The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-17

tIereadVef tnoy MAI thrown the OOry !
upon tho IRE. He was not seeking to |
establish innocence o crime, but his |
effort was directed to avoiding = Goa |
victiOn of murder in the 6rst degree, |
by showing that he was In . drunken
condition at the time lie kllied the
deceased. and was therefore incApa-
bic Of that generalization which is
an essential element Of murder IN
the first degree. Evidence which
tended to show that intoxicating :.
quor had the effect of transforming
him from a 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
ror i the refusal OF the court 10
strike out, upon the ground that it
was nearsay. 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 Johnny
| held the mans hands while Ibapah
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
admitting it was harmless, for other
witnesses testihed to the same con
Tsation, and Johnny as witness in
his own behalf. also tes, led to the
same enect.
PeOpla v Marseiler 70 Cal So
! T. Upon the law OF drunkenness as
| a. defense to crime. the court gave
instructions Number c6 and 81 of its
own motion and defendants Request
ed Instruction number 5, which in
StructlOnS read IS follows:
&c. 1T is we'll settled rule of law
thar drunkenness is no excuse for
the commission Of a crime. Ten pOr
airy insanity. produced by intOXication
does not destroy responsibility. when
lie party,wh en- sane and responsible
made himself voluntarily intoxicate1:
and drunkenness forms no defense
| wnauever 10 the fact of guilt for
when a crime IS committed by a par
ty while In a fit Of intoXication, the
law WlIl 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 puc-
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 that
the defendants unlawfuliy and Wi h
malice aforethought, as already de-
mo L
mated as Fred Foreman. it is murder
and if such killing was wiltui de
crate and premeditated, or was
done in the preparation or attempts
! 70 perpetrate robbery. il was murder
: OF the nrst degree. otherwise il is
murder Of the second degree; and i,
determining the degree, any evidence
: ending to show the mental status OF
, the defendants is proper for the con
slderatlon Of the jury. The fact, il
1t be fact. that the defendants
, We're DRUNK. does net render the aC
less criminal. and in that sense it is
not available as an excuse, but there
is nothing in this TO exclude it as ev;
, dence upon the question as to wheth
er the act was deliberate and premed
ltated or was committed In the car
, rylng out CT an intent to rob Pre-
, sumptively, every killing is murder
, ! but so far as the degree is concerned
no presumption arises from the mere
fact Of killing, considered separated,
and apart from the circumstance
under which the kl.nng occurred TIL,
) question is one of fact to be deter
: mined by the jury rom the evidenc,
! ic II
!, gal conclusion and drunkenness, a:
evidence of want of premeditatio!
or an intent to rob. is not within tn,
;. rule which excludes it as an excuse
;. Drunkenness neither excuses the O,
- Tense nor avoids the punishment which
>, the law inficts, when the characre
OF the fense is ascertained and de
termlned, but ey.uence of drunken
:. ness is admissible solely with refe
, ence to the question of reconciliation
or where there is evidence tending t
., show that a murder has been con
mlttedi the preparation or attemp
: TO perDetrate a robbery. as 10 tn,
o question OF .-e existence of the falor
r lous intent to steal which is an e.
u sentlal element of robbery
g IN cases Of Lremeditated murd ~
V the fact of drunkenness is inmate,
e TAI. man who is drunk NAV &C
\ with reconciliation as well as q sobe
O one, and is equally responsible f.
4 the consequences Of is act In rnu,
der OF ,he first degree. it is necessar
2 to prove the killing was pramedita'
g ed or was committed in The perpe'
faton or attempt to pcrpetrate r0I
Q berry or one Of the other felOuies a
?. ready enumerated. which involves. G
II course, an inquiry into the state c
n mind under which the party commi
@ ted il, and in prosecution of such 4
$ inquiry, his condition as drunk or s.
- Der Is proper to be considered Tn
weight to be gwen it is a matter f.
the jury to determine and it Shout
&C. be received with great caution an
- carefully examined in connection wit
- / all the circumstances and evidence i
! the case. You should determine bt
y, tween the condition CT mind mercl
/. excited by intoXicat ting drink and VI