6 N.M. 555 | N.M. | 1892
V. P. Edie was indicted for rape at the March term, 1891, of the district court for Bernalillo county; pleaded not guilty; was tried, convicted, and sentenced to the penitentiary for the period of five years. A motion for a new trial was made and denied, and the defendant appealed from the judgment. The indictment was drawn under the provisions of section 1, chapter 24, Laws, 1887, and contains two counts. The first count charges that the crime was committed by forcibly overcoming the resistance of the prosecutrix; and the second that it was committed by administering wine, an intoxicating narcotic, whereby, from stupor and weakness, the victim was prevented from resisting the force used by the defendant to accomplish his purpose. The section of the statute upon which the indictment is founded reads: “Section 1. That a person perpetrating rape upon, or an act of sexual intercourse with, a female, when the female is under the age of fourteen years, or, when over fourteen years of age, through idiocy, imbecility, or any unsoundness of mind, either temporary or permanent, she is incapable of giving consent, or when her resistance is prevented by stupor or by weakness produced by an intoxicating narcotic or anesthetic agent administered by or with the privity of the. defendant, is punishable by imprisonment for not less than five years, nor more than twenty years.” The grounds of error upon which appellant relies for a reversal are — First, misdirections given by the court to the jury; second, the insufficiency of the evidence to support the verdict; third, irregularities committed by jury in allowing a court bailiff to draw their verdict.
The chief question for determination under the first count was, did the defendant forcibly overcome the resistance of the prosecutrix. The substance of the testimony upon this point is simple and direct: On the twenty-seventh of November, 1890, at Albuquerque, about 3 o’clock in the afternoon, the defendant took the prosecutrix into hi§ buggy, and drove about from place to place, stopping at several places where he obtained wine, which he gave the girl to drink. About dark he drove up to his place of business, which contained his private bedroom. Upon getting out of the buggy, he took her by the arm, and pulled her into the bedroom, locked the door, threw her upon the bed, and, by superior force, ravished her. That thereafter he left the room, locked the door behind him, and, after a short absence, returned with oysters and wine, which he gave her to eat and drink. After this the defendant undressed and went to bed, and asked the girl to do likewise. She refused, and he then pulled a pistol, and, saying he would kill her, fired and shot her through the hand. He kept her in his room all night, and in the early morning turned her out, and, giving her $1.20, told her to go over to old town on the street car, and that if anyone asked her any questions to say that a Mexican had shot her, and that if she told anyone what he had done to her he would kill her. She further testified that similar threats had been used at different times during the' evening, before this shooting took place. The threats, whether uttered before or after the commission of the act, tend to show the relations existing between the parties during the time that they were in the bedroom. It is not probable that a man would shoot or threaten to kill the willing victim of his lust. In view of the peculiar facts and circumstances of this case, we can not say that the court erred in giving the instruction.