The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-14

lneTeaIUef Cney nd0 CnrOWn tno DOry
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, I
by showing that he was in a drunken
condition at the time he killed the
deceased. and was ,..erefore incapa
BILE of that generalization which is
an essential clement of murder in
the first degree. Evidence which
tended to show tat Intoxicating :.
Qucr had the effect Of transforming
him from good boy to a dangerous
character, we think, could not have
prejudiced the defense, but would |
rather tend to strengthen it.
6. Counsel for Johnny assigns err
:or ! the refusal OF the count TO |
strike out, uron the ground that It
was nearsay, the testimony Of an In |
| an witness called Captain Jim, who |
testified upon the part of the State, |
to the effect that upon the night of
the killing the lwO defendants were
at his camp. and that lbapah said in
| the presence Of johnny, that Johnny
held the mans hands while Ibapah
1 w
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
rsation, and Johnny. as a witness in
his own behalf. also tested to the
| same eject
(Peopie V Marseiler, 20 Cal So
I. Upon the law OF drunkenness as
a defense to crime. the court gave
instructions Number IS and - of its
own motion and defendants Request
| ed instruction number s. which in
{ structiOis cad IS follows:
Is. IT i; Il we'll settled r-lla Of law
that drunkenness is no excuse for
| the COmmiSS!D OF q crime. Temper
airy insanity, produced by intOxiCatioh
does not destroy responsibility, when
! &c party,w en- sane and responsible
made himself voluntarily intoxicated:
and drunkenness forms no defense
{ Whatever TO the fact OF guilt. for
! when a crime is committed by par
" while in 4 fl Of intoXicacion. he
law VIII not allow him = avail him
self Of his own gross vice and mis-
conduct to shelter himself from the
legal consequences OF such crime
Evidence of drunkenness can only he
considered by the jury for the pur
pose OF determining the Ge@ree of the
crime. and fOr this purpose it must
| be received with great caution.
-. In this case ii you find that
the defendants unlawfuiIy and with
malice aforethought, as already de
= fined TO you. killed the person desi5
mated as Fred Foreman, it is murder
: and if such killing was willtul, de
L l. crate and premeditated, or was
5 done in the perpetTation or attempt:
10 perpetrate robbery. it was murde
j. OF the first degree. otherwise il i
: murder of the second degree; and j,
a, determining the degree any eyidenc,
. tending to show the mental status o
!, the defendants is proper for the con
- sideration of the jury. The fact, l
:, it be fact. that the defendant
a We're drunk. does net render the &c
f less criminal, and in that sense it i
n, not avalliable as an excuse. but Their
is nothing in this to exclude it as ev
% dence upon the question as to whetl
: err the act was deliberate and premet
Il itated or was committed in the ca,
;c rying cut Of an intent to rob. Pr,
N sumptively. every killing is murGe
10 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.Nng occurred. Th
=, question is one of fact to be dete
~ mined by the jury rom the evideno
49, in the case, and it is not a mere Il
y gal conclusion and drunkenness, a
~ evidence Of a want of premedtatio
l.. Or an Intent to rob. is not within tt
~ rule which excludes it as an excus
-. Drunkenness neither excuses the C
-: Tense nor avoids the punishment whic
w. the law inf1icts. when the charac
~ of the fense is ascertained and d
termlned. but eNIuence Of drunken
:. ness is admissible solely with ref,
- ence to the question of premeditati 10
or where there is evidence tending
show that murder has been COZ
80 mittedi the preparation or attem
II. to perpetrate a robbery. as to Il
he question of ,-e existence of the felo
or ious intent to steal which is an
sol sential element of robbery
ne In cases Of lremedtated mllrd
nv the fact Of drunkenness is inmate
ice | idl - lildil WHO is drunk may 4
IN with generalization as well as a sob
he one, an is equally responsible f
ga the consequences OF is act. In MI
der Of ,he first degree. it is necessa
@e to prove the killing was prcmedit;
ng ed Or was committed in the DerD
ration or attempt to perpetrate ri
i've berry or one OF the other felonies
ne. ready enumerated which involves.
ali course, an inquiry into the state
in mind under which the party comm
Fha ted it, and in prosecution OF such
- inquiry, his condition as drunk or
Der is proper to be considered T
"" weight to be given. it is a matter
the jury to determine, and it sho'
'"9 be received with great caution a
~ carefully examined in connection w
e., al the circumstances and evidence
"a the case. You should determine
ta,, tween the condition Of mind mer
bi- excited by Intoxicating drink and
" caDable of DerfOrmin~ a Sopcifc a