The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-13

thereafter they had throwa the bory
upon the hre. He was not seeking to
establish innocence crime, but his
enort was directed to avoiding a con-
vlction Of murder in the first degree.
by showing that he was In a drunken
condition at the time ne killed the
deceased, and WAS therefore incapa.
Die of that generalization which is
an essential element OF murder in
the first degree. Evidence which
| tended to show that Intoxicating !.
cucr had the effect of transforming
| him from good boy to a dangerous
character. we think, could not have
prejudiced the defense, but would
| rather tend to strengthen it.
S. Counsel for Johnny assigns err
for the refusal or the count 10
strike out, upon the ground that it
was hearsay. the testimony of an In
Ian witness called Captain Jim. who
testhed upon the part of the State.
70 the effect that upon the night of
! the Killing the Two defendants were
az MS camp, and that Ibapah said in
tne presence Of johnny that "Jchnny
held the mans hands while Yhanah
cut his throat" We doubt if the rec-
ord OF this testimony will warrant =
conclusion that it was hearsay. But.
concedlng that it was the error in
admitting It was harmless, for other
witnesses testiLed to the same con.
Tsahon, ana Johnny, as a witness in
his own behalf. also tes,.ed to the.
| same enect
(Peopla V. Marseiler, 70 Cal. SLY
! 7. Upon the law OF drunkenness as
| a defense to crime, the court gave
instructions Number ii and p of its
own motion and defendants Request
Cd instruction number 5, which in
I S1ructlOnS lead IS follows:
! rs. 1t is a we'll settled rule Of law
| that drunkenness is no excuse for
| the commission Of crime. Temn,r
airy insanity, produced by intoyicatio,
! does nor destroy raspon sibility. when
! e,e party.wh en- sane and responsible
| made himself voluntarily intoyicate +.
! and drunkenness forms no defense
I Whataver TO the fact of guilt for
! when a crime is committed by par
| ~ While in q fit OF intoxication. the
| Jaw VIII not allow him to avail him
| self Of his own gross vice and mis-
| conduct to shelter himself from the
/ legal consequences Of suci, crime
evidence OF drunkenness can only be
considered by the jury for the pur-
! pose OF determining the degree Of the
| crime, and for this purpose it must
| be received with great caution
-. In this case if you find thai
| mo ,lnTneTanrc
malice aforethought. as already de-
nned TO you, killed the person desie-
mated as Fred Foreman, it is murder
! and II such killing was willful. de
crate and premedi1ateJ, or was
done IN the preparation OF attemnrs
10 perpetrate robbery. it was murder
! OF the first degree. otherwise il is
, murder of the second degree: and in
, determining the degree. any evidence
, lending to show the mental status Of
[ the defendants is proper for the con
| slderation OF the jury. The fact, If
1t be fact. that the defendants
! We're drunk. does not render the act
less criminal, and in that sense il is
NOT av24llable as an excuse. but there
IS nothing in this to exclude it as evil
dence upon the question as to wheth-
err the act was deliberate and premed-
ltaled or was committed in the car
fylns cut OF an intent to rob. Pre-
sumpuVely. every killing is murder.
out 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 kl4llng occurred. The
question is one OF fact to be deter
mined by the jury rom the evidence
IN the case, and it is not mere la
gal conclusion and drunkenness. as
evidence OF want of generalization
Or an intent to rob. is not within the
rule which excludes it as an excuse
Drunnenness neither excuses the Of
tense nor avoids the punishment which
the law inflicts. when the chara cfer
OF the fense is ascertained and de-
termined. but ey.uence of drunken
ness is admissible solely with refer
ence TO the question of reconciliation,
or where there is evidence tending 10
shc" mat murder has been com
ml'lcdl the preparation or ATTEMPT
70 perpa*rate a ROBBERY. as to the
question OF 1-e existence Of the fe1on
lons intent to steal which is an ee-
sentlal element of robbery.
IN cases OF Lremeditated murd ~
me iact OF drunkenness is immater
lai A man who is drunk NAV act
with reconciliation as well as = sober
one, and IS equally responsible for
the consequences of is act. In mnr
DER OF The first degree. it is necessary
70 prove the killing was pre]nedjtat
ed or was committed in the nerDet
rauon or attempt to perpetrate rob
eery Or one Of the other feioaies al
ready enumerated. which involves. of
course. an inquiry Into the state Of
MIND under which the party commit
ted 1t, and in prosecution OF such Gn
inquiry, his condition as drunk or So
Der Is proper to be considered. The
weight to be given it is a matter. fn~
Inc Jury to determine. and it should
be received with great canton an.7
carefully examined in connection will,
ali the circumstances and evidence in
the case. on SnOuId ,.nfar,,,ina H.