Opinion of the Court-Coleman, J. defendant, or when, in the absence of testimony, it is apparent that the instructions would be improper under any possible condition of the evidence." (State v. Loveless, 17 Nev. 424; People v. Donahue, 45 Cal. 322; People v. Strong, 46 Cal. 303.) By the Court, COLEMAN, J.: Appellant was convicted of the crime of robbery, and appeals. "Robbery" is defined by our statute to be: * * * the "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; 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 Opinion of the Court-Coleman, J. 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 Opinion of the Court-Coleman, J. 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 Opinion of the Court-Coleman, J. woman's power of resistance by administering liquors or drugs, or (b) the taking advantage of the fact that the woman was already in the condition in which the mental or physical ability to resist was wanting. 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. 1. We are unable to see why a different rule should be established in a case wherein robbery is charged and in which force is an essential element, than in a case wherein rape is the charge, wherein force is likewise an essential element. If constructive force may be used in the one case, why not in the other? No satisfactory reason has been advanced why a different rule should exist, and we are unable to think of one worthy to be mentioned, and are therefore of the opinion that the trial court did not err in holding that constructive force was resorted to by appellant. 2. It is also contended in behalf of appellant that the evidence of the doctors shows that the condition in which Cooper was found could not have been caused by chloral hydrate, as contended by the state, for the reason that the witness Cooper testified that almost immediately upon drinking the beer testified to he became unconscious, because, as contended, chloral hydrate does not produce the condition of unconsciousness in which Cooper was found in less than thirty minutes, unless a dose is taken which will cause certain death. While one of the witnesses testified flatly that chloral hydrate would not produce unconsciousness in less than thirty minutes, Dr. Kistler, who had been called to attend Cooper, did not so testify; and, while his testimony was somewhat uncertain, he did state: "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 Opinion of the Court-Coleman, J. instances a dose of thirty grains has proven fatal, while in other cases more than an ounce has been taken without ill effect. (Reese, Med. Juris. & Tox., 8th ed. 573; Herold's Man. of Legal Medicine, p. 105.) 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. 3. It is also contended that the evidence is not sufficient to connect appellant with the crime. The defendant was jointly charged with Pat Bond and Sherman Owensby with the crime of which he was convicted, but upon application he was granted a separate trial. The testimony on the part of the defense shows that on the evening of June 26, 1917, the defendant first met Pat Bond in Reno, and together they visited several saloons; that on the following morning Owensby, who was then unknown to appellant, arrived from Sacramento and met Bond, whom he had known in Southern California; that later they were met by appellant, after which they visited several saloons together. Shortly after noon of that day they all took the same street-car for Sparks, though, as they testified, appellant did not know that Bond and Owensby were on the car, nor did they know that appellant was aboard. The car passed through the |