[No. 1966.

July 30, 1917.]

#### STATE v. ROWLAND.

SYLABUS BY THE COURT.

An appellate court will not consider assignments of error based on the giving or refusal of instructions, where the record fails to show that all the instructions ar'e embraced in the transcript.

Appeal from District Court, Grant County; Neblett, Judge.

Eugene Bowland was convicted of assault with intent to kill with a deadly weapon, and he appeals.

Affirmed.

Terrell & Black, of Silver City, for appellant. H. S. Bowman, Asst. Atty. Gen., for the state.

*614OPINION OP THE COURT.

EOBEETS, J.

Appellant, upon trial, was found guilty by a jury of assault with intent to kill with a deadly Weapon. Judgment was pronounced by the court upon the verdict, sentencing him to a term in the penitentiary. From this judgment he appeals, and seeks a reversal upon an alleged error committed by the court in modifying a requested instruction.

The transcript of record contains no instruction given by the court, save the one of which he complains, and the state contends that this instruction cannot properly be considered by the Supreme Court, because of his failure to incorporate in the bill of exceptions and bring up in the record the remaining instructions given by the court. The Attorney General is correct, because the court, in the state of the record, is unable to determine whether or not there was any error committed in the giving of the portion of the instruction complained of; for, if it be assumed that the modification was not a correct statement of the law, standing alone, other instructions given by the court may have cured the error, or have rendered it harmless. An appellate court will not consider assignments of error based on the giving or refusal of instructions, where the record fails to show that all the instructions are embraced in the transcript. In 4 C. J. p. 546, it is said:

> “It is further essential to a review of an assignment of err'or, based on the giving or refusal of ah instruction, that all the instructions given be included in the record, unless the instruction complained of is so erroneous that it could not have been cured by another proper instruction.”

And on page 547 (4 C. J. 547) it is said:

> “In most jurisdictions where the question has been decided it has been held that alleged' errors in the giving or refusal of instructions are. not reviewable, unless the record affirmatively shows that it embraces all the instructions given.”

Many authorities are cited under both statements of the law fully sustaining the text. See, also, Humpeler v. People, 92 Ill. 400; State v. Hendy, 148 Mo. 300, 49 S. W. *615 988; Barton v. State, 154 Ind. 670, 57 N. E. 515; Knickerbocker Ice Co. v. Gray, 165 Ind. 140, 72 N. E. 869, 6 Ann. Cas. 607.

For the reason stated, the judgment will be affirmed; and it is so ordered.

IIanna, C. J., and Parker, J., concur.