Basurto v. State, 6118

Docket NºNo. 6118
Citation472 P.2d 339, 86 Nev. 567
Case DateJuly 07, 1970
CourtSupreme Court of Nevada

Page 339

472 P.2d 339
86 Nev. 567
Raphael BASURTO, Appellant,
The STATE of Nevada, Respondent.
No. 6118.
Supreme Court of Nevada.
July 7, 1970.

James D. Santini, Public Defender and Robert G. Legakes, Asst. Public Defender, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty. and Larry C. Johns, Deputy Dist. Atty., Las Vegas, for respondent.

[86 Nev. 568]

Page 340


ZENOFF, Justice.

Eric Robichaud, invited by Raphael Basurto who was a casual acquaintance for about eight years, attended a party at which he was compelled to commit certain homosexual acts upon other people at the party. In his testimony, he detailed the coercion exercised upon him and the beatings that followed the acts which took place at the dwelling and again in the desert and Basurto's involvement in these activities. In one instance he was threatened with murder.

The trial judge instructed the jury on consent, defined an accomplice and its significance (that an accomplice's testimony must be corroborated) and also gave the 'Allen' charge, which in essence encourages juries to reach a verdict. The jury deliberated approximately three hours and found Basurto guilty of committing infamous crimes against nature in the house where the party occurred and in the desert.

[86 Nev. 569] Basurto seeks to overturn his conviction on three grounds: (1) that he was 18 years old at the time and therefore the statute, NRS 201.190, does not apply to him; (2) that Robichaud was a willing accomplice and his testimony should have been, but was not corroborated; and (3) that the 'Allen' charge was prejudicial.

1. NRS 201.190 provides that 'every person of full age who commits the infamous crime against nature shall be punished: * * *' NRS 62.020(1)(a) defines an adult as a person of 18 years of age or order. Basurto was 18 years old at the time of the offense. He attempts to classify himself as being under 21 in the language of NRS 129.010 and therefore ineligible as not being of 'full age.'

Chapter 62 of the Nevada Statutes relating to juveniles is more in keeping with determining who comes within the law relating to the commission of crimes than NRS 129.010 which applies to the capacity to contract in civil cases. Sound reasoning compels us to reject his contention. He is properly before the court as a person over 18 and of full age.

2. Basurto argues that Eric Robichaud freely and voluntarily participated in the acts now complained of and therefore was an accomplice. As an accomplice corroborating evidence would be needed to justify a conviction.

A participant in an act of sexual perversion because of threats and in fear of great bodily harm is not an accomplice and such person's testimony need not be corroborated. People v. Bias, 170 Cal.App.2d 502, 339 P.2d 204 (1959). Whether one is an accomplice is normally a question of fact for the jury. State v. Carey, 34 Nev. 309, 122 P. 868 (1912); People v. Bias, supra. The complaining witness, Robichaud, placed an abundance of evidence before the jury to allow that body to decide whether or not he was a willing participant in the lewd acts. His recitations of the beatings and the events surrounding them...

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8 cases
  • Winters v. United States, 6658.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • 20 Marzo 1974
    ...Id. The Nevada Supreme Court likewise expressed its opinion that "[t]he `dynamite' charge should be avoided" in Basurto v. State, 86 Nev. 567, 472 P.2d 339, 341 (1970), and in Azbill v. State, 495 P.2d 1064, 1069 (Nev.1972), reiterated the admonition with the further recommendation that "th......
  • Azbill v. State, 6122
    • United States
    • Nevada Supreme Court of Nevada
    • 7 Abril 1972 wording to the 'Allen Charge' was within the discretion of the trial court to give if it thought proper to do so. In Basurto v. State, 86 Nev. 567, 570, 472 P.2d 339, 341 (1970), we considered an instruction identical to the one given here and we said: 'The charge is approved so long as ......
  • Redeford v. State, 9478
    • United States
    • Nevada Supreme Court of Nevada
    • 22 Diciembre 1977
    ...economy. See Hudson v. State, 92 Nev. 84, 545 P.2d 1163 (1976); Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972); Basurto v. State, 86 Nev. 567, 472 P.2d 339 (1970); State v. Hall, 54 Page 221 Nev. 213, 13 P.2d 624 (1932); cf. Hoskins v. State, 552 P.2d 342 (Wyo.1976). A trial judge must ......
  • Ransey v. State, 10064
    • United States
    • Nevada Supreme Court of Nevada
    • 16 Mayo 1979
    ...there is anything improper, questionable or contrary to good conscience for a juror to create a mistrial. [95 Nev. 367] Basurto v. State, 86 Nev. 567, 472 P.2d 339 (1970); Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972); Hudson v. State, 92 Nev. 84, 545 P.2d 1163 (1976); State v. Hall, 5......
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