32 Colo. 397 | Colo. | 1904
delivered the opinion of the court.
Defendant was convicted of an assault to commit rape, and was sentenced to a term in the penitentiary. He comes here hy writ of error and says that the court should have directed a verdict finding him not guilty, because of the insufficiency of the evidence,
The defendant, a dentist, had been' employed by the prosecuting witness to make her a set of false teeth. At the time her natural teeth were extracted the defendant administered a local anaesthetic. A few days thereafter a protuberance was discovered in her mouth, and she returned to the dentist’s office. At this time the defendant administered chloroform. Three weeks later she again visited the defendant’s office for the purpose of having an impression of her mouth taken. At this time another protuberance was discovered. The defendant informed the witness that it should be removed, and when asked if a local anaesthetic could not be administered, said that she had better take chloroform. She objected to taking-chloroform, stating that it made her sick. Thereupon, according to her statement, when she attempted to get out of the chair he pushed her back into the chair, threw a cloth over her face and saturated it with chloroform. Her testimony was:
‘ ‘He said I would have to take chloroform. I said I didn’t want to take chloroform because it made me so sick and took so long to get over it. I objected to taking it and started to get out of the chair. He pushed me back in the chair, threw a cloth over my face and poured chloroform on it so that it ran through the cloth on to my face and neck and burned them, and on the ribbons I had on, and it became so strong that I could not catch- by breath. He said, ‘I have given you too much,’ and stopped until I caught my breath, and then poured some more on. He laid me on the lounge, then lifted up my hands to see if I was still conscious. He then spoke to me. I heard him speak, but I could not answer him. Then I heard him go to the door and turn the key in the lock. Then I lost consciousness and knew nothing more until I heard my little girl crying. ’ ’
The defendant denies he assaulted the prosecuting witness, and says that all he did at the time in question he did in pursuit of his occupation as a dentist; that he unloosed the woman’s dress for the purpose of enabling her to breathe more freely, that he felt of her limbs to ascertain the condition of her circulation, but that he made no assault, and did not solicit sexual intercourse. Counsel for the defendant say that if we were to accept all the statements of the prosecuting witness as true, that a. case of assault with intent to rape has not been shown; that at best there was only solicitation to have sexual intercourse. He assumes that the chloroform was administered for a proper purpose, and that there is no evidence showing that the woman was taken advantage of while unconscious. That the evidence of the woman concerning the conduct of the defendant while she-was recovering from the effects of the chloroform does not show an intent to commit rape. He says that all the acts of the defendant can be explained upon the hypothesis of his innocence, and that we should' discharge him. Our attention has been directed to many cases where appellate courts have set aside judgments of conviction where the evidence, in the opinion of the appellate tribunal, failed to show an intent to commit the crime of rape. It is peculiarly the province of the jury to determine the intent with which an act is committed. One of the most important elements in determining the question of intent is the character of the defendant. His character may be portrayed in many ways; and the jury, after seeing and hearing the defendant, is a very much better judge than we are of the intent with which his act was committed. In the cases cited the element of
We cannot say, after reading the transcript, that there was not sufficient evidence to warrant the jury in finding the defendant guilty as charged. When the defendant administered chloroform to the prosecuting witness over her objection, he committed an assault, and it was for the jury to determine from all the evidence with what intent the act was committed.
The defendant objected to the giving of certain of the instructions, but no instruction was offered to be given in his behalf. The instructions given are not erroneous. They do not cover every possible phase of the case; but the defendant, if he desired other instructions, should have offered them, and we have frequently held that mere non-direction is not reversible error. — Brown v. People, 20 Colo. 161.
The judgment will be affirmed.
Affirmed.