The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-16

establish Innocence crime, but his
effort as directed to avoiding a con-
victioa Of murder in the first degree, |
| by showing that he was In a drunken
| cOndi i,l a the time he Killed the
! deceascG. ana was therefore incapa-
BILE Of fhst premeditaLi ion which is
an esf,e riiel element of murder in
the f It degree. Evidence which
tended 9 srcw that Intoxicating =
| quor ha the effect of transforming
him from 3 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 n the refusal or 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 johnny. that Johnny
held the mans hands while Ibapah
cut his throat" We doubt if the rec
Crd Of this testimony will warrant a
conclusion that it was hearsay But.
conceding that it was the error in
aAmitting il was harmless, for other
witnesses TESTIFIED to the same con
rsatiOn. and Johnny. as witness in
his own behalf, also tested to the
same enect
(People.v. Marseilcr 10 Cal So
Z. Upon the law OF drunkenness as
a defense to- criWc, the court gave
instructions Number &c and q of its
cd instruction number s. which in
SructlOns "ead IS follows:
&c IT is ? well settled rule of law
that drunkenness is no excuse for
the commission OF a crime Temper
airy insanity. produced by intoxicatioh
5 does not destroy responsibility, when
5 ,-.e party.wh en- sane ard responsible
n made himself voluntarily intoxicatci:
l and drunkenness forms no defense
Whatever 10 the fact Of guilt for
L when crime is committed by a par
r ty while in a fit Of intoxication, the
e law vii not allow him to avail him
e self Of his own gross vice and mis-
q conduct to shelter himself from the
Q 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 the
II crime, and for this purpose it must
Il be received with great caution
y -. In this case if you find that
the defendants unlawfully and with
malice aforethought. as already de
O. lined 70 you, killed the person desig
ID mated as Frad Foreman, it is murder
r and il such killing was willtul, de
I'd crate and premeditated, or was
is done il the preparation or attempts
10 perpetrate robbery, it was murder
i Of the first degree, otherwise ii i:
or murder Of the second degree; and il
j, determining the degree, any evidence
-. tending to show the mental status Q
a, the defendants is proper for the con
-. sideration Of the jury The fact, i
az it be fact. that the defandant Is
Cd We're drunk. does not render the &C
If less criminal, and in that sense. it il
~. not available as an eXcI;se but Their
is nothing in this to exclude it as evi
no dence upon the question as to Wheth
~ er the act was deliberate and premed
nd itated or was committed in the cal
II. rying out OF an intent to rob. Pre-
on sumptively, every killing is murder
y, ! but so far as the degree is concerted
no presumption arises from the Nor
-, fact OF killing, considered separated
" and apart from the circumstance
under which the kl.lng occurred. TIL
-, question is one of fact to be dete1
''I mined by the jury rom the evidenc
in the case. and it is not a mere il
=. gal conclusion and drunkenness, a
IN evidence Of a want of premeditatio
=. Or an intent to rob. is not within tn
~ rule which excludes it as an excuse
N Drunkenness neither excuses the o
-: Tense nor avoids the punishment whic
pv- the law inficts when the characte
ar Of the fense is ascertained and d.
termlneG. but ev-uence of drunken
*. ness is admissible solely with refe
- ence to the question of premeditatio1
or where there is evidence tending t
!; show that q murder has been con
80 mittedi n the preparation or atteml
VIII to perD9trate robbery. as to til
he question of ,-e existence of the felo
ter ious intent to steal which is an e
sci sentlal element Of robbery.
inc In cases of lremeditated murd =
ny the fact of drunkenness is inmate
nee lal. A man who is drunk may a
hn- with premeditatiCn as we'll as a sob;
the re, and is equally responsible f,
ga the consequences Of is act. In mn
der of ohe first degree. it is necesSa
W to prove the killing was premedita
ing ed Or Was committed in the perpe
ration or attempt 10 perpotrate TO
i've berry or one Of the other fClOnies
ne. ready enumerated. which involves,
lali course, an inquiry into the state
lin mind under which the party comm
the ted it, and in prosecution Of such
= inquiry, his condition as drunk or
Der he SiIprGd TT
~" weight TO be given it is a matter t
,ry Tho i,, -, au4o,:
be received with great caution al
,ito carefully examined in connection wi
~ all the circumstances and evidence
49,, the case. You should determine |
,,a, tween the condition Of mind mere
~ excited by Intoxicating drink and y
boy i''' - p'i i'i i'i'H7 D." 0pI. .A' O.