172 P. 364 | Nev. | 1918
Lead Opinion
By the-Court,
Appellant was convicted of the crime of robbery, and appeals.
“Robbery” is defined by our statute to be:
“The unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or property; * * * the degree of force is immaterial.” (Rev. Laws, 6427.)
The state did not contend upon the trial that appellant used actual force in perpetrating the crime, but constructive force, in that he administered poison to one Cooper with the intention of producing unconsciousness, and while Cooper was in that condition took money from a cash register in the saloon of which the latter had charge.
Appellant contends that under our statute defining “robbery” there can be no such thing as constructive force. Force was an essential element in both robbery and rape at common law, and is so by statute, except in rape where carnal knowledge is had of a female under the age of consent; but it has been held in this state, in England, and in some of the other states, that the force used in perpetrating the crime of rape may be constructive as well as actual. In the case of Queen v. Camplin, 1 Cox, Crim. Law Cas. 220, 1 Car. & K. 746, 1 Denison, Crim. Cas. 89, wherein the defendant gave a young girl liquor for the purpose of exciting her passions, and not with the intention of causing intoxication, but from which she became intoxicated, and while she was in that condition and insensible he had carnal intercourse with her, the court said that':
“The case therefore falls within the description. of*457 those cases in which force and violence constitute the crime, but in which fraud is held to supply the want of both.”
In Lewis v. State, 30 Ala. 54, 68 Am. Dec. 113, it was said:
“It is settled by a chain of adjudication, too long and unbroken to be now shaken, that force is a necessary ingredient in the crime of rape. (Bishop’s Crim. Law, sec. 411.) The only relaxation of this rule is that this force may be constructive. Under this relaxation, it has been held that where a female was an idiot, or had been rendered insensible by the use of drugs or intoxicating drinks, and, in one case, where she was under the age of ten years, she was incapable of consenting, and the law implied force. (Rex v. Ryan, 2 Cox’s C. C. 115; Commonwealth v. Fields, 4 Leigh, Va. 649; State v. Shepard, 7 Conn. 54; Regina v. Camplin, 1 Car. & Kir. 746; Bishop’s Cr. Law, sec. 343.)”
In Pomeroy v. State, 94 Ind. 96, 48 Am. Rep. 146, wherein the defendant had been convicted of rape, the court said:
“In People v. Croswell [Crosswell v. People] 13 Mich. 427, 87 Am. Dec. 774, after citing some decisions, both in England and in this country, to the effect that if the woman’s consent is obtained by fraud the crime of rape is not committed, Cooley, J., said: ‘But there are some cases in this country to the contrary, and they seem to us to stand upon much the better reasons, and to be more in accordance with the general rules of criminal law. (People v. Metcalf, 1 Whart. C. C. 378, and note 381; State v. Shepard, 7 Conn. 54.) And in England, where a medical practitioner had knowledge of the person of a weak-minded patient, on pretense of medical treatment, the offense was held to be rape. (Regina v. Stanton, 1 C. & K. 415, 1 Den. C. C.) The outrage upon the woman, and the injury to society, is just as great in these cases as if actual force had been employed; and we have been unable to satisfy ourselves that the act can be said to be any less against the will of the woman*458 when her consent is obtained by fraud than when it is extorted by threats or force.’ ”
In another rape case the Supreme Court of Wisconsin says:
“Under such circumstances, the assault with intent to commit rape is complete, and we find no objection to the instruction because it did not require that some additional .force must be employed by the assailant to that involved constructively in the acts of giving her the liquor with these intents in his mind. There is no dispute but that he took the actual steps of giving her the liquor, and, since the jury found this was done with the criminal intent charged, the essentials of the offense are present. (State v. Lung, 21 Nev. 209, 28 Pac. 235, 37 Am. St. Rep. 505.)” (Quinn v. State, 153 Wis. 573, 142 N. W. 510, 46 L. R. A. n. s. 422.)
This court, in considering a case wherein the defendant was convicted of an attempt to commit rape, after reviewing the authorities wherein it had been held that the force necessary to constitute rape might be constructive, said:
“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 intended to use the 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 mental or physical ability to resist is wanting.” (State v. Lung, 21 Nev. 209, 28 Pac. 235, 37 Am. St. Rep. 505.)
It will be seen that the court, in the last-mentioned case, held that one of two things would constitute constructive force, namely (a) the destroying of the
See, also, Hirdes v. Cross, Ottawa Circuit Judge, 174 Mich. 321, 146 N. W. 646, 52 L. R. A. n. s. 373; Rahke v. State, 168 Ind. 615, 81 N. E. 584.
“At the time that I was called to treat the man, I supposed he was suffering from chloral poisoning. I have the same opinion now.”
From an examination of the works of text-writers, it is apparent that what may be a medicinal dose for one person is a poisonous dose for another. In some
Taylor, in his Principles of Medical Jurisprudence, vol. 1, p. 387, speaking of this drug, says:
“ It has been given in very large doses, sometimes with benefit, but at other times causing dangerous symptoms, followed by death. * * * A patient under Dr. Habershon at Guy’s took half a drachm (30 grains) of the hydrate at night. He became unconscious almost immediately after swallowing the draught — the face and hands .turned livid and cold, and breathing took place only at long intervals, indeed for about five hours death seemed impending. He recovered the next day. (Lancet, 1870, 2, 402.) A case is reported in the same journal in which a dose of 160 grains was given by mistake to an hospital patient, a middle-aged man. The man slept well and recovered, notwithstanding the large dose taken.”
We do not think the contention of appellant can be sustained.
The appellant at no time sought to render any assistance to Cooper or to notify any one of his condition. In view of this chain of circumstances, would this court be justified in setting aside the verdict of the jury? This court, in determining the sufficiency of circumstantial evidence, has said:
“If the circumstances, all taken together, exclude to a moral certainty every hypothesis but the single one of guilt, and establish that one beyond a reasonable doubt, they are sufficient.” (State v. Mandich, 24 Nev. 336, 54 Pac. 516.)
It is ordered that the judgment be affirmed.
Concurrence Opinion
concurring:
I concur.
In my judgment the very language of our statute opens the door to the reason and admits the rule which recognizes constructive force. By the statute it is declared that:
“Robbery is the unlawful taking of personal property from the person of another, or in his presence, against his will, by means of force or violence or fear of injury * * * to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree of force is immaterial.” (Rev. Laws, 6427.)
The agency of constructive force is recognized by authorities without number, where this agency has appeared in the perpetration of the crime of rape. In such crimes, the administering of liquor or drugs to an extent sufficient to destroy the power of resistance is declared to meet the law’s contemplation of force. (People v. Espanol, 16 Porto Rico Rep. 208; State v. Warren, 232 Mo. 185, 134 S. W. 522, Ann. Cas. 1912b, 1043.)
In considering the subject, Mr. Wharton, referring to the crime of robbery, recognizes constructive force as sufficient to satisfy the law’s requirement. (1 Wharton’s Law of Crimes, 10th ed. p. 744, sec. 850.)
The reason which gave rise to the recognition of constructive force in cases of rape is equally cogent in furtherance of a relaxation of the rule as to the element of force in the crime of robbery to the extent that the necessary ingredient in that respect may be only constructive. “Force” is the povfer or energy by which resistance is overcome. In the crime of robbery “the degree is immaterial,” says the statute. When, to take the personal effects of another, a blow is struck with a bludgeon, thereby paralyzing the victim’s power of resistance, the taking will constitute robbery. The same effect might be produced on the victim by the physical act of administering a deadly potion. In either case
In the case at bar, resistance was overcome by force which operated through the agency of chloral hydrate, administered to the party in charge of the saloon. Destruction of the power of resistance was accomplished by the act of the defendant, operating through the force and efficacy of the poison. A blow with a “billy” might have produced this same result. To say that the one method would have been less forceful than the other in bringing about the consequence is but to conjure with comparison.