On Petition for Kehearing.
CheistiaNSON, J.A strenuous petition for rehearing has been filed in this ease. It may be remarked at the outset that the petition in no manner complies with the rules of this court relating to such petitions, and sets forth no ground on which a rehearing may proqierly be asked, but is merely a reargument of certain portions of the case. The only points argued are those coming under ¶¶ 1, 2, 4, and 5 of the syllabus. Appellant’s counsel virtually contends that in a criminal case there can be no such thing as waiver of or estoppel to assert error, and that these rules apply only to civil litigants. To quote from the petition for rehearing itself: “While the legislature has seen fit to surround the civil litigant with certain restrictions so that he may be bound by the act of his counsel, no matter how foolish it may be, such is not the case with respect to men who are charged with crimes. The state is so anxious to protect the man charged with the commission of an offense, that it even furnishes him counsel, if he is unable to procure it himself; and is it possible that the legislature has provided a law by which it will say that we will protect a citizen by furnishing him a counsel, and then make him responsible for all of the foolishness of that counsel?” The doctrine contended for by appellant’s counsel is, to say the least, somewhat strange, and if carried on to its logical conclusion *638would doubtless result iu reversal in practically every criminal case coming to this court. If defendant and his counsel can be permitted to stand by and permit error to be committed in the trial court, or even induce the trial court to commit error, and then on appeal assert that they should not be bound thereby, a criminal trial would become a mere farce. It is so well settled, however, as to be elementary, that the doctrine of waiver and estoppel applies to a defendant in a criminal case, and he cannot be permitted to take one position in the court below and assume an entirely different position in the appellate court. And it has been held that want of preliminary examination (State v. Calkins, 21 S. D. 24, 109 N. W. 515), alleged improper change of venue to another county (State v. Kent (State v. Pancoast), 5 N. D. 516, 35 L.R.A. 518, 67 N. W. 1052), duplicity or uncertainty in the information (State v. Burns, 25 S. D. 364, 126 N. W. 572), insufficient verification of a criminal complaint (State ex rel. Poul v. McLain, 13 N. D. 368, 102 N. W. 407), alleged error in denying a continuance (State v. Thompson, 141 Mo. 408, 42 S. W. 949), disqualification of prosecuting attorney (State v. Smith, 108 Iowa, 440, 79 N. W. 115), or of juror (Self v. State, 39 Tex. Crim. Rep. 455, 47 S. W. 26), the right to be confronted by the witnesses against him (Gillespie v. People, 176 Ill. 238, 52 N. E. 250; State v. Olds, 106 Iowa, 110, 76 N. W. 644; State v. Williford, 111 Mo. App. 668, 86 S. W. 570; Odell v. State, 44 Tex. Crim. Rep. 307, 70 S. W. 964; State v. Mortensen, 26 Utah, 312, 73 Pac. 562, 633), may be waived by the defendant in a criminal ease by his conduct or consent in the trial court. And the defendant’s failure to interpose the plea of former jeopardy prior to verdict was a waiver of the' right to assert such defense. State v. Barnes, ante, 164, 150 N. W. 557. So, if defendant and his counsel permit incompetent evidence to be received without objection, the defendant will be deemed to have waived his right to object to such testimony. State v. McDonough, 104 Iowa, 6, 73 N. W. 357; People v. Scalamiero, 143 Cal. 343, 76 Pac. 1098; State v. Marshall, 105 Iowa, 38, 74 N. W. 763; People v. Ardell, 6 Cal. Unrep. 827, 66 Pac. 970. And if an objection is overruled and an answer not responsive- to the question is permitted to stand without motion to strike out the answer, the objection will be deemed waived. People v. Wong Chuey, 117 Cal. 624, 49 Pac. 833; People v. Durrant, 116 *639Cal. 179, 48 Pac. 75, 10 Am. Crim. Rep. 499; People v. Colvin, 118 Cal. 349, 50 Pac. 539; People v. Lawrence, 143 Cal. 148, 68 L.R.A. 193, 76 Pac. 893. And if a defendant objects to tbe admission of, or moves to strike ont, testimony, on certain grounds, be cannot after-wards be beard to say that tbe objection or motion should have been sustained on other and different grounds. State v. Merry, 20 N. D. 338, 127 N. W. 83; People v. Lang, 142 Cal. 482, 76 Pac. 232; State v. Van Tassel, 103 Iowa, 6, 72 N. W. 497; State v. Stephenson, 69 Nan. 874, 77 Pac. 582; State v. Heacock, 106 Iowa, 191, 76 N. W. 654; Donaldson v. People, 33 Colo. 333, 80 Pac. 906. And so error preserved in tbe court below will be deemed abandoned and waived unless discussed in tbe brief on appeal. State v. Wright, 20 N. D. 216, 126 N. W. 1023, Ann. Cas. 1912C, 795.
In discussing tbe doctrine of waiver of rights, Bishop’s New Criminal Procedure says: “In natural reason, one should not complain of a thing done with his consent. And the law, in all its departments, follows this principle. It is analogous to estoppel, or a species of it. Like any other legal doctrine, the circumstances of a particular instance may compel it to give way to another. ... If, except where some counter doctrine presses with a superior force forbidding, a party has requested or consented to any step taken in the proceedings, or if at the time for him to object thereto he did not, he cannot afterward complain of it, however contrary it was to his constitutional, statutory, or common-law rights. Necessity is the chief foundation for this doctrine. Without it, a cause could rarely be kept from miscarrying. The mind, whether of the judge or the counsel, cannot always be held taut like a bow about to send forth the arrow; and if every step in a cause were open to objection as well after verdict or sentence as before, a shrewd practitioner could ordinarily so manage that a judgment against his client might be overthrown. Even by lying by and watching, if he did nothing to mislead, he would find something amiss to note and bring forward after the time to correct the error had passed.” Bishop, New Crim. Proc. §§ 117 — 119, pp. 88 and 89.
By application of the same principle, we held in the opinion in this case that where the defendant makes a motion for a new trial, he is bound by the reasons assigned therein, and that all matters which would constitute grounds for a new trial and which are not set forth *640in tbe motion are waived. 29 Cyc. 944. The mere "fact that some of the alleged errors might have been available on appeal from the judgment without making a motion for a new trial does not change the rule. The laws of this state give to a defendant in a criminal case the privilege, if he so desires, to move for a new trial upon certain specified grounds, and if he desires to avail himself thereof, it is his duty to present all reasons why a new trial should be had. The defendant cannot be permitted to say to the trial court: “I am entitled to a new trial on these grounds, and these alone,” and then afterwards assume an entirely contrary position, and say to the appellate court: “The reasons I presented to the trial court were not the proper ones, but there are certain additional and entirely different grounds which I did not present to the trial court which entitle me to a new trial.” The defendant saw fit to make a motion for a new trial in the court below, and having availed himself of this right he is required to present to the trial court any and all grounds which might be asserted by such motion, and is bound by the reasons assigned, and all other matters which he might have so asserted and failed to do will be deemed waived. We believe that the rule laid down in the opinion is sound in principle, and see no reason to depart therefrom.
Doubtless the appellate court has the right, in order to prevent an unjust conviction to stand, to disregard the waiver of the defendant, and in this case this court disregarded such waiver and passed upon all the various propositions raised, and decided the same adversely to the appellant.
In the petition for rehearing, appellant vehemently asserts that because the trial court failed to incorporate an instruction on the law relative to an alibi, that the defendant was deprived of a substantial right, and that the judgment should be reversed. And in support of this contention, counsel for defendant cites § 11013 of the Compiled Laws, which reads as follows: “After hearing the appeal, the court must give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties.” The argument of appellant’s counsel seeks to defeat the obvious purpose for the enactment of the section cited. Stripped of all legal phrases, the question submitted to the jury in this case was: “Did the defendant, Herbert Glass, shoot and kill Thomas Corcoran at the *641time and place described in tbe information?” Tbis was tbe prime question in tbe ease, and this question was, as we have indicated in tbe opinion, submitted to tbe jury fully and fairly. Tbe contention that twelve intelligent men could have and did under tbe court’s instructions in tbis case find tbe defendant guilty, if they bad any reasonable doubt as to whether or’ not tbe defendant was at tbe place where Corcoran was killed at tbe time tbe shooting took place, is entirely untenable.
An alibi in criminal law is defined in Black’s Law Dictionary as follows: “Elsewhere: in another place. A term used to express that mode of defense to a criminal prosecution, where tbe party accused, in‘order to prove that be could not have committed tbe crime with which be is charged, offers evidence to show that be was in another place at tbe time; which is termed setting up an alibi.” And in Bou-vier’s Law Dictionary: “Presence in another place than that described. When'a person charged with a crime proves (se eadem die fuisse alibi) that be was, at tbe time alleged, in a different place from that in which it was committed, be is said to prove an alibi, tbe effect of which is to lay a foundation for tbe necessary inference that be could not have committed it.” And in 2 Cyc. 79, “Literally, ‘elsewhere.’ A defense in criminal law in which tbe defendant shows that be was at another place at tbe time tbe crime charged was committed.” And in 2 Am. & Eng. Enc. Law, 2d ed. 53, “Tbe word ‘alibi’ means literally, ‘elsewhere,’ and a prisoner or accused person is said to set up an alibi when be alleges that, at tbe time when tbe offense with which be is charged was committed, be was ‘elsewhere;’ that is, in a place different from that in which it was committed.”
It is defined by Bishop as follows: “An alibi is, in criminal evidence, tbe defendant’s showing, under bis plea of not guilty and without special averment, that when the criminal thing was done, he was at some place where he could not be the doerBishop, 'New Crim. Proc. § 1061.
With reference to tbe evidence admissible and tbe facts to be considered in connection with an alibi, it is said: “On tbe question of alibi tbe relevant facts are tbe distance between tbe scene of tbe crime and tbe prisoner’s alleged whereabouts at tbe time of its commission, and tbe time of tbe crime, as compared with that of tbe alibi, allow*642ing for difference in timepieces and in opinions respecting time and tbe means of travel.” 12 Cyc. 404.
And in Wharton’s Criminal Law, 11th ed. § 380, it is said: “The defense of alibi, i, e., ‘elsewhere,’ or presence in another place than that described at the time the alleged offense was committed, is not, properly speaking, a defense within any accurate meaning of the word ‘defense,’ but is a mere fact shown in rebuttal of the evidence introduced by the state. . . . Impossibility of presence at the time and in the place charged is the essential feature of this defense, and any proof tending to show that it was reasonably impossible for the accused to have been present at the time and place of the commission of the offense charged is sufficient to establish the defense.” In our original decision in this case, we did not deem it necessary to refer to the evidence in the case to any great extent, and based our conclusions upon general legal principles, but in view of the ardent and strenuous assertions in the petition for rehearing that the trial court’s failure to instruct the jury upon the law applicable to an alibi and corroboration of an accomplice deprived defendant of his substantial and fundamental rights, we deem it desirable to briefly present the evidence, as contained in the record, applicable to these two propositions.
The court’s instructions are given to aid the jury in determining the issues involved. And instructions which would tend to confuse rather than enlighten would therefore be improper. The instructions necessarily ought to be confined to the issues presented by the evidence. According to the undisputed testimony of all witnesses, including that of the defendant himself, Thomas Corcoran was shot in or by the side of his wagon during the night of September 3d, and his dead body found in the wagon on the morning following. The defendant, Glass, testified that Thomas Corcoran’s wagon was situated in the same block as Glass’s house, and only between 80 and 100 feet from the defendant’s house. The defendant and his wife both testified that some time after 10 o’clock at night they heard a shot fired, and then went to a window and looked out and saw two men at the wagon in an altercation, and that while they so stood and watched one man fired a shot at the other,' — -the two men by the wagon being then about 6 or 8 feet apart. That after the shot was fired the man at whom the shot was fired slowly got into the wagon, and *643that thereafter tbe man who fired the shot also got into the wagon. The defendant says that the window through which he watched the shooting was 100 feet from the wagon where the shooting took place and Thomas Corcoran’s dead body found the next day. Can it be said that a person who claims that he stood within 100 feet or less of where a murder was committed and saw the shot fired has proved an alibi, and that this testimony requires the trial court to instruct on the law relative to alibi ? It seems self-evident that an instruction on the law relative to alibi has no place under such evidence, and certainly not in the absence of a specific request therefor.
The other proposition argued in the petition for rehearing is that the court should have submitted an instruction on the law relative to the corroboration of an accomplice. As we have already stated in the original decision, it was expressly contended in the court below that Carberry and Glass were not accomplices. This appears from the affidavit of defendant’s attorney submitted in support of the motion for new trial, and Glass testifies that he had absolutely nothing to do with the murder of Thomas Corcoran, had no connection whatever with Carberry, and had no notice or knowledge of the murder until the next day, and that at the time he suspected Carberry of having committed the murder. Thomas Carberry, on the other hand, positively denies any connection with the murder, and testifies positively as an eyewitness that Herbert Glass shot and killed Thomas Corcoran. Carberry’s testimony on various points is corroborated by other witnesses. Therefore, in order for the trial court to instruct on the law relative to the corroboration of an accomplice, it would have been necessary for the trial court to instruct in absolute disregard of the theory of defendant’s counsel, and in direct contravention not only of the testimony of the defendant and his wife, but of all the witnesses who testified in the case. And we have no doubt that if the trial court had instructed of its own volition on the law relative to the corroboration of an accomplice or the law relative to an alibi, that it would now be just as earnestly urged on this appeal that such instructions were erroneous and prejudicial to the substantial rights of the defendant. The argument submitted by appellant’s counsel in this case shows to what extent technicalities have been permitted to permeate our system of criminal procedure. The business of the courts is to try and deter-^ *644mine issues. This applies equally to criminal as well as to civil' cases. A criminal trial is not a mere game of wits or contest of skill between opposing counsel, or a ceremony for the display of forensic ability, but it is a solemn proceeding to ascertain the guilt or innocence of a person accused of crime. A fact -is a fact whether it arises in a criminal or in a civil action. In this case the question, and really the only question, to be determined by the jury, was whether or not Herbert Glass murdered Thomas Corcoran. This question was submitted to the jury under fair instructions, and all the legal presumptions existing in defendant’s favor were fully and fairly explained to the jury. The jury in its verdict said that Glass murdered Corcoran. The trial judge, who saw and heard the witnesses and was familiar with the entire case, refused to set aside the verdict. This court would abuse its power by interfering with these findings in this case. We see no reason for modifying or altering our former opinion herein. The petition for rehearing is denied.