OPINION OF THE COURT.
WRIGHT, J.1 The first ground of error considered by appellant in his brief is the one referred to in the statement of facts as the fifth ground of error, and relates to the testimony of the witness Campagnoli. Upon the trial of the case the witness Campagnoli testified that the defendant, Antimo Pettine, came to his shop about three months after the death of the deceased, Berardinelli, and that upon entering the shoe shop said to him, Campagnoli, that he had killed Benedito Berardinelli, and that if he had a chance he intended to kill Ceasar Grande and Charlie Grande, or words to that effect. In the affidavit filed in support of the motion for new trial, the witness Campagnoli, sets out that on this occasion, wdien he had the conversation.in his shoe shop, he had never before seen the party who mafic this statement; that at the time he did not know the defendant, Pettine, but he supposed it was Pettine; that at the time, he, affiant, was intoxicated, so that he could not clearly see the man to distinguish who he was; that after the trial was over, while he was on the train returning to Santa Fe, he met the defendant, Pettine, and that he then for the first time knew and understood that Pettine was not the man who had come into his shop and made the statements as testified to by him at the trial, but such person was some man unknown to affiant. This assignment of error, if raised at all, is here upon the exception to the order overruling the motion for new trial. The ordinary function of a motion for new trial is to call the attention of the trial court to errors committed on the trial, and thus preserve the questions for review in the higher court. Included therein are both errors of law and errors of fact, or of matters within the discretion of the trial court. With reference to matters in the motion addressed to the sound discretion of the court, this court, in the case of the Territory v. Emilio, 14 N. M. 147, has laid down the rule that the order overruling the motion for new trial is not reviewable. In the case cited, supra,, Mr. Justice Parker collected and discussed practically all of the cases decided by this court bearing upon that point. If the rule laid down in the Emilio case is to be considered as controlling, no further discussion of this assignment is necesary. In the case of Territory v. Emilio, cited supra, the question considered related to the disqualification of a juror, and it was held in that case that such matters were addressed wholly to the discretion of the trial court, and while this case seems to lay down the broad general proposition that the appellant court cannot under any circumstances review, upon appeal, matters wholly within the discretion of the trial court, we will, in view of the fact that counsel have considered this assignment with reference to the rule laid down in the case of U. S. v. Biena, 8 N. M. 105, consider the case at bar in the light of the rule so laid down. In the Biena case this court laid down the rule that this court will not review upon appeal assignments of error based upon the discretion of the lower court in overruling a motion for new trial, unless gross abuse of such discretion appear on the face of the record. In that case the court uses the following language: “A trial judge is frequently called upon to rule on matters and material facts which he sees transacted before him, and of which he must take notice as substantial things in the ease, but do not and can not become a part of the record, and which the appellate court can have no- knowledge of; and an appellate court should labor to affirm the findings of a jury, when it shall appear from the whole record that the trial court proceeded in the regular and orderly manner prescribed by law, and that the result arrived at by the jury was fair and substantial justice to all parties. The granting or refusing a new trial is a matter resting in the sound discretion of the trial judge to whom it is addressed, and it is not reversible, unless it shall plainly appear that such discretion has been grossly abused; and that does not here appear.”
2 Admitting the power of this court, for the sake of argument, to review the discretion of the trial court in refusing to grant a new trial, there wa,s no abuse of discretion in the case at bar. An examination of the record shows that there was ample evidence to warrant a conviction, eliminating the testimony ofi Campagnoli entirely. The trial court, seeing /the witness and his manner of testifying upon the- stand, may well have taken the position that Campagnoli was not worthy of belief, and that his testimony could not, under any circumstances, have affected the verdict of the jury. In fact, the trial court may well have considered that his testimony was favorable to the defendant, rather than adverse. Such being the record in the case, it is not incumbent upon the court, at this time, to determine whether the case at bar should be said to be within the rule laid down in the case of Territory v. Emilio or the case of U. S. v. Biena, cited supra, as under either view of the rule the assignment of error is not well taken.
3 2. The second assignment of error discussed by the appellant relates to alleged error in the fourth instruction given by the court. The fourth instruction so given by the court is as follows: “Murder in the second degree is “all murder which shall be perpetrated by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide, or which shall be perpetrated unneeessarify, either while resisting an attempt by the person killed to commit any offense against person or property or after such attempt shall have failed. The absence of deliberate premeditated design is what chiefly distinguishes it from murder in the first degree. This instruction is based upon the statute as it existed prior to the amendment of 1907. An examination of the record in this ease discloses that the court, in Instruction No. 2, defined murder, express malice and implied malice, and then followed, in Instruction No. 3, with a definition of murder in the first degree, as related to the circumstances of this case. In Instruction No. 6, he explained what is meant by the term ‘deliberation and ‘premeditation' as related to murder in the first degree, and in Instruction No. 7, he explained justifiable homicide. To none of these instructions, including Instruction No. 4, above quoted, were any exceptions taken, except the general exceptions mentioned in the statement of facts; and in the motion for new trial defendant’s counsel wholly fails to point out the error complained, of as to any of the above mentioned instructions, including the fourth instruction defining murder in the second degree, above referred to. It appears. therefore, that none of these alleged errors are properly before this court for review. This court has repeatedly condemned such assignment of error and refused to consider the same upon appeal. Territory v. Guillen, 11 N. M. 209; Territory v. O’Donnel, 4 N. M. 208; Territory v. Yarberry, 2 N. M. 454. In the ease of Territory v. Guillen, cited supra, this court used the following language upon this point: “Exceptions taken during the trial of a cause to the rulings of the court and to the instructions should specify wherein counsel contend that the court has erred, in order that the trial court may be given an opportunity to correct error prior to the close-of the trial, if such has occurred, or, such errors should be pointed out in the motion for a new trial, that a new trial may be granted the unsuccessful party, in case err ornas actually occurred. In this case counsel have not attempted in their motions for a new trial and in arrest of judgment, to direct the court’s attention to any specific error in the instructions of the court, except to paragraph five which has been considered.”
4 An examination of the record in the case at bar, shows further that counsel for appellant wholly failed to ask for any additional or different instruction defining murder in the second degree. This court has repeatedly held in criminal cases that, if the court fails to instruct the jury fully and fairly as to< the law of the case, it is the duty of counsel for defendant to ask the court to give such instructions as he thinks should be given, and in order that defendant may take advantage of such error he must, at the time the jury is instructed, except to the failure of the court so to instruct. Territory v. Caldwell, 14 N. M. 543; Territory v. Gonzales, 14 N. M. 35; Territory v. Watson, 12 N M. 420; Territory v. O’Donnel, 4 N M. 208; U. S. v. De Amador, 6 N M. 178; Territory v. Ayer, 15 N M. 581.
5 The sixth ground of error in the motion for new trial ic addressed io the failure of the court to instruct, and not to any inherent error in the instruction as given. No other or more complete instruction was requested, and no exception was taken to the failure of the court to more fully instruct. This brings the sixth ground of error clearly within the rule laid down in the case of Territory v. Watson, cited supra, and such alleged error, never having been properly called to the attention of the lower court, cannot be considered upon this appeal. In other words, the defendant should not be permitted to gamble upon the verdict, to sit quiet and not call the attention of the trial court to points of alleged error, which, if called to the attention of the trial court at the time, might be easily corrected, and thereby a miscarriage of justice be avoided. Not only should the defendant, under our procedure, call the specific error to the court’s attention by proper objection and exception, but it is also his duty to specifically and definitely set out such alleged ■error in his motion for new trial, so that the court may at that time carefully consider the same, and, in event harmful error has been committed, immediately grant a new trial. Under the old system of common law, every technicality was properly to be resolved in favor of the defendant; but under the modern system of criminal procedure, where rich and poor have a like standing in court, where the court will furnish counsel to a defendant without money; will grant compulsory process for witnesses; and where defendant can go upon the stand in his own behalf, all of these conditions have been changed, and the reason for the strict technicality of the common law has disappeared. In the case of Hack v. State, 141 Wis. 346, the supreme court of Wisconsin, in discussing the right of the defendant to sit quiet without calling alleged errors to the trial court’s attention, used the following language: “Surely the defendant should have every one of his constitutional rights and privileges, but should he be permitted to juggle with them? Should he be silent when he ought to ask for some minor right, which the court would at once give him, and then, when he had had his trial and the issue has gone against him, should he be heard to say that there was error because he was not given his right? Should he be allowed to play his game with loaded dice? Should justice travel with leaden heel, because the defendant has secretly stored up some technical error, not affecting the 'merits, and thus secure a new trial, because, forsooth, he can waive nothing? TPie thinlc not. We think that sound reason, good sense, and the interests of the public demand that the ancient, strict rule, framed originally for other conditions, be.laid aside, at least so far as all prosecutions for offenses less than capital are concerned. We believe it has been laid aside in fact, (save for the single exception ihat trial by jury of twelve cannot be waived, unless authorized by special law) by the former decisions of this court. It is believed that this court uniformly attempted to disregard mere formal" errors and technical objections, not affecting any substantial right, and to adhere to the spirit of the law, which giveih life, rather than to the letter, which killeth. It may not always have succeeded;, it is intensely human, but since the writer has been here, he knows that the attempt has been honestly made.”
3. The remaining errors complained of in the brief of the appellant are before the court, if at all, solely upon the third and fourth grounds of error set forth in the motion for new trial. Both of these assignments came clearly within the rule of this court laid down in the case of Territory v. Guillen, cited supra, and will not be considered upon this appeal. The judgment of the lower-court is affirmed.