VOGEL, Judge,
on rehearing.
The defendant was charged with first-degree manslaughter under an information charging him with killing John Tidball “in a heat of passion” and “without a design to effect the death of John Tidball.” After a jury trial, he was found guilty of second-degree manslaughter under instructions which defined “second-degree manslaughter” as a homicide committed by “culpable negligence,” which is one of the several definitions permitted by statute.
Section 12-27-17, North Dakota Century Code, defines “Manslaughter in [the] first degree” as a homicide “perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide” (subsec. 2). “Manslaughter in [the] second degree” is defined by Section 12-27-19, N.D.C.C., as a “killing of one human being by the act, agency, procurement, or culpable negligence of another which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide.”
During the trial the defendant made a motion for an advised verdict, which was denied. Such a motion raises the question of the sufficiency of the evidence, but the order denying it is not appealable. State v. Johnson, 88 N.W.2d 209 (N.D.1958). He also made a motion for a new trial. Such a motion also raises the question of the sufficiency of the evidence, and the order denying it is appealable. Defendant attempted to appeal from the order denying the motion for a new trial, but his appeal was untimely, since it was filed sixty-four days after the making of the order denying the motion. Section 29-28-08, N.D.C.C., provides that “An appeal from a verdict or judgment may be taken within three months after its rendition and from an order within sixty days after it is made . . . .”
The defendant also appeals from the judgment, and his appeal from the judgment was timely.
The defendant raises questions, in addition to the sufficiency of the evidence, as to claimed error in the instructions of the court, particularly as to matters of self-defense and whether there is a duty to retreat, and also as to the propriety of instructions as to the lesser offense of second-degree manslaughter. He also claims that a finding of guilty of second-degree manslaughter under instructions defining that crime as one committed by “culpable negligence” necessarily constitutes an acquittal of the crime charged, which is manslaughter committed “in a heat of passion.”
The facts are not clear, because of conflicts in the testimony but they may be briefly summarized:
—The defendant and his wife live in a wooded area south of Bismarck. They have had trouble previously with trespassers, loud parties, and other nocturnal annoyances nearby. On the night in question they had guests, Mr. and Mrs. Sweep, who left at about 3 a. m. in their own vehicle. A short distance from the Haakenson home, while traversing a curve on the [397]*397road, Sweep saw young- people on the road, stopped, and got into an argument with them, and returned to the Haakenson house either for the purpose, as he said, of calming his wife, or, as the young people said, to get reinforcements.
■ — Haakenson and Mr. Sweep then returned to the scene, although (as was known to Haakenson) another equally available route from the Haakenson home to the Sweep home was unimpeded. At the scene of the previous confrontation, the teenage boys who were involved in the first encounter with Sweep were joined by older persons, including the decedent, recently discharged from the Navy. One of the older persons had a shotgun. The events thereafter are much in dispute, but it appears that one of the young people attempted, or pretended, to fire the shotgun, another struggled with him for possession of it, and several of the young people made menacing movements toward the defendant, who had fired his pistol over their heads upon arriving at the scene. Several shots were fired, all of them by the defendant. One bullet struck the shotgun, another (or perhaps the same one) temporarily deafened one young man who fell to the ground in such a fashion as to lead others to believe he was injured, and the final bullet discharged by the defendant killed the decedent, who was unarmed but close to the defendant at the time. Ballistic evidence was to the effect that the bullet was fired at a muzzle-to-body distance of two inches or less.
—According to Sweep, at the moment before the fatal shot was fired, “two kids were trying to get at” the defendant, and the defendant was swinging at them with his right hand, while holding the pistol in his left hand, and the third man was approaching the defendant from a few feet away, holding the rifle by the barrel, like a club. One of the kids “trying to get at” the defendant was the decedent.
—The defendant claimed the homicide was justifiable, in self-defense.
I. THE SCOPE OF REVIEW
We are met at the outset by the State’s claim that we have nothing to review. Pointing to the facts that the defendant purported to appeal from both the order denying the motion for new trial and the judgment, that the motion for new trial included allegations of insufficiency of the evidence and alleged error in the instructions, and that the motion for new trial was too late, the State argues that the abortive appeal from the order denying a new trial makes the order res judicata and precludes review of all matters raised in the motion for new trial. The State argues that we are therefore restricted in our review to only matters appearing on the face of the judgment roll, and cannot review the evidence or the instructions.
While such an argument has merit as to civil cases [Marsden v. O'Callaghan, 77 N.W.2d 522 (N.D.1956)], we find it unpersuasive in criminal cases.
In support of its argument, the State cites State v. McClelland, 72 N.D. 665, 10 N.W.2d 798 (1943); State v. Emmil, 172 N.W.2d 589 (N.D. 1969); and State v. Wilson, 142 N.W.2d 106 (N.D. 1966). In State v. McClelland, the question of the sufficiency of the evidence was not presented to the lower court by either a motion for new trial or for advised verdict of guilty. It was held that the sufficiency of the evidence was not before the Supreme Court. In State v. Emmil, supra, both appeals (from the order denying the motion for new trial and from the judgment) were taken too late, so there was nothing for the Supreme Court to review. And in State v. Wilson, supra, the order denying the motion for new trial was not appealed from, and the appeal from the judgment was taken too late, so, again, obviously the Supreme Court had nothing before it. True, State v. Wilson contains language to the effect that failure to appeal from the order denying the motion for new trial “alone would have prevented appellant from raising the sufficiency of the evidence,” but [398]*398this is obviously dictum where there is no appeal at all from a judgment or anything else.
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VOGEL, Judge,
on rehearing.
The defendant was charged with first-degree manslaughter under an information charging him with killing John Tidball “in a heat of passion” and “without a design to effect the death of John Tidball.” After a jury trial, he was found guilty of second-degree manslaughter under instructions which defined “second-degree manslaughter” as a homicide committed by “culpable negligence,” which is one of the several definitions permitted by statute.
Section 12-27-17, North Dakota Century Code, defines “Manslaughter in [the] first degree” as a homicide “perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide” (subsec. 2). “Manslaughter in [the] second degree” is defined by Section 12-27-19, N.D.C.C., as a “killing of one human being by the act, agency, procurement, or culpable negligence of another which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide.”
During the trial the defendant made a motion for an advised verdict, which was denied. Such a motion raises the question of the sufficiency of the evidence, but the order denying it is not appealable. State v. Johnson, 88 N.W.2d 209 (N.D.1958). He also made a motion for a new trial. Such a motion also raises the question of the sufficiency of the evidence, and the order denying it is appealable. Defendant attempted to appeal from the order denying the motion for a new trial, but his appeal was untimely, since it was filed sixty-four days after the making of the order denying the motion. Section 29-28-08, N.D.C.C., provides that “An appeal from a verdict or judgment may be taken within three months after its rendition and from an order within sixty days after it is made . . . .”
The defendant also appeals from the judgment, and his appeal from the judgment was timely.
The defendant raises questions, in addition to the sufficiency of the evidence, as to claimed error in the instructions of the court, particularly as to matters of self-defense and whether there is a duty to retreat, and also as to the propriety of instructions as to the lesser offense of second-degree manslaughter. He also claims that a finding of guilty of second-degree manslaughter under instructions defining that crime as one committed by “culpable negligence” necessarily constitutes an acquittal of the crime charged, which is manslaughter committed “in a heat of passion.”
The facts are not clear, because of conflicts in the testimony but they may be briefly summarized:
—The defendant and his wife live in a wooded area south of Bismarck. They have had trouble previously with trespassers, loud parties, and other nocturnal annoyances nearby. On the night in question they had guests, Mr. and Mrs. Sweep, who left at about 3 a. m. in their own vehicle. A short distance from the Haakenson home, while traversing a curve on the [397]*397road, Sweep saw young- people on the road, stopped, and got into an argument with them, and returned to the Haakenson house either for the purpose, as he said, of calming his wife, or, as the young people said, to get reinforcements.
■ — Haakenson and Mr. Sweep then returned to the scene, although (as was known to Haakenson) another equally available route from the Haakenson home to the Sweep home was unimpeded. At the scene of the previous confrontation, the teenage boys who were involved in the first encounter with Sweep were joined by older persons, including the decedent, recently discharged from the Navy. One of the older persons had a shotgun. The events thereafter are much in dispute, but it appears that one of the young people attempted, or pretended, to fire the shotgun, another struggled with him for possession of it, and several of the young people made menacing movements toward the defendant, who had fired his pistol over their heads upon arriving at the scene. Several shots were fired, all of them by the defendant. One bullet struck the shotgun, another (or perhaps the same one) temporarily deafened one young man who fell to the ground in such a fashion as to lead others to believe he was injured, and the final bullet discharged by the defendant killed the decedent, who was unarmed but close to the defendant at the time. Ballistic evidence was to the effect that the bullet was fired at a muzzle-to-body distance of two inches or less.
—According to Sweep, at the moment before the fatal shot was fired, “two kids were trying to get at” the defendant, and the defendant was swinging at them with his right hand, while holding the pistol in his left hand, and the third man was approaching the defendant from a few feet away, holding the rifle by the barrel, like a club. One of the kids “trying to get at” the defendant was the decedent.
—The defendant claimed the homicide was justifiable, in self-defense.
I. THE SCOPE OF REVIEW
We are met at the outset by the State’s claim that we have nothing to review. Pointing to the facts that the defendant purported to appeal from both the order denying the motion for new trial and the judgment, that the motion for new trial included allegations of insufficiency of the evidence and alleged error in the instructions, and that the motion for new trial was too late, the State argues that the abortive appeal from the order denying a new trial makes the order res judicata and precludes review of all matters raised in the motion for new trial. The State argues that we are therefore restricted in our review to only matters appearing on the face of the judgment roll, and cannot review the evidence or the instructions.
While such an argument has merit as to civil cases [Marsden v. O'Callaghan, 77 N.W.2d 522 (N.D.1956)], we find it unpersuasive in criminal cases.
In support of its argument, the State cites State v. McClelland, 72 N.D. 665, 10 N.W.2d 798 (1943); State v. Emmil, 172 N.W.2d 589 (N.D. 1969); and State v. Wilson, 142 N.W.2d 106 (N.D. 1966). In State v. McClelland, the question of the sufficiency of the evidence was not presented to the lower court by either a motion for new trial or for advised verdict of guilty. It was held that the sufficiency of the evidence was not before the Supreme Court. In State v. Emmil, supra, both appeals (from the order denying the motion for new trial and from the judgment) were taken too late, so there was nothing for the Supreme Court to review. And in State v. Wilson, supra, the order denying the motion for new trial was not appealed from, and the appeal from the judgment was taken too late, so, again, obviously the Supreme Court had nothing before it. True, State v. Wilson contains language to the effect that failure to appeal from the order denying the motion for new trial “alone would have prevented appellant from raising the sufficiency of the evidence,” but [398]*398this is obviously dictum where there is no appeal at all from a judgment or anything else.
This court has held many times that it will not review the sufficiency of the evidence unless the matter has been brought before the lower court either by a motion for a new trial or by a motion for an advised verdict. Decisions refusing to consider the sufficiency of the evidence because the matter was not raised in the trial court include State v. Lende, 190 N.W.2d 52 (N.D.1971); State v. Haider, 150 N.W.2d 71 (N.D.1967); State v. Timm, 146 N.W.2d 552 (N.D. 1966); State v. Eli, 62 N.W.2d 469 (N.D. 1954); State v. Mostad, 70 N.D. 73, 291 N.W. 910 (1940); State v. Johnson, 68 N.D. 236, 278 N.W. 241 (1938); State v. Fahn, 53 N.D. 203, 205 N.W. 67 (1925); and State v. Glass, 29 N.D. 620, 151 N.W. 229 (1915).
All of these cases illustrate the application of the basic principle, applicable to both civil and criminal cases, that a fair opportunity must be given to the trial court to correct any alleged error before it is raised as grounds for appeal. But there is a difference between requiring the question to be raised in the trial court, and the rule advocated by the State here to the effect that a defendant must appeal from an order denying a motion raising the issue or else he cannot have it considered under an appeal from the judgment. We have many times held the former, but never the latter, in criminal cases.
In State v. Gill, 154 N.W.2d 791 (N.D. 1967), the appeal was from the judgment alone. No motion for a new trial was made in the lower court, but a motion for a directed verdict was made (although we had no provision for directed verdict in criminal cases), and this court considered it as a motion for an advised verdict, and fully considered the sufficiency of the evidence. In State v. Dietz, 115 N.W.2d 1 (N.D. 1962), again the appeal was from the judgment alone, and, although a motion for a directed verdict was made and denied and no attempt to appeal from the order denying such motion was made, this court fully considered the sufficiency of the evidence again. We will do so here.
Perhaps the difference in approach between civil and criminal cases arises in part because of the language of Section 29-28-27, N.D.C.C., which reads as follows :
“Upon an appeal taken by the defendant from a verdict or judgment, the supreme court may review any intermediate order or ruling which involves the merits or which may have affected the verdict or judgment adversely to the defendant.”
As to the right and duty of the Supreme Court to consider errors in instructions where the judgment is appealed from but not the order denying the motion for new trial, we believe the law is even more clear. Even in State v. McClelland, supra, upon which the State relies, the refusal to consider the propriety of the instructions was based upon the defendant’s failure to raise the point in the lower court, not upon any claimed principle of res judicata. The same is true of many of the other cases cited above.
We hold that the alleged error in instructions is a matter of law, which (while it must be raised in some appropriate fashion in the lower court) can be reviewed upon an appeal from the judgment, just as sufficiency of the evidence can.
Under the new North Dakota Rules of Criminal Procedure, an appeal will rarely be taken from an order denying a motion for new trial, since an appeal from the judgment will bring up for review all claims of error or rulings and instructions properly raised in the trial court and the making of a timely motion for new trial postpones the time for appeal from the judgment until ten days after entry of the order denying the motion. Appeals from orders denying motions for new trial will ordinarily be appropriate only where the [399]*399order itself is a final determination of the action, as where a motion for new trial on the ground of newly discovered evidence is denied after the time for appeal from the judgment has passed. See Rule 33, N.D. R.Crim.P., and Rule 33, F.R.Crim.P.; 8A Moore’s Federal Practice, Secs. 33.02(1) and (2), and 6A Moore’s Federal Practice, Secs. 59.15(1), (2), and (3).
The touchstones hereafter for an effective appeal on any proper issue should be (1) that the matter has been appropriately raised in the trial court so that the trial court can intelligently rule on it, and (2) that there be a valid appeal from the judgment. Any other traps for the unwary on the road to the appellate courthouse should be eliminated.
II. THE MERITS OF THE APPEAL
As to the sufficiency of the evidence, the brief summary of the facts given above shows that there were many factual issues peculiarly within the province of the jury. While certainly an inference of innocence could reasonably be drawn from the evidence, that fact does not present a question of law for review by an appellate court if there are other facts which reasonably justify an inference of guilt. Here, there are conflicts as to whether the defendant was an aggressor, whether he had an opportunity to avoid the confrontation after or before it commenced, whether he was justified in discharging the weapon, whether the weapon was fired in a heat of passion or as a result of culpable negligence and, in sum, whether he was guilty or innocent. We hold the evidence was sufficient to raise a factual issue for determination by the jury.
Our problem arises from the instructions. The instructions as to self-defense and retreat are set out in full as follows:
“I charge you, Members of the Jury, that the doctrine of self-defense or self-protection is founded upon necessity, and in self-defense no more violence may be used than is necessary under all the circumstances, but it is not necessary that at the time of the commission of the acts of self-defense, the person so acting in self-defense actually was in danger, so long as the person acting in self-defense actually believed himself in danger, and commits the act of self-defense upon what he believes to be reasonable apprehension of danger to himself, resulting from the commission of some overt act towards him by an antagonist, from which he apprehends such danger.
“A person attacked need not retreat before exercising the right of self-defense. However, the claim of self-defense is not maintainable, where the Defendant had ample and full opportunity to retire to a place of safety and thus avert the crime.
“If you, Members of the Jury, believe from the evidence that at the time the Defendant is alleged to have shot John Tidball, the decedent, the circumstances surrounding him were such as would reasonably justify or induce in his mind an honest belief that he was in danger of receiving from the decedent, John Tidball, some great bodily harm, and that the Defendant in doing what he did was acting solely from instincts of self preservation, then the Defendant is not guilty and you should so find.
“Moreover, since it is the duty of the State to show, in this instance, that the Defendant was not acting in self-defense, I charge you that you must acquit the Defendant unless you are convinced beyond a reasonable doubt that he was not acting in self-defense. If there is any reasonable doubt in your mind, after consideration of the evidence and these instructions, that the Defendant was acting in self-defense at the time of the alleged shooting of John Tidball, that doubt must be resolved in favor of the Defendant and you must find him not guilty.
[400]*400“You are instructed that generally the right to use deadly force in self-defense is not available to one who is the aggressor or provokes the conflict. However, if one who provokes a conflict thereafter withdraws from it in good faith and informs his adversary by words or actions that he desires to end the conflict, and he is thereafter pursued, he is justified in using deadly force to save himself from imminent danger of death or serious bodily harm.
“If the Defendant was not the aggressor, and had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant, he had the right to employ deadly force in order to defend himself. By ‘deadly force’ is meant force which is likely to cause death or serious bodily harm.
“In order for the Defendant to have been justified in the use of deadly force in self-defense, he must not have provoked the assault on him or have been the aggressor. Mere words, without more, do not constitute provocation or aggression.
“If evidence of self-defense is present, the State must prove beyond a reasonable doubt that the Defendant did not act in self-defense. If you find that the State has failed to prove beyond a reasonable doubt that the Defendant did not act in self-defense, you must find the Defendant not guilty. In other words, if you .have a reasonable doubt whether or not the Defendant acted in self-defense, your verdict must be not guilty.”
It is the second paragraph quoted above which creates the most problems. The defendant made specific objection to this language. It is obvious that the trial court was attempting to reconcile some decisions made by this court in days long past when both pleadings and instructions were more tecnnical than they are now. The first sentence correctly states the law of North Dakota. State v. Swift, 53 N.D. 916, 208 N.W. 388 (1926). The second sentence is taken verbatim from the syllabus by the court to State v. Lehman, 44 N.D. 572, 175 N.W. 736 (1919). In the Lehman case the defendant claimed he had first been assaulted by the decedent, and this court held that at that point he might have exercised a right of self-defense. But the evidence showed that the defendant thereupon pursued the decedent into a house, attempted to break down the door, shot through an interior door a couple of times, and finally succeeded in gaining entrance and killing the decedent. Under those circumstances, this court held that the defendant’s prior right of self-defense no longer existed, and he became the aggressor in view of the fact that he “had ample and full opportunity to retire to a place of safety and thus avert the crime.” This principle is correctly stated by the lower court later on where the instructions state that “if one who provokes a conflict thereafter withdraws from it in good faith and informs his adversary by words or actions that he desires to end the conflict, and he is thereafter pursued, he is justified in using deadly force to save himself from imminent danger of death or serious bodily harm.”
But, as we read the second paragraph above quoted, it can be interpreted by a jury as stating that a person attacked need not retreat before defending himself, but if he is a defendant and has an opportunity to retire to a place of safety, he must do so. This, of course, is not the law.
While we sympathize with the district judge in his attempt to reconcile the extremely technical statements of State v. Swift and State v. Lehman, we must recognize that the instructions are prejudically erroneous where they advise the jury that this defendant could not claim self-defense if he had an ample and full opportunity to retire to a place of safety. We [401]*401therefore reverse on this ground alone, since the instruction was erroneous and related to a subject which was central to the case, and therefore affected the substantial rights of the defendant. State v. Maresch, 75 N.D. 229, 27 N.W.2d 1 (1947).
We decline to join the dissent in ruling as a matter of law that Haakenson was an aggressor. This is a question for the jury under proper instructions.
While, as we have said, we consider the evidence sufficient for conviction, it is likewise true that the jury may have acquitted the defendant if it were not for the misleading instruction. The fact that the evidence was ample for a conviction does not alter the requirement of a fair trial. State v. Schlittenhardt, 147 N.W.2d 118 (N.D. 1966).
And, as in civil cases, we are more inclined to permit a new trial in case of doubt than to deny one. See Linington v. McLean County, 146 N.W.2d 45 (N.D. 1966), and cases cited.
Upon a retrial, we suggest that the law is, and should be, that there is no invariable duty to retire to a place of safety on the part of a victim of an aggressor, but the reasonableness of retreat or standing one’s ground and the fact of aggression by one party against the other are circumstances which the jury can consider in deciding whether the right of self-defense exists. See 1 Devitt & Blackmar, Federal Jury Practice and Instructions, 2d Ed., Sec. 43.21, 43.23. It is better to flee than to kill, but flight is not required where it continues or increases the danger.
We also suggest that the first sentence of the penultimate paragraph quoted above is erroneous for the same reason the second paragraph is and should not be part of any future instructions.
On the question of instructing as to second-degree manslaughter, we believe the lower court was clearly correct. Sec-tion 12-06-06, N.D.C.C., requires such an instruction. It reads:
“Whenever a crime is distinguished into degree, the jury, if it convicts the defendant, must find the degree of the crime of which he is guilty. Whenever a verdict of guilty is rendered against the accused upon a prosecution for homicide, the jury must find the degree thereof by its verdict, and the judge must determine the punishment to be inflicted within the limits prescribed by law.”
See State v. Whiteman, 79 N.W.2d 528 (N.D.1956).
Of course, if it is plain beyond doubt that the defendant could not be guilty of a lesser degree of crime under the undisputed facts, then it would not be error to omit the instruction as to the lesser degree. State v. Woods, 24 N.D. 156, 139 N.W. 321 (1912). But, as we have pointed out above, we believe that the jury could, under the facts of this case, find the defendant guilty of the lesser offense of second-degree manslaughter.
Reversed and remanded for new trial.
ERICKSTAD, C. J., and PAULSON, J., concur.