(dissenting).
Mindful of the question raised and argued in the briefs of the parties, I am unable to agree with the majority’s disposition of this appeal. The issues of an obsolete requested instruction on voluntary manslaughter and an ■ obsolete instruction on second degree murder given by the trial court, were not raised in the briefs of either parties.
The majority opinion agrees that the evidence supported an instruction on voluntary manslaughter. The State’s entire brief argues only that the evidence was insufficient to show provocation, and thus the manslaughter instruction was properly refused. The majority hold that defendant’s failure to submit a proposed instruction in accordance with language of the 1981 amendment to N.M.U.J.I.Crim. 2.20 is fatal. It overlooks the similar failure of the trial court to instruct the jury on second degree murder according to the language of the 1981 amendment to N.M.U.J.I.Crim. 2.10, N.M.S.A.1978 (1981 Cum.Supp.). It appears conclusively in this case that the parties, and the trial judge, all referred to the outdated uniform instructions in submitting this matter to the jury.
The majority acknowledges that State v. Curlee, 98 N.M. 576, 651 P.2d 111 (Ct.App.1982), requires the uniform jury instruction on the elements of a crime to be given without modification or substitution. If we are to raise, sua sponte, the bar of an incorrect proposed instruction to deny this appeal, we should apply the bar consistently and hold that if a jury is instructed wrongly on the elements of the crime for which defendant is convicted, that error is as fatal and as reversible as defendant’s error in submitting an incorrect requested instruction on a correct theory of his defense. In such a manner we would be holding the State and the trial judge to the same standards we impose upon defendants.
The trial court is obliged to instruct the jury on the law. N.M.U.J.I.Crim. 1.03, N.M.S.A.1978 (1982 Repl.Pamph.). State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973), unmistakably imposes the burden on the court to correctly instruct the jury. Chief Justice Lujan said, in State v. Beal, 55 N.M. 382, 234 P.2d 331 (1951), that “[instructions should not only state the law correctly, but they should be applicable to the case and give the jury to understand what the law is that is applicable thereto.... ” Neither the State nor the trial court are entitled to greater consideration of an incorrect, because obsolete, instruction asked — particularly when we decide such questions on our own motion.
Failure to properly instruct on essential elements is jurisdictional and may be raised for the first time on appeal. Gunzelman, supra. Noncompliance with the Uniform Jury Instructions is reversible error if the slightest evidence of prejudice to defendant appears. State v. Gallegos, 96 N.M. 54, 627 P.2d 1253 (Ct.App.1981). I am persuaded of the extreme prejudice, and basic unfairness, of providing the State’s answer to appellant’s issue by raising, sua sponte, the rule regarding the tender of a legally correct instruction, but refusing to apply, also of our own volition, concomitant rules regarding jurisdiction, due process, or fundamental error, when incorrect instructions are given. Cf., State v. DeSantos, 89 N.M. 458, 553 P.2d 1265 (1976); State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974).
I believe defendant’s conviction should be set aside for trial by a jury properly instructed. I, therefore, respectfully dissent.