The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-19

YOu are Instructed that In Gre
to find the defendants or either @
them guilty Of murder in the fl
degree you must find from evi.er
beyond all reasonable doubt that 4
murder was perpetrated by menn=
poison, or lying in wait. or tortur
or by any other w1ltul de'iberns
and premeditated killing, or in t
perpetrallon or attempt to perpetra
ROBBERY. This ingredient Of deli
ate premeditated killing must :
clearly shown and proven beyond
easonable doubt. 1t is not sufficin
That you think the xnling was de1
craze and premedita.c1, the evifn~
must convince you Of that fact to
a -la.ng certainly and bevond I'll
sOnable doubt. The evidence Of :
liberation and generalization must /
such as to convince you that the dc
'iberate premidated design and pur
pose to murder was knowingly and
Intentionally formed and coreidnre'
in the mind of each defendant ar
meditated upon before the fatal hlc~-
/ was struck; and in considering whe+N
er such a design was formed in ~
minds Of each Of the defendants, yc
! should consider the evidence, if an
of drunkenness. If the defendan'
were drunk at the time and weit-
too much intoxicated to form q d.
berale and premeditated purpce
/ they cannot be founG guilty of mur-
Ger In the first Legree. 1t is trHo
that drunkenness is no excuse for t.
commission of an offense but never
theless the jury must consider the
evidence Of drunkenness and deter
mine whether it was sufficient to :
c.oud the minds of the defendants %
to Interfere with the formation -
deliberate and premeditated purpose
to kill. If the drunkenness was s,rf-
hcient to create reasonable doun'
m your minds as TO the existence .,f
such q deliberate premeditated pur
pose, you cannot find the defendants
guilty Of murder in the first degree"
!, Counsel for defendants attack tho
courts instTu..4o No Il as beinr an
, erroneous statement Of tho law am
bigous and misleading. conseouentlv
highly preudicial to the defendants
, he instruction complained Of was
= dou., less copied in the main from m
- instruction that has a number Of
J times met with the approval of the
Supreme Court OF -ai..ornia.
; (People V. Williams. 43 Cal. 2f5;
: People Y belencia q Id. 5A5; Peo-
y pie V. Lewis SO Id 53l. People v
I ef'rr4s. 80 H.. so; People V. Zones -
ID 1GS: People V Vincent % Id. 425;
/ - Pac. 5a1.)
1 The instructions upon the law Of
= drunkenness. as applicable to this
ease should be considered together
:. The jury. We think, were fairly and
$ correctly instructed upon this point
5 of law
People Y. Leonard, 143 n. y. 36t;
State Y. Hawkins, 50 Wash. zSc'; GO
Pac 25s; Wilson V. State, 60 n. J. /.
: III: Hopt V People. II, L. S 60
i Booher State. 100 Ind. al; 81 L.
r. y. 39I State Y. Thompson, y New
L 1ol. See also: u Cyc. 670; McClain
; on CIR. Law. sec. 1872
l The refusal of the court TO give
) certain requested instructions upon
{ the law of nanslaughter was not er
/ ror, as there was no evidence tending
, to reduce the offense to the grade
:. of manslaughter
Estate v Donovan. 10 New. So;
;. State V. Miltaln. 3 New 400; Pirkle V
, State 9 Hump (Tenn) 663; State v
- weaver 80 Or. 415.)
V s. A number of instruction re
s quested by defendants were refused
G by the court, either upon the ground
+ that they were inapplicable to the
e case, or that they were covered b,
} instructions already given A caref u,
9 Of
n structions convinces us that the cour
e did not err in their refusal
: t.,ate V. Buralli, q New. 81; State
+ V. Maher, % New. 1867
h 10. 1t is contended that the in
r. struciOn given at the request Of the
= prosecution relative to the considera
l. tlon which the jury should give tc
r the defendants testimony, was err
J. roneous and preiudicial This in
o structlon, substantially as given by
> the court in this case, has heretofore
IT IN numper Of eases been approved
. BY this court.
= Estate V. Hartley, - New 500: State
8 V. Streeter, - IL. 4o.;; safe Y. Hing
16 l.. o91; State V Fvmer, Is Id. AZ.
=. The following language Of the in
:, struction is chat TO w-ich exception
- IS particularly taken: ~ conyinc
49, ing ana carrying with it a elief iI
-, Its truth,you have a right to act upor
- II: II not. you have ] right to rejec
-, i, elc. As this instruction has heaY
+, given in other eases il this State
= the words We have italicised have
w. been ommitt"d. Il is urged b. cout
: sci here that the.uee OF these word.
r was, N effect, q direction 70 the iulr