dissenting:
We respectfully dissent.
With exceptions not pertinent here, NRS 201.190 declared that, “every person of full age who commits the infamous crime against nature shall be punished by imprisonment in the state prison ...” Thus, although the statute only imposed punishment on persons of “full age,” it-quite clearly recognized that persons under full age may perform “the infamous crime against nature.” The statute simply excepted minors from punishment — implicitly recognizing that the law should not deem criminal intent possible, in the case of children and adolescents experimenting with each other.
However, Nevada’s “aiding and abetting” statute, NRS 195.020, expressly declares: “The fact that the person aided, abetted, counseled, encouraged, hired, commanded, induced or procured, could not or did not entertain a criminal intent shall not be a defense to any person aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him. ” (Emphasis added.) It is therefore clear that in this case, legal incapacity to form criminal intent is a defense personal to the minors, and not available to appellant, an adult who allegedly instigated their conduct. Cf. Thomas v. Sheriff, 89 Nev. 17, 504 P.2d 1313 (1973).
Of course, the record indicates appellant personally participated in other acts, on which other charges are grounded; however, this does not diminish the legal significance of the issue before us, to-wit: whether encouraging children to act as alleged constitutes the crimes charged in Counts VI, XII and *64XIII. In future cases, other crimes may not always be provable. Hence, the essence of this court’s determination today, that it is no crime to cause children to perform cunnilingus, fellatio or anal intercourse upon each other, is a precedent of some significance. Furthermore, to us, this significance is not diminished by stating that the State may “refile new charges against the appellant predicated upon an appropriate statute.” Respectfully, we note that it appears to us the State has here availed itself of the statute most clearly appropriate when adults cause children to sodomize each other. We are unaware of any alternative statutes, to which the State now may reasonably take recourse. Therefore, absent any showing either by appellant or by our brethren that other statutes more explicitly cover such cases, we believe prosecution should proceed as instituted.