State v. Curlee , 98 N.M. 576 ( 1982 )

ON MOTION FOR REHEARING

WALTERS, Chief Judge.

The State has moved for rehearing, bringing to our attention by an attached affidavit of the district attorney that the incorrect instruction was tendered by the defendant. While conceding that the record upon which the appeal was docketed, briefed and decided does not include requested instructions of the parties, the State nevertheless asks us to draw some conclusions from the affidavit and the difference in the kind of paper used for the erroneous instruction when compared with the paper used for the other instructions. We are urged to apply the rule that a defendant will not-be heard to complain of an instruction which he requested. State v. Mills, 94 N.M. 17, 606 P.2d 1111 (Ct.App.1980).

N.M.R.Crim.App.P. 602, N.M.S.A.1978, limits motions for rehearing to “points of law or fact which movant believes the court has overlooked or misapprehended.” The motion “shall not contain argument.” Id.

This court could neither overlook nor misapprehend a fact that did not appear in the record, the transcript, or the briefs. The issue of an erroneous instruction was squarely raised by defendant in his brief-in-chief; the State’s answer brief met the issue head-on. The contention that the error in the instruction may be laid at defendant’s feet was raised for the first time in the motion for rehearing.

New Mexico has repeatedly refused to consider matters outside the record in reaching a decision on appeal, holding that such matters present no issue for review. State v. Smith, 92 N.M. 533, 591 P.2d 664 (1979); State v. Silver, 83 N.M. 1, 487 P.2d 910 (Ct.App.1971); State v. Paul, 82 N.M. 791, 487 P.2d 493 (Ct.App.1971); State v. Ford, 81 N.M. 556, 469 P.2d 535 (Ct.App.1970). The record on appeal is presumed to be accurate and is conclusive on the reviewing court. State v. Lopez, 80 N.M. 599, 458 P.2d 851 (Ct.App.1969). All of the instructions in the record — some on plain paper and some with red-lined margins; some on plain paper with two different type styles— are instructions given by the trial court. The requested, refused or withdrawn instructions were not included in the record. None are identified as having been requested by either party. A reviewing court will not go outside the record in a criminal case, State v. Colvin, 82 N.M. 287, 480 P.2d 401 (Ct.App.1971); it will not consider claims relying on information outside the record, State v. Ford, 81 N.M. 556, 469 P.2d 535 (Ct.App.1970).

Additionally, it has been an unwavering rule in this jurisdiction for almost seventy years that new points may not be presented in a petition for rehearing. Dow v. Irwin, 21 N.M. 576, 157 P. 490 (1916). See also Weese v. Stoddard, 63 N.M. 20, 312 P.2d 545 (1956); Lea County Water Co. v. Reeves, 43 N.M. 221, 89 P.2d 607 (1939); In re White’s Estate, 41 N.M. 631, 73 P.2d 316 (1937); Ellis v. Citizen’s Nat. Bank, 25 N.M. 319, 183 P. 34 (1919). As the court noted in Reeves, supra, when a petitioner for rehearing has had several opportunities to challenge the sufficiency of the record to reflect the happenings at trial and has not availed himself of those opportunities either at trial or during the course of the appeal, it is too late on the motion for rehearing to expect the reviewing court to become involved in considering a contention of'fact not appearing in the record or transcript presented.

The motion for rehearing is denied.

HENDLEY, J., concurs. DONNELLY, J., dissents.