State v. Diamond
| Decision Date | 06 March 1928 |
| Docket Number | 2762. |
| Citation | 264 P. 697,50 Nev. 433 |
| Parties | STATE v. DIAMOND. |
| Court | Nevada Supreme Court |
Appeal from District Court, White Pine County; C.J. McFadden, Judge.
Pete Diamond or Diamondouros was convicted of statutory rape, and he appeals. Affirmed.
Chandler & Quayle, of Ely, for appellant.
M. A Diskin, Atty. Gen., and Wm. Forman, Jr., Deputy Atty. Gen for the State.
Appellant was convicted of the crime of statutory rape, alleged to have been committed on or about June 14, 1926. He insists that the evidence is not sufficient to support the conviction. The following is a summary of the salient facts established at the trial:
During the latter part of the month of December, 1925, and for about six months thereafter, the prosecutrix, a girl 16 years of age, and appellant, 27 years of age, were employed in a grocery store in the town of Ruth. A friendship grew up between them which finally developed into a love affair. The girl knew that her parents were to be away from home on the night of the 14th of June. She informed appellant of this and they agreed to meet at her home on that night. Appellant kept his appointment and threw a rock on the house to notify the girl of his presence. She came out and met him at a place a short distance from the house and remained with him for about an hour. She testified that appellant had sexual intercourse with her at this meeting.
Appellant admitted the circumstances of the meeting, but denied her testimony as to the commission of the offense. The testimony of the prosecutrix and her parents, and her birth certificate introduced in evidence, established the fact that she was under the statutory age of consent when the offense was alleged to have been committed. This fact, and the fact of sexual intercourse or sexual penetration, when the person committing it is of the age of 16 or upwards, constitutes the offense of statutory rape. Stats. 1919, p. 439, c. 234; sections 6443, 7171, Rev. Laws of Nev.
Appellant contends that the testimony of the prosecutrix, in which she declared that he had sexual intercourse with her, is not competent proof of the act denounced by the statute. It is characterized as a statement by prosecutrix of a conclusion, not supported by her testimony as to any physical act, and uncorroborated by other testimony or evidence. We think her testimony in this regard is the statement of an ultimate fact, and competent to prove this essential element of the corpus delicti.
"Sexual intercourse," judicially defined, "means actual contact of the sexual organs of a man and woman and an actual penetration into the body of the latter." 7 Words and Phrases, First Series, p. 6459; State v. Frazier, 54 Kan. 719, 39 P. 819; Rev. Laws, § 6443.
The failure of the prosecutrix to testify to any physical act showing, or tending to show, actual penetration, is, at the most, the omission of a mere detail comprehended within a term, the meaning of which is common knowledge.
That the prosecutrix had such common knowledge may be inferred from her testimony in which she said she knew the meaning of the words "sexual intercourse." Her knowledge of the fact she testified to may also be inferred from the following on cross-examination:
The prosecutrix testified in direct terms that the appellant had sexual intercourse with her, and that she knew the meaning of the term she used to describe the act. We know of no rule requiring the prosecution to elicit from a...
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