The majority opinion in the second paragraph holds that the court erred in refusing to permit the defendant to testify with what intention he drove the Llewellyn car from in front of the Baptist church. The record shows that the defendant was asked by his counsel a question to the following effect: WhatDefendant's was your intent in driving the car from in front ofIntention. the Baptist church? That upon objection the court refused to permit the defendant to testify as to such intention. The record does not show that defendant thereupon made any offer as to what the testimony of the witness would be on that point.
There is no controversy whatever that the defendant was entitled to testify concerning his intention in taking the car. The cases cited by Judge RAILEY all *Page 441 establish this rule. I have examined each of the following and find that announcement made therein: Vansickle v. Brown, 68 Mo. l.c. 634; State v. Banks, 73 Mo. l.c. 596; State v. Palmer, 88 Mo. l.c. 572-573; State v. Williams, 95 Mo. l.c. 249 and 250; State v. Tatman, 264 Mo. l.c. 372; State v. Fletcher, 190 S.W. l.c. 321; State v. Frederici, 184 S.W. l.c. 173. The other cases cited by Judge RAILEY are civil cases, where the same rule is announced. None of these cases, however, turn upon the procedure involved in raising such question for the appellate court.
It has been the rule in this State from the earliest date, both in civil and criminal cases, that the trial court cannot be convicted of error in refusing to permit a witness to testify in response to a question propounded to him, unless the party offering such testimony makes an offer of proof, indicating the nature of the testimony, so that the court may judge of its relevancy, materiality and competency. This rule is supported by State v. Martin, 124 Mo. l.c. 523, citing therein State v. Miller, 100 Mo. 606; State v. Taylor, 118 Mo. 153; Wharton's Crim. Ev. (9 Ed.) sec. 474. To the same effect is State v. Arnold, 206 Mo. l.c. 596, citing Jackson v. Hardin, 83 Mo. 175. [See also State v. Shapiro, 216 Mo. l.c. 371; State v. Lovell, 235 Mo. l.c. 355; and State v. Kozlickie, 241 Mo. l.c. 307.] The rule is the same in civil and criminal cases, but I have contented myself simply with citing criminal cases.
In some of the jurisdictions a distinction seems to be made where the question carries on its face the proof of its relevancy, materiality, competency, etc., but it cannot be presumed that the proof to be elicited by defendant's answer in this case would be admissible or necessarily that its exclusion would be prejudicial. It is a strain upon human credulity to think that he would fail to testify that he did not intend to steal the automobile, but the question itself does not show that his intention in respect to the taking of the car to be expressed in his *Page 442 answer would have tended to prove he did not intend to steal it.
The case was otherwise found by the Commissioner's report to have been well tried, in which I fully concur, and since the only error found is the refusal of the court to permit the defendant to answer a question as to his intention in taking the car and no offer of proof was made by counsel as to what that intention was, the judgment below should be affirmed.