The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-17

murder was perpetrated BY means Il
poison. or lying In wait, or torture,
or BY any other wiiltui. deliberate
and premeditaAeA killing. or in the
perpetration or attempt to penetrate
robbery. This ingredient Of deliber-
ate premeditated killing must be
clearly shown and proven beyond all
reasonable doubt. It is not sufficient
taat you think the killing was DELHI
craze and premedita.eu, the eviden .e
must convince you Of that fact to an
a lang certainty and beyond all rea-
sonable doubt The evidence of de-
liberation and Fermentation must be
such as to convince you that the de-
| liberate premidated design and pur
pose to murder was knowingly and
Intentionally formed and considered
| in the mind Of chbdefendant and
meditated upon before the fatal blow
was struck: and in considering wheth-
er snch design was formed in the
minds of eacn of the defendants, you
should consider the evidence. if any,
of drunkenness. II the defendants
were drunk at the time and were
too much intoxicated to form a deli
berale and premeditated purpose.
they cannot be found guilty of muir
Ger in the first Uegree. 1t is true
that drunkenness is no excuse for the
commission Of an offense. but never
theless the jury must consider the
evidence of drunkenness and deter
mine whether it was sufficient to so
c.Oud the minds Of the defendants as
10 Interfere with the formation Of
deliberate and premeditated purpose
to kill. If the drunkenness was suf
tlclent to create reasonable DOUBT
IN your minds as to the existence rt
such a deliberate premedtated pul'
pose. you cannot find the defendants
guilty OF murder in the first degree =
Counsel for defendants attack The
courts instruc. .on No. u as being an
, erroneous statement Of the law, am
bigous and misleading. consequently
highly preudicial to the defendants.
.he instruction complained of was
dou. less copied in The main from an
: instruction that has a number Of
times net with the approval Of the
Supreme Court Of >ainorna.
, tpeople V. Williams. - Cal 3t3;
: People V. nelencia u Id 545; PEG
, pie V. Lewis &c Id 531. People. V.
t eFrr.s. % Iu so: People y. Jones, 6.
ID les: People y Vincent, 93 Id. i25;
=. Pac. 5>ll
The Instructions upon the law Of
: drunkenness, as applicable to- this
case should be considered together
. The jury. We think. We're fairly aad
: correctly instructed upon this poin
5 of law
(PeOple V. Leonard. l45 \. y. 3Gt:
State V Hawkins, 80 Wash. .Ss; G.
= Fac. 25S; Wilson V. State. 50 \. ]. ].
: III; HoDt Y. People. 1t- u. S. 632
1 Booher State. 1o6 Ind. Az: 81 l.
r. \. 39I; State v Thompson. l. New
1 1ol. See also: p Cyc. go: McClaiI
on Or. Law Sec. 1922
S The refusal of the court TO Civ,
$ certain requested instructions upon
t the law of manslaUghter was not er
I ror, as there was no evidence tendin:
|, to reduce the offense 70 the grad,
. of manslaughter.
Estate V. Donovan. 10 New SO:
:. State Y. Miuain ) New 400; Pirkle V
= State 9 Hump (Tenn) sos; State V
- weaver % Or. 49,
Y g. A number of instruction re
: quested by defendants were refuse,
e by the court, either upon the grounc
+ that they were inapplicabie to the
e case, or that they were covered b,
} instructions already given. A carefy,
S examination of l-ese requested in
n structions convinces us that the cour
e did not err in their refusal
,. t.,ate V. Buralli, - New. "a Stat
f V. Maher, 25 New 1851
h 10. 1t is contended that the in
" struction given at the request Of th,
> prosecution relative 10 the considera
l. uon which the jury should give t
II the defendants testimony, was Ell
T. roneous and prejudicial This in
o structicn, substantially as given h,
l. the court in this case. has heretofor
IT IN number of cases been approve.
O by this court.
y. Estate Y. Hartley. - Nev. 500: Stat
:. y. Streeter, 20 Ia. 403, State V Hing
Is l.. ot.: State V Hymer, - Id. 40.
. The following language of the il
:. struction is that-to w.ich eXceptio,
-. is particularly taken: II convinc
- ing and carrying vita it a elef il
-. us truth.you have a right to act upo,
:. II: II not. YOU have a right 10 Teiec
=. it, etc. As t..iS instruction has bee
: given in either cases in this STATE
= tue words We have italicised nav
!, been Committed. l. is urged by con.
-, sci here that the Use OF these word
e was, in effect. q direction 10 the jur
- that it was entirely optional wit,
= them whether they should act up0
', the testimony Of the defendants. eve
- though they believed i'll the truth c
. the same.
'e While we think ii would have bee
q clearer 10 have omitted from III
III instruction the words III question
Il We do not think il a. all rrobab'
h that the jury placed any such COZ
in struction as contended upon them.
G In another instruction the jury va
~ told that the must consider all tn
81 evidence ect. That a jury woul
III fail 10 give due consiG eration 10 III
q testimony of defendant. which wa
Is convincing and carried with it q b,
e lief in its truth. is too unreasonahl
fnr alienation