The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-07

thereafter they had thrown the bory
upon the fire. He was not seeking to
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 lie Killed the
deceased. and was therefore incapa-
BILE of that generalization which is
an essential clement of murder in
the first degree. Evidence which
tended to show that intoxicating !.
Qucr had the effect Of Transforming
him from a good boy to dangerous
character, we think, could not have I
prejudiced the defense, but would !
rather tend to strengthen it.
6. counsel for Johnny assigns err
ror n the refusal or the count 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 Ibapah said in
the presence Of JO.-nry. that "Johnnv
held the mans hands while Ibapah
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 harmless, for other
witnesses teetiAed to the same con,
c-sation. and Johnny, as a witness in
his own behalf. Else ties, Led to the
| same enect.
Pe0pi2 Y. Marseler, 20 Cal. $50
I. Upon the law OF drunkenness as
a defense II crime. the court gave
instructions Number &c and y of its
own motion and defendants Request
| "a instruction number 5. which in
| Structions -Nad IS follow:
Sc. 1T IS we'll settled r1le of law
that drunkenness is no excuse for
the commission of a crime. Temper
airy insanity, produced by intoXicatioh
does not destroy responsibility. when
,-e party, en- sane and responsible
l made himself voluntarily intoNica Ell;
: and drunkenness forms no defense
| what ever to the fact of guilt, for
: when a crime is committed by par
: " while in a fit CT intONication, the
2 law VIII not allow aim to avail him
2 self Of his own gross vice and mis-
l conduct 10 shelter himself from the
e legal consequences Of such crime
: Evidence Of drunkenness can only be
Y considered by the jury for the pur
n pose Of determining the degree of tho
it crime, and for this purpose it mus
Z be received with great caution
= 81 In this case if YOU find tina
the defendants unlaWtu.ly and VII
malice aforethought. as already de
l. lined to you. killed the person desis
q mated as Fred Foreman, it is murder
r and if such killing was wi!lIui dc
Id = crate and premedltated. or Wa
IS done in the preparation or attempt
, 10 perpetrate robbery, II was murGe
i Of the first degree. otherwise II
or murder of the second degree; and i
, determining the degree, any eVid
- tending to show the mental status {
-, | the defendants is proper for the cor
49, sheraton of the jury. The fact,
-. it be fact, that the defandant
a, were drunk, does not render the az
- less criminal, and in that sense 1t
~ not avaliiable as an excuse, but thel
is nothing in this to exclude it as CIV
10 dence upon the question as to whetl
~ er the act was deliberate and preme
-, itated Or was committed in the ca
| IylnS Out Vi al liteut 10 IOD. II
-, sumptively. every killing is murGe
W but so far as the degree is cOncerne
no presumption arises from the me!
fact of killing, considered separate
IN and apart from the circumstance
under which the kl.ung occurred. tt
question is one of fact to be dete
III mined by the jury rom the eviden'
in the case, and it is not a mere
II y | nd .
ne evidence of want Of premeditati(
or an intent to rob, is not within Il
u rule which excludes it as an excus
u.s. DRUNKENNESS neither excuses the
EN- Tense nor avoids the punishment whit
o. the law in1icts. when the charact
~. Of the Citense is ascertained and d
termined. but eI.uence of drunke
,5 ness is admissible solely with ref
- ence to the question OF premeditatio
or where there is evidence tending
show that murder has been CO
-. mittedi the preparation or attem
,,;+. TO pprp5-rate robbery, as to t
tho question CT ,-e existence of the felc
.or ious intent to steal which is an
sol sential element Of robbery.
ing In cases of lremeditated murd
NV the fact of drunkenness is immat
nee ial A man who is drunk may
hn- with generalization as well as sol
the one, and Is equally responsible
ga the consequences Ot IS act. In N
der Of ,he first degree. il is nccesss
We to prove the killing was premedit
ing ed or was committed n the rerp
ration or attempt 20 perp@trate =
i've berry or one of the other felOnies
me- ! ready enumerated. which involves,
nall course an inquiry into the state
lin mind under which the party CONN
the ted it, and in prosecution Of slch
- inquiry. his condition as drunk or
~ Der is proper to be considered. I
''' weight to be given it is a matter
- the jury to determine ana ii sho
~ be received with great caution &
,,;. carefully examined in connection W
~. all the circumstances and evidence
:, the case. You should etermine