MB. JUSTICE HOLLOWAY
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.
[1] 1. In their brief counsel for defendant contend that the muddy, torn and bloodstained clothing could not illustrate any issue involved, and the introduction of it served only to excite and inñame the minds of the jurors, all of which may be true, but there is not anything in the record to justify the contention. There is not a scintilla of evidence to indicate that the articles of clothing were, or that any of them was, muddy, torn or blood-stained, and, though it may be conceded that the evidence was immaterial, it does not follow that the defendant is entitled to a new trial.
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 [314]*314the original exhibits certified to this court as they might have done, and cannot now insist that reversible error was committed by their introduction in evidence in the court below, since there is not anything in the record which indicates that prejudice was, or could have been, wrought.
[2] 2. The same thing may be said of the evidence relating to the injuries received by the prosecuting witness; but in this instance there is an additional reason why counsel for defendant cannot complain. There is not any controversy concerning the time when and place where the injuries were received, and it is not possible that any juror could have been misled. The injuries were received after the alleged assault was committed and when the prosecuting witness jumped from the rapidly moving automobile in consequence of defendant’s threat to repeat the assault.
[3] The prosecuting witness was first asked to describe her injuries, but, after counsel for defendant had interposed an objection and the court had indicated a ruling favorable to the admission of the evidence, the question was withdrawn and was not answered by the witness at all. Later Dr. Barbour was asked to describe the injuries which he found upon the body of the prosecuting witness immediately after she was taken to the hospital, and, without objection from defendant’s counsel, he did describe them somewhat minutely.
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 [315]*315appeal, an express exception must be reserved to a ruling upon tbe admission of evidence in tbe trial of a criminal case. (State v. Lewis, 52 Mont. 495, 159 Pac. 415.)
[4] Tbe rule adverted to in State v. Jones, 48 Mont. 505, 139 Pac. 441, presupposes that the exception was reserved, and that the question was answered; but where, as in this instance, the question was not answered by the prosecuting witness, it was necessary to repeat the objection when the question was asked of Dr. Barbour (38 Cyc. 1399). The withdrawal of the question propounded to the prosecuting witness left the record as though the question had not been asked.
[5] 3. The affidavit of Violet Brown was introduced in support of defendant’s motion for a new trial. In that affidavit it is stated that during September, 1918, after the assault is alleged to have been committed and before the information was filed, the prosecuting witness stated to affiant: “If he [defendant] doesn’t fork over to me good and strong, I will send him over the road for the rest of his life.”
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 [316]*316defeat it, no matter what else may be shown.” (See also, 29 Cyc. 883-885.)
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,
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MB. JUSTICE HOLLOWAY
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.
[1] 1. In their brief counsel for defendant contend that the muddy, torn and bloodstained clothing could not illustrate any issue involved, and the introduction of it served only to excite and inñame the minds of the jurors, all of which may be true, but there is not anything in the record to justify the contention. There is not a scintilla of evidence to indicate that the articles of clothing were, or that any of them was, muddy, torn or blood-stained, and, though it may be conceded that the evidence was immaterial, it does not follow that the defendant is entitled to a new trial.
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 [314]*314the original exhibits certified to this court as they might have done, and cannot now insist that reversible error was committed by their introduction in evidence in the court below, since there is not anything in the record which indicates that prejudice was, or could have been, wrought.
[2] 2. The same thing may be said of the evidence relating to the injuries received by the prosecuting witness; but in this instance there is an additional reason why counsel for defendant cannot complain. There is not any controversy concerning the time when and place where the injuries were received, and it is not possible that any juror could have been misled. The injuries were received after the alleged assault was committed and when the prosecuting witness jumped from the rapidly moving automobile in consequence of defendant’s threat to repeat the assault.
[3] The prosecuting witness was first asked to describe her injuries, but, after counsel for defendant had interposed an objection and the court had indicated a ruling favorable to the admission of the evidence, the question was withdrawn and was not answered by the witness at all. Later Dr. Barbour was asked to describe the injuries which he found upon the body of the prosecuting witness immediately after she was taken to the hospital, and, without objection from defendant’s counsel, he did describe them somewhat minutely.
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 [315]*315appeal, an express exception must be reserved to a ruling upon tbe admission of evidence in tbe trial of a criminal case. (State v. Lewis, 52 Mont. 495, 159 Pac. 415.)
[4] Tbe rule adverted to in State v. Jones, 48 Mont. 505, 139 Pac. 441, presupposes that the exception was reserved, and that the question was answered; but where, as in this instance, the question was not answered by the prosecuting witness, it was necessary to repeat the objection when the question was asked of Dr. Barbour (38 Cyc. 1399). The withdrawal of the question propounded to the prosecuting witness left the record as though the question had not been asked.
[5] 3. The affidavit of Violet Brown was introduced in support of defendant’s motion for a new trial. In that affidavit it is stated that during September, 1918, after the assault is alleged to have been committed and before the information was filed, the prosecuting witness stated to affiant: “If he [defendant] doesn’t fork over to me good and strong, I will send him over the road for the rest of his life.”
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 [316]*316defeat it, no matter what else may be shown.” (See also, 29 Cyc. 883-885.)
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.
[6] The defendant did not make an affidavit, and this fact is significant in view of the statements contained in the affidavit of Violet Brown. In any event, his failure to disclose that the evidence was not known to him at the time of the trial is fatal to his application. In Smith v. Shook, above, it was said further: “It is fundamental that the moving party must show by his own affidavit that the new evidence was not known to him at the time of the trial. Upon that question the affidavits of other persons are not, as a general rule, sufficient.” To the same effect are Roberts v. Oechsli, 54 Mont. 589, 172 Pac. 1037, and State v. Prlja, 57 Mont. 461, 189 Pac. 64.
[317]*317[7] It is not contended, and could not be contended, that the evidence is insufficient to sustain the verdict. If the story told by the prosecuting witness is true, the guilt' of the defendant is established beyond any doubt. The credibility of that witness was for the determination of the jury, and by the verdict the truth of her story is established for all purposes of this case.
[8] The objections to the admission of evidence are technical in the extreme, while the showing upon the application for a new trial is altogether insufficient. Upon the entire record the defendant appears to have been accorded a fair and impartial trial. If any errors crept into the proceedings they are insignificant. “A mere apex juris is not sufficient cause for the reversal or modification of a judgment.” (State v. Connors, 27 Mont. 227, 70 Pac. 715.)
The motion to dismiss these appeals heretofore interposed by the state is denied. The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Galen concur.