The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-12

+.
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 ne Killed the {
deceased. and was therefore incapa. .
bic of that generalization which is
an essential element of murder in
the first degree. Evidence which
tended to show that intoxicating T..
quor had the effect of transforming
him from a good boy to a dangerous
character. we think. could not have
prejudiced the defense, but would
rather tend to strengthen it,
s. Counsel for Johnny assigns err
rOr i n tho refusal OF the count 10
strike out. upon the ground that it
was uearsay, 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 johnny, that Johnny
held the mans hands while Ibapah
cut his throat" We doubt if the rec
! ord Of this testimony viii warrant a
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.
1satiOn. and Johnny as a witness in
his own behalf, also tested to the
| same euect
Peopla V. Marseiler 70 Cal $50
Z. Upon the law of drunkenness as
a defense tn crime. the court gave
! instructions Number 2G and 81 Of it's
, own motion and defendants Request
ed instruction number 5. which in
structiOns -ead IS follows:
&c. 1t IS q we'll settled rule of law
that drunkenness is no excuse f"r
| the commission Of q crime Temper
AIRY insanity, produced by intoxicatioh
does not destroy spOnsibility, when
J ,-4e party,wh en- sane and responsible
made himself voluntarily intoXicatel !:
| and drunkenness forms no defense
| VIVA ever To the fact Of guilt for
when crime is committed by a par
ty while in q fit of intoXicatior the
law VIII not allow him to avail him
self Of his OWL 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 the
crime. and FIR this purpose il must
be received with great caution"
-. in this case if YOU fad that
the defendants unlawfully and With
malice aforethought, as already de
= lined 10 YOU, killed the person desig
mated as Fred Foreman, it is murder
and if such killing was willful de
crate and prem edilated. OF was
done in the perpetration or attempt;
10 perpetrate robbery. il was murder
! of the first degree. otherwise il i
murder of the second degree: and i,
determining the degree. any evidenc,
ending 10 show the mental status 0
, / the defendants is proper for the con
u, | slderation OF the jury. The fact. /
+ ! 1t be fact. that the defendant
! were drunk. does net render the &C
less criminal, and in that sense it il
not available as an excuse, but Their
is nothing in this to exclude it as evi
\ Gence upon the question as TO wheth
er the act was deliberate and premed
! ltated or was committed in the car
( rylng out Of an intent to rob. Pre-
, | sumpuyely, every killing is murder
a but so far as the degree is concerned
no presumption arises from the mer
/ fact of killing. considered separated
- and apart from the circumstance
, under which the kl.lng occurred. TIL
, question is one of fact to be deter
: mined by the jury rom the evidenc
;, III the case. and it is not a mere le
:, gal conclusion and drunkenness, a
evidence of a 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 whic
: the law lnf1icts, when the characto
. of the itense is ascertained and dc
termlnoC, but eV.uenco of drunken
-. ness is admissible solely with refe
> ence to the question Of premeditatiCl
or where there is evidence tending I
show that murder has been con
mittedi the preparation or attemr
+ to perpG'rate robbery. as 10 tn
o question of ,-e existence of the felol
r ions intent to steal which is an e
j sentlal element of robbery
2 liz cases Of lremeditated murd :,
Y he fact Of drunkenness is inmate
e laI- man who is drunk NAV az
! with reconciliation as well as a sob,
Q one. ana is equally responsible f
/ the consequences Of is act In mu
der of ,he first ,ic"ree. it is ncccssar
o 10 prove the killing was premedita
g cd or was committed III the perDe
ration OF attempt 20 pofDatratp re
o berry or one OF the ether feiunics a
> ready cnuncratCt. which involves {
Il course, an inquiry into the state
n mind under which the party commi
@ ted 1t. and in prosecution of such 4
= inquiry, his condition as drunk or s
- Der IS proper to be considered. III
y weight to be given it is d matter #
the jury to determine. and ii shou1
. be received with great caution an
- carefully examined in connection viii
. al! the circumstances and evidence
:, the case. You should determine h
l. =.