The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-15


establish innocence crime, but his
effort was directed to avoiding a con-
yiction of murder in the first degree,
by showing that he was in a drunken
condition at the time lie killed the
deceased. and was therefore incapa-
Bile OF TIA reconciliation which is
an essential element of murder in
the first degree. Evidence which
tended to show inst Intoxicating y.
GuCT had tho nffect % Transforming
Elm from good boy TO dangerous
character, we think, could not have
pre]udiced the defense. hut would
! ratEe. tend to strengthen it.
G. Counsel for Johnny assigns err
:9r tic refusal CT the court to
strike out. upon the ground that it
was liearsay, the testimony of an In
IAN witness called Captain Jim. who
testified upon the part Of the State
TO the effect that upon the night Of
the killing the Two defendants were
at his camp, and that Ibapah said in
the presence Of JOHNNY, that "Icnnny
held the mans hands while Tb.naI,
cut his throat" We doubt if the rec
ord OF this testimony will warrant q
| conclusion that it was hearsay. But.
concedIng that it was the errCr in
admitting it was harmless. for other
witnesses TESTIFIED to the same con.
3rsatlon. ana Johnny as witness in
his own behalf. also tested to The
same enect
ti1opl2 V N1Tseiler - Cal. c2D
!. Upon the law OF drunkenness as
I ?. defense - crime. lie court gave
instructions Number =: and - Of its
own motion and defendants Rear2st-
ed instruction number 5. which in
/ structlons -nad ns follows:
-6. 1t is we'll settled rule Of law
that drunkenness is no excuse for
the commission Of crime. Temper
! airy INSANITY produced by intoyicaticn
does no1 destroy responsibility. when
,-4e party.wh en- sane and responsible
made himself voluntarily intoxicated;
! and drunkenness forms no defense
Whatever 70 the fact OF guilt. for
when a crime is committed by a par
| " while in 4 fl OF intoyicatiOr. the
/ law VIII not allow him to avail him
| SELF Of his own gross vice and mis-
! conduct to shelter himself from the
! legal consequences Of such crime
Evidence OF drunkenness can only be
considered by the jury for the pur-
: pose OF det rmininS the degree Of the
| crime, and for this purpose it must
be received with great caution.
-. In this case il you find that
/ the defendants unlawfuily and with
malIce aforethought, as already de
lined 10 you, killed the person desig-
mated as Fred Foreman, it is murder.
! and ii such killing was WiIlfui de
crate and premeditated, or was
! cone IN he perpetration or attempts,
! 10 perpe1rate robbery, it was murder
! OF The first degree, otherwise it is
! murder OF the second degree: and in
; determining the degree, any evidence
tending to show the mental status OF
/ the defendants is proper for the con
sideration Of the jury. The fact, if
! it be fact, that the Defendants
| We're DRUNK, does not render the act
! less criminal, and in that sense it is
not aVal4lable as an excuse, but there
is nothing in this to exclude it as evi-
dence upon the question as to wheth-
er the act was deliberate and Dremed-
ltated or was committed in the car
| fylnS CIT OF an intent to rob. Pre-
| sumpuVely. every killing is murder
| but SO far as the degree is concerned
| no presumption arises from the mere
, fact OF killing. considered separately
! and apart from the circumstances
| under which the kl.ung occurred. The
question is one of fact to be deter.
mined by the jury rom the evidence
In the case. and it is not a mere le
gal conclusion and drunkenness, as
evidence of a want OF generalization
Or an intent to rob, is not within the
rule which excludes it as an excuse
| DRUNKENNESS neither excuses the Of
Tense nor avoids the punishment which
the law inhicts. when the character
OF the 1fense is ascertained and de
termlned, but es.dencc Of drunken
ness is admissible solely with refer
ence to the question of generalization
or where there is evidence tending to
show that murder has been com
mlttedl the preparation or attempt
to perne+rate a robbery, as to the
question of t-e existence Of the felon
lous intent to steal which is an es
sental element Of robbery.
In cases of lremeditated murd y.
the fact Of drunkenness is immater
lal. A man who is drunk may &C
witt reconciliation as well as sobe
one, ard is equally responsible 70
the consequences Of is act. In mur
der OF the first degree it is necessar,
to prove the killing was premeditar
!, ed or was committed in the neroet
| ration or attempt to perDetrata r0t
berry or one of the other felonies al
ready enumerated. which involves. o
course. an inquiry into the state O
mind under which the party COMM,
, ted 1t, and in prosecution Of such u
; inquiry, his condition as drunk or Sc
Ser Is proper to be considered. Til
weight to be given it is a matter fc
the jury to determine. ard it Shout
, be received with great caution an
car ally examined in connection wit
! ali the circumstances and evidence i
, the case. You should determine be
, tween the condition Of mind merel
| pyrifpd Inv ipf 0-ic tin I,ip opd VIZ