¶1OPINION
¶2Our original opinion in this case was filed on September 1, 1987, 106 N.M. 498, 745 P.2d 1146. The State filed its motion for rehearing and we granted the State’s motion. Upon consideration of the State’s motion, we deny the relief sought by the State and amend our original opinion by adding the following thereto.
¶3In our original opinion we overruled Rutledge v. Fort, 104 N.M. 7, 715 P.2d 455 (1986), insofar as that decision holds that a defendant’s knowledge as to the identity of a police officer is not a necessary element of the crimes defined in NMSA 1978, Sections 30-22-22 and 30-22-24 (Repl.Pamp. 1984 & Cum.Supp.1987). We issued our opinion without realizing that the case we were deciding (Reese v. State) was in fact the same case as to Rutledge v. Fort. In Rutledge we issued a writ of superintending control prohibiting the trial court from giving a jury instruction which would require a finding that the defendant knew that the man he had assaulted was a police officer. When that case (styled Reese v. State) came before us on appeal, we ruled that a necessary element of the crime of assaulting a police officer is the defendant’s knowledge of the identity of his victim. The State argues on rehearing that we have arrived at an impossible conclusion because the law of the case precludes our reaching a result on appeal that differs from the result we initially reached when granting the writ of superintending control.
¶4We disagree with the State. The State did not advise us that the real parties in interest in Reese v. State and Rutledge v. Fort were the same. The State in fact filed no response to Reese’s petition for writ of certiorari, and for that reason alone the State could be held to have waived its subsequent claim that the law of the case precludes our variant ruling in Reese. We do not, however, base our decision here on the State’s waiver of its claim to assert the law of the case. Instead, we base our decision on the broader policy rationale underlying the doctrine of the law of the case.
¶5We long ago stated the theory underlying this doctrine as follows:
The doctrine of the law of the case is not a rule to which we are bound by any legislative enactment. In so far (sic) as we are bound, it is because we have so bound ourselves, or choose so to bind ourselves by our decisions. By those courts which refuse, under some circumstances, to be bound by it, it is pointed out that when we conclude that a former decision is erroneous, and we still have the opportunity to correct it as affecting those parties whose interests are concerned in the original ruling, we should apply the law of the land rather than the law of the case. … [W]e feel that is better and more just to apply in this case what we find to be the law of the land. As affects the parties concerned, the evil effects of so doing are trivial as compared to the unfortunate consequences of perpetuating the error.
¶6Farmers’ State Bank v. Clayton Nat’l Bank, 31 N.M. 344, 355-56, 245 P. 543, 548 (1925).
¶7This decision is in keeping with the majority understanding of the doctrine of the law of the case which has been stated as follows:
[Sjince the doctrine of the law of the case is merely one of practice or court policy, and not of inflexible law, so that appellate courts are not absolutely bound thereby, but may exercise a certain degree of discretion in applying it, there are many holdings in which the courts have retreated from any inflexible rule requiring the doctrine to be applied regardless of error in the former decision, and it has been said that the doctrine should not be utilized to accomplish an obvious injustice, or applied where the former appellate decision was clearly, palpably, or manifestly erroneous or unjust.
¶85 Am.Jur.2d Appeal and Error § 750 at 194 (1962). See also Killeen v. Community Hosp. at Glen Cove, 101 Misc.2d 367, 369, 420 N.Y.S.2d 990, 992 (1979) (law of the case is discretionary); Greene v. Rothschild, 68 Wash.2d 1, 414 P.2d 1013 (1966) (if application of the doctrine would work a manifest injustice to one party the erroneous decision should be disregarded and set aside); Note, Successive Appeals and the Law of the Case, 62 Harv.L.Rev. 286, 288 (1948) (“Today almost all courts would probably reverse the prior ruling if convinced that it stated a bad rule of law and should be overruled.”) Note, The Doctrine of the Law of the Case, 17 Miss.L.J. 170 (1945) (law of the case must not be confused with stare decisis and res judicata, both of which are binding, while law of the case is discretionary); Vestal, Law of the Case; Single-Suit Preclusion, 1967 Utah L.Rev. 1 (application of the doctrine can be misleadingly broad), see generally Annotation, Erroneous Decision as Law of the Case on Subsequent Appellate Review, 87 A.L.R.2d 271 (1963).
¶9It is obvious from the above that we may deviate from the law of the case doctrine in the situation before us if to apply the doctrine would result in a manifest injustice. We hold that such would be the case here. Were we to adhere immutably to the law of the case, the defendant Reese would be denied a fair trial. As we stated in our original decision, to deny Reese the right to have the jury informed as to his apprehension of the identity of the person he assaulted would be to deny him the right to have the jury apprised of a necessary element of the crime for which he was charged, and that in turn would be to deny Reese his constitutional guarantee of due process of law.
¶10Accordingly, the State’s motion for rehearing is denied, and the holding in our original opinion is affirmed for the reasons set forth herein.
¶11IT IS SO ORDERED.
¶12(specially concurring in opinion on rehearing).
¶13I agree with the language cited from Farmer’s State Bank v. Clayton Nat’l Bank, but I also agree that under the technical circumstances of that case the Court was not “endangering the orderly and expeditious administration of the law by refusing … to apply the doctrine of the law of the case.” 31 N.M. at 356, 245 P. at 548. Justice Watson, who authored that opinion, was careful in a later opinion to note that it is not only the part of wisdom, but a high duty, to pursue a consistent course when what is held to be the law of the case is not “clearly erroneous.” Sanchez v. Torres, 38 N.M. 556, 567, 37 P.2d 805, 812 (1934). This “clearly erroneous” exception is well stated in words quoted herein by Senior Justice Sosa: “[T]he doctrine should not be utilized to accomplish an obvious injustice, or applied where the former appellate decision was clearly, palpably or manifestly erroneous or unjust.”
¶14Another concern is that this Court's composition has altered since it decided Rutledge. Dissenting in Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 652, 15 S.Ct. 673, 716, 39 L.Ed. 759 (1895), Justice White observed that the fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. He argued eloquently that no court should indifferently depart from the settled conclusions of its predecessors and determine them all according to the mere opinion of those who temporarily fill the bench.
¶15With these principles well in mind, I conclude that the precedential value of the Rutledge opinion is minimized by the fact that it was only recently decided by a divided court on a vote of three to two, and that its reliance on Feola [420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975)] was misplaced. I am persuaded that manifest injustice would result if conviction were to be allowed without proof negating an honest and reasonable belief that the victim of defendant’s assault was an ordinary citizen, not acting under color of law.