The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-20

AANA C0AV~A IAOy u0u AhAOWn tAC WI
upon the fire. He was not seeking to
establish innocence crime, but his
effort was directed 20 avoiding . con
vfctioa Of murder in tho first Degree:
by showing that he was in . drunken
deceased, and was ..erefore incapa-
an essential element of murder in
the first degree. Evidence which
tended to show that intoxicating :.
quor had the effect Of transforming
him from good boy to dangerous
character, we think. could net have
prejudiced the defense, but would
rather tend to strengthen it.
6. Counsel for Johnny assigns err
ror the refusal OF the court TO
strike out, upon the ground that Il
was nearsay. the testimony OF An In.
Ian witness called Captain Jim. who
testified upon the part of the State.
70 the effect that upon the night Of
the killing the Two defendants wore
at his camp. and that lbapah said IA
the presence Of 10 my, that JOHNNY
held the mans hands while Ib~pah
cut his throat" We doubt if the rec
ord Of this testimony will warrant a
conclusion that it was hearsay But,
conceding that it was the error in
admitting it was harm ess, for other
witnesses TESTIFIED to the same con
rsation, and Johnny, as witness in
| his own behalf also tes,.ed to the
same enect.
People v. Marseiler 20 Cal So
| Z. Upon the law OF drunkenness as
a defense to crime. the court save
instructions Number &C and q of its
own motion and defendants Request
ed Instruction number 5. which in
structions read IS follows:
&c. 1T is 4 we'll settled rule of law
that drunkenness is nc excuse for
the commission of crime Temper
airy insanity, produced by intoxication
| does not destroy responsibility. when
t-.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 il a fit Of intoXication. the
law Will not allow him to avail him
self Of his own gross vice and mis-
conduct 10 shelter himself from the
legal consequences Of such crime
Evidence of drunkenness can only be
considered by the jury for the pur
pose Of determining the degree of tho
| crime. and for this purpose il must
be received with great caution
y. In this case if you find thai
the defendants unlawfully and with
malice aforethought, as already de
fined TO you, killed the person des' :
mated as Fred Foreman, it is murder
and il such killing was willful De
I-ycrate and premeditated, or was
| done in the preparation or attempts
10 perpetrate robbery, it Yves murder
> Of the first degree, otherwise it i:
murder Of the second degree; and i,
determining the degree, any evidence
lending to show the mental status o
the defendants is proper for the con
slderation OF the jury. The fact, j
: it be fact. that the defendants
, We're drunk, does net render the &C
less criminal, and in that sense it i!
not ayaiiable as an excuse, but Their,
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
rying 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.ung 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 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 inflicts, when the characte
of the fense is ascertained and dc
! termlned. but ev.uence Of drunken
ness is admissible solely with refe
, ence to the question Of premeditatior
or where there is evidence tending t.
show that murder has been con
mittedi the preparation or attemp
: to perpetrate a ROBBERY. as to tn
p question Of i-e existence of the felor
:. lOus intent to steal which is an g.
! sential element of robbery.
Y IN cases of lremeiitated murd y
' he fact of drunkenness is inmate
. lei. man who is drunk may &C
l. with premeditation as we'll as soba
O one, and Is equally responsible fo
/ the consequences CT is act. In uu
der CT he first degree, il is neceesar
. to prove the killing vas Dremedita'
Z ed or was committed in the perpe
ration Or attempt to pcrpetr2tc re-
Q berry or one of the other telonies a
,. ready enumerated. which involves, E
II course. an inquiry into the state {
n ind under which the party commi
E ted it, and in prosecution of such !
: inquiry, his condition as drunk or s.
Der is proper TO be considered. Th
v weight to be given it is a matter Il
the jury TO determine, and il shoul
% be received with great caution an
carefully examined in connection wit
~ all the circumstances and evidence
=, the case. You should determine h
-, tween the condition of mind merel