The White Pine news. [volume] (Treasure City, Nev.) 1868-1906, 1895-05-11

chKH1 u Hlaasoapreine COURT IN the
Wong Fong case, which has been re.
manded for new trial.
SYLLABUS, BY BIGELow, C. j.
1.fN@ardet not perpetrated by
means Of poison, lying in wait, or
torture nor i11thS perpetration, Or at
tempt to perpetrate, arson, rape, rob-
berry OF burglary, can only become
murder in the first degree by being
willful, dehberste and premeditated;
an instruction which ignores these
conditions, and informs the jury that
if they find that the defendant un-
lawfallEaad with malice aforethought
kiAA the deceased their verdict must
be murder in the first degree, is erro-
neous.
2. The words willful, deliberate
and premeditated, as. used in the
stat,He defhfng murder in the first
dewAe, arenot synonymous with the
term malice aforethought.
8. Where there is evidence to sup
port the yag1hct of. the jury, the SG;tl-
preme Court cannst reverse the judy
ment upon tie ground of insuficiency
of the evidence.
OPINION BY BIGELOW, c. j.
The d PENDANT was convicted of
mnrder in the hrst degree, and app
peals. The charging part of the in
dictnent reads as follows: 1.-THE said
George Fong, on the 18th day of Octo-
Der, A. D. 1894, or thereabouts, with
out autac rlty OF the law and with ma
lice aforethought, killed one Hing
Lee, human being, By shooting him
with pistol, at said county, State Of
Nevada"
Under our statue dividing murder
into two degrees, and the one proyid-
ing form Of Indictment, this indict-
ment is sufficient to suppcrta verdict
of murder in the first degree, although
it does net charge that the killing was
done with reconciliation and deli pera-
ton.
In the second instruction marked
estates Instructions the Court in
structed the jury as follows: "The
Court instructs you that if from all the
evidence you are satisfied beyond. a
reasonable doubt that the defendant,
Wong Fong, on the 4th day of Octo-
Der, A. d. 1894, at the county Of White
Pine. State OF Nevada, without au-
thority of law, and with malice afore-
thought, killed Hing Lee by shooting
him with pistol, as alleged in the in
dictment, your verdict must be guilty
of murder in the first Degree and
again in Estates Instructions No. l."
the jury were instructed that if {; they
were "satis6ed beyond reasen&hle
doubt that he did kill the deceased at
the time and place and in the manner
charged in the indictment without
legal justification, your verdict must
be guilty of nerd in the first degree.
These instruction are clearly GRO
neous. They define murder ins, the
second degree. and then inform the
jury that if they find those conditipns
to exist they must convict the dsfeaf
dant of the first degree. Section 81 of
the act concerning crimes and punish
ments (Gen. Stats, Sec. 4581) pro
yides that "All murder which shall
be perpetrated by means of poisonsso
lying in wait, torture, or by any other
kind of wilful, deliberate and pre-,
meditated killing, or which shaHgF be
committed in tn perpetratlon or at,
tempt to p9rpetrate, any arson, Mps,
robbery, or burglary, shall be deehed
murder of the first degree; and all;
other inds OF murder shall be deemed
muir der of the second degree" AS itis
not claimed that the murder in this
case was perpetrated by means of
poison or lying in wait or torture, nor
that it was done in the perpetation
or attempt to- perpetate any IF the
other ffenses mentioned, it could only
become murder of the first degree by
having been wilful, deliberate and
premeditated. Without these constit-
uents the C ime would only be murder
of the second degree, and it is the
failure to notice these most important