State v. Charley Lung
29 P. 235
Nev.
1891
Check Treatment

By the- Court,

Bigelow, J.:

The defendant is qharged with an attempt to commit rape. Rape is defined by our statute to be the carnal knowledge of a woman forcibly and against her will. Force is a necessary ingredient in the commission of the offense, except where сommitted upon a child under the age of consent-. (State v. Pickett, 11 Nev. 255.) The only qualification to this rule is that the force may be constructive. (Lewis v. State, 30 Ala. 54.) This constructive force has been held to exist where the defendant had violated the woman’s person after she became insensible from intoxicating liquors given her by him, for the purpose of exciting-' her and then having- sexual connection with her (Queen v. Camplin, 1 Cox, Crim. Cas. 220; 1 Car. & K. 746; 1 Denison, Crim. Cas. 89); where the woman was so drunk as to be insensible, although the liquor was not given her by the defendant (Com. v. Burke, 105 Mass. 376); where she was in such deep slumber аs to be unconscious of the act (Reg. v. Mayers, 12 Cox. Crim. Cas. 311); and where her powers of resistance had been overcome by the administration of ether or chloroform. (2 Whart. & S. Med. Jur., 3d Ed. Sects. 245, 267.) In McQuirk v. State, 84 Ala. 435, it is said: “It is true that the element of force need not be actual, but may be constructive or implied. If the woman is mentally unconscious from drink or sleep, or from other cause is in a state of stupefaction, so that the act of the unlawful carnal knowledge on the part of the man ‍​‌​‌​‌​‌‌​​​‌‌​​​​​‌‌‌‌​​‌​‌‌‌​‌​​‌​​​​​‌​​‌‌‌​​‍was committed without her conscious and voluntаry permission, the idea of force is necessarily involved in the wrongful act itself — the act of penetration. But even in cases of this kind the intent to use force, if necessary to accomplish the offense, is essential .to criminality.”

*213 Whether intercourse with a non-resisting or consenting idiotic or insane woman is rape depends upon her capacity to understand the nature of the act (People v. Cornwell, 13 Mich. 433); or, as stated in Beg. v. Barrett, 12 Cox, Crim. Cas. 498, upon the possession by her of will-power with which to either consent or refuse. Fraud, as by persоnating the woman’s husband [Rex v. Jackson, Russ. & R. 487; State v. Brooks, 76 N. C. 1), or where she consents to the act under the belief, fraudulently induced by the defendant, that it is necessary medical treatment (Don Moran v. People, 25 Mich. 356), does not supply tlie want of force. The sum of the cases seems to be that to constitute rapе, where there is no force used, the woman must have been unconscious, or unable to fairly comprehend the nature and consequence of the sexual act. It must necessarily go this far, or else there is no distinction between rape, where the force used is constructive, and seduction. Anything which merely excites the woman’s passions,leaving her at the same time in the full possession of her mental and physical powers, capable of comprehending the nature of the act, and of exercising her own volition in the matter, is classed rather among the arts of the seducer than the weapons of him who would destroy female virtue by force.

In Queen v. Camplin, supra, the prisoner had given the woman intoxicating liquors for the purpose of exciting' her, and thereby inducing her to consent to his advances. Failing in this, she finally became insensible, and he then violated her person. This was held to be rape; but only because he had taken advantage of her unconscious condition. A careful study of the casе shows that had he succeeded in inducing her to consent, although the consent was obtained through the liquors given her, it would not have been so held. In People v. Royal, 53 Cal. 62, the defendant had practiced manipulations upon a girl of sixteen, until she was, as she testified, so dull and stupid аs to be unconscious of the nature of the act of sexual intercourse. This was held, not to be rape.

As an attempt to commit a crime can only be made under circumstances which, had the attempt succeeded, ‍​‌​‌​‌​‌‌​​​‌‌​​​​​‌‌‌‌​​‌​‌‌‌​‌​​‌​​​​​‌​​‌‌‌​​‍would have constituted the entire substantive offense (1 Bish. Crim. Law, Secs. 731, 736; State v. Brooks, 76 N. C. 1), the result which we gather from these principles is, that for a man to be guilty of the crime of an attempt to commit rape, he must have *214 in ten dec! to use tbe force necessary to accomplish his purpose, notwithstanding the woman’s resistance, or in the case of constructive force, to either destroy her power to resist him by the administration of liquors or drugs, or -to take advantage of the fact that she was already in a condition in which either the menial or physical ability to resist is wanting.

In addition to this, there must have been some act done which, in connection with this intent, constitutes the attempt. There is a distinction, sometimes difficult to draw, between this act and mere acts of preparation, or acts which are not so closely connected with the substantive crime intended as to constitute an attempt. (1 Whart. Crim. Law, Sec. 180.) For instance, in People v. Murray, 14 Cal. 159, it was held that declarations of an intent to enter into an incestuous marriage, followed by elopement for the purpose and sending for a magistrate to solemnize the ceremony, were mere acts of preparation, and did not constitute an attempt to commit the crime. The court says: “Between preparation for the аttempt and the attempt itself, there is a wide difference. The preparation consists in devising- or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission, aftеr the preparations ai-e made.” In U. S. v. Stephens, 8 Sawy. 116, the defendant had attempted to purchase liquors in San Francisco for the purpose of introducing them into Alaska. This was held mere preparation, and not an attempt to introduce them into Alaskа. In State v. Colvin, 90 N. C. 717, it is said: “It is essential that the defendant should have done some acts intended, adapted, approximating, and in the ordinary and likely course of things, would result in the commission of the particular crime; and. this must be averred in the indictment, and proved.” In Kelly v. Com., 1 Grant, Cas. 484, thе defendant had been convicted of murder, charged to have been perpetrated in an attempt to eommitrape. The defendant and others had unlawfully entered a house, in the night time, in which a woman of loose character lived, and in a fight which ensued the father of the woman was killed. In reversing ‍​‌​‌​‌​‌‌​​​‌‌​​​​​‌‌‌‌​​‌​‌‌‌​‌​​‌​​​​​‌​​‌‌‌​​‍the conviction the court held that-entering a house with intent to commit a rape therein did not constitute an attempt to do so. That the attempt at rape had not yet been made. It is there said: “The court should have instructed the jury that acts are necessary to constitute an attempt, and that an attempt to commit *215 a rape is an ineffectual offer, by force, with intent to have, carnal connection.” The overt aеt which constitutes an attempt must be one which manifests an intention to commit the crime. (Cunningham v. State, 49 Miss. 685.) A man's intentions must be judged by his acts. In attempts his act must have been one which, under all the circumstances, manifests an intention to commit that particular offense. (1 Whart. Crim Law. Sec. 176.) It is essential, too, that the aet of endeavor should be intrinsically adapted, to effect the purpose, and that the court and the accused may see that it is so adapted, it should be specifically stated in the indictment. (State v. Wilson, 30 Conn. 504.)

The spеcific aet charged against the defendant in the indictment in the case at bar, is that of mixing cantharides in some coffee which he knew a certain woman was about to drink. There is no direct allegation that this w.as done with intent to commit rape. It is аrgued, however, that as it is alleged that it was done in an attempt to commit rape, and an attempt necessarily includes an intent to commit the crime, it follows that 'the intent is sufficiently stated. At the best., this is merely an argumentative statement of the fact, which is not pеrmissible in an indictment. (People v. Logan, 1 Nev. 110.) Whether certain facts constitute an attempt to commit crime is not only a question of law, but one that is often intricate and difficult of solution. These facts must be st.ted in the indictment, so that the court may determine whether or not they constitute an offense. In State v. Wilson, in construing a similar indictment, the court uses this language: “If it be said that the words * attempt to steal ’ imply it [the intent] sufficiently, the conclusive answer is that they equally imply air overt act of endeavor, for that is equally an element of an attеmpt; and if ‍​‌​‌​‌​‌‌​​​‌‌​​​​​‌‌‌‌​​‌​‌‌‌​‌​​‌​​​​​‌​​‌‌‌​​‍either element of the offense may be left to implication, both may be, and a general averment of an attempt to steal or to rob, or other attempt, would in such eases be sufficient.” (30 Conn. 504.)

In Randolph v. Com., 6 Serg. & R. 397, it is said: “This mode of charging a thing by way of argument, and not directly, will not do. To say that a man made an altem.pl is very uncertain language. We cannot pretend to say what it is that the defendant is charged with doing; and without knowing that, we cannot determine whether what lie did was an indictable offense.” For like rulings upon indictments for an assault *216 with intent to commit crime, see State v. Ross, 25 Mo. 426; State v. Martin, 3 Dev. 329; People v. Marshall, 14 Ala. 411.

The indictment is also insufficient in that it does not appear that the act was adequate, approximate and sufficient to constitute the offense of which he was convicted.

Cantharides, or Spanish fly, is classed with the irritant poisоns, such as arsenic, the acids, corrosive sublimate, etc., and is capable of producing fatal results. The first symptoms are nausea, vertigo, and a burning sensation in the mouth and throat, followed sometimes by irritation in tho genital organs. There is nothing about it in the nature of a narcotic or an ansesthetic. (2 Whart. & S. Med. Jur. Secs. 523, 524; Tayl. Pois. 576.) Except as an -effect of the sickness produced, it leaves a person in the full possession of his faculties. It can produce no such condition of mind or body as we have seen is necessary to constitute the constructive force in rape. While the act was dastardly, and well deserves punishment, it cannot, as an attempt to commit rape, be distinguished, in principle, from that of giving the liquor in Queen v. Camplin, or the manipulation in People v. Royal. It was not adequate to bring about that state of affairs which, had he succeeded in having carnal intercourse with the woman, would have constituted rape. There was no offer or attenrpt to have connection with her, either by force or otherwise, nor is it logically inferable from the act that he then and there intended to violate her person. Possibly he ‍​‌​‌​‌​‌‌​​​‌‌​​​​​‌‌‌‌​​‌​‌‌‌​‌​​‌​​​​​‌​​‌‌‌​​‍intended to have connection with her subsequently, and believed that the operation of the drug would materially assist him in accomplishing his purpose, by inducing her to consent; but this, if successful, would fall far short of rape. So far the only attempt was to administer the cantharides. The attempt to rape, even if intended, had not yet begun.

Much that has been already said applies also to the evidence, whiсh, in addition to that concerning the attempted administration of the cantharides, which she did not take, is simply that some time before he had said he would have carnal intercourse with her. There is still no logical connection between the act and the ultimate intent sought to be charged. It does not indicate that he then and there intended to carnally know her by force, or was then engaged in an attempt to so know her by first destroying her power to resist such an attempt. Whether if there was a drug which, while leaving a woman in the full *217 possession of all her other faculties, would create in her an uncontrollable sexual appetite, its administration by one who ■intended to have intercourse with her, while under its influence, would constitute an attempt to rаpe, need not be considered. Such a ease has never arisen. Probably there is no such drug. At any rate, cantharides will not produce such a condition. While, from a knowledge that it will irritate the genital organs, •and in ignorance of its dangerous prоperties, it has frequently been employed for the purpose of exciting the sexual propensities in females, in no case that we have found has it been held, or even suggested, that its administration constituted an attempt at rape. In Reg. v. Hanson, 2 Car. & K. 912, and Queen v. Walkden, 1 Cox, Crim. Cas. 282, its аdministration was held to be no offense; in Reg. v. Button, 8 Car. & P. 573, and Com. v. Stratton, 114 Mass. 303, to be an assault; and in People v. Carmichael, 5 Mich. 10, under a statute against the administration of poision with intent to injure another, to be a felony. In the latter case the defense was that the cantharides had been given for the purpose •of exciting the woman’s passions so that the defendant could the more easily persuade her to have sexual intercourse with him (which would constitute seduction, another statutory offense in Michigan), and not with intent to injure her. Brit the court held that as seduetion would be one kind of injury, the mere fact that tire drug had caused an injury different from that intended, was no defense. In California, where the statutory definition of rape has been considerably ^enlarged, it still only includes cases where resistance is prevented by the administration of intoxicating, narcotic or anaesthetic substances. Judgment reversed.