¶1(dissenting).
¶2Being unable to convince ourselves that respondent has succeeded in distinguishing the facts here from those ruled on in State v. Tackett, 78 N.M. 450, 432 P.2d 415 (1967), we hereby note our dissent.
¶3In our view, the allegations in the motion filed in the district court do not state any grounds which would justify the order made. Neither are we justified in assuming that other grounds were possibly advanced at the hearing, as suggested by the majority. As a matter of fact, the record is clear that none were and, if any proof was offered, it was respondent’s duty to bring it to our attention. The affidavit in Cause No. 8270, Santa Fe County, received in evidence at the time of oral arguments is the only additional information before us, and there is nothing in it that requires a different ruling. As we understand the situation, the district attorney does not object to furnishing the ■medical reports covering examination of ■the victims in that case. Also, if witnesses refuse to talk to defense counsel, the proper approach is to seek an order directing them to do so. This right is recognized in the brief filed on behalf of defendants Salazar and Deyapp.
¶4We see nothing presented in the motions which would support a result in any way different from that reached in State v. Tackett, supra. The allegations, if accepted as true, do not support a discretionary grant of the materials sought and, accordingly, the judge acted in excess of jurisdiction in entering his order.
¶5We do not agree that any of the motions asked the court to exercise discretion. Even though the defendants were trying to avoid the impact of State v. Tackett, supra, by presenting a matter to be ruled on by the court in its discretion, we do not agree that merely stating this as a fact necessarily has such effect. In addition, it would seem that some grounds which would support a holding in movant’s favor must be asserted and established. The grounds stated in the motions are not of this quality.
¶6The writ should be made permanent, except as to rap sheets, if in the possession of the district attorney, and the medical reports sought in Cause No. 8270, to which the district attorney does not object.
¶7The majority having determined otherwise, we respectfully dissent.