The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-14

to find the defendants or either 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
poison, or lying in wait. or torture.
or by any other wilIul. deliberate
and premeditated killing. or in the
perpetratlon or attempt to perpetrate
robbery This ingredient Of deliher
ate premeditated killing must be
clearly shown and proven beyond all
reasonable doubt. 1t is not sufficient
tnat you think the killing was DELHI
craze and premeditace4. the evidence
must convince you of that fact to an
! ,Iu.ng certainty and beyond all rea-
sonable doubt. The evidence CT de
liberation and premeditation must be
such as to convince you that the de-
liberate premidated design and pur
pose to murder was knowingly and
Intentionally formed and considered
in the mind of each defendant and
meditated upon before the fatal blow I
was struck; and in considering wheth-
err such a design was formed in the !
minds of each of the defendants, you
should consider the evidence. if any.
We're drunk at the time and were
too much intoxicated to form a deli
berate and premeditated purpose.
they cannot he found guilty of MUIR
Ger in the first uegree. It 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
y,,i-, hot h.N,- tipin3 10
; c.oud the minds Of the defendants as
: TO Interfere with the formation of
deliberate and premeditated purpose
TO kill. If the drunkenness was suf-
: ficient to create reasonable dount
= m your minds as to the existence "f
such deliberate premeditated pur'
, pose you cannot find the defendants
, guilty Of murder in the first degree
, Counsel for defendants attack ihe
. courts instructor No. u as being an
e erroneous statement of the law. am
+ bigOus and misIeadng consequently
highly preudiCial to the defendants.
= he instruction complained of was
y dOu less copied in the main from an
5 instruction hat has number Ct
o times met with the approval of the
= Supreme COurt of ~aln0rnla
@ OPeople V. Williams. q Cal. 3l3:
=, PpoDle ' Delercia y Id. 80: Poo
@ ME V. Lewis &c ID. 81, People. '
st eFrr4s. - h. 80: Peopl" V. Jones. 5:
Id 1853: People '. Vincent, % id, 4e5
II p. pac. 5N1.t
n The instructions upon the law o.
> drunkenness, as applicable to this
: case should be considered together
- The jury We think, were fairly An.
IS correctly instructed upon his poin
s of law.
II CPeople Y. Leonard, 1i3 \. Y. 364
- State V. Hawkins, 53 Wash. 1SG': 6:
~ Fac 25S; Wilson V. State, so \. J. !.
e III: HOpt V. People. ii L. S. o32
Oh 6ooher Y State lS6 Ind. Al; II l.
II r. A. 80; State Y. Thompson. l. Nev
II 131 See also: p Cyc. go: McClail
Is en- CIR. Law. Sec. 162 -
ct The refusal of the court TO Civ
is certain requested instructions upoi
re the law OF manslaughter was not el
VI rOr, as there was no evidence tendin
II to reduce the offense to the grad
" OF manslaughter.
II Estate V Donovan. 10 New. 50
e State V. MiIlain, , New. 400; Pirkle '
:, State 9 Hump tTenn) 500; State '
~ ,,eaver 30 Or i15.)
nv, g. 4 number of instruction RI
es quested by defendants were refuse
he by the court, either upon the groun
er- that they were inapplicable to tn
zee case, or that they were covered b
le instructions already given. A caref,
as examination Of i-ese requested il
on structions convinces us that the cou1
he did not err in their refusal.
Sc. t.,ate V. Burall, - New. 81; Stat
Of V. Maher, % New. 1861
oh 10. 1t is contended that the il
for structiOn given at the request Of h
de- prosecution relative 10 the consider
IN ton which the jury should give
fer the defendants testimony, was e
on, roneous and prejudicial This i
to struction, substantially as given /
I'M the court in this case, has heretofo
lDt in number Of cases been approve
no by this court.
on Estate V. Hartley, % New. $50; Sta
&c. V. Streeter, ~ III. 403; o,ate V. Hin
16 L.. ot1: State V. Hymer, Il Id. 49
The following language of the i
~ struction is that to w-ich except;
is particularly taken ~ conEin
' ing and carrying Wit. it a ~elief
p se us truth you have a right to act upt
~. it: if not you have q right to reie
it," etc. AS tbs instruction has be-
.iS given in other cases in this StaJ
'' the words We have italicised ha
pc. been ommittcd II is urged by co.
- sci here that the use OF these wor
Ie was, in effect, 4 direction to the iu
- that II was entirely optional wi
-; them whether they should act up
the testimony Of the defendants. ey
i tough they believed in the truth
So the same.
ne While we think If would have be
lc" clearer to have omitted from I
'uld instruction the words in uuestio
ana we do not think i at all rrohai
With thar the jury placed any SUCH c.
> in struction as con1onded u0on them.
be In another instruction the jury W
rely told that the 'tmust consider all t
YET evidence" ect. That jury Wo,