The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-08


establish innocence. crime, but his
effort was directed to avoiding a con-
viction of murder in the first degree,
by showing that he was in a 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 thet intoxicating =,
Guor had the effect Of Transforming
him from a good boy to dangerous
character. we think, could not have
prejudiced the defense, but would
rather tend to strengthen it.
s. Counsel for Johnny assigns er
rOr n tho refusal OF the court TO
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 1bapah said in
the presence of Jo--nny, that Johnny
held Tire 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 testified to the same con.
irsation, and Johnny, as a witness in
his own behalf, also tested to the
| same enect
tPeOpia V. Narseiler, 20 Cal So
l. Upon the law 81 drunkenness as
instructions Number g and 81 of its
own motion aud defendants Request
ID instruction number 5, which in
/ structiCns "ea1 IS follows:
-6. 1t is a well settled rule Of law
that drunkenness is TO excuse for
the commission of a crime. Temper
ary insanity. produced by intoxication
does rot destroy responsibility when
e party VIII en- sane and responsible
made himself voluntarily intoxicated;
and drunkenness forms no defense
I wuaIPyer 10 the fact of guilt. for
! when a crime Is committed by d par
ty while in q fl Of in,oyication, Tho
law MI not allow him to Avail him
self Of his own gross vice and mis-
conduct to shelter himself from the
legal consequences Ct such crime
Evidence of drunkenness can only be
considered by the jury for the pur
pose OF determining the degree of ii,
crime. and for this purpose it mus
be received with great caution.
-. In this case ii yoa find tia
tho defendants unlawfully and VIII
! malice aforethOught. as already de
= 1ined TO you. killed the person desis
mated as Fred Foreman, it is murder
ana if sucn killing was Wliitul. O.
! crate and premeditated, CT va
5 done in the preparation or attempt
10 perpetrate robbery. it was murde
i Of the first degree, otherwise il i
I murder Of the second degree: and i
:, determining the degree, any evidenc
= ! lending to show the mental status {
;, / the defendants is proper tor the cor
:. sideration OF the jury. The fact,
= it be a fact, that the defandalt
:, I were drunk. does net render the az
= less criminal, and in that sense it
. not available as an excuse, but theI
is nothing in this to exclude it as CIV
= dence upon the question as to whetl
= err the act was deliberate and preme
;, itated Or was committed in the ca
r. rying out CT an intent to rob. Pr
~ sumptively, every killing is murGe
~ but SO far as the degree is concerne
no presumption arises from the meI
fact of killing. considered separate
III and apart from the circumstance
under which the k'.iIng occurred. tt
, question is one of fact to be dete
~ mined by the jury rom the eviden.
in the case, and it is not a mere
y gal conclusion and drunken ess, :
~ evidence Of want OF premeditatit
or an intent to rob. is not within Il
~ rule which excludes it as an eXcus
49, DRUNKENNESS neither excuses the
IA Tense nor avoids the punishment whit
80, the law inf1icts. when the charact
~ Of the 1ense is ascertained and d
termined. but ey.uence Of drunke
:. | ness is admissible solely with ref
- ence to the question Of premeflitatiC
or where there is evidence tending
show that 4 murder mas been co
80 mittedi II the preparation or attem
i. to Derpe+rate robbery. as to Il
,,o , question Of e existence of The fe1C
er ious intent to steal which is an
81 sental element Of robbery.
no In cases of lremeiitated murd
nv the fact Of drunkenness is immat
ce ial. A man who is drunk may /;
II with generalization as well as a sol
he one, and Is equally responsible +
70 the consequences OF IS act. II NJ
der Of ,he first degree. it is Hacessa
We 20 prove the killing was remc1it
ng ed Or was committed IN the Gerp
| ration or attempt to perpetrate =
We berry Or one Of the other felones
re. ready enumerated which involves,
all course. an inquiry int the state
in mind under which the party comm
he ted it, and in prosecution Of such
y inquiry his condition as drum, or
heT is proper to be considered. 7
-" weight 10 be given it is a matter
the jury to determine ard it sho
~ be received WIN great caution 8
80 carefully examined in connection "
-. all the circumstances and evidence
-, the case. You should 4eternine
,a,. tween the condition CT mind mor
49, excited by intoxicating drink ana