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 *474alleged 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, *475and 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 *476that 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, *477and 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 testi*478mony 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 *479preseat 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. *480discussed 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.