# State v. White > New Mexico Supreme Court · May 12, 1954 · 58 N.M. 324 URL: https://www.frixlaw.com/law-library/cases/9568622 ## Case - **Full name:** State v. White - **Court:** New Mexico Supreme Court - **Decided:** May 12, 1954 - **Citations:** 58 N.M. 324; 270 P.2d 727 - **Precedential status:** Published - **Opinion:** Dissent by Sadler - **Judges:** Seymour, Compton, Sadler, McGhee, Lujan - **Cited by:** 48 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9568622 ## How later opinions describe it (automated extraction) - noting that evidence showing bias or 5 interest is never excluded on the ground of being collateral ## Opinion text SADLER, Justice, (dissenting). The trial court committed no error in rejecting the tender, not because the judge presiding gave a good reason therefor, but for another good and sufficient reason not stated, namely, because counsel for the defendant did not lay the proper predicate for the tender before making his offer of proof. There are three essential steps to be taken in making a proper tender, each of which must be complied with before advantage may be taken of the. trial court’s action in rejecting the tender. They are as follows: (1) Production of the witness on the stand. (2) - .The framing and putting to the witness of a proper question designed to elicit the testimony sought to be introduced. (3) The sustaining of an objection to an answer by the witness. When these three conditions to making the offer of proof have been met, then and •only then is it timely for the defendant, if he be the one desiring to introduce the testimony, to make his offer of proof. This has been the rule in New Mexico for so long that it is not open to question. See State v. McCracken, 22 N.M. 588 , 166 P. 1174 ; State v. Anderson, 24 N.M. 360 , 174 P. 215 ; State v. Ulmer, 37 N.M. 222 , 20 P.2d 934 . In State v-. McCracken, supra, in paragraph 2 of the syllabus prepared by the court, we said: “As a general rule, in order to reserve an available objection to the exclusion of evidence, a proper question must be asked, and, on objection thereto, an offer must be made at the time, showing what evidence will be given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all the facts necessary to establish its admissibility.” (Emphasis added.) Likewise, in State v. Anderson, supra, in paragraph 5 of the syllabus prepared by the court, we said: “As a general rule, in order to reserve an available objection to exclusion of evidence, proper qiiestion must be asked, and, on sustaining objection thereto, an offer must be made, showing what evidence will be given if witness is permitted to answer, the purpose and object of testimony sought to be introduced, and facts necessary to establish its admissibility.” (Emphasis added.) Now, how many of these conditions did defendant comply with in the present case before making his offer of proof? Exactly one. No more. He produced his wit-nesses on the stand, then by-passed conditions 2 and 3 and made his offer of proof. Not a single question was ever put to either witness produced — an obvious disregard of requirement No. 2. Nor was an objection interposed to any question asked because none was asked. I am willing to admit counsel for defendant in making his offer of proof may have thought it would be presupposed that conditions 2 and 3 had been met, and going even further with the fiction, that the district attorney as well as the trial judge moved along as if they had. However, all this seems beside the point. The accused was on trial for a brutal slaying of his wife. He was represented by one of the most experienced and successful criminal trial lawyers in the state. He was convicted of second degree murder and given what is the equivalent of a life sentence for the slaying. The defendant was fortunate in escaping a verdict of first degree carrying the extreme penalty. It is not a case warranting indulgence of fictional suppositions of compliance by a defendant with the two conditions mentioned as a predicate to reversal and award of a new trial. The result is that the trial judge made a correct ruling but 'gave a wrong reason for it. We may not'properly set aside his ruling on that ground. Lockhart v. Wills, 9 N.M. 344 , 54 P. 336 ; Thomas v. Gavin, 15 N.M. 660 , 110 P. 841 ; Jones v. Jernigan, 29 N.M. 399 , 223 P. 100 ; Wiggs v. City of Albuquerque, 57 N.M. 770 , 263 P.2d 963 . Compliance with these traditional conditions as a predicate to the making of a proper tender are supported by good reason and logic. Take what actually transpired here as an illustration. Much of the tender 'was of an omnibus nature, en masse, some admissible and some inadmissible. It may be granted "that enough was said by the court at the time to disclose he was directing his ruling primarily to that portion of the tendered testimony as would show bias or .interest; nevertheless, it was joined with a lot of other testimony embraced in the order of exclusion that had no bearing whatever on the question of bias or interest on Hickam’s part and was properly excluded on that account. But unless questions be put to the witness occupying the stand and a tender made of exactly what counsel intends to prove in response to the questions asked, it is easily to be seen what difficulty is to be met with in screening the admissible from the inadmissible portion of the testimony of each witness. It is thus but a requirement of orderly trial practice that these steps be taken in numerical sequence to the end that the bad. may be screened from the good, the inadmissible from- the admissible, by appropriate objection as each question is-asked. ■ Still another reason supports the .rule-that each of these steps must be taken in sequential order. It is to be remembered that all these proceedings in reference to the tender occurred out of the presence of the jury. The matter of tendered testimony —unless compliance with the conditions mentioned be insisted upon — can become pretty dangerous. There may be times when the trial judge will have reason to doubt the good faith of the party making the tender. If the witnesses be not interrogated, counsel so disposed (and there is no intention to relate this supposition to present counsel) can put words without limit in the form of tendered testimony in the mouth of the witness sitting mute on the stand. Thus a witness who has not exposed himself to the pains of' perjury, because never having a question asked him, has become a pseudo witness in the case, nevertheless, by reason of his supposed testimony. The trial judge, however, may wish to test the good faith of the tender by permitting the witness to answer. He can still keep it from the jury if he deems it inadmissible. But to the extent, if any, the answers of the witness may not live up to the offer of proof, the judge has protected his récord from possible reversal and, at the same time, has denied defendant the benefit of a tender of false testimony, the truth of which otherwise would have been assumed. However, if the witness may sit mute on the stand, throughout, as in the present case, this means of testing good faith could never be availed of. Undoubtedly, if the witnesses here involved had not been produced and put on the stand, yet everything else shown in the record as having transpired had actually ■taken place, the failure of the court or of the district attorney to object to the tender because of the absence of the witnesses would not deter us from sustaining the trial court’s action in rejecting the tendered testimony. There is just as much reason for sustaining its action in the present case when the sole reason for having the witnesses present is not availed of — namely, for addressing proper questions to them. For all practical purposes, if the majority opinion is to stand, these witnesses might just as well have remained in Santa Fe while the tender of what they would testify was being made in Albuquerque; or, with as much notice or effect as was attached to their presence, they could as easily have been represented by proxy. The majority seem-satisfied to translate the colloquy between court and counsel at the time of the supposed tender as presenting a case of invited error as to this claimed error because after 'excusing the jury the trial judge acquiesced in a request by the district attorney that defendant’s attorney proceed in a statement of what he proposed to prove, apparently without interrogating the witness. This he might as well have done in the absence of the witness. Defendant was represented by able counsel who presumably knew how to make a proper tender and as well how to preserve the error if (and I do not so appraise the record) the trial court or the prosecution were denying him the right to present his tender in the proper way, viz., by interrogation of the witness. The tender was properly rejected because no proper predicate had been laid for making it. There is nothing in the facts shown by the record before us that moves me to favor any relaxation of the rule in defendant’s favor, even if it were permissible to do so. So much for the question of the tender’s sufficiency. I disagree, also, with the majority opinion in so far as it announces an extension of the test so long obtaining in this jurisdiction for determining whether a defendant charged with crime was insane at the time of trial, or when he committed the alleged offense — the so-called “right and wrong” test. In State v. Roy, 40 N.M. 397 , 60 P.2d 646, 650 , 110 A.L.R. 1 , we defined the rule as follows: “The capacity of the accused to distinguish right from wrong in respect to the act charged as a .crime at the time of its commission is made the test of his responsibility.” See, also, State v. Nevares, 36 N.M. 41 , 7 P.2d 933 , and State v. Moore, 42 N.M. 135 , 76 P.2d 19 . It impresses me that in the so-called extension of the rule of the M’Naghten case, 10 Clark & F. 199, 8 Eng. Reprint, 718, adopted by the majority, they have for all' practical purposes embraced the doctrine of “irresistable impulse” as a defense in criminal cases. It is my candid belief that the effort on the part of trial courts to instruct properly on the test in the light of today’s extension thereof, more especially in attempting to differentiate between it and the generally repudiated doctrine of “irresistible impulse” as a defense in criminal trials, will result in many reversals before the law becomes well enough understood to avoid them. In my humble opinion, the majority, themselves, do not differentiate so- clearly between the extension approved and the doctrine of “irresistible impulse.” Thus it is that I disagree with the majority opinion for two reasons : (1) Because the tender relied upon for reversal was properly rejected in that the witnesses were not interrogated, making the trial court’s ruling correct even though it gave a wrong reason therefor. (2) Because the prevailing opinion expands the field for offering insanity as a defense to crime beyond the traditional test long employed by this Court, both before and since statehood. It follows from what has been said that in my opinion the judgment should be affirmed. The majority ruling otherwise, I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9568622. Public record. Not legal advice.