State v. Lung

• Decision Date: 05 December 1891
• Docket Number: 1,343.
• Citation: 28 P. 235,21 Nev. 209
• Parties: STATE v. LUNG.
• Court: Nevada Supreme Court

28 P. 235

21 Nev. 209

STATE v. LUNG.

No. 1,343.

Supreme Court of Nevada

December 5, 1891

Appeal from district court, Humboldt county; A. E. CHENEY, Judge Reversed.

Indictment of Charley Lung for an attempt to commit rape. Verdict of guilty. Defendant appeals.

M. S Bonnifield, for appellant.

J. D Torreyson, Atty. Gen., and E. L. Williams, Dist. Atty., for the State.

BIGELOW J.

The defendant is charged 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 committed 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, (Reg. v. Camplin, 1 Cox, Crim. Cas. 220, 1 Car. & K. 746, 1 Denison, Cr. Cas. 89;) where the woman was so drunk as to be insensible, although the liquor was not given her by him, (Com. v. Burke, 105 Mass. 376;) where she was in such deep slumber as 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., §§ 245, 267.) In McQuirk v. State, 84 Ala. 435, 4 South. Rep. 775, 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 voluntary 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." 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 Reg. v. Barratt, 12 Cox, Crim. Cas. 498, upon the possession by her of will-power with which to either consent or refuse. Fraud, as by personating 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 the want of force. The sum of the cases seems to be that to constitute rape, 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 Reg 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 case 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 16, until she was, as she testified, so dull and stupid as 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, §§ 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. 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, § 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 attempt 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 after the preparations are made." In U.S. v. Stephens, 8 Sawy. 116, ^[1] 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 Alaska. 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, the defendant had been convicted of murder, charged to have been perpetrated in an attempt to commit rape. 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 to 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 a rape is an ineffectual offer, by force, with intent to have carnal connection." The overt act 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...