contempt. The fact constituted no ground for the exclusion of their testimony. The defendant could not enforce the rule, and to deprive him of the benefit of their testimony for its disobedience, without fault on his part, was manifestly unjust and illegal.” In Mintzer v. Wilson, supra, a civil case was reversed because a witness violating the rule was not permitted to testify.

The basis of the rule is obvious. The right of a defendant to present the facts of his defense should not be abrogated because of the misconduct of a witness over whom he has no control. The witness who violates the order of exclusion may be guilty of reprehensible conduct, and such witness may be punishable by contempt, and such conduct may affect the witness's credibility, but it must be remembered that it is not the witness that is on trial. The issue before the court is the guilt or innocence of the defendant. In order that such issue may be properly determined, the defendant is legally and constitutionally entitled to present the facts of his defense.

The majority opinion recognizes that the trial court committed error in refusing to permit Mrs. Leep to testify, but holds that since there was no offer of proof, the conceded error was not prejudicial. It is, of course, the rule, at least since the adoption of article VI, section 4 1/2 of the Constitution, that it is incumbent upon the appellant not only to show error, but also that the error was prejudicial. The instant case, however, is not one where the trial court erroneously refused to permit a witness to answer a question, the relevancy of which does not appear from the question (in which case an offer of proof is indispensable), but is a case where the trial court refused to permit the witness to be sworn on the ground that by violating the exclusion rule she had rendered herself incompetent. In such a case an offer of proof, although proper, is not always indispensable. The true rule is stated in 64 Corpus Juris, 123, section 141, the text being supported by many authorities, and no contrary cases noted, as follows:

“An offer of proof is unnecessary where the offer would be a useless ceremony, or the evidence is rejected as a class, or where the court indicates such offer would be unavailing. An offer of proof is unnecessary where the court rules * * * that the witness is incompetent * * *.” It is to be noted that the majority opinion cites no case to the contrary.

The reason for this exception to the general rule requiring an offer of proof is obvious. Such an offer is required for two reasons. In the first place, it is required so that the trial court may have the opportunity of ascertaining the relevancy of the proffered testimony. Where the trial court absolutely refuses to permit the witness to testify, regardless of the nature of his testimony, obviously an offer of proof would not serve this purpose. In the second place, an offer of proof is required so that the appellate court can ascertain whether the error in excluding the evidence was prejudicial. If the record is completely devoid of any showing on this issue and there is no offer of proof, the error in refusing to permit a witness to testify is not prejudicial, because it is incumbent upon the appellant to show prejudicial error. But where the record shows, with reasonable certainty, the probable subject matter that would have been testified to by the witness, the failure to make an offer of proof is not fatal to the appeal.

The majority opinion purports to state the rule substantially as it is stated in this dissent, but holds that a perusal of the record demonstrates that Mrs. Leep was probably called only to corroborate the several witnesses who had testified that she did not tell them what to say on the witness stand. I agree that the exclusion of this cumulative and corroborative testimony, although error, was not prejudicial. But this is not the only thing disclosed by the record. As already pointed out, defendant's defense to the two crimes alleged to have been committed on July 10, 1940, was that he was in the company of Mrs. Leep, an attorney at law, all that day and until after the hour the crimes are supposed to have been committed. It is true that the defendant did not so testify until after Mrs. Leep had been held to be an incompetent witness, but it would be an astonishing rule of law that would hold that in determining whether prejudicial error occurred the court must stop reading the transcript at the point where the trial court committed the error. Obviously, the record must be read as a whole. In determining whether the record reasonably discloses the probable subject matter of Mrs. Leep's testimony, in order to determine whether the erroneous order holding her to be incompetent was prejudicial, we should give the benefit of the doubt to the defendant. This is so because the error was the result of an improper objection by the prosecuting attorney and the arbitrary action of the trial court. The defendant was in no sense to blame.

Tested by these standards, what is disclosed? The record shows that, as to these two crimes, defendant's defense was an alibi––that he was in the company of his attorney, Mrs. Leep, when the crimes were committed. Is it an unnatural inference that she was called to verify that statement? I think not. Under the circumstances, are we not compelled to infer that this would have been the subject of her testimony? I think we are. Can we say, as does the majority opinion, that after the defendant had testified he should have again produced Mrs. Leep or made an offer of proof? I think not. Such a rule implies that the trial judge would intentionally commit error as long as he thought Mrs. Leep's testimony was of only minor importance, but would overrule himself if he knew her testimony was vital.

I believe that if we are to give more than lip service to the fundamental rule that a defendant––even a guilty one––is entitled to a fair trial, then under the circumstances of this case a reversal of the two convictions under discussion is required.

Appellant cannot successfully contend that Mrs. Leep might have testified as to issues involved in the other cases. It is incumbent upon appellant to show prejudicial error. In the absence of an offer of proof, and in the absence of a showing that the record reasonably discloses the probable nature of the testimony to be given by the witness, no prejudicial error has been shown.

It is therefore my view that the convictions of the two offenses alleged to have been committed on July 10, 1940, should be reversed.

WARD, Justice.

KNIGHT, J., concurred.

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