The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-10

establish innocence crime, but his
effort was directed to avoiding Z con
viction Of murder in the first degree.
by showing that he was in a drunken
condition at the time he killed the
deceased. and was ...erefore incapa.
bic of that generalization which is
an essential element of murder in
the first degree. Evidence which
tended to show that intoxicating :.
qucr had the effect of transforming
him from good boy to a dangerous
character, we thirk. could not have
prejudiced the defense, but would
rather tend to strengthen it.
=. Counsel for Johnny assigns err
ror r the refusal OF the court 10
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 10 my, that 'Jchnnv
nelo the mans hands while Ihanah
cut his throat" We doubt if the rec
ORD OF this testimony will warrant a
conclusion that it was hearsay. But.
concedlng that it was the error in
admitting it was harmless, for other
witnesses testiled to the sama con.
'rsatlon, and Johnny, as a witness in
his own behalf, also ties led to the
same eject
lPeopia V. MarseileT. 70 Cal. So
I, Upon the law Of drunkenness as
defense to crime. the court gave
instructions Number rs and - Of its
own motion and defendants, Request
ed instruction number ;. which in
, strictions "eaH IS follows:
70. 1t is a we'll settled rlln Of law
that drunkenness IS nc excuse for
the commission of crime Temp0r-
! airy insanity produced by intoxication
does net destroy responsibility. when
;; e party.wh en- sane and responsible
made himself voluntarily intoxicated:
and drunkenness forms no defense
wal ever to the fact Of guilt. for
when crime is committed by par
tE while in q fit Of intoxicati0n. the
F, law VIII moi allow BIN &c avail him
self Cf his own gross rice and mis-
conduct to shelter himself from the
legal consequences Ct such crime.
Evidence Of drunkenness can only he
considered by the jury for the pur-
I pose OF determining the degree Of tina
crime, and for this purpose it must
be received with great caution"
-. In this case il you find that
The dafandar.s 1-,,1ou.f,,t1- 1 80,
MALICE ,fora4bo,oh+ i
nned to vo,, Eir1oI ,1,a ~
mated az Erna Lo,,,,a, W. >
and Il s,,o,, li1fi,, .o,, ~ u y
.rata ,n7 ,ro,,7o,,;+a+,, ~
done in tho no,,,,arra+in,, ~ -. "'o
10 oornetrata r,hhnr,- j. ,,.as ,l,,,..aa-
of the nrSr dagrea orha,.n~j.l -
,,,,rdo. 90 49,, ,
,,o+o,,,:.:.,1 anu -
.o,ti,,,r .--, 'ns c'H.1Lce
~ '''l''s 80 Sll'" tAN hehtai status ct
- ,iol'eI !ui me con
if NO saa !0's me laet' II
'ia' 'le aelahdant5
,a.. or;,,,:a, ehue' me acl
no+ ,ral+;an,a r,'io Az 1na1 sense II is
is nothine in thie 70 ero1,,1o 49, - .'.el
deoce upon the ouaS,io, -, - .,e-,
or the art was da1ihara.a 80 49,
itated or vas c,mn,i1t,a ~ ~
rying out Of an intent ia rob D.
sumptiveiv. every killire i ,,,,rc-a~
but so far as the daoreo io .a,o,r,o,
no presumntion arises fror, ~ ,,.a
fact Of killing considered sa,,.+,,>.
and apart from tho Observation-Disclosures
under which the k1,nno ocourrad ~
question is one of fact "a he do,ar
mined by the iurv rom the evidonca
III the case, and if is NOT marc 10
gal conclusion and drunkennasc &C
evidence Of want of nr,,,,od;ta.;~s.
or an intent TO rob is NOT within, ~ -
rule which excludes it a. On avarsa
Drunkenness neither oxcusoe ~ -
Tense nor avoids the punishment which
the law inaic.S who, +,a
Of the ,tensn ie .coor,ai,a ,ei
termined but evidence of drunEan-
ness Is admissible solely with refer
ence TO the question Of Fermentation,
or where there is evidence tending to
sho" ina murder has been COM
ml1tedi the preparation Or attemnt
to perpetrate a robbery as IN +ho
ci;acrioo of n o,,;r.o ,