(dissenting).
I disagree with the conclusion reached by the majority because appellant failed to make timely objection to testimony which he considered prejudicial, and because such testimony was properly admissible.
For purposes of discussing my position the following relevant facts are stated.
Appellant caused an advertisement to be published in a newspaper for an unwed expectant mother to live in and do light housework.
Mason claims his action was motivated by charitable and humanitarian reasons.
A girl named Lucy, who possessed the necessary qualifications, applied for the position and was received into the Mason, household. It soon developed that in addition to household duties, Lucy was prevailed, upon to engage in more intimate relations-with her benefactor (extending over a period of several months) and also to engage-in pandering in order to satisfy his lust for young girls. Mason admits to the foregoing, except that he denies any involvement insofar as the young girls are concerned.
After the state elected to try Mason on two of ten charges, he filed a pre-trial motion seeking to suppress and disallow at trial any testimony of four persons because “said witnesses can have no testimony in any way material to these counts.”
No testimony or evidence was offered or tendered in support of the motion and the trial court overruled it. Obviously appellant knew the nature of the testimony sought to be excluded since during trial he made reference to a transcript of testimony given by two of these witnesses at' a preliminary hearing.
The majority concludes the pre-trial motion, references made during opening argument and a motion which was sustained had the effect of alerting the trial judge to the error which allegedly occurred during the trial. In this I disagree.
The Texas court in considering a case on somewhat similar facts, concluded that a pre-trial motion to suppress anticipated testimony should not be allowed simply because in the absence of supporting evidence, the court has no way of knowing if the testimony is admissible or not. Johns v. State, 155 Tex.Crim. 503, 236 S.W.2d 820 (1951); State v. Hawthorne, 49 N.J. 130, 228 A.2d 682 (1967). See also Annot., 94 A.L.R.2d 1087 (1964).
Trial courts should not be required to submit to a dress rehearsal in order to furnish a defendant the opportunity to explore the state’s evidence and obtain the court’s ruling in advance of trial. The better rule seems to be to test the admissibility of testimony when it is offered.
Aside from the pre-trial motion to suppress, the only other objection registered to testimony of the two witnesses complained of, was when Lucy was testifying, and this objection was sustained.
The two girls, whose testimony appellant had earlier complained of and referred to in his pre-trial motion, were called as witnesses for the state and testified without objection, and appellant cross-examined these witnesses at length, which indicates this was part of his trial tactics. Appellant gave silent approval to the state’s course of conduct. As stated in Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943):
“ * * * We cannot permit an accused to elect to pursue one course at the trial and then, when that has proved to be unprofitable, to insist on appeal that the course which he rejected at the trial be reopened to him. * * * ”
The law seems to be well settled that in the absence of timely objection, the claimed error is waived. See State v. Alford, 26 N.M. 1, 187 P. 720 (1920).
In State v. Lord, 42 N.M. 638, 84 P.2d 80 (1938), a murder case, a confession was admitted over timely objection. Our Supreme Court held it was not a proper objection, stating:
“But notwithstanding this objectionable matter regarding other unrelated crimes in Michigan and Texas could have been excluded upon proper objection, no such objection was made. The question therefore was not presented to and ruled upon by the district court, and therefore cannot be considered here. * * * ”
See also Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892); Morgan v. United States, 355 F.2d 43 (10th Cir. 1966) ; Johns v. State, supra.
In State v. Bassett, 26 N.M. 476, 194 P. 867 (1921), referred to by the majority as authority for the proposition that evidence of a separate and distinct offense was inadmissible, the trial court had admitted the testimony over strenuous objection interposed throughout the trial.
In State v. Velarde, 67 N.M. 224, 354 P.2d 522 (1960), also cited by the majority, objections were interposed during the time the witness was testifying. The court said:
“ * * * While the objections interposed were not fully and clearly stated, nevertheless, enough was said to alert the mind of the court of the impending prejudicial error.”
The record contains ample testimony upon which the jury was warranted in convicting appellant, independent of the testimony given by the two witnesses complained of.
Assuming the testimony complained of was objectionable it was not prejudicial to the degree resulting in fundamental error.
It does not shock the conscience to permit the conviction to stand. State v. Reynolds, 79 N.M. 195, 441 P.2d 235 (Ct.App.1968). Rather it shocks the conscience to reverse.
Admittedly, if the testimony given by these two witnesses was objectionable, the same should have been excluded upon timely objection being made.
However, as observed by the majority opinion, Lucy “testified to events which pointed rather clearly to a plan, scheme or design” it would then follow that the testimony was proper under the exception to the rule which otherwise precludes such evidence.
The argument that the two witnesses complained of testified to other acts of defendant which had no relation to the charge seems to come within the principle which allows the admission of this kind of testimony to establish a plan or scheme of a person to commit acts of this nature. Appellant pursued a common pattern in his method of operation. State v. Arradondo, 260 Minn. 512, 110 N.W.2d 469 (1961); Taylor v. State, 55 Ariz. 13, 97 P.2d 543 (1940). Wigmore on Evidence in Vol. 2, § 357 3rd ed. 1940, in a discussion concerning rape states:
“ * * * The committing of a single previous rape or rape attempt, upon another woman may not in itself indicate such a design. * * * Nevertheless, a single previous act, even upon another woman, may, with other circumstances, give strong indication of a design (not a disposition) to rape; and a previous act of the sort upon the same woman ought in itself usually be regarded as indicating such a design.
“Courts have shown altogether too much hesitation in receiving such evidence. Even when rigorously excluded from any bearing it may have upon character * * *, it may carry with it great significance as to a specific design or plan of rape. There is no reason why it should not be received when it does convey to the mind, according to the ordinary logical instincts, a clear indication of such a design. There is room for much more common sense than appears in the majority of the rulings.”
See also State v. Dodson, 67 N.M. 146, 353 P.2d 364 (1960) holding, in a charge of contributing to the delinquency of a minor, that testimony of illicit acts with the minor prosecutrix at times other than those contained in the charge did not constitute error.
I dissent.