89 NEV 255 - Sheriff v. Dearing

¶1OPINION

¶2By the Court,

Mowbray, J.:

¶3Respondent was charged, by indictment, with lewdness with a minor, a felony under NRS 201.230. The district court dismissed the charges in pretrial habeas proceedings, and the State appeals.

¶4The testimony adduced before the grand jury reflects, and the indictment so charges, that respondent’s lewdness was to engage in an act of cunnilingus on the 10-year-old prosecuting witness. Such act has been held to be encompassed in the definition of an infamous crime against nature, State v. Townsend, *25671 A.2d 517 (Me. 1950), cf. In re Benites, 37 Nev. 145, 140 P. 436 (1914), and is specifically excluded from our lewdness statute.1 We cannot fault the district judge for granting habeas relief. See Martin v. Sheriff, 88 Nev. 303, 496 P.2d 754 (1972). We therefore affirm Judge Babcock’s ruling, without prejudice to the State’s proceeding under the proper statute.

Thompson, C. J., and Batjer and Zenoff, JJ., concur.

¶5 NRS 201.230, subsection 1:

¶6“Any person who shall willfully and lewdly commit any lewd or lascivious act, other than acts constituting the crime of rape and the infamous crime against nature, upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be punished by imprisonment in the state prison for not less than 1 year nor more than 10 years.” (Emphasis added.)