199 P. 281 | Mont. | 1921
delivered the opinion of the court.
The defendant was convicted of an attempt to commit rape, and appealed from the judgment and from an order denying his motion for a new trial.
Only three errors are assigned: (1) The admission in evidence of articles of apparel worn by the prosecuting witness at the time the assault is alleged to have been made; (2) the admission of evidence tending to show the extent of the injuries received by the prosecuting witness during the same evening; and (3) the refusal to grant a new trial on the ground of newly discovered evidence.
The rule which once prevailed in this jurisdiction, “Error appearing, prejudice will be presumed,” was abrogated by the adoption of the Codes in 1895. Section 9415, Bevised Codes, provides: “After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.” Prejudice is now no longer presumed. It must be made to appear either affirmatively by the record recital, or by the denial or invasion of some substantial right from which the law infers prejudice. (State v. Hall, 55 Mont. 182, 175 Pac. 267.) Counsel for defendant have not seen fit to have
Counsel now insist that the duty did not devolve upon them to renew the objection when the question was asked of Dr. Barbour, since they had saved the point by the objection made when the question was asked the prosecuting witness, but the record does not bear them out as to the facts, and the rule of law is not so broad as they contend. The record fails to show that any exception was saved to the ruling made by the court when the question was asked for the first time. If counsel rely upon the provisions of Chapter 135, Laws of 1915, to supply the omission — that is, to preserve the exception for them — they are in error, for that statute deals only with the practice in civil cases. It is the rule now, as it always has been in this jurisdiction, that, in order to be available on
Affiant states further that she never related this conversation to anyone prior to the trial, but that she did relate it to defendant about January 2, 1919, after his trial and conviction. These statements are irreconcilable. The trial of this case commenced June 16, 1919, more than five months after defendant was aware of the facts detailed in the affidavit, according to the affiant’s own statement. If this is correct, then the evidence was not newly discovered evidence within the meaning of section 9350, Revised Codes.
In Smith v. Shook, 30 Mont. 30, 75 Pac. 513, this court announced the rule, which is manifestly correct, as follows: “The additional evidence to afford opportunity for the introduction of which a new trial is sought must be newly discovered, by which expression is meant that it must have been discovered since the trial. If discovered before or at the trial, and no continuance of the trial was applied for, an answer to the motion that no diligence is shown will be sufficient to
But, if the date (January 2, 1919) was written by inadvertence and was intended for January 2, 1920 — a theory which is not even suggested by counsel for defendant — still the showing made is altogether insufficient to require the lower court to grant a new trial. In State v. Matkins, 45 Mont. 58, 121 Pac. 881, we announced the rules which determine the sufficiency of an application for a new trial upon the ground of newly discovered evidence as follows: “(1) That the evidence must have come to the knowledge of the applicant since the trial; (2) that it was not through want of diligence that it was not discovered earlier; (3) that it is so material that it would probably produce a different result upon another trial; (4) that it is not cumulative merely — that is, does not speak as to facts in relation to which there was evidence at the trial; (5) that the application must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence accounted for; and (6) that the evidence must not be such as will only tend to impeach the character or credit of a witness.” The doctrine of that case has since been adhered to in State v. Van Laningham, 55 Mont. 17, 173 Pac. 795, and in other cases.
The motion to dismiss these appeals heretofore interposed by the state is denied. The judgment and order are affirmed.
Affirmed.