The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-19

thereafter they had thrown the bory
upon the fire. He was not seeking to
establish innocence o crime, but his
effort was directed to avoiding a con-
viction of murder in the first degree,
by showing that he was in q drunken
condition at the time ne Killed the
deceased, and was ..4erefore incapa-
BILE of that generalization which is
an essential element of murder in
the first degree Evidence which
tended to show that Intoxicating !.
Cuor had the effect of transforming
him from good boy to a dangerous
character, we ,hink. could not have
prejudiced the defense. but would
rather tend to strengthen it.
s. Counsel for Johnny assigns err
rOr the refusal OF the court, TO
strike out, upon the ground that it
was nearsay, 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 10 my, that Johnny
held the mans hands while lbspah
cut his throat" We doubt if the rec
ord Of this testimony will warrant a
conclusion that it was hearsay But.
cOncedlng that it was the error in
uniting it was harmless, for other
witnesses testified to the same con.
Tsation. and Johnny. as a witness in
his own behalf, also tested to the
same enect
people V. Marseiler. 70 Cal sS.>
Z. Upon the law OF drunkenness as
defense to crime, the court gave
! instructions Number &c and 81 of its
, own motion and defendants Request
| ed instruction number 5 which in
I structlons read IS follows:
; &c. 1T is we'll settled rule OF law
that drunkenness is no excuse for
! the commission Of crime. Temper
airy insanity, produced by intoxcation
does not destroy responsibility. when
,--e party,wh en- sane and responsible
made himself voluntarily intoxicated:
and drunkenness forms no defense
Whatever to the fact of guilt for
! when a crime is committed by a par
! ty while in g fit Of intoxication the
law VIA not allow him to avail HIM
self Of his own gross vice ard mis-
conduct TO shelter himself, from the
legal consequences Of such crime
| Evidence OF drunkenness can only be
considered by the jury for the rur
pose OF determining the degree Of the
crime, ard for this purpose it must
be received with great caution"
p in this case if you find that
the defendants unlawfully and with
malice aforethought, as already de
nned to you, killed the person desia
mated as Fred Foreman, it is murder
and if such killing was wiIlful de
crate and premeditated. or was
done in the preparation or attempt:
! TO perDetrate robbery, it was murdel
Of the first degree, otherwise it i:
murder Of the second degree: and il
determining the degree, any evidence
tending 10 show the mental status o
the defendants is proper for the con
sideratlon Of the jury. The fact, j
II be fact, that the defendant
I We're DRUNK, does not render the &C
less criminal, and i'll that sense it i:
not ayalllable as an excuse. but there
is nothing in this to exclude it as evi
, dence upon the question as to wheth
er the act was deliberate and premed
itated or was committed in the car
; rylng out OF an intent 10 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 king occurred TIL,
!, question is one OF fact to be deter
! mined by the jury rom the evidenc
IN the case, and it is not a mere lie
gal conclusion and drunkenness, a.
evidence of a want Of premeditatiOl
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 which
the law inaicts, when the charac e
of the fense is ascertained and de
termlned. but ev.uence of drunken
ness is admissible solely with refe
, ence to the question Of premeditation
or where there is evidence tending t,
show that a murder mas been CON
mlttedl n the preparation or attemp
: 10 perp 9trate a robbery as to tn
, question Of t-e existence Of the fe1or
;, ioHs irtent TO steal which is an es
! sentia1 element Of robbery
, n cases Of lremeditated murd Il
: the fact of drunkenness is inmate,
. lal. \ man who is drunk may &C
= with reconciliation as well as ? soba
. one, and is equally responsible 70
r the consequences Of is act. In mul
der OF he frs degree. It is nncessar
: to prove the FilEin@ va premedita,
: ed or was committed in the ner0e
/ ration or attenDt 10 pe"petIa5e re-
. berry or one Of the other felomes q
= ready enumerated which involves. G
/ course. an inquiry into The state c
Z mind under which the party conlmi
o ted it, and in prosecution of such :
: inquiry, his condition as drunk or 81
:. Der IS proper to be considered. III
weight TO be given it is a matter Il
the jury 10 determine. and it shou!
. be received with great caution an
carefully examined in connection wit
all the circumstances and evidence i
, the case. You should determine ht
tween the condition of mind ,,,pra1