The Kootenai herald. [volume] (Kootenai, Idaho) 1891-1904, 1895-01-12

Of prudence to get control of his pas
sion. In determining whether sufficient
cooling time had elapsed since provo
cation was given the jury was instruct
ed TO consider the mental capacity
and age of the defendant, his condition
and state of mind at the time the prov
ocation was received. if any shown.
and from that on until the act of kill
ing. The drunkenness of the defendant.
if proved, should be considered in con
nection with the lapse of Tine for cool
ing the temper
THE LAW OF DRUNKENNESS
If there was an observation of the
mind of the accused, from any cause,
which prevented him from forming the
intent to kill then he could not be con-
victed of murder in either degree.
While it is a general rule Of law that
drunkenness is no excuse for crime per
petrated under its influence, still if the
defendant at the time of firing the IA
tai shot was so intoxicated as to be
incapable of forming a willful, deliber-
ate and premeditated design, and keep
In his mind design to take the life of
the deceased, such killing would not
be murder in either the first or second
degree. There are four kinds of drunk
enness in which the law deals: Volun-
tary drunkenness, insanity produced hy
drunkenness, and where one intending
to commit an offense makes himself
drunk to brace himself up for the or
deal
IN SELF-DEFENSE
The theory of self-defense was con-
al
that there should be actual or real dan
ger to the life or body of the one who
defends himself. If there be an ap-
pearance of danger caused by the acts
and demonstrations of the person killed.
or words accompanying such demon
strations, calculated to produce an ap-
prehension of peril, the party killing is
justified if he act on such appearance
of danger, even though it may suisse
quently appear there was in reality no
danger at all. 1t is sufficient if the
party in good faith believes from the
facts as they appear at the time that his
life is in peril or that he is in danger
of great bodily harm. But words, I'M
accompanied by a threatening gesture,
never Justify an assault. A person need
not avoid danger by retreat, so long as
he is where he has right to be- and
is not the aggressor in bringing on a
difficulty. but the assaulting party is
bound to retreat as far as possible con-
sistent with safety, unless prevented by
the fierceneSS of the attack. Under
these circumstances, killing to save his
own life would be eXcusable homicide.
ACCIDENT OR MISADVENTURE.
The claim of accidental discharge of
Selheim's weapon by Smith himself
was considered by the court.
The good character of Selheim. if
shown to the satisfaction of the jury,
should be taken into consideration.
Conflict in testimony of witnesses
before this jury and at the coroner's in
quest may be weighed in determining
the credibilfty of such witnesses. If the
jury is convinced that any witness has
testified falsely as to any material fact,
the whole of his testimony may be dis
regarded, except such parts as are cor
rOborated
The jurors were instructed that if they
believe the defendant guilty of some de-
gree of crime and are in doubt as to the
grade, he should be given the benefit
of the doubt and found guilty of the
lesser degree.