on petition eor rehearing.
Scott, Ch-íee Justice.The plaintiff in error has filed an application for a rehearing. He urges that the question of the admissibility *79of the club discussed in the opinion was neither raised nor assigned as error and further that the club was admitted and received in evidence without objection. An examination of the record shows that this contention is correct. The writer speaking for himself desires to assume all responsibility for the oversight, he being under the impression from the oral argument that the club was rejected when offered in evidence. It seems, however, upon the record,- that the plaintiff in error had the full benefit of the evidence and what we said with reference thereto was dictum as not being based upon any question raised upon the record. It is apparent that the plaintiff in error was not prejudiced by what we said and we seize the opportunity to correct our opinion in this respect, which is accordingly done.
The alleged misconduct of the county and prosecuting attorney is here urged as a ground for a rehearing. The 85th assignment of error is the only one contained in the motion for a new trial touching that question, and is as follows : “That there was misconduct, on the trial of said cause, on the part of the prosecuting attorney, prejudicial to the defendant in that he read a passage taken from a law book in making his closing argument to the jury. To the reading of which passage the defendant at the time objected and excepted. Said statement so read is more fully shown by the affidavit hereto attached, marked Exhibit A.” That .exhibit is as follows:
“The State of Wyoming, County of Laramie,
Ethel A. Carpenter, being first duly sworn, according to law, upon her oath deposes and says that she was present at the trial of the case of The State of Wyoming vs. J. Warren Jenkins, and took down in shorthand the testimony .given in said trial, and also part of the first argument of Charles L- Rigdon, Esq., counsel- for the State, and the last argument of the said Charles L. Rigdon; that Charles L. Rigdon,-in his closing argument, made the following state*80■ment to the jury: 'I hope I may be pardoned for reading one very small fact. It is this, taken from. Commonwealth vs. Webster.’ And then the said Charles R.- Rigdon read from a paper the following:
“Perhaps strong circumstantial evidence in cases of crimes . like this, committed for the most part in secret, is the most satisfactory of any form whence to draw the conclusion of guilt, for men may be seduced to perjury by many base motives.to which the secret nature of the offense may afford a temptation, but it can scarcely happen that many circumstances forming together the links of a transaction should all unfortunately concur to fix the presumption of guilt on an individual and yet such a conclusion be erroneous.” That at the time the defendant objected to the said Charles L. Rigdon reading said passage, and that the Court, over the objection of the defendant, permitted the said Charles L- Rigdon to read said passage. To which ruling of the Court the defendant at the time excepted.
(Signed) 'Ethel A. CarpentéR-
Subscribed in my presence and sworn to before me this 2nd day of August, A. D. 1912.
(Seal)
(Signed) Clyde M. Watts,
Notary Public.”
The objection and exception do not appear in the bill of exceptions independent of this ex parte affidavit which was filed in support of the motion for a new trial. The bill does not state, nor does the judge who signed the bill certify that any objection was made at the time to the alleged misconduct of the county attorney, or that any ruling was made thereon, or any exception taken thereto at the time.The court or judge in signing the bill of exceptions certifies that the statements contained in the bill are true and that the objections, rulings and exceptions therein stated occurred on the trial; but he does not certify that the statements contained in an affidavit attached to a motion for a new trial are true or that the matters therein stated occurred on the trial. What occurred on the trial must appear *81by the bill and not by ex parte affidavits. (2 Ency. Pl. & Pr., 756-758; Wallace v. Skinner, 15 Wyo. 233, 261, 88 Pac. 221; Robb v. State, 144 Ind. 569, 43 N. E. 642; State v. Helm, 97 Ia. 378, 387, 66 N. W. 751; Alexander v. Menefee (Ky. 1901) 64 S. W. 855; Hacker v. Heiney, 111 Wis. 313, 320, 87 N. W. 249; Morris v. Whyte, 158 Mo. 20, 57 S. AV. 1037). Notwithstanding the failure to properly present the question by the bill it was discussed in the opinion and we need not further refer to it. Much of plaintiff’s brief in support of his petition is devoted to the question of alleged misconduct of counsel in other respects but this was not made a ground in the motion for a new trial. It is urged among other grounds for a rehearing that
“1 The trial court refused to permit a record of the statements made to the jury while viewing the premises to be kept by the official stenographer.”
“2. The judge failed to accompany the jury while viewing the premises.”
“3. The record does not show that the defendant was present at the view. The record shows that the stenographer failed to take down all of the instructions given to the jury before going to view the premises.”
These questions with the exception of the second, which was not raised in plaintiff in error’s brief nor in argument, were discussed in the opinion. The view authorized and permitted by the statute is by the jury upon order of the court. The view is not by the court and it seems almost a waste of words to say that the judge was not required to accompany the jury upon its view to the place where the homicide was committed.
The record is silent as to whether the defendant was present at the view, but we do not think that for that reason he was deprived of a constitutional right and was therefore entitled to a new trial. This was not assigned as a ground in the motion for a new trial but even had it been so assigned it was a right which the defendant - could have waived (2 Bish. New Cr. Proc., §965, sub-division 3) and *82in thé absence of a request of the court that the defendant be permitted to accompany the jury and a denial by the court he will be deemed to have waived such right: (Elias v. Terr. 9 Ariz. 1, 76 Pac. 605, 11 Ann. Cas. 1153; State v. McGinnis, 12 Idaho 336, 85 Pac. 1089; People v. Thom. 50 N. E. 947, 156 N. Y. 286, 42 L. R. A. 368; Commonwealth v. Van Horn, 41 Atl. 469, 188 Pa. St. 143; State v. Mortensen, 73 Pac. 562, 26 Utah, 312).
It is contended as in the original brief that the court erred in not permitting the defendant to cross-examine Dr. Beard as to whether he had stated “Eater, however, Roach claims to have found I think, a towel in some place, but I am not sure whether that was with the clothing they gave to me to examine or not, I think it was. There was just a few stains of blood on it, not sufficient to have made a test of, however, just little stains. State whether or not you made that statement to me?” This question was discussed in the opinión. It was not pointed out in the brief what statement made by the witness in his evidence would conflict with this statement, although defendant’s counsel now say: “If the court will but read the testimony of Dr. Beard upon his redirect examination by the prosecuting attorney, it will find that this witness was minutely examined as to the statements which he made in the office of Mr. Ross and was asked whether or not this statement was contradictory of what he had testified to on direct examination.” We have read the redirect examination of the witness, all of which was made after the ruling complained of and without objection or exception by defendant. The defendant complains that the ruling upon this objection is not in harmony with that made by the court in overruling a similar objection made by defendant to the evidence offered by the prosecuting attorney in laying the foundation for the impeachment of the witnesses Brennan and Stapleton. The rule is elementary that the foundation must be laid for the impeachment of the witness upon a material and not a collateral fact. The fact was not what the witness said .that *83he, Roach, claimed or said to the witness except for the impeachment of Roach (and for which no foundation was laid) but when and where he, Roach, found the towel which the Doctor examined for blood spots. Proof of when and where he found the towel was competent from the lips of Roach who was a witness in the case and no contradictory statements by him are pointed out or foundation laid for his impeachment.
We do not, as stated in the opinion filed, deem it necessary to discuss the other alleged errors. Some of those not discussed raise but elementary questions or involve the application of rules of evidence in their simplest form and some of them are based upon no objection or exception taken at the-time. We have been patient and we think painstaking in the consideration of the case. This court is ever ready to correct an error into which it may have fallen. The unfortunate defendant has had a trial, the .record of which has been presented and here reviewed in the light of the assistance of his able counsel but we can see no reason for changing our conclusions upon the whole record as announced in our former opinion.
In pronouncing judgment the court below sentenced the defendant to suffer the penalty of death as provided by law for murder in the first degree, and imposed a fine of $1,000, and. rendered judgment therefor and for costs in favor of Laramie county and directed that execution issue therefor. The' fine was authorized under section 6256, Comp. Stat. 1910, which is as follows: “The minimum term of imprisonment in the penitentiary shall in no case be less than one year; and the court, in its discretion may impose a fine of not more than one thousand dollars as a part of the punishment for any felony.” It does not appear that any application was made to the court below to modify the judgment with respect to imposing the fine or awarding costs nor do we think the third assignment of error raises either of these questions. That assignment is as follows: “3. Because the judgment of the court in imposing sen*84tence upon the plaintiff in' error upon the verdict of the jury is contrary to law.” We may say, however, that it was not permissible at common law to render judgment for costs against a defendant in a felony but such costs may be taxed when expressly authorized by statute and which statutes are uniformly held to be constitutional. (11 Cyc. 267, 268). It is provided by Sec. 6034, Comp. Stat., 1910, that in all cases of a conviption of an offense, the court. shall render judgment against the defendant for the costs of prosecution. As to the fine, it was authorized by the statute and its imposition within the limits authorized was discretionary with the court. It was suggested in the brief that the judgment provided cruel and unusual punishment. The statute applies uniformly throughout the state to all in like condition as tlie defendant and the punishment provided does not fall within any class forbidden by the constitution as cruel or unusual, but as commensurate with the crime of which defendant was found guilty. The legal punishment consists of two separate and distinct things and the imposition of the fine in addition to the death penalty was not cruel nor unusual. Riñe and imprisonment as to other felonies is uniformly upheld. (Page 408 Cooley’s Const. Lim.). We see no reason why the imposition of the fine was not proper, for homicide of whatever degree is a felony as defined by Section 6029, Comp. Stat. id., which is as follows: “Offenses which may be punished by death, or by imprisonment in the penitentiary, are felonies; all other offenses' are misdemeanors.” We see no reason why the fine should not be imposed as a part of the punishment and the costs taxed as provided by the statute. A rehearing is denied.
Rehearing denied.
Potter, J., and Beard, J., concur.