The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-13

You are instructed that in order
10 md the defendants or either of
them Guilty Of murder in the first
degree you must And from evidence
beyond oil reasonable doubt that the
murder was perpetrated by means Z
poison, or lying in wait, or torture
or BY any other wi.Iiul, deliberate
and premeditaAed killing. or in the
perpetralion or attempt to perpctrate
ROBBERY. This ingredient Of delibe-:
ate premeditated killing must be
clearly shown and proven beyond all
reasonable doubt. II is not sufficient
mat you think the killing was DELHI
craze and premedita.o1. the eviden &c
must convince you Of that fact to an
Aiding certainly and beyond all rea-
sonable doubt. The evidence Of 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
was struck and in considering wheth-
er such a design was formed in the
minds Of each of the defendants, you
should consider the evidence, if any.
of drunkenness If the defendants
were drunk at the time and were
100 much intoxicated to form deli
oerate and premeditated purpose.
they cannot be foumd guilty OF MUIR
DER in the first uegree 1t 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
m'ne whether it was sufficient to so
c.oud the minds of the defendants as
to Interfere with the formation Of
| dellberate and premeditated purpose
| to kill If the drunkenness was suf
hclent to create reasonable DOUBT
m your minds as TO the existence nf
such deliberate premeditated pul.
pose. you cannot find the defendants
guilty OF murder in the first degree. =
Counsel for defendants attack the
courts instruC. ION No. = as being an
erroneous statement of the law. am
bigous and misIea ling, consequently.
highly preudicial 10 the defendants
he instruction complained of was
dou less copied in the main from an
instruction that has number Of
times met with the approval of the
Supreme Court Of ~aiAernia
(People V. Williams, - Cal. 345:
People V nelencia y ID. 545; Peo-
pie v Lewis Sc Id. 531. People. v.
eFrr.s. 81 la. 500: People ' Jones. So
Id. 16S: People V Vincent. Is Id i2o:
- Pae ssh
The Instructions upon the law of
drunkenness, as applicable 10 this
case should be considered together
The jury, We think, were fairly 3nd
correctly instructed upon Tits point
Of law
tPeopie Y. Leonard 14s n. y. 254:
State Y, Hawkins. SO Wash. 1sc; 60
Fac. 25S: Wilson V. State. SO \. ]. /.
Ia; Hopt Y. People. la u. S. 63,22
Booher State. 1915 Ind. Al; 81 l.,
Il A. 39l; State Y Thompson. - New.
loi. See also: y eye 670: McCIain
on Or. Law. Sec. 1872
The refusal of the court to give
certain requested instructions upon
the law OF manslaughter was not err
Tor, as there was no evidence tending
TO reduce the offense to the grade
Of manslaughter
Estate V. Donovan. 10 New. 80:
State V. Milain, New. 4o9 Pirkie V.
State. Hump tTenn) $50; State v.
weaver 80 Or. 415)
.. number of instruction re-
quested by defendants were refused
by the court, either upon the ground
That they were inapplicable to the
case, or that they were covered bv
instructions already given A caref III
examination OF i--ese requested in
stfucuons conyinces us that the court
Old not err in their refusal.
late V. Buralli, p New. "a; State
V. Maher, 25 New. 1861
10. 1t is contended that the in
structlon given at the request Of the
prosecution relative TO the considera-
ucn which the jury should give to
the defendants testimony was or.
roneous and prejudicial. This in
stroctlon, substantially as given by
the court in this cas- has heretofore
IN numDer of cases been approved
by this court
Estate V. Hartley, % Nev. $50: State
Y. Streeter, :" 1t. 463 state V. Hing
10 l.. o81; State V. Hyn1er. Is ID 49l
Inc following language Of the in
structlon IS that to Wich execution
is particularly taken: III conyfnc
ing and carrying with it a ~elief in
It's truth.ycu have right to act unon
1t: II not. you have Q right to reject
IL etc. As tAis instruction has been
given IN other cases in this state.
fne words We have italicisef have
heen ommitted. l: is urged by c9un
SCI here that the use ol these words
was, III effect, direction to the iurv
that it was entirely optional with
them whether they should act unon
the testimony of the defendants. even
tough they believed in the truth Of
the same
While we think 1t would have been
clearer to have omitted from the
instruction the words IL question,
We do not think it 2 all probable
that the jury placed any such con-
struction as contended upon them.