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

, " nnu tiC ueioHudulS Ut elther OF
/ them guilty of murder in the first
degree you must find from evidence
beyond all reasonable doubt that the
murder was perpetrated by means f
poison, or lying in wait or torture,
or by any other wil.Iul, deliberate
and premeditated killing, or in the
! perpetrallon or attempt to perpetrata
robbery This ingredient of delibcr-
ate premeditated killing must he
clearly shown and proven beyond all
reasonable doubt. 1t is not sufficient
mat you think Nthe nilling was DELHI
craze and prem editac0>,, the evden &c
must convince you Of that fact to an
q lang certainty and beyond all rea-
sonable doubt. The evidence Of de
liberation and reconciliation must be
such as 70 convince you hat the de-
/ liberato premidated desien and pur
pose TO murder was knowingly and
Intentionally formed and considered
in the mind Of each defendant end
meditated upon before the fatal blow
was struck; and in considering wheth-
er such 2 design was formed in the
minds Of eacA Of the defendants. you
should consider the evidence. if any.
of drunkenness. If the defendants
We're drunk at the time and were
/ too much Intoxicated to form deli
/ berate and premeditatcd PURPOSE
/ they cannot be founu guilty of muir
Ger III the first degree. 1t is true
that drunkenness is no excuse for the
! commission of an Offense. but never
theless the jury must consider the
evidence OF drunkenness and deter
mine whether it was sufficient to so
c-oud the minds Of the defendants y
to lntereferc with the formation Of
deliberate and premeditatod purpose
to kill. If the drunkenness was suf-
ticient to create reaSonable DOUBT
III your minds as to the existence If
such deliberate premeGitated plli'
pose, YOU cannot find the defendants
guilty Of murder in the first degree"
Counsel for defendants attack lha
courts instruction No. - As being an
erroneous statement of the law. am
higous and misleading, consequently,
highly preudicial 10 the defendants
he instruction complained Of was
dOu. less copied in the main from an
instruction that has q number 6
times r'ot with the approval OF the
Supreme Court Of ~aD.ornia.
(People Y. Williams. - Cal 80;
People Y poiencia u II. 543: Pen-
PIE X Lewis IS II. 521. People. Y.
eFrrls. - H.. 500: People =, .Eor2s -
ii. 16s: People Y vincent, % ID. 40:
:. Pac. 1>f}
The instructions rnon the law If
drunkenness. as applicable 10 This
case should be considered together.
The jury, We think, were fairly AMI
correctly instructed upon this point
Of law
iPeople Y. Leonard. 14s n. y. 800:
State Y. Hawkins, % Wash. -SS; So
Fac. 25S; Wilson '. State. 50 \. }. !.
III; Hopt V People, 1tr Il. S. 632 :;
Booher State LOO Ind AL; 81 L.
Il. \. 39l; State V. Thompson. II Ney.
l9l See also: Il Cyc. GO; Mccain
on CT Law. Sec. Ice
The refusal Of the court to give
certain requested instructions upon
the law OF nlanslaughter was not Ell
ror, as there was no evidence tending
TO reduce the offense to the grade
of manslauShter
Estate V Donovan 10 Nev. SO;
State V. Miilaln, ) New 409 Pirkle Y
State. 8 Hump tTenn) 6e3; State v
weaver 30 Or. 49,
s. A number of instruction re
!, quested by defendants were refused
!, by the court, either upon the ground
that they were inapplicable to the
, case, or that they were covered by
instructions already given. A caref IL
~ N 81 of
| structions convinces us that the court
, did not err in their refusal
t-,ate y. Buralii, - New. 81: State
: V. Maher, 25 New. 1867
10. 1t is contended that the in
struction given at the request Of the
: prosecution relative to the considera.
ton which the jury should give to
the defendants testimony, was err
l'oneous and prejudicial This in
, structlon. substantially as given by
: the court in this case, has heretofore
t in numner of cases been approved
by this court.
Estate V. Hartley. - New $50; State
V. Stree1er, 80 la. 403; STATE V. Hing
Is J.. oe1: State V Hymer. Is ID 40 J,
The following language of the in
struction is that to w--ich exception
is particularly taken: ~ convinc
:, ing and carrying vita it a .elief in
;, Its truth.you have right to act upon
1t: It not, YOU have a right to reject
- it, etc. As t4is instruction has beer
given in other cases in this STATE
tne words We have italicised have
been ommitted. Il is urged by conn
sci here that the use or these words
r was, in effect, g direction 10 the irI1
=. that it was entirely optional with
tAem whether the" should act upon
, the testimony of the defendants. eve,
though they believed in the truth O
} the same.
While We think it would have bee,
! clearer to have omitted from In
d instruction the words in question
! We do not think it at all nrohabl,
h that the jury placed any such con
II struction as contended UPON them
: In another instruction the jury wa
Y told that the must consider all TIL