The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-10

them gn..ty Of murder in the arst
degree you must And from evidence
beyond oil Reasonable doubt that the
murder vas perpetrate1 By means
poison. or lying in wait, or torture,
or by any other willful. deliberate
and premeditated Killing. or in the
perpetratlon or attempt to perpetrate
ROBBERY. This ingredient Of deliber-
ate premeditated killing must he
clearly shown and proven beyond all
reasonable doubt 1t is not sufficient
nat you think the billing was DELHI
craze and prem editacG1. the evidence
must convince you Of that fact to an
iolng certainty and beyond ell rea-
sonable doubt. The evidence Of de-
liberation and premeditation must be
such rs to convince you that the de-
! liberate premidated design and pu,-
nose to murder was knowingly and
intentionally formed ard considered
in the mind Of each defendant and
meditated upon before the fatal blow
| was struck; and in considering wheth-
er such a design was former in the
minds of each of the defendants, you
should consider the evidence, if any,
of drunkenness. If the defendants
were drunk at the time and were
too much intoxicated to form Z. deli
bera'e and premes1itAtei 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
c4oud the minds of the defendants as
10 Interfere with the formation of
deliberate and premedit,ted purpose
10 kill If the drunkenness was suf-
hclent to create reasonable Coupt
Il your minds as to the existence of
such deliberate nremeditarcd pul'
pose. you cannot find the defendants
guilty Of murder in the first degree"
Counsel for defendants alta ok The
courts instruction No. u as being an
erroneous statement of the law. am
bi@ous ana mis- ea3ing, consequenti:
highly preudici2l to the defendants.
he instruction complained of was
dOu less copied in the main from an
instruction that has a number If
times net with the approval Of the
Supreme Court Of ~aIlarnia.
Peonle Y. Williams. ~ Cal. 3t,;
People Y. s,e5encia - Id. So: PEG
pie V. Lewis &c ID 531. People Y,
eE'rrss. - L.. So: People Jones -
ID. t6S. People Y Vincent. % Id. -;
:: Pac 5>t.)
The instructions upon tho Law II
drunkenness. IS applicable tc This
case should be considered together
The jury We think. were fairly anl
correctly instructed upon hi point
OF law
tPeopte Y. Leonard, 143 \. y. 3Gt:
State Y, Hawkins. So Wash. IS; IS
Pac 25S; Wilson V. state, 60 \. ]. !.
III: HoDt Y. People IL Il. S. go;
Booher Y State, l96 lad. AZ; 81 l..
Il. a. @9l; Stale Y. Thompson. II Ncy.
l2l. See also: y eye. 61o; McClan
on Cr. Law. sec. 162)
s The refusal Of the court to give
certain requested instructions upon
the law OF manslaushter was not er-
ror, as there was no evidence ten6ia.
/ TO reduce the offense to the grade
of marslaughter
Estate V. Donovan. 1o New. 90:
State V Miualn, , New. 400; Pirhie V.
State. Hump 'Tenn) 663; State V.
/ .;eaver % Or. 49,
5. A number of instruction re-
quested by defendants were refused
by the court, either upon the ground
that they We're inapplicable to the
case, or that they were covered By
instructions already given A caref III
examination Of l-ese requested in
sfructlons convinces us that the court
did not err in their refusal
t~,ate V. Buralli, 81 New. "a; State
V. Maher, p New 1851
10. 1t is contended that the in
atrlcuon given at the request of the
prosecution relative TO the considera-
/ tlon which the jury should give to
the defendants testimony, was err
roneous and preju,iicial. This in
struction, substantially as given by
the court in this case has heretofore
III numper OF cases been approved
ly this court.
Estate V. Hartley, - Nay. $50: STATE
Y. Streeter. - ~. 4H3: !. ate Y. Hing
15 /. o'1; State V. Hymer, Is ID 40
7 The folloWiHg LANGUAGE of the in
struction is that to w-ich exception
is particularly taken: ~ convinc
ing and carrying VITA il elief in
It's trutn.ycu have right to act uDon
. IT; II not. YOU h"@ q right TO reject
Il. etc AS this instruction has been
gwen il other eases in this state.
tie words We have italicised have
been ommi'tod- It is urged Ivy c0u1
sci mere that the use ol these words
was, i'll effect, q direction to the intv
IthGt il was entirely ODtiGnaI with