ON REHEARING.
HANNA, C. J.[14] A rehearing was granted in this case because of a doubt entertained by the court as to the propriety of the action of the trial court in refusing to grant appellant a continuance. In the former opinion it is- stated that at the time the question of continuance was under consideration the defendant Starr announced in open court that he was ready for trial, thereby waiving the application so far as he was concerned. A review of the transcript discloses that this statement was inaccurate. The defendant was arraigned on Saturday, March 11th. Being without means to employ counsel, two members of the bar of the district court of Doña Ana county were appointed to represent the accused Starr. The ease was set for trial for Monday, the 13th of March. When the case was called to trial on that day, one of the defendant’s attorneys said:
“The defense asfcs for a continuance on behalf of Mr. Starr for the term on account of his physical condition.”
Thereupon the court said:
“Let tire records show that the doctor announces that he was perfectly able to go to trial last Saturday, and the defendant himself asked for an immediate trial.”
Thereupon the parties proceeded to the selection of the jury. About 3 o’clock in the afternoon the attorneys for the defendant offered the report of the investigation and examination of Dr. B. E. Lane, showing the defendant Starr’s physical condition. This certificate stated that the doctor believed-that it would be detrimental to the health of the defendant Starr to go through a trial for his life at the present time; that he found his pulse to be 105, temperature 100%’°, and respiration 22. The court denied the application for a continuance, and it is strenuously insisted by counsel for appellant that in so doing the trial court was guilty of a gross abuse of discretion, and that the case should be reversed on this ground.
The defendant Starr testified as a witness in the case, and seemingly was in full possession of all his faculties. No showing is made, or attempted, to the effect that his attorneys were prejudiced in conducting his defense by reason of his physical condition, or that he was not able at all times to intelligently confer with his counsel; and there is no showing, or attempt to show, that he was prejudiced by the action of the trial court in refusing the continuance. While it is true that Dr. Lane gave it as his opinion that the defendant was not physically able to undergo the strain of a trial and that his temperature was above normal, still the trial judge had the defendant before him, and also had the statement of the county physician to the effect that the defendant could go to trial without any impairment to his health. Under these circumstances we cannot say that there was an abuse of discretion in denying the application.
In the case of Goddard v. State, 78 Ark. 226, 95 S. W. 476, the court said:
“Continuances, especially those based on the physical condition of the defendant at the'time of the application therefor, are addressed largely to the d'eseretion of the trial court. Tliat must necessarily be so, for that court has the defendant before it in person, and can to some extent judge from his personal appearance whether his physical condition is such as to enable him to stand the ordeal of the trial.”
In that case it was held that it was not an abuse of discretion for the trial court to deny an application for a continuance on account of the physical condition of the defendant; such application being supported by the certificate of a physician that he was not able to endure the ordeal of the trial without impairment to his health.
In the case of McDaniel v. State, 103 Ga. 268, 30 S. E. 29, there, were conflicting statements by physicians as to the physical condition of the defendant. The court said, in speaking of the opportunity of the trial court to observe the defendant:
“It may be, and probably was, tbe result of this trial by inspection which brought about the decision adverse to the motion to continue. In such cases the good sense sound' judgment, and humanity of the trial judge must "be relied upon as safeguards against injustices. I cannot say, under all the circumstances of the case, that there was any abuse of discretion in refusing the continuance.”
In the case of Lipscomb v. State, 76 Miss. 223, 25 South. 158, it is said:
“Of necessity such applications, based upon the physical' or mental condition of the party indicted for crime, must, even more largely than ordinary applications for the postponement of trials, rest in the discretion of the trial judge; he has the person of the accused before him, and the very appearance of the party may be considered by him in reaching a just conclusion. Were this otherwise, the guilty would be afforded opportunity to defeat a trial by feigning sickness.”
See, also, to the same effect, Rawlins v. State, 124 Ga. 31, 25 S. E. 1; State v. Baker, 146 Iowa, 612, 125 N. W. 659; State v. Lee, 58 S. C. 335, 36 S. E. 706. These authorities clearly sustain our position.
It is argued that the court should have continued the case in order that defendant’s attorneys might have bad more time in wbieh to prepare bis defense. No ire-quest, however, was made to the court to continue the case on this ground.
[15] It is also urged that th$ court’s instructions Nos. 24 and 25 confined appellant’s plea of self-defense to acts by the deceased alone to the exclusion of acts by any member or members of his posse. No objection or exception was made to the instructions given on this ground. Counsel for appellant presented to the court a request for an instruction covering their theory of the case in this regard, but this instruction was erroneous, and the trial court properly refused to give it. It hah been uniformly held by this court that, in order to preserve for review error on instructions given by the court, or requested instructions refused, the complaining party must have tendered proper instructions and hav'e excepted to the refusal of the court to give the same, or, by excepting to instructions, call the court’s attention specifically to the alleged error. State v. Gonzales, 19 N. M. 467, 144 Pac. 1144; State v. Graves, 21 N. M. 556, 157 Pac. 160; State v. Johnson, 21 N. M. 432, 155 Pac. 721; State v. McKnight, 21 N. M. 14, 153 Pac. 76. The appellant having failed to call the attention of the court to the claimed vice by proper exceptions or tender to the court a correct instruction on the subject, no question is here for review.
In our opinion in chief we said in connection with this matter that appellant’s counsel admit that instructions Nos. 24 and 25, as given, avoid their objection, thereby obviating the necessity of seriously considering the objection urged. Counsel in rehearing point out that the use of this language in their brief was unfortunate and conveyed an erroneous impression. While it is true we did not correctly understand the position of appellant’s counsel, nevertheless the assignment of error in this particular is not well taken, for the reason pointed out in both our opinion in chief and the opinion on rehearing, viz. that the requested instruction was in itself erroneous.
[16] Appellant further argues that the court committed error in not sustaining tbe demurrer to the third count of the indictment, and also in overruling the motion to withdraw this third count from the consideration of the jury. This question, however, was not presented to the court in the original hearing and will not now be considered.
[17] Upon rehearing it is strenuously insisted that the court was in error in the original opinion in holding that appellant was not prejudiced by the substitution of the word “may” for the words “are to” in appellant’s requested instruction No. 4, given by the court as instruction No. 25. The requested instruction read as follows:
“Gentlemen of the jury, you are hereby instructed by the court that, if you believe from the evidence that the deceased was an officer and endeavoring to arrest the defendants or either of them, and that while so doing the fact that deceased was an officer was unknown to the defendants or either of them, and that the defendants had no reasonable ground to know or believe that deceased was an officer, and that the conduct' of deceased towards the defendants or either of them was threatening and was •of such nature as to cause the defendants to sincerely and with reason believe that they were in imminent danger of being killed themselves or of suffering great bodily harm, and that the only means by which defendants could have prevented the loss of their own lives or gerat bodily harm to themselves was to kill the deceased, then in that event you are to acquit the defendants or either of them on the grounds of self-defense.”
■ This instruction was changed by the court in the concluding portion to read, “then in that event you may acquit the defendants or either of them on the ground of self-defense.”
It was argued upon the original hearing that defendant’s requested instruction No. 4 should have been given without alteration. Neither the requested instruction nor the instruction as given by the court correctly ■stated the law, in that it made the fact that it was unknown ..to any one of the defendants that the • deceased was an officer, and tbat tbe conduct of tbe deceased towards either of tbe defendants was threatening, etc., a material element to be considered by tbe jury in tbe law of self-defense, giving to one of tbe defendants who might have .known tbat the deceased was an 'officer, and tbat be was attempting to arrest tbe fugitives, tbe right to invoke the law of self-defense by reason of tbe fact tbat some one of tbe defendants did not know.that tbe deceased was an officer and was attempting to arrest them, etc. And this even though ■such defendant might have bad full knowledge of the identity of tbe officer and bis purpose.
[18, 19] This instruction as given, even assuming tbat “may” could not be used interchangeably with “shall” or “must,” was more favorable to tbe appellant than be was entitled to. It is well settled that a defendant cannot complain of tbe refusal of tbe court to give an improper instruction. Blashfield on Instructions' to Juries (2d Ed.) § 172. It is likewise well settled that an appellant cannot complain of tbe instruction which, although erroneous, is favorable to tbe complaining party. Blashfield on Instruction, § 439; Territory v. Gallegos, 17 N. M. 409, 130 Pac. 245.
Some other propositions are argued, but are disposed o£ by the original opinion, with which we are content.
■ For the foregoing reasons, the former opinion will be adhered to; and it is so ordered.
Roberts, J., concurs.