Dickerson v. State

111 P. 857 | Wyo. | 1910

Lead Opinion

Scott, Justice.

The plaintiff in error, defendant below and who will hereafter be referred to as defendant, was charged by information duly filed in the District Court of Laramie County on June 1, 1909, tried, convicted and judgment pronounced against him for the crime or perjury. He brings the case here on error.

From the record it appears that he was tried in the District Court of Laramie County at the regular December, 1908, term of that court upon a charge of rape. He was sworn and testified as a witness in his own behalf. It is upon a part of his testimony there given that perjury is assigned in the case before us.

1. It is urged that the court erred in overruling defendant’s motion to quash the information. Section 6186, Comp. Stat. 1910, is as follows:

“Sec. 6186. A motion to quash may be made in all cases where there is a defect apparent upon the face of the record, including defects in form of the indictment, or in the manner in which the offense is charged.” It will be observed that under our statute the same procedure is applicable to prosecutions upon information as by indictment. (Sec. 6181.) It is stated in the defendant’s brief that: “The motion to quash is principally upon the ground that the information does not sufficiently charge the issue in the cause wherein it is alleged the defendant testified falsely and is so indefinite and uncertain that it does not inform the defendant of the nature of the offense charged against him, and does not state facts sufficient to constitute an offense or crime under the laws of this State.” The charging part of the information is as follows:

“Comes now Charles L- Rigdon, County and Prosecuting Attorney of the County of Daramie, in the State of Wyoming, and in the name and by the authority of the State of Wyoming, informs the court and gives the court to understand that Pete Dickerson, late of the comity aforesaid, on the 17th day of December, A. D. 1908, at the County of Daramie, in the State of Wyoming, before the District Court of the First Judicial District, sitting in and for the County of Daramie, in the State of Wyoming, Hon. R. N. Matson, Judge of said court, presiding, on an issue within the jurisdiction of said court duly joined and tried before a jury of the county in that behalf duly sworn, on a charge of rape, between the State of Wyoming, as plaintiff, and Pete Dickerson, as defendant, did then and there appear as a witness upon the hearing thereof and was in due form of law sworn by said court, having competent authority and full power to administer to him the oath of a witness before said court. Whereupon it then and there became and was a question material to said issue whether the said Pete Dickerson had been diseased with a certain disease named and known as gonorrhea, and to this the said Pete Dickerson did then and there feloniously, knowingly, wilfully, corruptly, and falsely, on such oath as aforesaid, swear, testify and say in substance and effect that he (meaning the said Pete Dickerson) was not at any time diseased with gonorrhea during August (meaning the month of August, 1908) and had never to his knowledge been diseased with gonorrhea; whereas in truth and in fact, as the said Pete Dickerson then and there well knew, said testimony and matters, as aforesaid by him testified to and declared to be true, were false and untrue; and the said Pete Dickerson was diseased with gonorrhea during the month of August, 1908, and had been diseased with gonorrhea both before and after the said month of August, 1908, and had been diseased with gonorrhea prior to the date of his said testimony in said trial, that is to say, prior to the 17th day of December, 1908; and so the said Pete Dickerson did then and there commit wilful and corrupt perjury; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.”

The information charges the defendant with having on a day and year named upon an an issue duly joined wil-fully and corruptly given false testimony in a matter material to such issue during his trial in the District Court of Laramie County upon a charge of rape, the said court having jurisdiction to try such issue. We do not think it necessary under our statute to set out all or part of the testimony to show the connection and thus disclose the materiality of the alleged false testimony. In enumerating the requirements of an information or indictment for perjury it is provided by Sec. 6176 that “it shall be sufficient to set forth the substance of the offense charged upon the defendant.” Under similar statutes a general averment of the materiality of the alleged false testimony is generally Reid sufficient. (Sec. 878, McClain Cr. Law; Sec. 921, Bish. N. Cr. Proc.)

It is further urged that the information fails to state the date of the alleged rape. That date was alleged in the information which was filed in the rape case and upon the trial of which the defendant is alleged to have committed the perjury. It was therefore a matter of record and under Section 6176, supra, it was not necessary to plead it. The information complies with the provisions of the statute. The defendant was fully informed of the nature •of the charge against him and his contention to the contrary is without merit.

2. The demurrer to the information was properly overruled. It rests upon the same ground as the motion to quash, which motion as already stated was properly denied.

3. A plea in bar tenders the issue of former acquittal, conviction or pardon for the identical offense charged. (Sec. 6195, Comp. Raws.) The plea in this case set up the fact that the defendant had been charged, tried and acquitted of the crime of rape in the District Court of Raramie County on the 18th day of December, 1908, by a jury duly impaneled and sworn to try the issue joined. The offense of which he was acquitted was rape, whereas he is here charged with the crime of perjury. The plea was, therefore, insufficient and should have been met with a demurrer, but, even so, the striking of the plea as frivolous though error was harmless.

4. It is urged that the court erred in admitting in evidence the court files in the rape case. As this was not made a ground in the motion for a new trial it is not before this court and need not be considered.

5. T. Paul Wilcox, the official court reporter who reported the evidence in the rape case, was called as a witness and testified on behalf of the state. He was permitted without objection as to correctness of a transcript of his stenographic notes to read therefrom so much of the evidence of the defendant given by him upon his said trial for rape as set forth the alleged false testimony. Then for the purpose of showing the materiality of his evidence in that case the state offered proof of part of the evidence of the prosecutrix and also a part of the testimony of Dr. Johnston given upon that trial as to her physical condition shortly after the date of the alleged rape. No objection was made as to the correctness of the transcript from, which the stenographer refreshed his memory as to what these witnesses testified to. This testimony was addressed to the court upon the question of the materiality of the alleged false testimony and was received in the presence of the jury over the objection of the defendant. The court refused defendant’s request to instruct the jury limiting the effect of this evidence to the purpose for which it was offered. There is no dispute in the record that the alleged false testimony was in substance given by the defendant. It does not, however, appear upon the face of the information how it was material to the issue upon defendant’s trial for rape, except by a general allegation that it was material to the issue. Under such allegation the materiality of that evidence was a matter of proof and the evidence of the prosecutrix and Doctor Johnston upon the former trial was offered and tended to show its materiality, although their testimony was not all that bore upon that question in the record before us. We think the court erred in permitting this testimony to be read in the presence of the jury. The prosecutrix’s testimony went into ' detail of the surroundings, the alleged assault, her resistance, and the carnal knowledge of her by force and without her consent by the defendant. That she was two. miles from her nearest neighbor, a mile and a half from a traveled road, in a lonely cabin with no one to defend or protect her; that he rode up to the cabin, dismounted, entered her cabin, solicited her and upon her refusal assaulted her and did have carnal knowledge of her by force and infected her with a venereal disease. That it was late in the evening and after he had accomplished his purpose she begged him to leave her and that he mounted his horse and rode away. The next day'she left the ranch and went to the nearest town, too humiliated to complain. In a few days the infection became apparent, the pain excruciating, and she consulted a physician, who informed her of her condition'. The physician so consulted being about to depart for Europe 'turned her over to Dr. Johnston for further treatment. The latter’s testimony went to her condition when she became his patient, and was to the effect that she was suffering from a recent infection of gonorrhea. It was sought to show in defendant’s trial upon the charge of rape that he was suffering from such venereal disease at the time of the alleged rape and thus connect him with the perpetration of that crime. His defense was an alibi. This evidence was competent upon the question of the materiality of defendant’s evidence upon which the perjury is assigned, but only as inducement. It was not competent for the purpose of proving the perjury. (Sec. 602a, Wharton’s Cr. Ev.) There was no dispute as to whether either of these witnesses testified or as to the correctness of their testimony as set forth in the transcript from which, the witness refreshed .his memory. Upon this state of the evidence the question of materiality became one of law and for the court. (Sec. 935, Bish. New Cr. Pr.; Sec. 866, McClain’s Cr. Law.) While in our judgment it was error to permit this testimony to be read in the presence of the jury in the absence of an instruction limiting its effect, it -does not follow that the defendant ivas thereby prejudiced. Our attention is called to other parts of the bill of exceptions and to the evidence of both the prosecutrix and Doctor Johnston, who were both sworn and testified as witnesses on behalf of the state in the case here presented. A comparison of their testimony given upon the trial of defendant upon the charge of rape and read by the stenographer from his transcript with their testimony as given from the witness stand in this case, shows no material difference. It .is in substance the same. The state did not nor could it seek a conviction of the defendant of the crime of perjury upon the evidence given by these witnesses upon another and different trial, but it could do so upon the oral testimony of the same witnesses to the same facts upon the issue of perjury in this case if the evidence was otherwise sufficient.

Upon the record here presented the instructions which were requested by the defendant upon this phase of the case properly stated the law and could properly have been given. However, the law is where the jury could not have been misled or when a fair inference may be drawn from the record that no prejudice has resulted to the accused the judgment should not be reversed. Had the oral evidence of these witnesses or either of them been materially different from that given upon defendant’s former trial on the charge of rape, or had they or either of them not been called as witnesses in this case it would have raised a question not presented by the record. We are of the opinion that upon the record here presented neither the proof nor reception in the presence of the jury of the evidence given by them upon the trial of the rape case nor the failure to-give the requested instruction constituted prejudicial error.

5. The court refused to strike out the evidence of each of the witnesses, Kelley, Fitzsimmons, Drake and Smith, who testified as witnesses on behalf of the state.' The motions were several and the rulings are separately assigned as error, but for convenience the assignments may be considered together. Their evidence tended to show that they were inmates of the Laramie County jail at the time defendant was confined therein awaiting his trial upon the charge of rape, Kelly on and after November 7, and the last three being inmates at the time defendant was arrested, on or about September 10, 1908, continuously to the time of his release upon the verdict returned upon his trial in the rape case. The evidence of Fitzsimmons, Drake and Smith tended to show that the defendant was diseased with and doctoring himself for gonorrhea during the entire time of such confinement. Kelly testified as to what he observed as to defendant’s physical condition and of two conversations he had with the defendant, in one of which the defendant asked him, if called as a witness, to swear to certain things which would be material to his defense. The evidence as to the other conversation tended to show an admission by the defendant that he was diseased with gonorrhea two years prior to that time. In so far as the ruling with reference to the evidence given by the witness, Kelley, is concerned, there is no question as to its correctness. Admissions against interest or actions indicative of guilt are always competent as evidence against a party accused of crime. The admission of the defendant that he was diseased at a former time does not harmonize with his evidence given upon his trial for rape and tended to prove the falsity of that evidence. It was clearly competent, for if the admission was true it follows as a corollary that his. evidence was false. /

The evidence of Fitzsimmons, Drake and Smith tended to show that the defendant was diseased with and doctoring himself for gonorrhea during all the time they were confined in jail with him. Their evidence referred to defendant’s condition of health after August 7, 1908, the date of the-alleged rape. It will be remembered that there was evidence-tending to show that defendant was so diseased prior to and at the time of the assault, and that being so, evidence-of defendant’s condition of health within a reasonable time subsequent to the assault was, we think, circumstantial evidence relevant to the issue as to whether he was so diseased at the time of the alleged assault. As to what would be a reasonable time within which the subsequent condition of health would be permitted to be shown rested largely in the discretion of the court. The assault is alleged to have-occurred on August 7, 1908, and the defendant was not confined in jail until September 10th, following. It is true that he might have been infected subsequently to the time the assault is alleged to have taken place and prior to his confinement in the jail, but that was a matter for the jury to determine in view of all the evidence. The view here expressed is analagous to the rule applied in cases where the mental capacity of a person is drawn in question and it becomes necessary to know or determine his or her 'condition of health at a particular time. In such cases •evidence of the prior or subsequent condition within reasonable limits is relevant. -(Secs. 225, 233, Wigmore on .Evidence.) Upon principle we can see no reason why the rule should not be applied in a case like the one before us upon the exercise of a wise discretion of the trial court with reference to the time when such subsequent condition •of health may be shown, there being evidence tending to show a prior diseased condition of the kind here referred to, leaving to the jury to determine from all the evidence the condition of health at an intervening time. We are of the opinion that the court did not err in the exercise of its ■discretion in refusing to strike out the evidence of these witnesses and in permitting it to go to the jury.

6. The defendant requested the. court to instruct the jury as follows: “You. are hereby instructed that the defendant, Pete Dickerson, is charged with feloniously, knowingly, wilfully and corruptly and falsely testifying under ■oath on said 17th day of December, 1908, that he, the said Dickerson, was not at any time, during the month of August, 1908, diseased with gonorrhea, and that he had never to his knowledge been diseased with gonorrhea, and before you can convict the defendant, under the information in this case, you must find beyond a reasonable doubt that the said Pete Dickerson was afflicted with said disease in the ■month of August, 1908, and that he had been at some other time during his life, and to his knowledge, afflicted with .said disease, and unless you find beyond a reasonable doubt that he was so diseased, at some time during his life, and that he was also afflicted with such disease in August, 1908, your verdict must be for the defendant.” Over the objection of the defendant the court modified and gave the instruction as follows:

“You are hereby instructed that the defendant, Pete Dickerson, is charged with feloniously, knowingly, wilfully, corruptly and falsely testifying under oath on said 17th day of December, 1908, that he, the said Dickerson, was not at any time, during the month of August, 1908, diseased with gonorrhea, and that he had never to his knowledge been diseased with gonorrhea and before you can convict the defendant under the information in this case you must find beyond a reasonable doubt that the said Pete Dickerson was afflicted with said disease, in the month of August, 1908, or that he has been at some other time during his life, and to his knowledge afflicted with said disease, and unless you find beyond a reasonable doubt that he was so diseased at some time during his life, or had such disease in August, 1908, your verdict must be for the defendant.”

To the modification of the instruction as originally requested and giving the instruction as modified, the defendant objected and excepted. This action of the court is assigned as error. It is urged that in order to convict, the jury should have been told that they must find from the evidence that the defendant was diseased in August, 1908,, and that although he may have been diseased prior thereto, yet that was not sufficient, and that the use of the words “that he was so diseased at some time during his life or had such disease in August, 1908,” was misleading. As already stated, it became material -to show the condition of defendant's health at the time of the alleged rape. The evidence tended to show that the defendant was arrested on the charge of rape in the early part of September following the alleged assault. The evidence was conflicting as to whether he had a venereal disease during his confinement in jail. Several witnesses who were inmates of the jail at the time testified that he was doctoring himself for gonorrhea and one testified that the defendant told him that he had cured himself a year or two before in Arizona of' that disease by using a certain remedy. Dr. D. P. Desmond, .a witness called in behalf of the defendant, testified that he doubted very much if a person once infected with that disease ever recovered. It will be remembered that the defendant testified under oath that he had never to his knowledge during his life time, been infected with that disease. It cannot be successfully contended that the condition of the defendant’s health at the time of the alleged rape was not a proper subject of inquiry upon the trial of that charge '•and also in the case of perjury, record of the trial of which is here for review. The defendant’s testimony that he had never been infected was a complete denial that he was so infected during the month of August, 1908, and was broader than the .issue then raised in the evidence. It did more, it tendered the issue of purity throughout all his life, and the ■evidence of Dr. Desmond showed the materiality of the evidence of prior infection as bearing upon the condition of defendant’s health at the time the State claimed that he infected the prosecutrix, and the evidence given by these witnesses tended to show the falsity of defendant’s evidence upon which the perjury is assigned. In perjury it is not necessary that the alleged false testimony bear directly upon the issue. It is sufficient even though it be upon a collateral matter or constitute material circumstances legitimately tending to prove or disprove facts which are in issue or if it tend to strengthen or weaken the evidence in support •of or against the issue upon the trial in which it was given. (Sections 1036, 1037, 2 Bish. New Cr. Law; Section 862, McClain Cr. Law.) The defendant’s testimony legitimately tended to disprove a fact which was in issue. If he had never been diseased with gonorrhea then his evidence to that effect legitimately tended to prove that he was not .so diseased at the time of the alleged rape. The information •did not purport to give his alleged false testimony in haec ■verba but gives it in substance. That the word “and” was used in the information and the word “or” was used in the instruction complained of does not render the instruction, though it might have been better worded, error of which the defendant can complain. While the word “or” was used in the disjunctive it referred to testimony upon which perjury could be assigned, and which testimony in substance was included in the assignment of perjury in the information. In other words, the alleged substance of the false testimony referred to the condition of the defendant’s health 3.t the time of the alleged rape, and also referred to his condition prior thereto. Proof of wilful and corrupt falsity of ■defendant’s evidence as to his always having been free from such disease or that he was not so diseased during the month of August, 1908, would constitute a defense to the assignment as a whole and we are unable to perceive how the defendant could be prejudiced by instructing the jury that if they should find the testimony upon which the perjury is assigned as to either phase to have been wilfully, "knowingly and corruptly false they should convict. The verdict is as follows: “We, the jury in the above entitled ■case, do find the defendant, Pete Dickerson, guilty of the crime of perjury, as charged in the information.” From the language of the verdict in the absence of a contrary showing it must be presumed that the jury passed upon the assignment as a whole. The verdict upon its face was a finding upon the entire issue and we are unable to understand how the jury could upon the evidence admitted have found the defendant guilty except upon the assignment as a whole without violating their oaths. The defendant’s evidence was to the effect that he had never been to his knowledge infected with gonorrhea. This included not only the month of August, 1908, but every month of his life prior and subsequent thereto, and if the State could show that he was so infected prior to that month and also within a reasonable time thereafter then this evidence had a material bearing upon the question as to whether he was suffering from such infection during that month and at the time of the alleged rape. The time when he became infected was not material ■except that it bore upon the question as to whether he was so diseased at the time of the alleged assault on the prose-cutrix.

7. Dr. Shingle testified as a witness on behalf of the defendant to the effect that he assisted Dr. Kieffer either on September 20, 21 or 22, 1908, in making an examination of the defendant and certain tests to determine whether or not the defendant was then or could have been in the preceding August afflicted with gonorrhea. The defendant testified that Dr. Kieffer made several examinations, and as. to how he was physically examined. These examinations were all made while the defendant was confined in.the Laramie County jail, and prior to his trial upon the charge of rape. Upon that trial Dr. Kieffer testified as a witness on behalf of the defendant. He departed this life on January 31, 1909. T. Paul Wilcox was recalled as a witness to testify in behalf of the defendant. After- he retook the witness stand the following questions were asked and proceedings were had, viz:

Q. You are the same T. Paul Wilcox who testified on behalf of the plaintiff in this case?

A. Yes, sir.

Q. And you took down in shorthand all the testimony that was given on the stand-by witnesses in the case of the State of Wyoming v. Pete Dickerson, in which Pete Dickerson was charged with rape?

A. Yes, sir.

Q. You may state whether or not Dr. Kieffer was a witness on the trial of that case ?

A. ' He was.

O. Plave you a transcript of his testimony ?

A. Yes, sir.

Q. Will you turn to it, please, and — have you transcribed your shorthand notes of the testimony of Dr. Charles P. Kieffer?

A. Yes, sir.

Q. And is that the transcript you have before you?

A. Yes, sir.

Q. Is that a correct transcript of the testimony given on the trial of that case, by Dr. Kieffer?

A. Yes, sir.

Q. And all of it, is it?

A. Yes, sir.

Q. Does this transcript also include the evidence given by Dr. Kieffer on cross-examination?

A. Yes, sir.

Q. He was cross-examined by counsel for the State in -that case, was he?

A. Yes, sir.

By Mr. Kinkead: Now, if the Court please, we offer the transcript of the evidence of Dr. Charles F. Kieffer, a witness in the case of the State of Wyoming v. Pete Dick■erson, in which said Pete Dickerson was on trial in this ■court on the charge of rape under an indictment charging him with rape, the said Charles F. Kieffer, whose testimony is now offered, being the same Charles F. Kieffer whom the witness Dr. Delroy Shingle testified as being dead.

By Mr. Ross: That is objected to as incompetent, immaterial and irrelevant. The evidence offered in testimony was evidence taken in another case in which the defendant was charged with the crime of rape, and for the further reason that the witness cannot be cross-examined by counsel for the State in this case and we have a right to cross-•examine the witnesses who testify on the part of the defense.

By Mr. Kinkead: We submit that this witness has been ■cross-examined on behalf of the State on the very questions now at issue in this case.

By the Court: I would like to hear the testimony of Dr. Kieffer, if there is any rule of evidence by which it is ■competent.

By Mr. Kinkead: Dr. Kieffer is dead.

By the Court: I know, and I don’t know how you áre. ■going to get a dead man’s testimony, or how you are going to cross-examine him..

By Mi'. Kinkead: We can present authorities in the morning that we think sustain our right to show the admissibility of this testimony.

By the Court: You couldn't convince me with authorities. This is not a new matter; I have had it before. It has been held in some cases, such, for instance, as murder,, where the witness was the only witness, and then only on certain facts, that such evidence might be produced by reading certain extracts only on certain things, and here you have the testimony of one witness on the same thing.

By Mr. Kinkead: If the Court please, I desire to make my offer more complete and make the record more complete. I desire to state that the purpose of this offer is to show that-

By the Court: You needn’t state that in the presence of the jury. Write it out and hand it to the stenographer, so. as to make the record correct.

By Mr. Kinkead: Exception.

In accordance with the direction of the court the offer was written out and filed with the stenographer.

The exception as shown by the part of the record above set out does not go further than the refusal of the court to permit the offer to be made in the presence of the jury, and the direction of the court to write out the offer and hand it to the stenographer. The preceding colloquy between court and counsel may indicate what the court’s ruling would be upon an offer to prove certain facts by the former testimony of the deceased witness. It was not, however, a ruling upon such offer nor does the record show that after complying with the direction of the court by writing-out his offer and handing it to the stenographer he presented it to or invoked a ruling of the court or that there was any ruling thereon.

8. The defendant assigns as error the giving of instruction No. 3. A reference to the motion for a new trial shows that this instruction was not mentioned except as follows in any of the grounds upon which a new trial was asked, viz: “The court erred in giving to the jury instructions Nos. 1 to 8 inclusive, asked by the plaintiff, and in giving said instructions to the jury, exception to the giving of said instructions and each of them were duly taken by the defendant.” The error here alleged- goes to these instructions as a whole. The rule is well settled that it is incumbent upon the complaining party to point out with definiteness and particularity the error of which he complains, so that the trial court may pass upon the exact question which may thereafter be presented for review. It will be observed that the assignment is not that the court erred in giving each of the instructions, but the assignment was directed to the entire group designated, and that was the question presented to the trial court in the motion. Such being the case the universal rule is that the assignment can not be sustained if any one of the group is correct. (29 Cyc. 950; 14 Ency. P. & P., 893.) Some of the group are not otherwise complained of, and that being the case we might well assume that those not complained of correctly stated the law, but we need not rest our decision on that assumption alone, but upon our knowledge from an examination of the record that nearly all the instructions contained in this group complained of correctly state the law; and that "fact alone is sufficient to withstand the assignment which is directed to the giving of them en masse. Such being the law, the correctness or incorrectness of this instruction is not properly presented by the record.

We discover no prejudicial error in the record and the judgment will be affirmed. • Affirmed.

Potter, C. J., and Beard, J., concur.

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Rehearing

on petition eor rehearing.

Potter, Justice.

The plaintiff in error has filed a petition for rehearing in this case. In the fourth paragraph of the original opinion •it was said as to the contention that the trial court erred in admitting the files in the case in which the perjury was alleged to have been committed, that it was not made ground in the motion for new trial and need not be considered. It is now contended that this was erroneous for the reason that it was included in the motion for new trial by the general specification: “Errors of law occurring at the trial of said cause and to which said errors of law and rulings of said court the defendant at the time duly excepted.” It has been uniformly held by this court that such a specification is too general and indefinite to show that the question was brought directly to the attention of the court below. (Boburg v. Prahl, 3 Wyo. 325; C., B. & Q. R. R. Co. v. Morris, 16 Wyo. 308.) The papers were introduced for the purpose, no doubt, of showing the regularity of the proceedings in the case wherein it was charged that the perjury had been committed. No objection was offered to the information and verdict, the objection going only to the other papers. The argument in support of this exception was based mainly upon the admission of the instructions in the former case. While it appears that the instructions were among the papers identified for the purpose of the offer,- they are not in this record, and it is therefore to be assumed that the offer as to them was abandoned. All of such files that we find in the record here are the information, a demurrer, a stipulation as to the use by either party of evidence given before the exam-ing magistrate, the particulars of such evidence not being stated therein, and several subpoenas for witnesses, with the precipe therefor respectively. The journal entries were introduced without objection, and one of such entries shows the verdict. It does not appear that any of the papers so offered were read in evidence. In People v. Macard, 109 Mich 623, disposing of a like objection, the court say: “These papers were not read in evidence, and appear to have been offered for the sole purpose of showing the regularity of the proceedings in that (the former) case. Comment is unnecessary.” We make the above statement as to the offer and objection merely to explain the situation, and the improbability that any prejudice to the plaintiff in error could have resulted from the admission of the papers covered by the objection. But we adhere to our former conclusion that the matter is not properly here for consideration.

It is strongly urged that there should be a rehearing for the purpose of a re-examination of the objection to the admission in evidence of certain testimony given upon the trial of the defendant wherein the perjury is alleged to have been committed. That testimony was offered and admitted for the purpose of showing the materiality of the alleged false statements of the defendant, and we held that the error in admitting it without an instruction properly limiting its effect was not prejudicial for the reason that the same witnesses testified in the present case to substantially the same facts. It is earnestly contended that in so holding this court erred, and it is urged that the testimony could have served no other purpose than to inflame the minds of the jury to a point where their reason would become practically dethroned, and passion, hatred, ill-will and prejudice would control their deliberations, as a result of the recital of the facts of the assault claimed by the prosecutrix to have been perpetrated upon her by the defendant. Counsel say in the present brief: “The fact that defendant’s counsel was protesting before the jury rightfully against the introduction of this incompetent testimony, and the fact that he was insisting that proper in-sructions should be given the jury as to the plain, legal and just rights to which the defendant was entitled, and the jury being permitted to constantly observe counsel’s repeated defeats at the hands of the court, amounted to nothing less than a statement by the court to the jury that the positions of the plaintiff in error and his counsel were wrong, and they were therefore at liberty to draw any inference or conclusion from the testimony that they saw fit, no matter how detrimental or unjust or prejudicial it might be to the defendant. It was equivalent to a statement to the jury that the charges made against the plaintiff in. error were true, or he would have denied them, and being true he ought to have been convicted of rape, and if not of rape, then of perjury.” And counsel refer us to the principle that a presumption of prejudice arises from the admission of irrelevant or illegal evidence, citing 12 Cyc. 912, and other authorities, and particularly urge as the correct rule a statement found in the opinion in the case of People v. Smith, 172 N. Y. 210, to the effect that the burden of showing that the illegal and improper evidence which was received was harmful is not upon the appellant but that it was harmless and could by no possibility have prejudiced him must be established by the other party (the State). Counsel .also cite Kirby v. People, 123 Ill. 436, 15 N. E. 33, and quote therefrom with other parts of the opinion the following: “The rule is not as quoted by the State’s attorney, that it is only 'when the court can see that the admission of improper evidence or the exclusion of proper evidence has worked an injury' to the party complaining, that the judgment will be reversed-,’ but it is that the court will not affirm where error has intervened, unless it shall appear from the whole record that such error could not reasonably have affected the result. When there is error it is presumed to have improperly affected the result; but this presumption is rebutted where, from the whole record, it is manifest that no improper result to the party complaining could reasonably have followed.”

Counsel seem to assume that we held the evidence given upon the former trial, the part which was offered and admitted in this case, to be incompetent, and that it was error to permit it to be read in the presence of the jury; and there is a statement in the former opinion from which that might perhaps be inferred unless taken in connection with other statements following it. It was said that the evidence was competent upon the question of the materiality of defendant’s evidence upon which the perjury is assigned, but was not competent for the purpose of proving the perjury, and that it was error to permit such evidence to be read in. the presence of the jury in the absence of an instruction limiting its effect. The form in which the proposition was stated leaves it open to misconstruction, for we do not think that the error consisted in admitting the evidence for the purpose for which it was offered, or in permitting it to be-read in the presence of the jury, but in failing to properly instruct the jury either at the time it was received or later in the trial as to the purpose and effect of such evidence and the consideration to be given it by the jury. (State v. Brown, 111 La. 170; People v. Macard, 109 Mich. 623; State v. Vandemark, 77 Conn. 201; 2 Bishop’s New Cr. Proc., Sec. 935; 9 Ency. of Ev. 756-759.) Mr. Bishop in his work above cited says that where the indictment does not set out the facts whence the materiality judicially appears, “the course is to prove all or so much less than all of the pleadings and evidence brought forward at the former trial as will duly present the question, whereupon the court, not the jury, will decide, as of law, whether or not what the defendant is shown to have testified to therein was material. Yet practically, as fact is involved with the law, the question must generally be passed on with the rest by the jury under instructions from the court.” While the materiality of the testimony on which perjury is assigned is a question of law for the court, it may become a mixed question of law and fact in which case the court should submit it to-the jury with proper instructions. (9 Ency. of Ev. 756; Young v. People, 134 Ill. 37; McAvoy v. State, 39 Tex. Cr. 684; Washington v. State, 23 Tex. App. 336.) Judge-Henderson, who delivered the opinion in the Texas case of McAvoy v. State, supra, states the rule in his dissenting-opinion in Freeman v. State, 43 Tex. Cr. 580, as follows: “The question as to the materiality of the alleged false-testimony is for the court; but this may become a mixed question of law and fact, and may properly be submitted' to the jury; the-court informing the jury that, if they find certain facts to be true, then the alleged false testimony became material. Ordinarily, the question of materiality is not complicated; but merely on introducing the indictment and plea the materiality of the alleged false testimony becomes obvious. * * * But if the alleged false testimony bears not immediately on the issue, but upon some collateral issue, which in its turn becomes material as . illustrating or bearing on the main issue, then the materiality of the testimony may become more complicated, and enough of the proceedings transpiring in the lower court should be shown in order to establish the materiality of the alleged false testimony to the issue then being tried. * * * * Bearing in mind that the sole question here is as to the materiality of the alleged false testimony, the fact then to be proved is, how it became material; and the solution of this question can be arrived at solely from the pleadings and evidence delivered on the trial, and bearing on that issue. Of course only so much of the evidence as tends to prove the issue should be admitted.”

It may be conceded that the testimony shown to have been given by the prosecutrix in the rape case and her physician, which was admitted to show the materiality in that case of the testimony of defendant upon which the charge of perjury was based, would be prejudicial to the defendant, without a proper instruction as to the purpose for which it might be considered, had the same witnesses not been sworn in the present case and had they not testified to the same facts. But they were sworn and did testify to substantially the same facts in this case, and what is perhaps more significant the details of the assault upon the prosecutrix in the rape case were brought out in her testimony given by her in the present case on persistent cross-examination by defendant’s counsel. As it covered practically the entire ground of that part of her former testimony which had been admitted to show materiality, and did not vary therefrom, if such facts would have the effect upon the minds of the jury as stated by counsel, the verbal testimony of the prosecutrix on the trial of the preseat case would more likely have that effect than the mere reading from the transcript of her former testimony by the stenographer. We cannot believe, therefore, that the error in not limiting by instructions the consideration to be given the former testimony could have affected the. result prejudicially .to the defendant. On the contrary,, we think it' clearly appears that no improper result could reasonably have followed from the error with reference to that testimony; and this equally applies to the former-testimony of Dr. Johnston. While it is true that there was-no instruction definitely restricting the jury in their consideration of the evidence given on the former trial of defendant, it appears that in the colloquy between the court and counsel when it- was offered it was stated that it was. offered and admitted for the purpose of showing the materiality of the alleged false testimony of the defendant on that trial. We do not hold that this was equivalent to a definite explanation or instruction to the jury. But we adhere to the conclusion that the error above discussed was. not prej udicial.

The exception to instruction No. 3 requested by the prosecution was disposed of in our former opinion upon the. principle that as that instruction was not mentioned in the-motion for a new trial except as one of a group of instructions excepted to, and as the others, or, as stated in the-opinion, “nearly all the instructions contained in this group complained of correctly state the law,” the correctness or incorrectness of the third instruction is not properly presented by the record. The instruction thus complained of defined “reasonable doubt.” Our attention is called to the-rule followed by this court in Palmer v. State, 9 Wyo. 49, viz: that where the instructions for the State present as a. whole an erroneous view of the law as applied to the facts of the case on trial a general objection to such instructions, is sufficient. We do not think that rule applicable to the case-at bar.

We have carefully considered the able brief filed in support of the petition for rehearing upon the other points. discussed in the former opinion, but remain satisfied with the conclusions and the reasons therefor as expressed in that opinion, and we are not convinced that there is any good reason for granting a rehearing. With referencé to the testimony of the deceased witness, Dr. Kieffer, given upon the former trial of defendant, it may be said that if the action •or remarks of the court deprived the defendant of the benefit of that testimony it does not appear to have been so injurious as counsel seem to think, for Dr. Shingle, who was present at the examination of the defendant by Dr. Kieffer and assisted in making the tests, testified in such a manner as to place before the jury the fact that neither Dr. Kieffer nor himself found any germs of the disease in question, and the only substantial matter in the testimony of the deceased witness, as shown by the offer thereof, of which the defendant was deprived was the opinion of that witness as to the probabilities of the defendant having had the disease at the time of the assault claimed to have been made upon the pros-ecutrix in the rape case; and as to that the defendant had the benefit of the testimony of Drs. Shingle and Desmond, who were produced as witnesses in his behalf. But we do not decide the question as to the admissibility of Dr. Kief-fer’s testimony, for the reason that, in our opinion, the record fails to show that any ruling was made or invoked upon a proper offer of such testimony. Rehearing will be •denied.

Beard, C. J., and Scott, J., concur.