The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-21

establish innocence crime, but his I
effort was directed 10 avoiding q con- {
viction Of murder In the first degree, I
by showing that he was in q drunken ,
condition at the time ne killed the ,
deceased, and was therefore incApa- ,
BILE Of that generalization which is ;
an essential element of murder in
the first degree Evidence which
tended to show that intoxicating T.
cucr had the effect Of Transforming
him from good boy to dangerous
character, we think. could net have
prejudiced the defense, but would
rather tend to strengthen it.
s. Counsel for Johnny assigns er
ror the refusal CT the court 10
strike out upon the ground that it
was neafsay, the testimony of an In
| an 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 Jo-nny, that Johnny
held the mans hands while Ibspah
cut his throat" We doubt if the rec
ord Of this testimony will warrant
conclusion that it was hearsay But,
conceding that it was the error in
aLmitting it was harmless. for other
witnesses TESTIFIED 70 the same con.
rsation, and Johnny, as a witness in
his own behalf. also tes,-..ed to the
same enect
people V. Marseiler, 20 Cal So
I. Upon the law OF drunkenness as
a defense to crime. the court gave
SO
own motion and defendants Request
/ ed instruction number 5. which in
{ StructlOns "ead IS follows:
Is 1T is we'll settled r,ile Of law
that drunkenness is no excuse for
the commission of a crime, Temper
airy insanity, produced by intoxication
) does not destroy raspOns ibility, when
e party en- sane and responsible
made himself voluntarily intOxicatei:
and drunkenness forms no defense
WGalever to the fact of guilt. for
: when a crime is committed by par
ty while in 3 fit Of in-oxication, The
law VIII not allow him to avail him
! self Of his owl gross vice aud mis-
conduct to shelter himself from the
legal consequences of such crime.
: E4vd once Of drunkenness can only be
considered by the jury for the pur-
/ pose OF determining the degree Of the
t crime, and for this purpose ii must
/ be received with great caution.
y -. In this case ii YOU find that
the defendants unlaWfully and Wi /
malice aforethought. as already de
/ nned to you, killed the person desig-
1 mated as Fred Foreman, it is murder
: and if such killing was willtul de
Nd
S done in the perpeCration or attempts
TO temperate robbery, il was murder
j. OF the first degree, otherwise it is
II murder Of the second degree; and IL
j, determining the degree, any evidence
- ending TO show the mental status q
), the defendants is proper for the con
- sideration Of the jury. The fact, i
- it be fact that the defendants
n were DRUNK. does net render the ac
f less criminal, and in thai sense it i;
=, not avalliable as an excuse but there
is nothing in this to exclude it as evi
20 dence upon the question as to wheth
: er the act was deliberate and premed
i itated or was committed in the car
;c rying out CT an intent to rob. Pre-
=, sumptively, every killing is murder
20 but so far as the degree is concerned,
no presumption arises from the mer.
! fact of killing, considered separated,
~ and apart from the circumstance
under which the killing occurred TIL
question is one of fact to be deter
~ u mined by the jury rom the evidenc
-, in the case. and it is not a mere lie
:. gal conclusion and drunkenness, a
- evidence of want Of premedtatio
. or an intent to rob, is not within tn
rule which excludes it as an excuse
~ Drunkenness neither excuses the Of
- Tense nor avoids the punishment whicl
" the law inf1icts, when the characte
r Of the fense is aScertained and dc
termined. but ey.uence of drunken
:. ness is admissible solely with refe
/. ence to the question of premeditatior
or where there is evidence tending t
= show that a murder has been con
mittedi the preparation or attemr
it. to perpatrate robbery as to tn
40 question Of e existence of the feloI
or ious intent to steal which is an e.
al sential element of robbery.
ng In cases Of Lremeditated murG .
Nv the fact Of drunkenness is inmate
&c lal A man who is drunk may az
n with premeditation as well as a sobe
ne o-!c' anu is tqtdlly responsible Il
"a the consequences Of is act. In mu
der of he first degree. il is necessar
We to prove the killing was rremeGlita
ag ed Or was committed in the perDe
ration Or attempt TO perpetrate ro
yn berry or one Of the other felonics a
le. ready enumerated which involves. {
all course, an inquiry into tiie state
n mind under which the party commi
no ted 1t, and in prosecution Of such Z
= inquiry, his condition as drunk or s
49, Der Is proper to be considered. Til
=" weight to be given it is matter /,
the jury to determine. and it shouI
,,o be received with great caution AT
- carefully examined in connection wit
y. al the circumstances and evidence
:, the case. You should determine b
-, tween the condition Of mind mere
:; ! excited by Intoxicating drink and V,