On Motion for Rehearing On motion for rehearing the Attorney General argues quite persuasively, citing much authority, that the tendered and requested instruction is erroneous, in that it failed to place before the word "doubt" in the portion of the instruction quoted in our original opinion, the word "reasonable." As ably argued by the State, the instruction should have read, "and are in reasonable doubt as to whether it is a higher or lesser degree, etc., then the defendant should be given the benefit of such doubt and convicted of a lesser degree only." The opinion as written states: "For the error in failing to give to the jury the requested instruction, the case must be reversed, and a new trial granted."
We are satisfied that the State's contention is correct, and that the tendered instruction was lacking in the particular stated above. McAffee v. United States, 70 App.D.C. 142, 105 F.2d 21; Shelton v. Commonwealth, 145 Ky. 543, 140 S.W. 670; Sewell v. Commonwealth (Ky.), 284 Ky. 183, 144 S.W.2d 223; Stephenson v. Commonwealth, 264 Ky. 390, 94 S.W.2d 1002; Hanners v. State,104 Tex.Cr. 442, 284 S.W. 554; Sparks v. State, 108 Tex.Cr. 367,300 S.W. 938; Richardson v. State, 91 Tex. Cr. 318, 239 S.W. 218, 20 A.L.R. 1249; Miller v. State, 139 Wis. 57, 119 N.W. 850; State v. Louther, 22 Wash. 2d 497, 156 P.2d 672; State v. May, 172 Mo. 630,72 S.W. 918; 53 A.J. "Trial" Sec. 758; 23 C.J.S., Criminal Law, § 1289.
However, the tendered instruction sufficiently called to the trial court's attention the fact that a correct instruction should have been given. In State v. Williams, 39 N.M. 165,42 P.2d 1111, 1112, and State v. Mitchell, 43 N.M. 138, 87 P.2d 432, this question was before the court. As indicated in the Williams case, "We are not *Page 147 prepared to embrace * * * in any wholesale manner" the doctrine that a tendered instruction, though refused properly because in some respects it is incorrect, may still serve to put the Court in error for an omission in the instructions given, or to be given. Nevertheless, yielding to the higher consideration of justice, we stated: "It is essential to the orderly and effective administration of criminal justice that counsel for the accused assist the court in avoiding error. But rules of this kind must be consistent with and sometimes give way to the higher consideration of justice. Cf. Pettine v. Territory of New Mexico, 8 Cir., 201 F. 489, reversing Territory v. Pettine, 16 N.M. 40, 113 P. 843, quoted approvingly in State v. Houston, 33 N.M. 259, 263 P. 754. In this particular case, we feel that the ends of justice require a new trial, wherein the jury may have the opportunity to view appellant as the assailed, rather than the assailant, and to test what he did by the law governing persons in great peril in situations not of their own making."
Inasmuch as the defendant was convicted of murder in a case where it was open to the jury to convict him of manslaughter if a proper instruction had been given, the rule of the cases last cited should be applied. We are of the opinion that the ends of justice require a new trial so that the jury may be correctly instructed on this vital question. In the recent case of State v. Young, 51 N.M. 77, 178 P.2d 592, 596, the doctrine of the cited cases was invoked. We said: "We need not decide this question, as we are of the opinion that there was no evidence which authorized the trial court to submit to the jury the issue of manslaughter."
While counsel for defendant (inadvertently no doubt) failed in the particular stated to tender a correct instruction, the trial court could not have been in doubt as to the intention of counsel in presenting the defective instruction. It should have given a correct one. While the defendant is not, strictly speaking, entitled to a reversal, the ends of justice require it.
We adhere to the conclusion reached in our original opinion as to the disposition of the case.
SADLER and McGHEE, JJ., concur.
LUJAN and COMPTON, JJ., did not participate.