The daily appeal. [volume] (Carson City, Nev.) 1906-1907, 1906-11-07

beyond all reasonable doubt that the
was perpetrated by means f T.
poison, or lying in wait. or torture,
CIR by any other wlnIul, deliberate i
and premeditated killing. or in the
or attempt to perpetrate
ROBBERY This ingredient of deliber-
ate premelitated killing must be
clearly shown and proven beyond all
easonable doubt. 1t is not sufficient
mat you think the killing was DELHI
craze and premeditaseu, the evidence
must convince you of that fact to an
lu.ng certainty and bevOnd all rea-
sonable doubt. The evidence of de-
liberation and generalization must be
such rs 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 whe!t-
err such a design was formed in the
minds Of eacn 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
bera,e and premeditated purpose.
hey cannot be founu guilty Of muir
DER in the first Legree. 1t is true
that 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 50
c oud the minds of the defendants as
10 Interfere with the formation Of
| deliberate and premeGitated purpose
to kill If the drunkenness was suf-
ficient to create reasonable dOurt
= your minds as to the existence ~
such d deliberate premeditated pul
pose. you cannot find the defendants
guilty OF murder in the first degree
Counsel for defendants attack the
courts instrUc. No. :. / as being an
erroneous statement Of the law. am
discus and misleading consequently,
highly preudicial to the defendants.
he instruction complained Of va
= dou. less copied in the main from an
instruction that has a number Ct
, times met with the approval Of tn"
SUPREME Court of ~ai.lornia.
, Peo2le V Williams, - Cal 3ta;
: People V. nelencia q ID. 545; Peo-
, pie V. Lewis sc ID. 53l, People. Y.
I eFrr.s. % L. 592: People Y tones, So
ii. 16S; pe0nIo V. Vincent. % Id. 4-9;
I a. Pac. 3S1.(
! The instructions upon the law Of
: drunkenness. as applicable IA this
: case should be considered together
: The jury. We think. were fairly and
$ correctly instructed upon This poini
S of law.
r tPeopie Y. Leonard, 1t3 \. Y. 36t
5 State V. Hawkins, 80 Wash. IS: 6:
u Pac. 25S: Wilson V. State go \. j I.
e i'll; Hopt V. People. Ia I. S. g.
II Booher Y State. Io6 Ind. AZ; u L
j r. a. 39l: State V. Thompson. Il New
If 15l See also: 81 Cyc go: McCIair
S on CIR Law. Sec. 1922
t The refusal of the court to giv'
IS certain requested instructions upol
e the law Of manslaughter was not Ell
L ror, as there was no evidence tendlH:
d TO reduce the offense TO the grad
= Of manslaugh1er
Estate " Donovan. 10 New. 35
{ State V. Minain, > New. 400; Pirkle '
- State. Hump (Tenn) Sos; State ,
~ " eaver 30 Or. 413.)
1t a
os luested by defendants were refuse
20 by the court, either upon the groun
r. that they were inapplicable to tn
&c case. or that they were covered b
e instructions already given. A caref,
as examination Of l--ese requested III
IN structions convinces us that the coul
he did not err in their refusal
e. ,.,ate V. Buralli, 81 New. ga; Stat
of- V. Maher, % New. 1861
n 10. 1t is contended that the il
o., structiOn given Al the request Of n
|e- prosecution relative 10 the consider:
n ton which the jury should give t
er the defendants testimony. was e
N. roneous and preiudicial This il
to struction, substantially as given b
M the court in this case. has heretofol
ut in numuer of cases been approve
,o 10y this court.
~ Estate V Hartley. - New. 500: Sta
- Y. Streeter. - la. 46.' state V. Hin
16 H.. op7: State V Hymer. - Id. 40
The following language Of the i
- struction is that to w-ich except.
eF- is particularly taken: ~ convin
'cs ing and carrying with it a elief
,ol Its truth you have right to act upC
~ it: if rot. you hive right 10 reie
u it." etc As tAis instruction has bee
- given in other cases in this Stat
a. the words we have italicised ha'
~ been Cmmitted. Il is urged BY CO:
sci here that the use OF these wor,
was. in effect q direction to the in
" that it was entirely optional wi
:, - them whether they should act up'
~ the testimony Of tho defendants ev
IL tough they believed in the truth
SC the same.
ne While we think it would have be
ic' clearer to have omitted from /
I'D instruction the words in Questio
MI We dc NOT think il a all rrobal
th that the jury placed any such &C
in struction as contended upon them.
be In another instruction the jury W
ely told that the must consider all t
yet evidence ect. That jury wol
md fail 10 give due consideration to t
nd testimony Of a defendant. which W
as convincing and carried with it