¶1ON PETITION FOR REHEARING
¶2(No. 2727;
¶4delivered the opinion of this court.
¶5The 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.
¶6It 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.
¶7Petitioner also says the defendant failed to make an offer of proof, and, therefore, the exclusion of the evidence was not reversible error. This overlooks *244the 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.
¶8The 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.
¶9The 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.
¶10Counsel 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 *245the interrogation did not disclose the nature of the expected testimony. The State also cites McGinness v. State, (McGinnis v. State) 4 Wyo. 115, 122, 31 P. 978, 53 P. 492, where it was said, a proffer should be made of what the question would elicit except where the witness was excluded as incompetent, thus indicating the question itself had not done so. None of these cases touch upon the important point presented here where the witness was competent and the very nature of the question itself showed that, as a matter of law, the expected testimony was competent testimony and would be relevant and material to the issues involved.
¶11In addition, we have carefully examined Wyoming Inv. Co. v. Wax, 45 Wyo. 321, 339, 18 P.2d 918; Cooley v. Frank, 68 Wyo. 436, 451, 235 P.2d 446; and Watson v. Klindt, 73 Wyo. 402, 280 P.2d 282, where failure to make offer of proof was held to be fatal, but none of these cases present a situation such as that before us, where the questions objected to, sufficiently advised the court of the nature of the expected testimony. Its admissibility as evidence depended solely upon whether the witness was competent to repeat what if any direction or approval was given him by the entruster or its representative. As a matter of law this testimony was not hearsay but direct evidence.
¶12Attention might also be called to Casper Motor Co. v. Marquis, 31 Wyo. 115, 119, 223 P. 764, 765, where the court referred to the exception to the rule made in McGinnis v. State, supra, and also pointed out that “other exceptional circumstances might require a modification of the rule …
¶13Rehearing denied.