ÓN MOTION POR RE-HEARING.
HANNA, J.— [11] The first proposition urged by appellant in his motion for rehearing is that certain questions, decisive of the cause, and duly submitted to the court for consideration, were not considered by it. These questions have to with certain instructions given by the court, which, it is urged, there was insufficient evidence to support, or which were not correct statements of the law applicable to the case. The matters involved were not overlooked by this court, but in our opinion we held that the several assignments of error referred to were not available because under a former ruling of this court it was incumbent upon a party assigning error upon an instruction' given by the court of its own motion, or upon request of the adverse party, to either tender to the court a correct instruction, or he must by his exception to the proposed instruction, call the attention of the trial court specifically to the error in the instruction proposed to be given, in order that the instruction might be corrected and the error avoided. For the reasons stated, it cannot be said that the matters referred to in the first proposition of appellant were overlooked by this court, but, on the contrary, were disposed of by the opinion.
[12] The second proposition urged by appellant in support of his motion for rehearing is that the decision of this court, to the effect that a party who intends to assign error upon an instruction must either tender an instruction which correctly states the law, and except to the refusal of the court to give the same, or must, by his exception to the proposed instruction, call the attention of' the trial court specifically to the alleged error in the instruction proposed to be given by the court, in order that the same might be corrected and the error avoided, is in conflict with a controlling provision of a statute of New Mexico, viz., section 4214, Code 1915. Appellant contends that he did except to the giving of the several instructions complained of, but admits that the exceptions were general and did not specifically point out the ground of objection, and asserts that this was all he was required' to do under the law, and that the ruling of the court in this case and in the case of State v. Gonzales, 19 N. M. 467, 144 Pac. 1144, is necessarily in conflict with the section of the statute referred to. That portion of section 4214 upon which appellant relies is as follows:
“ * * * And it shall not be necessary to object or excent to tile giving or refusal to give instructions to a jury in order to secure a review of the same on writ of error or appeal, but such instructions shall be reviewed in the same manner as if such instructions had been specifically excepted to at the time of giving or refusal to give the same.”
That.section was a part of the chapter on Civil Procedure enacted in 1897 (chapter 73, Laws 1897.)
In Chavez v. Myers, 11 N. M. 333, 68 Pac. 917 (1902), the court, quoting that part of section 3145 (C. L. 1897), which provides that:
“No exception shall be taken in an appeal to any proceeding in the district court, except such as shall have been expressly decided in that court.”
—said that
“Consequently we will not reach out and consider, in this, appeal, any matter which was not directly decided in the district court.”
What the court referred to by saying that it would not reach out and consider matter not directly decided in the district court was theories advanced by appellant which-were not advanced in the trial court. In Territory v. Gonzales, 11 N. M. 447, 456, 68 Pac. 923, 924 (1902) the court held that:
“No exceptions were noted to any of the instructions, ad-given. The defendant having waived any right he may have had in that behalf, he cannot now urge exceptions for the first time in this court.”
In Territory v. Taylor, 11 N. M. 588, 603, 71 Pac. 489 (1903), the court held that error committed on account of a remark of the trial judge was not before-' the- court, because no objection or exception was made or taken thereto. In Neher v. Armijo, 11 N. M. 67, 83, 66 Pac, 517, 518, objection was made, in pursuance of a plea of the statute of limitations, to certain testimony offered by appellees as to rents and profits received by appellant, Exceptions were filed to the referee’s report, but not upon the ground that some of the items therein were barred by the statute of limitations. On appeal the question of the-application of the statute of limitations was- presented' to' the court, and it was held that, notwithstanding, the' provisions of section 4214, supra, the question was- not before the court because “it is fundamental that errors complained of must be objected to and exceptions saved, or they will be disregarded in an appellate court,” and' that the section referred' to—
“dispenses with formal exceptions, but in no' sense dispenses with objections in order to preserve the error complained of. We simply hold that obiection must be preserved according to the forms of law to be available in this court,”
In Territory v. Watson, 12 N. M. 419, 422, 78 Pac. 504, 505 (1904), the court held that while the court erred in not fully instructing the jury on the law of the case, the appellant could not predicate error thereon because—
“the defendant took no exception to the court’s omission to give such instruction, or in any manner called the- court’s- attention to such omission.”
See, also, Territory v. Clark, 13 N. M. 59, 61, 79 Pac. 708; Lund v. Ozanne, 13 N. M. 293, 299, 84 Pac. 710; Chaves v. Myer, 13 N. M. 368, 378, 85 Pac. 233, 6 L. R. A. (N. S.) 793.
These cases, were all decided when section 4214, supra, was the governing, law on the subject. However, in Chaves v. Lucero, 13 N. M. 368, 378, 85 Pac. 233, 6 L. R. A. (N. S.) 793, the court refers to the case of Crabtree v. Segrist, 3 N. M. (Gild.) 500, 6 Pac. 202, where the question seems to have been decided upon the provisions of section 3145 of the Compiled Laws of 1897, which was enacted' in 1882', but subsequently repealed by chapter 57 of the Laws of 1907. In 1907 the Legislature enacted what now appears; as section 4506 of the Code of 1915. That section provides:
“Exceptions to the decisions of the court upon any matter of law arising during the progress of a cause must be taken at the time of such decision and no exceptions shall be taken in any appeal to any- proceeding in a district court except such as shall have been expressly decided in that court: Provided, that no exception will be required to be reserved in the trial of equity cases or cases before the court in which a jury has been waived.”
This section practically supersedes section 3145, C. L. 1897. From the. date, of the passage of section 4506 down to the present time, this court has- constantly adhered to the holding, that, unless some method is adopted by counsel to- call to the. attention of the trial court in apt time alleged errors or defects in its action, either in giving instructions. or with reference to the admission or rejection of evidence; or unless proper instructions: are tendered to the court, the- party relying upon such alleged errors cannot be heard thereon in this court. The first case, which we find where the section above quoted is. mentioned is- that of Territory v. Leslie, 15 N. M. 240. 248, 106 Pac. 378, 381. There error was attempted to be predicated on certain instructions given by the court-, like in the case at bar, hut the court, applying section 4506, held that-asi noi specific objection was made to the instructions; the.- court, would not consider the questions; attempted to be raised,, saying:
. “Exceptions to instructions were not intended to give loopholes for defendants who are guilty to escape punishment, but were designed to enable counsel to point out possible errors made by the trial courts, so that they might be corrected, and a just and proper verdict returned by tbe jury.”
See, also, Childers v. So. Pac. Co., 149 Pac. 307, and Wallis v. Mulligan, 148 Pac. 500. The latest case holding that general exceptions to instructions cannot be made the basis for attacking such instructions in this-court is that of State v. Ascarate, 153 Pac. 1036, handed down November 16. 1915. Therefore, we conclude that so far as section 4214 can be said to dispense with the requirement that counsel must specifically point out alleged errors occurring during the progress of a cause, it is repealed by section 4506 of the Code of 1915.
Appellant also contends that he complied with the law, in that he called the attention of the court to the alleged error in his motion for a new trial. While some of the cases seem to permit of the inference that this is sufficient, notably the ease of Territory v. West, 14 N. M. 546, 99 Pac. 343, yet it was held in State v. Garcia et al., 19 N. M. 414, 419, 143 Pac. 1012, 1014, that the—
“object of a motion for a new trial, except as to matters addressed to tbe discretion of the court, such as newly discovered evidence, misconduct of the jury, and tbe libe, is to call to the attention of tbe court errors which, in tbe.burry of tbe trial, be has committed, so that before the case goes to judgment these errors, upon more mature consideration and -argument, may be corrected, and a new trial granted. It is not tbe object of a motion for a new trial to call to tbe court’s attention for the first time some error which counsel for tbe defendant all tbe time knew, but which he failed to present to tbe court in proper form at tbe time tbe error was committed.”
[13] As a third proposition in support of his motion for rehearing, appellant contends that the defendant, by his conviction at the trial, has been deprived of his liberty without due process of law, in violation of his rights as guaranteed' by the Constitution of the United States (section 1. Amendment 14), in that the' tidal' court wholly failed to instruct the jury as to the law of'the case relative to self-defense. This proposition is^ thoroughly and well argued, but is not available at this time because raised for the first time in the motion for rehearing. It is essential, under-the rule of this court, No. 9 that only such questions as are decisive of the cause, and which have b&eu duly submitted by counsel, but have been overlooked by the court or where the decision of the court is in conflict with a controlling decision or provision of statute, to which the attention of the court has not been called through oversight or neglect of counsel, can be presented and considered on rehearing. This' question cannot be considered as having been submitted by counsel and overlooked by the court, and it is not contended by appellant that such is the case, nor is it in conflict with a decision of the court or a provision of statute to which our attention had not been directed through oversight or neglect of counsel, but, on the contrary, is a new question raised in this court for the first time on the motion for rehearing. The office of a motion or application for rehearing, under the rules of this court, is solely to secure the correction of an erroneous decision of law made by the court, and manifestly cannot be directed to new matters which are not involved in the original decision. Such is the case as to this last or third proposition, which was not presented to us, or by us considered in the original opinion. As is well said by Mr.. Elliott in his work on Appellate Procedure, at section 557, “Original questions cannot be presented by application for a rehearing,” and the necessity and reason for this rule is fully discussed by the author.
For the reasons stated, the motion for rehearing is denied.
Roberts. C. J‘., and Parker, J., concur.