The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-16

them SuiAly OF mVr0ef IN the nr:t
degree you must ind from evidence
beyond all reasonable doubt that the
murder was perpetrated by means
poison, or lying In wait, or torture.
or by any other wi..Iul. deliberate
and premeditated killing. or in the
perpetral4on or attempt to perpetrate
ROBBERY. This ingredient Of deliber-
ate premeditated killing must be
Clearly shown and proven beyond all
reasonable doubt. 1t is not sufficient
.lat you think the rilling was delhi
craze and premeditacI =. the eviden >e
must convince you Of that fact to an
a .o.ng certainly and hevond all rea-
sOnable doubt. The evidence Of de-
liberation and generalization must he
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 each defendant and
meditateh upon before the fatal blow
| was struck: and in considering wheth-
er such design wNs formed 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 u deli
berate and premeditated purpose.
! they cannot be fnunu guilty Of muir
Ger in the first uegrce. IL is true
/ that drunkenness is no excuse for the
commission of an ofcnSc. but never
,hc!css tho jury must consider the
Icvidcnc" Of drunkenness and deter
mine whether ii was sufficient to 50
loud the minds of the defendants as
to Interfere with the formation of
deliberate and prcmcditatcd purpose
to kill. If the drunkenness was suf
tiCient to create reasonable DOUBT
m your minds as TO the existence "f
such a deliberate prCmcditated pun
pose you cannot find the defendants
, guilty of murder in the first degree"
, Counsel for defendants attack The
courts instruc. ION No. q as being an
, erroneous statement Of the law. am
Ligous and mis- eading, consequently
highly preudicial 10 he defendants.
, he instruction complained of was
- dou less copied in the main from an
+ instruction that has 4 number Of
p times met with the approval of III"
). Supreme Court of ai.4"rnla.
e (People V. Williams, - Cal. 2t5;
;, Poonle V. nelencia II Id. as: PEG
Q pie Y. Lewis 90 ID. 531. People. V
/ eFrr.s. 81 iu 592; people V. Homes. 6;
ID 16S People Y. Vincent. - Id. 423;
/ >, Pac. 5>1D
h The instruction upon the law q
= drunkenness. as applicable TO this
: case should be considered together
= The Jury. we think. were fairly AM
8 correctly instructed upon this poin
of law
T tPeoD.e Y. Leonard 142 y. Y. 364
. State V. Hawkins. 53 Wash. -Se';; 6:
- Fac 25S; Wilson V. State, ca \. : !.
e Ill; Hopt V. People, 1t Z. S. s32
u booher State. 4oo Ind. 4i' 81 /
+. i. 39I: State V Thompson Il Ner
II 1o1. See also: q Cyc. go; McCla;l
S On Or. Law. Sec. 1922
Il The refusal of The court TO Civ
is certain requested instructions upoI
e the law OF manslaughter was not Ell
L ror, as there was no evidence tending
L !, to reduce the offense to the grad
u of manslaughter.
Estate V. Donovan. 10 New. SO
State V. MiIIaln, , New. 400; Pirkle y
! State. 9 Hump tTenn) 663; State ,
H. ..'eaver 80 Or. 415.D
" 6. A number of instruction re
as quested by defendants were refuse
10 by the court, either upon the groun
r. that they were inapplicable to tn
ce case, or that they were covered b
q instructions already given. A carefJ
Is examination of l-ese requested in
IN structiOns convinces us that the couI
ne did not err in their refusal.
,e. l..ate V. Buralli, 81 New. 81; Stat
81 V. Maher, % New. 1861
IN 10. 1t is contended that the il
or struction given at the request of III
|e- prosecution relative TO the consider;
Il ton which the jury should give t
er the defendants testimony, was e
N, roneoUs and prejudicial. This il
to struction, substantially as given b
m the court in this case, has heretofof
ut in a numDer Of cases been approve
no by this court.
w. Estate Y. Hartley, - Ney. $50; Stat
&c Y. Streeter, - III. 4o3: sJ,ate V. Hin
Is l.. oo1; State V. Hymer, i ID. 40
The following language of the i
- struction is that to w-ich eXcepti0
I is particularly taken: ~ conyin
~ ing and carrying with it a eief
,or us trutn,you have right to act upo
-. it; if not. You have Z right to reie
- il " etc. As this instruction has bee
80 given in other cases in this Stat
a. tno words we have italicised ha,
:, been Ommttcd. II is urged by cor
-, sci here that the use OF these wore
was. in effect. q direction TO the iu
ot that it was entirely optional vii
- them whether they should act upo
az the testimony Of the defendants. eve
though they believed in the truth
SO the same.
he While We think il would have be;
i'' clearer to have omitted from 4
lla instruction the, words in question
IL We, do not think it a all probah
it'll that the jury placed any such &C
III struction as commended u3on them.
be In another instruction the jury w
ely told that the must consider ali t
Eel evidence" ect That a jury Won
-fa fail 10 give dIc consideration 10 t