OPINION
SOSA, Senior Justice.Defendant, Perry Jackson, was convicted of second degree murder for the death of Johnny Wayne Hawkins. The Court of Appeals, 99 N.M. 478, 660 P.2d 120, affirmed the defendant’s conviction. We granted certiorari and now reverse and remand for a new trial.
The issues before this Court on certiorari are as follows:
1. Whether the Court of Appeals erred in refusing to reverse defendant’s conviction as argued on motion for rehearing for the failure of the trial court to properly charge the jury on the elements of second degree murder despite defendant’s failure to raise the issue in his initial appeal.
2. Whether the Court of Appeals erred in holding that tender of an incorrect instruction on voluntary manslaughter resulted in a waiver of the defendant’s claim of error.
On December 20,1981, Jackson and Hawkins were both present in a restaurant in Hobbs. They began arguing and Hawkins attempted to leave the restaurant. A fight ensued and Jackson fatally stabbed Hawkins with a knife. Jackson testified that Hawkins had previously shown him a .38 caliber pistol that he owned. Another witness testified that he had seen Hawkins with a gun earlier on that same day. Jackson testified that while he was talking to another person in the restaurant Hawkins had approached them, cursed the defendant, and threatened to “blow me away”. He further testified that Hawkins appeared to have been drinking and was “glassy-eyed”. Hawkins then gave a friend, Conway Royal, the keys to his car. Jackson believed Royal had gone for a gun. Upon his return to the restaurant, Royal handed the decedent the car keys and something else which Jackson believed to be a gun. Shortly after that, Jackson stabbed the decedent.
Jackson was charged with first degree murder. Defendant’s counsel tendered jury instructions on the lesser included offenses of voluntary manslaughter and involuntary manslaughter. The trial court refused the two requested instructions, but did instruct the jury on the lesser included offense of second degree murder.
The instruction given by the court was the version originally adopted in 1975 that has been superseded by NMSA 1978, UJI Crim. 2.10 and UJI Crim. 2.11 (Repl. Pamp.1982). Noncompliance with the uniform jury instructions in criminal cases is reversible error if the failure eliminates an essential element of the crime in the instruction or if the defendant is prejudiced. State v. Gallegos, 96 N.M. 54, 627 P.2d 1253 (Ct.App.1981). Further, there may be fundamental error if the instruction given differs materially from the required instruction. See State v. Doe, 100 N.M. 481, 672 P.2d 654. When a uniform jury instruction is provided for the elements of a crime, generally that .instruction must be used without substantive modification. NMSA 1978, UJI Crim. General Use Note (Repl.Pamp.1982); see State v. Curlee, 98 N.M. 576, 651 P.2d 111 (Ct.App.), cert. denied, 98 N.M. 590, 651 P.2d 636 (1982). While it is generally true that a defendant who does not object to an incorrect instruction given by the trial court waives his right to object for the first time on appeal, State v. Noble, 90 N.M. 360, 563 P.2d 1153 (1977), there are exceptions. It is within the province of this Court, in its discretion to prevent injustice where a fundamental right of the accused has been violated. State v. Garcia, 46 N.M. 302, 128 P.2d 459 (1942); State v. Garcia, 19 N.M. 414, 143 P. 1012, reh’g granted, 19 N.M. 420, 143 P. 1014 (1914).
The responsibility for correct instruction rests upon counsel for both the State and the defendant. Neither the State nor the defendant tendered the correct instructions to the court. The jury instruction on second degree murder used in this ease substantively differed from either of the current instructions set forth at UJI Crim. 2.10 and UJI Crim. 2.11. The incorrect instruction in this case rises to fundamental error because it does not contain necessary elements of the crime not covered in other instructions. The defendant’s conviction must therefore be reversed. The trial court has a duty to instruct the jury on all questions of law essential for a conviction of the crime with which the defendant is charged. NMSA 1978, Crim.P.R. 41(a) (Repl.Pamp.1980); NMSA 1978, UJI Crim. 1.03 (Repl.Pamp.1982). Similarly, both the defendant and the state have a duty to tender correct instructions to the trial court. Had the trial court considered the correct instruction, it may have felt compelled to give the lesser included instruction on manslaughter. Because the trial court failed to properly instruct the jury on the issue of second degree murder, defendant’s conviction is reversed and the cause remanded for a new trial.
Because our resolution of the first issue is dispositive of this case, we do not reach the question of whether the Court of Appeals erred in holding that tender of an incorrect instruction on voluntary manslaughter resulted in a waiver of the defendant’s claim of error. However, we do note that a defendant is entitled to an instruction on voluntary manslaughter as a lesser included offense of first degree murder if there is evidence to support, or tending to support, such an instruction. Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982). Evidence of provocation sufficient to reduce a charge of second degree murder to voluntary manslaughter “must be such as would affect the ability to reason and to cause a temporary loss of self control in an ordinary person of average disposition.” NMSA 1978, UJI Crim. 2.22 (Repl.Pamp.1982).
Because the trial court failed to instruct the jury properly on the charge of second degree murder, defendant’s conviction is hereby reversed and the cause remanded for a new trial.
IT IS SO ORDERED.
PAYNE, C.J., and FEDERICI and RIORDAN, JJ., concur. STOWERS, J., respectfully dissents.