The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-20

to AA1 the Defendants or either Of
them gu..ly q MURDER in rss i-s.
degree you must and rom ericerce
beyond all reasonable doubt tsat the
murder Nae perpetrated by rsesHs
poison, zer lying In wait. Or torture,
or hy any ether wl..lIl. Deliberate
and premeditated killing. or IN the
perpetral.on or attempt to perpetrate
ROBBERY This ingredient Of dei'hc~-
ate premeditAted killing nust he
Clearly shown and proven heyord 81
reasonable doubt. 1t is not sufficient
lat you think the xillirg WAS :elib-
era,e and prem editacI. the '~i'nr ,e
must convince You Of that 's-c+ - az
a ng certainly and he-~o-'. - 90
sonable doubt The evidences - IL
Iteration and premeditet!on r~r't nc
such as to convince WOW fte. , DO
ljberate premidated design .r7 III.
nose to murder wss knovi-~' Hnd
Intentionally formed ara c~- t'"~e''
in the mind Of each d>fe-"-~' enf
meditated upon before the f"to' "'or
WAS struck: and in cor~-aeri~~ 77Not"-
or srch a design w>e f~r-~~" = tNo
minds Of eac4. 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 > d"l:-
bera,e and premeditateG rurpose
they cannot he founo guilty Of muir
DER in the first Legree. IT is true
that drunkenness is no excuse fnr The
commission of an offense. but never
theless the jury must consider the
evidence Of drunkenness and deter
, mine whether it was srficie~t SC 50
8 c.OUd the minds of the defendants as
to Interfere with the fnrr7n'i0n Of
+ deliberate and premetlitated purpose
to kill. If the drunkenness r-ac suf-
V ficient to create reasonable dount
r in your minds as 10 the cvieton"o "f
: such deliberate premediiated nu;'
4 pose. you cannot find the defendants
Il guilty of murder in the first degree"
G Counsel for defendants attan' mo
: cn3Tt's instructor No. II ae being an
e erroneous statement of the law. am
+ LigOuS and mis- ding consequently
= highly preudicial to the defendants.
= he instruction complained Of was
l. d0U less copied in the main from an
$ instruction that has a number Ct
e times met with the approval CT the
E. SUPREME Court Of al.-ornia.
e (PeopIe V. Williams ~ Cal. 2t3;
+ People V relcrcia p ID. SIS: PEG
e pie v Lewis Sc IL. 531, People. V.
st eFrr4s. 55 H.. 500: People Y. Jones, -
Id los: People V. Vincent. 81 Id t25;
1t a. Pac. SSH
h The instructions upon the law of
? drunkenness, as applicable to- this
case should be considered together
a. The jury we think, were fairly and
IS correctly instructed upon this point
IS of law
II (PeOpe V Leonard, 143 n y. Sc;
- State v Hawkins, SO Wash. 1SS'; 63
ID Pac 25S: Wilson v State. so n J. j.
< III; Hopt V. People. Ii Z. S. $50;
Oh Booher State. lo6 Ind. Az: Il L.
q Il. A. 39l; State V. Thompson. - Nev
II Isl. See also: q Cyc $50: Mccain
on Or. Law. Sec. 1872
CT The refusal of the court TO give
Is certain requested instructions upon
re the law of manslaughter was not er
II ror, as there was no evidence tendiae
II |, to reduce the offense to the grade
" of manslaughter.
- Estate " Donovan 10 New So;
y State V. Millain, ; New. 400; Pirlle V
- State 9 Hump (Tenn) 663; State V
~ weaver 35 Or. 49,
" S. number of instruction re
as quested by defendants were refused
,e by the court, either upon the ground
r that they were inapplicable to the
&c case, or that they were covered by
e instructions already given A caref j,
As examination of l-ese requested in
IN structions convinces us that the cour
ne did not err in their refusal
'e. (.,ate V. Buralli, q New. 81; State
of- v. Maher, 25 New. 1867
n 10. 1t is contended thai the in
or structlOn given at the request of the
e- prosecution relative to the considera
Il ton which the jury should give tc
err the defendants testimony, was err
n rOneous and prejudicial. This in
to struction, substantially as given by
NJ the court in this case, has heretofor.
pt in numuer of case. been approved
"a by this court.
~ Estate V. Hartley. % New. $50: State
sc '. Streetor. - Ia. 4N3; I,ate V. Hing
Is l.. o,7: State V. Hymer. i ID 40
The following language of the in
49, struction is that to w-ich exception
-. is particularly taken: Ii convinc
W, ing and carrying with it a -elief il
-, Its truth.you have a right to act upon
-. II: if not. you have a right TO reioc
~, il. etc. As this instruction has beer
- given in other cases in this Stare
-, tne words We have italicised hav,
-, been Ommi'ted. 1t is urged by coul
-, sci here that the use of these word.
~ was, in effect, direction to the iuy
~ that i was entirely optional viii
"a them whether they should act upo,
The testimony of the defendants. eve
T..