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

u08Iec- you INllSt, ma from evidence
beyond all REASONABLE doubt that the
murder was perpetrated by means
poison, or lying In wait. or torture,
or by any other wiuful, deliberate
and premeditated killing. or in the
perpetra,lon or attempt to rerpetrate-
ROBBERY. This ingredient Of de1i!ier-
ate premeditated killing must be
clearly shown and proven beyond all
reasonable doubt. 1t is not sufficient
at you think the killing was DELHI
craze and premeditacc4. the evidence
must convince you Of that fact to an
a lo.ng certainly and beyond all rea-,
sonable doubt. The evidence of de-
liberation and generalization 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-
or 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
too much intoxicated to form a deli /
berate and premeditated purpose.
they cannot be fOund guilty Of muir
uer in the first 4egree. 1t is true
tina: drunkenness is no excuse for the /
commission of an Offense, but never
theless the jury must consider the
evidence of drunkenness and deter
mine whether it was sufficient to so
c.oud the minds of the defendants as
I intN vxyt3y, <ho <>f
deliberate and premeditated purpose
to kill. If the drunkenness was suf
fiCient to create reasonable dOunt
IN your minds as 10 the existence sc
such deliberate premedtated pur
pose. you cannot find the defendants
guilty Of murder in the first degree"
Counsel for defendants alta elk ,he
courts instruc on No. q as being an
erroneous statement of the law, am
tigo',s and isleading, consequently.
highly preudicial to the defendants.
The instruction complained of was
dou, less copied in the main from an
instruction that has a number Of
times met with the approval of the
Supreme Court OF ~aiuGrNia.
tPeople V. Williams. ~ Cal. %4o;
peonle V nelencia 81 ID 545: Peo-
pie V. Lewis 36 ID. 531. People. V.
eFrr.s. - T.. 50: People Jones. 50
Id. 1GS: People Y. Vincent, % ID. i25;
,s Pac. 3>lD
The instructions upon the law Of
drunkenness. as applicable tc this
case should he considered together,
The jury we think, were fairly and
correctly instructed upon this point
of law
PeOp!e Y. Leonard, 1i3 \. y. 364 J.:
State V Hawkins. % Wash .SG: 50
Fac. 25S: Wilson V. State SO n J. l..
Ill; Hopt Y. People. In L. S 49,
BoOher Y State. Ioh Ind. ~: u l..
K. \. 39I, State Y. Thompson. l. Me-
l5l. See also: y Cyc GO: Mccain
on CIR Law. sec. l62.
The refusal of the court TO give
certain requested instructions upon
the law OF manslaughter was not er
: ror, as there was no evidence tendiag
to reduce the offense to the grade
of manslaughter.
Estate V. Donovan. 10 New. So
State V. Minaln, > New. 400; Pirlie V
: State. 9 Hump (Tenn) 500: State V
; weaver 80 Or. 49,
' 8 \ number of instruction re
: quested by defendants were refused
i, by the court, either upon the ground
. that they were inapplicable 70 the
e case, or that they were covered by
!. instructions already given A caref i
5 examination Of l--ese requested in
\ structlonS convinces us that the cour
e did not err in their refusal.
;. t.,ate V. Buralli, - New. 81; State
: V. Maher, % New 1861
/ 10. 1t is contended that the in
r struction given at the reques; Of the
: prosecution relative TO the consdera
: ton which the jury should give t
r the defendants testimony, was er
i roneous and prejudicial This in
0 structlon, substantially as given by
l. the court in this case. has heretofor,
t in numDer Of cases been approved
=, by this court.
: Estate V. Hartley, - Nev. 800. Stat
: V. Strecter, - III. t03; STATE v Hing
is l.. 81; State '. Hymer. Il d. 40
The following language of the in
= struction is that to w-ich exception
: is particularly taken: ~ convinc
- ing and carrying with it elief i.
=. It's truth, you have a right to act upon
. it: il not. You have a right to rcicc
:. il. etc. As this instruction has bee
given in other cases in this Stata
: Inc words we hav" italicisei havt
been 0mmitted. l. is urged br COW!
=, sci here that the use OF these word
:, was. in effect, 4 direction TO the iur
g that il was entirely optional viii
:, them whether they should act uD0
;, the testimony of the defendants. eve
tough they believed in the truth @
} the same.
G While we think il would have bee
- clearer to have omitted from III
ii instruction the words in question
/ We do not think il 1T all proiahl
i that the jury placed any such cor
n structiOn as cOntcn led upon thCm.
p In another instruction the jury wa
y told that the must consider all tn
y evidence" oct. That a jury woul
q fail to give due consid Grafton to tn
q testimony Of a defendant which wa
IS convincing and carried with il a bt