Appeal from Second Judicial District Court, Washoe County; E. J. L. Taber, Judge.
Withers & Withers, for Appellant.
Geo. B. Thatcher, Attorney-General, E. T. Patrick, Deputy Attorney-General, William McKnight, Deputy Attorney-General, and E. F. Lunsford, District Attorney, for Respondent.
By the Court, Coleman, J.:
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
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 ...