State v. Verganadis

• Decision Date: 10 September 1926
• Docket Number: 2741.
• Citation: 248 P. 900,50 Nev. 1
• Parties: STATE v. VERGANADIS.
• Court: Nevada Supreme Court

248 P. 900

50 Nev. 1

STATE v. VERGANADIS.

No. 2741.

Supreme Court of Nevada

September 10, 1926

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Peter Verganadis was convicted of an attempt to commit the infamous crime against nature, and he appeals. Affirmed.

Frame & Raffetto, of Reno, for appellant.

M. A Diskin, Atty. Gen., Wm. Forman, Deputy Atty. Gen., and L. D Summerfield, Dist. Atty., and Harlan L. Heward, Asst. Dist Atty., both of Reno, for the State.

DUCKER J.

The appellant was convicted by a jury upon an information the charging part of which is as follows, to wit:

"That said defendant on the 3d day of February, A. D. 1926, or thereabout, and before the filing of this information, at and within the county of Washoe, state of Nevada, did then and there willfully, unlawfully, and feloniously attempt to commit the infamous crime against nature with and upon one -----, a male human being, by then and there placing his penis at and against the thighs and rectum of the said -----, which act then and there tended to accomplish the said crime, to wit, the infamous crime against nature with or upon the said -----."

He appeals from the judgment and order denying his motion. He contends that the information does not state facts sufficient to constitute the public offense of an attempt to commit the infamous crime against nature in that it fails to allege that the acts designated were done with intent to penetrate the body. In this respect it is contended that the allegation that the acts were done with intent to commit the infamous crime against nature is a legal conclusion and does not supply the deficiency. It is argued that the acts alleged, at the most, merely show preparation to commit the crime, which is not sufficient to show an attempt to commit it. Section 6291 of the Revised Laws defines an attempt as follows:

"An act done with intent to commit a crime, and tending but failing to accomplish it, is an attempt to commit the crime."

The act done must be an overt act. It must go beyond mere preparation to commit the crime and tend to accomplish it. State v. Lung, 21 Nev. 209, 28 P. 235, 37 Am. St. Rep. 505, and People v. Murray, 14 Cal. 159, are cited by appellant in support of his last-mentioned contention. They are, however, readily distinguished on the facts from the instant case. In State v. Lung, the act complained of did not go beyond the stage of preparation in mixing cantharides in some coffee which the defendant knew a certain woman would drink. So, in People v. Murray, there was no overt act-merely preparation to contract an incestuous marriage by the defendant in eloping with his niece for that avowed purpose, and his request to one of the witnesses to go for a magistrate to perform the ceremony. The court held that these acts were preparatory to the marriage, and that the attempt could not have been made until the officer was engaged and the parties stood before him ready to take the vows appropriate to the contract of marriage. As said by this court in the former case, quoting approvingly from the latter:

"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 toward the commission after the preparations are made."

Certainly it cannot be held that the information in this case does not allege a direct movement toward the commission of the crime by the allegation, "by then and there placing his penis at and against the thighs and rectum of the said ------." State v. Dawson, 45 Nev. 255, 201 P. 549, is also cited by appellant, but in that case the information failed to allege any act showing an attempt. In this respect it alleged merely a willful, unlawful, and felonious attempt to have carnal knowledge of a female child of the age of ten years. In State v. Pierpoint, 38 Nev. 173, 147 P. 214, this court held that an indictment which charged that the defendant "did then and there unlawfully and feloniously attempt to carnally know upon the person of a female child * * * of the age of 13, by procuring her to get in bed with him, the said defendant, and soliciting her to have intercourse with him, all with the felonious intent then and there to rape, etc.," sufficiently charged an overt act and the crime under the statute.

It will be seen that the allegation in the instant case is more directly a step toward the commission of the substantive crime than in that case. The information is not deficient in failing to charge the overt act essential in this class of cases, and states facts sufficient to constitute a public offense. It was not necessary to allege the substantive crime with which appellant is charged with attempting to commit by more than its statutory designation, to wit, the infamous crime against nature, either with man or beast. The statute does not further define it, but what is meant is common knowledge. Even though a conclusion of law, it is sufficient to enable a person of common understanding to know what is intended. By statute the attempt to commit it is a crime. As was said in State v. McKiernan, 17 Nev.

224, 30 P. 831, and quoted with approval in State v. Switzer, 38 Nev. 108, 145 P. 925:

"The technical exactness which existed under the rules of the common law has been superceded by statutory provisions, and it is now sufficient if the offense is 'clearly and distinctly set forth in ordinary and concise language * * * in such a manner as to enable a person of common understanding to know what is intended.' "

How can it be said that appellant in this case could not know what was intended by the charge in the information of an attempt to commit the infamous crime against nature? Assuming that he did not know what was meant by the term "the infamous crime against nature," whether it was a crime with man or beast or in what particular manner it must be done to constitute the crime, the act alleged in the information constituting the attempt, to wit, "by then and there placing his penis at and against the thighs and rectum of the said ------," informed him specifically in this regard.

It is claimed that, even though it should be conceded that the complaining witness was not an accomplice, the evidence does not support the charge of the information. Though several witnesses, including officers and the father of the complaining witness, saw the latter and appellant go into and emerge from the place where it is alleged the crime was committed, no one testified to having seen the appellant commit the crime except the complaining witness. But his evidence is sufficient to sustain the conviction. It tends to show more than preparation for its commission and an actual attempt. What we have said as to the allegation of the information showing an overt act instead of preparation applies to the evidence. There is no merit in the contention that the evidence did not tend to disclose a present ability on the part of appellant to commit the infamous crime against nature. It is insisted that the evidence fails because complaining witness was an accomplice and his testimony as to the attempt is uncorroborated as required by the statute. The state contends that the evidence discloses that the complaining witness was a feigned accomplice and not within the meaning of the statute; that the question therefore was properly left with the jury under the instructions of the court. The question depends upon whether there is evidence tending to show that the complaining witness was a feigned accomplice, for it is well established in this state and elsewhere that the testimony of such does not require corroboration to support a conviction. State v. Smith, 33 Nev. 438, 117 P. 19; People v. Bolanger, 71 Cal. 17, 11 P. 799; State v. McKean, 36 Iowa, 343, 14 Am. Rep. 530; Campbell v. Commonwealth, 84 Pa. 187; Greenleaf on Evidence, § 382. It is also well established that it is for the jury to determine from the evidence whether the witness was an actual or only a feigned accomplice. See cases cited above.

"Where the voluntary co-operation in the commission of a crime is admitted," says Mr. Wharton in his work on Criminal Evidence, vol. 1 (10th Ed.)§ 440, "the court may charge the jury that the witness is an accomplice; but where the evidence is conflicting as to the manner of co-operation, the question as to whether or not the witness is an accomplice should be submitted to the jury, under instructions as to voluntary or real co-operation in the commission of the offense charged." The finding of a jury as to the fact under proper instructions is conclusive. State v. Smith, supra.

The testimony introduced by the state was in substance as follows: The complaining witness is a boy 18 years of age and the appellant a man of Greek nativity who conducted a pool hall in Reno. The Chief of Police and Mr. Morse, a Boy Scout executive of the Western Nevada Council, suspected the appellant of perpetrating the infamous crime against nature on boys, and the former asked the latter to find out what he could about it. Under their directions the boy went to the appellant's pool room on the 21st day of December, 1925 and asked him for $7.50, telling him that he wanted the money to repair his automobile. Appellant told him to come back on the following day and he would give it to him. The complaining witness did so, and appellant gave him $7.50. The complaining witness told him that he might not be able to pay him back until after pay day, and appellant replied that if he (complaining witness) would give him something that he had promised him a couple of years ago all loan transactions would be square. He...