Nevada Reports 1968 (84 Nev.) PDF

84 Nev.
1, 1 (1968)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 84
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84 Nev. 1, 1 (1968) Washoe County Board of School Trustees v. Pirhala
WASHOE COUNTY BOARD OF SCHOOL TRUSTEES, EDWARD REED, WILLIAM
O'BRIEN III, LLOYD DIEDIRCHSEN, FRANK STOKES, EDWARD PINE, BETTY
CASSARD, LAWRENCE MELLOTT, ROBERT SINGLETON, Appellants, v. THOMAS
PIRHALA, ANTOINETTE PIRHALA, and ROBERT PIRHALA, a Minor, by and Through
His Guardian Ad Litem, THOMAS PIRHALA, Respondents.
No. 5402
January 2, 1968 435 P.2d 756
Appeal from a judgment of contempt entered against the appellants, in the Second Judicial
District Court, Washoe County, Nevada; Thomas O. Craven, Judge.
Personal injury action in which a judgment of contempt was entered against defendants by
the trial court for failure to answer interrogatories and the defendants appealed. The Supreme
Court, Batjer, J., held that parent and minor child bringing action for damages arising out of
personal injuries to minor child while on school playground were not entitled to compel
school board to disclose through means of written interrogatories questions relating to
terms and extent of any insurance coverage on accident in that such matters were not
relevant to subject matter.
compel school board to disclose through means of written interrogatories questions relating to
terms and extent of any insurance coverage on accident in that such matters were not relevant
to subject matter.
Reversed and remanded.
Collins, J., dissented.
Echeverria and Osborne, of Reno, for Appellants.
Gordon W. Rice and Leo P. Bergin, of Reno, for Respondents.
Discovery.
Parent and minor child bringing action against school board for damages arising out of personal injuries
to minor child while on school playground was not entitled to compel school board to disclose through
means of written interrogatories questions relating to terms and extent of any insurance coverage on
accident in that such matters were not relevant to subject matter. NRCP 26(b), 33.
OPINION
By the Court, Batjer, J.:
On or about February 11, 1966, one of the respondents, eight year old Robert Pirhala, a
student at the Libby Booth School, Reno, Washoe County, Nevada, while on the playground,
during school hours, was hit in the eye and injured.
The respondents filed suit for personal injuries suffered by the minor, and asked for
damages for past and future medical expenses, and for loss of services.
The defendants denied the claim of negligence and alleged contributory negligence on the
part of the minor plaintiff.
The issues as to the cause of the accident and as to the resulting injuries remain in dispute
and are not of concern at this preliminary stage of the case.
After issue was joined on the pleadings, respondents filed interrogatories under NRCP 33,
1
propounded to the appellants, among which were the following: "23.
____________________

1
NRCP Rule 33. Any party may serve upon any adverse party written interrogatories to be answered by the
party served or, if the party served is a public or private corporation or a partnership or association, by any
officer or agent, who shall furnish such information as is available to the party. Interrogatories may be served
after commencement of the action and without leave of court, except that, if service is made by the plaintiff
within 10 days after such commencement, leave of court granted with or without notice must first be
23. Is there and was there on February 11, 1966, any personal liability insurance in force,
covering defendants and which covers accidents such as the one referred to in the complaint?
24. If so, state:
(a) Name of insurer.
(b) Type of coverage.
(c) Name of insured.
(d) Policy number.
(e) Policy limits.
(f) Expiration date of policy.
2

The appellants' objections to the above interrogatories were overruled by the trial court,
and thereafter the court entered an Order to Show Cause, against appellants, for failure to
answer the interrogatories. On July 3, 1967 a Judgment of Contempt was entered against the
appellants and they appeal.
As their specification of error, appellants contend the trial court exceeded its jurisdiction
when it ordered them to answer the interrogatories concerning liability insurance and the
extent of the coverage.
____________________
obtained. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be
signed by the person making them; and the party upon whom the interrogatories have been served shall serve a
copy of the answers on the party submitting the interrogatories within 15 days after the service of the
interrogatories, unless the court, on motion and notice and for good cause shown, enlarges or shortens the time.
Within 10 days after service of interrogatories a party may serve written objections thereto together with a notice
of hearing the objections at the earliest practicable time. Answers to interrogatories to which objection is made
shall be deferred until the objections are determined.
Interrogatories may relate to any matters which can be inquired into under Rule 26(b), and the answers may
be used to the same extent as provided in Rule 26(d) for the use of the deposition of a party. Interrogatories may
be served after a deposition has been taken, and a deposition may be sought after interrogatories have been
answered, but the court, on motion of the deponent or the party interrogated, may make such protective order as
justice may require. The number of interrogatories or of sets of interrogatories to be served is not limited except
as justice requires to protect the party from annoyance, expense, embarrassment, or oppression. The provisions
of Rule 30(b) are applicable for the protection of the party from whom answers to interrogatories are sought
under this rule.

2
The following interrogatories were also ordered to be answered by the trial court:
25. Were any reports of this accident made to any insurance company, or agent thereof?
26. If so, give the name and address of the person or persons to whom such reports were given. However,
they were not touched upon by the briefs or arguments and are not considered in this opinion.
of the coverage. This question under NRCP has not been decided by this court.
Appellants rely upon State ex rel. Allen v. Second Judicial District Court, 69 Nev. 196,
245 P.2d 999 (1952), as precedent, for their position, that the discovery of liability insurance
should be denied.
In that case an attempt was made, under earlier statutory provisions, for the perpetuation of
testimony and the issuance of a subpoena duces tecum, to learn the amount of maximum
liability of the insurer and the premiums paid. Discovery was denied on the ground that such
information was inadmissible at trial.
While we do not disagree with the holding in the Allen case, we are unable to rely thereon
because it was decided before the sweeping changes wrought in the field of discovery by the
NRCP. Wright's Baron and Hotzoff, Vol. 2A, Sec. 647.1, p. 79, n. 45.6.
NRCP 33 refers to NRCP 26(b) for the scope of discovery, which in part reads as follows:
* * * any matter, not privileged, which is relevant to the subject matter involved in the
pending action * * *. It is not ground for objection that the testimony will be inadmissible at
the trial if the testimony sought appears to be reasonably calculated to lead to the discovery of
admissible evidence.
Appellants contend that the information sought to be discovered by respondents in the
above mentioned interrogatories was not shown to be material to their cause of action.
In the various state and federal decisions, the courts are divided on this particular question
of discovery, and in many of the cases vigorous dissents are recorded. There appears to be no
middle ground.
The cases allowing discovery of insurance and the extent of insurance coverage generally
do so on the basis that the scope of the meaning of relevancy has been expanded under the
rules of discovery and also upon a prognosis that knowledge of the coverage, by the plaintiff,
would lead to more meaningful discussions of settlement, and therefore such information is
relevant to the subject matter of the lawsuit. Superior Ins Co. v. Superior Court, 235 P.2d 833
(Cal.App. 1951); Maddox v. Grauman, 265 S.W.2d 939 (Ky. 1954); People ex rel. Terry v.
Fisher, 145 N.E.2d 588 (Ill. 1957); Lucas v. District Court, 345 P.2d 1064 (1959); Johanek v.
Aberle, 27 F.R.D. 272 (D. Mont. 1961).
We believe that those cases which deny the discovery of insurance coverage on the basis
that it is not relevant to the subject matter present the better reasoning. McNelley v. Perry, 1S
F.R.D. 360 {E.D. Tenn.
18 F.R.D. 360 (E.D. Tenn. 1955); Jeppesen v. Swanson, 68 N.W.2d 649 (1955);
DiPietruntonio v. Superior Court, 327 P.2d 746 (Ariz. 1958); Sanders v. Ayrhart, 404 P.2d
589 (Idaho 1965).
In the case of Jeppesen v. Swanson, supra, the court said: It would seem to us that, even
though the discovery is not to be limited to facts which may be admissible as evidence the
ultimate goal is to ascertain facts or information which may be used for proof or defense of an
action. Such information may be discovered by leads from other discoverable information.
The purpose of the discovery rule is to take the surprise out of trials of cases so that all
relevant facts and information pertaining to the action may be ascertained in advance of trial.
Where it is sought to discover information which can have no possible bearing on the
determination of the action on its merits, it can hardly be within the rule. It is not intended to
supply information for the personal use of a litigant that has no connection with the
determination of the issues involved in the action on their merits. Balazs v. Anderson,
D.C.N.D.Ohio, 77 F.Supp. 612.
There is no assurance whatsoever that the discovery of defendants' liability insurance and
the extent of the coverage would lead to widespread settlement of negligence cases, and the
relief of crowded court calendars. Even if this very desirable result would become a fact, it
should not be reached under the blessing of NRCP 1
3
by torturing the clear and ordinary
meaning of the phrase reasonably calculated to lead to the discovery of admissible evidence
and such words as relevant and subject-matter.
If, in the future, it becomes evident that there is a pressing need for this particular type of
discovery, the NRCP should be appropriately amended. Acknowledging that information
about insurance coverage would aid a plaintiff immeasurably in evaluating his claim, the
court in Jeppesen v. Swanson, supra, very ably expressed itself in the following manner:
Under the guise of liberal construction, we should not emasculate the rules by permitting
something which never was intended or is not within the declared objects for which they were
adopted. Neither should expedience or the desire to dispose of lawsuits without trial, however
desirable that may be from the standpoint of relieving congested calendars, be permitted to
cause us to lose sight of the limitations of the discovery rules or the boundaries beyond
which we should not go.
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3
NRCP 1. These rules govern the procedure in the district courts in all suits of a civil nature whether
cognizable as cases at law or in equity, with the exceptions stated in Rule 81. They shall be construed to secure
the just, speedy, and inexpensive determination of every action.
us to lose sight of the limitations of the discovery rules or the boundaries beyond which we
should not go. If, perchance we have the power under the enabling act to extend the discovery
rules to permit discovery of information desired for the sole purpose of encouraging or
assisting in negotiations for settlement of tort claims, it would be far better to amend the rules
so as to state what may and what may not be done in that field than to stretch the present
discovery rules so as to accomplish something which the language of the rules does not
permit.
In Hickman v. Taylor, 329 U.S. 495, 507 (1947), the United States Supreme Court said:
We agree, of course, that the deposition-discovery rules are to be accorded a broad and
liberal treatment. No longer can the time-honored cry of fishing expedition' serve to preclude
a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all
the relevant facts gathered by both parties is essential to proper litigation. To that end, either
party may compel the other to disgorge whatever facts he has in his possession. The
deposition-discovery procedure simply advances the stage of which the disclosure can be
compelled from the time of the trial to the period preceding it, thus reducing the possibility of
surprise. But discovery, like all matters of procedure, has ultimate and necessary boundaries.
Furthermore, since a liability insurance policy is an asset of a defendant, we do not wish to
open a Pandora's box where discovery might be permitted of all of the defendant's assets prior
to securing a judgment against him.
In McClure v. Boeger, 105 F.Supp. 612 (E.D. Pa. 1952), Chief Judge Kirkpatrick said: I
can see certain advantages to the plaintiff in knowing the extent of the defendant's coverage
in an accident case, at least in a case where the defendant is otherwise judgment proof and the
policy is the plaintiff's only resort for a recovery. For example, it might help the plaintiff to
determine whether or not to accept an offer of settlement or to decide how much expenditure
or time and money by way of preparation the case justified. However, every argument that
could be made in favor of requiring the disclosure could also be made in favor of compelling
a defendant in any civil case, tort or contract, to furnish the plaintiff with full information as
to his financial resources, and, in the case of an individual, as to the extent of his private
fortune.
Of course, the fact that the information would not be relevant and that the fact of liability
insurance could not be introduced at the trial does not necessarily forbid discovery, but
whatever advantages the plaintiff might gain are not advantages which have anything to do
with his presentation of his case at trial and do not lead to disclosure of the kind of
information which is the objective of discovery procedure.
case at trial and do not lead to disclosure of the kind of information which is the objective of
discovery procedure. I think that to grant this motion would be to unreasonably extend that
procedure beyond its normal scope and would not be justified.
We do not hold that liability insurance can never be discovered. Situations may arise in
certain cases in which the existence of liability insurance may have some evidentiary value
bearing on the merits of the case. Neither do we hold that such insurance is not discoverable
after judgment is entered in an action.
In the case of Layton v. Cregan & Mallory Co., 248 N.W. 539 (Mich. 1933), the court
required the production of an insurance policy covering the automobile involved in an
accident in which plaintiff was injured. This was done solely upon the issue raised in the
pleadings in which the defendant denied ownership of the car, and the court held that if the
insurance policy showed ownership of the car it was admissible for that purpose.
The trial court was within its jurisdiction when it took under consideration the scope of
NRCP and ruled on the appellants objections to the interrogatories. However, for the reasons
herein indicated, those objections were well taken and the trial court erred in overruling them
and finding the appellants in contempt.
The judgment of contempt is reversed and the cause is remanded for further proceedings
consistent with the foregoing opinion. Neither party will be allowed costs or disbursements.
Thompson, C. J., Zenoff and Mowbray, JJ., concur.
Collins, J., dissenting:
I concede there are persuasive authorities and reasons on both sides of this question and
acknowledge that the majority opinion marshals them ably, but I prefer the rule allowing
discovery in this case. The authorities in favor of allowing discovery should be set down. A
well reasoned case favoring discovery is Johanek v. Aberle, 27 F.R.D. 272 (D. Mont. 1961).
Other cases expressing a similar view are: People v. Fisher, 145 N.E.2d 588 (Ill. 1957); Pettie
v. Superior Court, 3 Cal.Rptr. 267 (Cal.App. 1960); Cook v. Welty, 253 F.Supp. 875 (D.
Colo. 1966); Smith v. Superior Court, 11 Cal.Rptr. 165 (Cal. App. 1961); Ellis v. Gilbert, 429
P.2d 39 (Utah 1967).
Numerous cases have held that information of the existence and amount of liability
insurance meet the test of relevancy under NRCP 26(b). Those cases are: Orgel v. McCurdy,
8 F.R.D. 585 (D.N.Y. 1948); Maddox v. Grauman, 265 S.W.2d 939 {Ky.
939 (Ky. 1954); Lucas v. District Court, 345 P.2d 1064 (Colo. 1959); Laddon v. Superior
Court, 334 P.2d 638 (Cal.App. 1959); Hurt v. Cooper, 175 F.Supp. 712 (D. Ky. 1959);
Schwentner v. White, 199 F.Supp. 710 (D. Mont. 1961); Rolf Homes, Inc. v. Superior Court,
9 Cal.Rptr. 142 (Cal.App. 1960); Novak v. Good Will Grange, 28 F.R.D. 394 (D. Conn.
1961); Furumizo v. United States, 33 F.R.D. 18 (D. Hawaii 1963); Miller v. Harpster, 392
P.2d 21 (Alaska 1964); Hurley v. Schmid, 37 F.R.D. 1 (D. Ore. 1965); Ash v. Farwell, 37
F.R.D. 553 (D. Kan. 1965); Ellis v. Gilbert, supra.
Some cases hold it is the insurer rather than the insured who is the real party in interest and
who, in reality, defends against the claim. They are: People v. Fisher, supra; Lucas v. District
Court, supra; Ellis v. Gilbert, supra.
Other cases see insurance of the type here involved as not a typical asset of the defendant
since it is acquired solely for the purpose of financial protection in the event of litigation.
Their fear that in allowing discovery of the sort sought here will require disclosure of all a
defendant's assets, is unfounded. Brackett v. Woodall Foods Prods., 12 F.R.D. 4 (D. Tenn.
1951); Ellis v. Gilbert, supra; People v. Fisher, supra; see also, Discovery, 35 F.R.D. 39
(1964), at 44.
Additional authority for allowing discovery of this type are: NRS 485.3091(6)(a) which
provides: The liability of the insurance carrier with respect to the insurance required by this
chapter shall become absolute whenever injury or damage covered by such motor vehicle
liability policy occur * * *; NRCP 1 which states that the rules shall be construed so as to
secure the just, speedy, and inexpensive determination of every action.; see also
DiscoveryDisclosure of Existence and Policy Limits of Liability Insurance, 7 Nat. Res. J.
313, at 321.
I would affirm the holding of the trial court.
____________
84 Nev. 9, 9 (1968) Scott v. Justice's Court
TRUMAN E. SCOTT, Petitioner, v. THE JUSTICE'S COURT OF TAHOE TOWNSHIP,
and MAX L. JONES, Acting Justice of the Peace of Said Township, Respondents.
No. 5316
January 3, 1968 435 P.2d 747
Original petition for writ of prohibition.
Proceeding to preclude pronouncement of judgment and imposition of sentence upon jury
verdict finding defendant guilty of criminal trespass. The Supreme Court, Collins, J., held
that under statute making it misdemeanor to willfully go or remain upon any land after having
been warned by owner not to trespass thereon, word land could be correlated with word
premises used in complaint charging defendant with willfully and unlawfully remaining on
premises of hotel after having been requested to leave by employees of owner and complaint
was sufficient to charge crime under statute.
Petition denied.
Thompson, C. J., dissented.
Springer & Newton, of Reno, for Petitioner.
John Chrislaw, District Attorney, Douglas County, for Respondents.
1. Trespass.
Under statute making it misdemeanor to willfully go or remain upon any land after having been warned
by owner not to trespass thereon, word land could be correlated with word premises used in complaint
charging defendant with willfully and unlawfully remaining on premises of hotel after having been
requested to leave by employees of owner and complaint was sufficient to charge crime under statute.
NRS 207.200.
2. Trespass.
by owner not to trespass thereon, either act of going upon or remaining upon land may be punishable.
NRS 207.200.
3. Trespass.
by owner not to trespass thereon, words after having been requested to leave in complaint charging
defendant with willfully and unlawfully remaining on hotel premises after having been requested to leave
by employees on behalf of owner were sufficient to charge offense under statute. NRS 207.200.
4. Trespass.
by the owner not to trespass thereon, words on behalf of the owner in complaint charging defendant
with remaining on hotel premises after having been asked to leave by employees of hotel on behalf of the
owner were authorized by phrase by the owner and complaint was sufficient to charge trespass under
statute. NRS 207.200.
5. Indictment and Information.
Where upon granting of demurrer to complaint charging defendant with disturbing the peace state was
given express authority to amend, amended complaint could properly contain second offense charging
trespass in absence of showing that statute of limitations had run or that jeopardy had attached. NRS
267.200.
6. Stipulations.
Where defendant's counsel stipulated at time demurrer to complaint was granted that district attorney
should be permitted to file amended complaint within 30 days, stipulation could be construed as
conditional dismissal and statute requiring filing of new complaint within one day upon sustaining of
demurrer was not applicable. NRS 185.120, 207.200.
7. Criminal Law.
Any person having personal knowledge of commission of crime may file complaint with proper
magistrate and complaint need not be filed by district attorney himself in order to be valid. NRS
185.030, 185.120.
OPINION
By the Court, Collins, J.:
Petitioner seeks a writ of prohibition against respondents. The main issue concerns the
Nevada trespass statute NRS 207.200. Subordinate issues involve the filing of an amended
criminal complaint. We conclude that the respondents did have jurisdiction to proceed and
deny the writ.
Petitioner (defendant below) Truman Scott was arrested January 26, 1966 at Harvey's
Wagon Wheel, Stateline, Nevada, by a Douglas County deputy sheriff on a charge of
disturbing the peace. The original complaint stated that he wilfully and unlawfully disturbed
the peace and quiet by using loud language and refusing to leave Harvey's Resort Hotel when
asked to do so. * * * On November 18, 1966 a demurrer to the complaint was argued in the
justice court in Tahoe township. Counsel for the parties then stipulated that defendant's
demurrer to the complaint be granted subject to the district attorney being permitted to file an
amended complaint within 30 days of the date of this stipulation. On December 12, 1966 an
amended complaint was filed by J. Clark Hill, an employee of Harvey's Wagon Wheel,
charging petitioner with two offenses, disturbing the peace and "wilfully and unlawfully
remaining on the premises of Harvey's Resort Hotel and Casino after having been
requested to leave the same by employees of the [hotel] on behalf of the owner."
employee of Harvey's Wagon Wheel, charging petitioner with two offenses, disturbing the
peace and wilfully and unlawfully remaining on the premises of Harvey's Resort Hotel and
Casino after having been requested to leave the same by employees of the [hotel] on behalf of
the owner.
A jury trial was held on February 23, 1967. The record indicates evidence was offered
showing that petitioner had been permanently barred from the premises of Harvey's Wagon
Wheel because of prior acts of misconduct. The record does not indicate the nature of the
prior misconduct. On the occasion of this arrest he was informed that he was not welcome
and was asked to leave. The jury acquitted him of the charge of disturbing the peace but
found him guilty of failing to leave the premises when requested to do so.
The issue here involves a construction of NRS 207.200. That statute makes it a
misdemeanor to willfully go or remain upon any land after having been warned by the owner
* * * not to trespass thereon * * *. We believe the complaint in this case charges a crime
under that statute, that respondent court and judge had jurisdiction to try petitioner and upon a
determination of his guilt to punish him as permitted by law.
[Headnote 1]
The words any land have been construed in People v. Brown, 47 Cal.Rptr. 662 (1965),
under a similar California statute. The court there stated: We conclude that the clear
intention of the Legislature was to give to the term any lands' its normal and generally
accepted meaning, and to include within the phrase everything normally considered to fall
within the scope of its general definition. The court then went on to quote Black's Law
Dictionary, stating that Land includes not only the soil, but everything attached to it, whether
attached by the course of nature * * * or by the hand of man * * *. See also People v.
Lawson, 238 N.Y.S.2d 839 (1963). The term premises' is used in common parlance to
signify land, with its appurtenances * * *. Black, Law Dictionary 1344, 4th ed. 1951. Thus it
is apparent that the word premises used in the complaint can be correlated with the word
land used in the statute.
The complaint and the statute both use the word willfully, and where, as here, Scott was
charged with willfully remaining on the premises, the statute is satisfied.
[Headnote 2]
The statute separates the words go and remain upon with the disjunctive conjunction
or. A fair construction of the statute is that either act may be punishable.
the statute is that either act may be punishable. Thus the complaint's charge of remaining is
within the statute. See State v. Carriker, 214 N.E.2d 809 (Ohio App. 1964); People v. Brown,
supra, for the importance of the linking conjunction.
[Headnote 3]
Next we must compare the words after having been requested to leave in the complaint
with the statutory wording after having been warned not to trespass. We are dealing in this
case with premises to which the public was invited, thus a revocation of the general invitation
would seem necessary before one could be considered a trespasser. Cases have held that such
an invitation may be revoked for good cause and the violator prosecuted. In People v.
Goduto, 174 N.E.2d 385 (Ill. 1961), a union organizer who was peacefully distributing
leaflets in a Sears, Roebuck and Company parking lot was convicted of trespass after having
been requested to leave three times. Also in State v. Carriker, supra, the court said that the
lawfulness of the original entry onto the premises of the business was immaterial after the
defendant had been asked to leave.
[Headnote 4]
The complaint here charges that Scott was asked to leave on behalf of the owner,
whereas the statute requires the trespasser to have been warned by the owner. The words
contained in the complaint can be construed to be authorized by a reasonable construction of
the statute. We say, therefore, that the court and justice of the peace had jurisdiction to try
petitioner on the complaint before it and could find him guilty of a misdemeanor trespass as
defined in NRS 207.200.
[Headnote 5]
Subordinately petitioner contends that the amended complaint could not contain a second
offense charging trespass. We see no merit to that contention, especially where the state was
given express authority to amend. There being no showing that the statute of limitations had
run or that jeopardy had attached, either a new charge could be laid or the old complaint
amended to include whatever charges were properly joinable under the circumstances.
[Headnote 6]
Petitioner next complains that the amended complaint had to be filed within one day under
NRS 185.120.
1
Petitioner's counsel, however, stipulated that the district attorney could
be permitted to file the amended complaint within 30 days.
____________________

1
NRS 185.120 reads: If the demurrer is sustained, a new complaint must be filed within such time, not
exceeding one day, as the justice may name. If a new complaint is not filed, the defendant must be discharged.
counsel, however, stipulated that the district attorney could be permitted to file the amended
complaint within 30 days. While we apparently have not considered the effect of stipulations
in criminal cases, we have held in civil cases that it would be error for the trial judge not to
honor the stipulation of the parties waiving a rule of evidence (the deadman's statute).
Garaventa v. Gardella, 63 Nev. 304, 169 P.2d 540 (1946). Furthermore, the stipulation can be
construed as a conditional dismissal which did not become final until the expiration of 30
days, at which time the time limit of NRS 185.120 would apply. Seawell v. Cohn, 2 Nev. 308
(1866).
[Headnote 7]
Finally, petitioner complains that the amended complaint had to be filed by the district
attorney himself in order to be valid. We see no jurisdictional merit to that contention, either
under the stipulation or the general law, as any person having personal knowledge of the
commission of a crime may file a complaint with the proper magistrate. NRS 185.030.
Accordingly, the issuance of the writ is denied and the petition is dismissed.
Zenoff, Batjer, and Mowbray, JJ., concur.
Thompson, C. J., dissenting:
Truman Scott seeks a writ of prohibition to preclude the pronouncement of judgment and
imposition of sentence upon a jury verdict finding him guilty of criminal trespass as defined
by NRS 207.200. His petition rests upon the premise that the justice of the peace is without
jurisdiction to pronounce judgment and impose sentence since the cited statute does not
embrace the circumstances of this case. This contention is sound.
NRS 207.200 provides:
1. Every person who shall go upon the land of another with intent to vex or annoy the
owner or occupant thereof, or to commit any unlawful act, or shall willfully go or remain
upon any land after having been warned by the owner or occupant thereof not to trespass
thereon, shall be guilty of a misdemeanor.
2. Every owner or other occupant of any land shall be deemed to have given a sufficient
warning against trespassing, within the meaning of this section, who shall post in a
conspicuous manner on each side thereof, upon or near the boundary, at intervals of not more
than 700 feet, signs, legibly printed or painted in the English language, warning persons not
to trespass.
3. An entryman on land under the laws of the United States shall be an owner within the
meaning of this section.
The three subsections must be read in order to ascertain the evil sought to be corrected by
the enactment. Indeed, subsections 2 and 3 are expressly tied to subsection 1 by the language
within the meaning of this section. Thus, the entire section, i.e., NRS 207.200(1) (2) and
(3), must be considered for one to discern legislative intent.
The apparent aim of the entire section is to protect landowners (such as agricultural and
mining property owners), who are not in the business of inviting guests to their property in
anticipation of financial gain, from trespassers. Subsection 2 of the statute gives the clue, for
it allows no trespass' warning to be given by posting signs at intervals of not more than 700
feet upon or near the boundary on each side of the land to be protected against invasion. In
my opinion this subsection reveals the legislative intention, and precludes application of any
part of 207.200 to an invited hotel guest whose invitation to be present is subsequently
withdrawn.
The fault of the majority opinion lies in its refusal to acknowledge the interplay of the
three subsections. Indeed, only a part of the first subsection is quoted in that opinion. The
balance of the section is ignored. The intermediate appellate court decisions cited by the
majority [People v. Brown, 47 Cal.Rptr. 662 (Cal.App. 1965), and State v. Carriker, 214
N.E.2d 809 (1964)] do not concern criminal trespass statutes containing provisions similar to
subsections 2 and 3 of NRS 207.200, and are inapposite. It is not useful to cite authority for
the established principle that criminal statutes are to receive a strict construction. I
respectfully suggest that the application of NRS 207.200 to the circumstances of this case
violates that principle. I would grant prohibition.
____________
84 Nev. 15, 15 (1968) Meredith v. Washoe Co. Sch. Dist.
THOMAS K. MEREDITH and ROSE N. MEREDITH, Appellants, v. WASHOE COUNTY
SCHOOL DISTRICT, a Political Subdivision of the State of Nevada, Acting by and Through
Its Board of Trustees, Respondent.
No. 5325
January 3, 1968 435 P.2d 750
Appeal from judgment denying adjacent land owner damages for extinguishment of
restrictive covenant on land taken in eminent domain proceedings. Second Judicial District
Court, Washoe County; Grant L. Bowen, Judge.
The trial court held that owner of land adjacent to land taken was not entitled to damages
for extinguishment of restrictive covenant on land taken and defendants appealed. The
Supreme Court, Zenoff, J., held that beneficiaries of restrictive covenant were entitled to just
compensation for its taking, that after notice of eminent domain proceeding the burden is on
the claimant to appear and establish loss, and that the difference in market value of the
dominant tenement before and after the taking is the amount of compensation to be awarded.
Richards & Demetras, of Reno, for Appellants.
William J. Raggio, District Attorney, and Robert Gaynor Berry, Chief Deputy District
Attorney, Washoe County, for Respondent.
1. Eminent Domain.
Restrictive covenant, which is an easement or servitude in nature of easement, constitutes private
property for which just compensation must be paid when the restrictive covenant is extinguished under
power of eminent domain. U.S.C.A.Const. Amend. 5; Const. art. 1, 8; NRS 37.010, subd. 3,
37.020, subd. 2.
2. Eminent Domain.
Beneficiaries of restrictive covenant are entitled to consideration in eminent domain proceedings. NRS
37.080, 37.110, subd. 3.
3. Eminent Domain.
Procedural considerations should not determine substantive question of whether there is a compensable
interest in property taken.
4. Eminent Domain.
All subdivision landowners who were beneficiaries of restrictive covenant sought to be extinguished in
eminent domain proceeding could be readily ascertained from public records and made a party either
by personal service or publication.
a party either by personal service or publication. NRS 37.070, subd. 3; NRCP 4(d, e).
5. Eminent Domain.
After notice of eminent domain proceeding, burden is on claimants to appear and establish their loss.
6. Eminent Domain.
Value of restrictive covenant extinguished by eminent domain proceeding is market value of dominant
tenement before and after taking. NRS 37.110.
OPINION
By the Court Zenoff, J.:
This case presents a claim for damages by an owner of property within a residential
subdivision who contends that the extinguishment of a restrictive covenant running to the
benefit of his property adjoining the condemned property is a property right which is being
taken and for which he is entitled to damages.
The Washoe County School District instituted condemnation proceedings for the purpose
of obtaining title to certain land on which to construct an elementary school building and
grounds. The property subject to condemnation lay within a residential subdivision. The lot
owners in the subdivision were granted in their deeds from the common grantors a restrictive
covenant limiting the use of the property to residential purposes.
The school district in its complaint named as defendants, the owners of the property
subject to condemnation and the owners of adjacent land benefitted by the restrictive
covenants. Judgment was entered against all defendants except the appellants, Thomas and
Rose Meredith. The appellants filed answer and counterclaimed for damages predicated on
the extinguishment of the restrictive covenants of which they were beneficiaries. All other
landowners in the subdivision who were not made parties to the condemnation proceedings
released their rights to the school district.
By stipulation, the questions presented to the trial court were:
1. Is the extinguishment of the restrictive covenants by a public body under the power of
eminent domain the taking of private property for public use for which compensation must be
paid?
2. If so, what is the measure of damages suffered by the defendants for the extinguishment
of the restrictive covenant? The trial court answered the first question in the negative and
refused to allow proof of damages.
The trial court answered the first question in the negative and refused to allow proof of
damages. On appeal, the same questions are in issue. We reverse the ruling of the trial court.
[Headnote 1]
The Fifth Amendment of the U.S. Constitution and Art. 1, Sec. 8, of the Nevada
Constitution provide that private property shall not be taken for public use without just
compensation. The basic question, then, is whether an equitable servitude, or easement, such
as here, a restrictive covenant, is deemed to be property in a constitutional sense, for which
just compensation must be paid. To a majority of jurisdictions this has been the question
and has been answered in the affirmative. To other jurisdictions the property concept has
not been the basic consideration, rather, a public policy analysis has been employed to hold in
the negative irrespective of any definition of property. The cases are collected in 4
A.L.R.3rd 1121, et seq., and in 2 Nichols, Eminent Domain, Sec. 5.73, p. 125, et seq.
This case is unique and one of first impression in our state. We note a clear division of
authority among the jurisdictions that have considered this problem. We believe the better
view is one that holds a restrictive covenant to be an interest in property, or a property right
accorded legal recognition and protection in all cases, and therefore, must be justly
compensated for its taking or extinguishment no matter if by a private party or sovereign.
The condemnation here is clearly for a public purpose, the construction of a school. NRS
37.010(3). NRS 37.020, classifying estates and rights in land subject to be taken for public
use, provides for the condemnation of easements when taken for any other use. The statute
obviously recognizes an easement either as an estate or right in land. Logic compels the
conclusion that such is entitled to be compensated for when taken because a restrictive
covenant is an easement or a servitude in the nature of an easement. Chapman v. Sheridan
Wyoming Coal Company, 338 U.S. 621 (1950). It is therefore properly included within the
purview of NRS 37.020(2).
[Headnote 2]
NRS 37.080 recognizes broadly based interests and damages for the taking thereof by
providing that all persons, having or claiming an interest in the property or in the damages,
may appear, plead and defend each in respect to his own property or interest.
NRS 37.110(3) specifically provides that a court, jury, commission or master must hear legal
testimony offered by any of the parties to the proceedings, and thereupon must ascertain and
assess if the property, though no part thereof is actually taken, will be damaged the amount of
such damages. This statute further provides, as far as practicable, compensation must be
assessed for each source of damages separately. The statute therefore contemplates, if not
mandates, consideration of the appellants' interest.
It appears the trial court's decision rested largely on the aspects of impracticability in
handling such claims. But we find it difficult to subscribe to such public policy arguments in
terms of procedural or substantive problems espoused by the jurisdictions which deny
compensation for the extinguishment of a restrictive covenant.
The public policy argument is founded on the premise that eminent domain rests upon
public necessity, and thus, to uphold the validity of restrictive covenants would inhibit the
actions of the sovereign charged with the obligation to provide for the public welfare. See,
e.g., Doan v. Cleveland Short Line Ry. Co., 112 N.E. 505 (Ohio 1915); City of Houston v.
Wynne, 279 S.W. 916 (Tex.App. 1925). We cannot see how compensation, required by
constitutional commands, can be said to interfere with any governmental taking. See Town of
Stamford v. Vuono, 143 A. 245 (Conn. 1938). Further, this is a contention of practicality and
is perhaps most often urged by court in denying compensation for the extinguishment of a
restrictive covenant. It is a two-fold argument that unwarranted procedural and substantive
burdens would be imposed on the public authority if the extinguishment required
compensation. The substantive aspect of this view is that the total compensation for damages
would be so great as to make it prohibitive to acquire land in a subdivision. This rests on the
supposition that damages can be proven by each lot owner and that such will be substantial in
amount. It does not take into account the inverse relation of distance from the project site and
the amount of damage.
The procedural view essentially supposes that the subdivision will be a large tract with
many lots and each lot owner would necessarily have to be served and that a trial on the issue
of damages for each lot owner would serve to practically prohibit the public authority from
condemning any land so situated. See 1945 Wisc.L.Rev. 5; 48 Va.L.Rev. 437 (1962); 53
Mich.L.Rev. 451 (1955). Further, it is to be noted in the present situation the respondent faces
challenge by only one of over 45 property owners.
by only one of over 45 property owners. All others did not claim damage.
[Headnote 3]
We do not agree that because a number of persons may be affected by the proceedings it is
best to hold the appellants have no right that the law should protect against the sovereign and
deny them the right to offer proof of damage. Procedural considerations should not determine
the substantive question of whether there is a compensable property interest.
[Headnotes 4, 5]
Furthermore, our existing civil practice procedures and statutes are sufficient to bring
before the court all persons claiming a compensable interest. Since all land owners within a
subdivision can be readily ascertained from public records, they may be made a party either
by personal service or publication. See NRS 37.070(3); NRCP 4(d) and (e). The burden then
falls on the claimants to appear and establish their loss.
It is to be remembered that there are two basic devices for urban planning and
development; community zoning and restrictive covenants among private individuals. The
beneficial results of private land-use controls are readily apparent throughout the country and
are not merely confined to residential subdivisions. Use of restrictions are encouraged by
most planning agencies. Indeed, restrictive covenants are held to be superior to zoning laws
which rest on police power. Abrams v. Shuger, 57 N.W.2d 445 (Mich. 1953); Olberding v.
Smith, 34 N.E.2d 296 (Ohio App. 1934); Vorenberg v. Bunnell, 153 N.E. 884 (Mass. 1926);
Marshall v. Salt Lake City, 141 P.2d 704 (Utah 1943).
[Headnote 6]
2. The measure of compensation is the value of the interest that is extinguished. But since
the value of a restrictive covenant cannot be in the abstract, we must look to the market value
of the dominant tenement before and after the taking. In substance, the value of the loss offset
by the value of the benefits is the amount of compensation to be awarded. NRS 37.110.
Thompson, C. J., Collins, Batjer, and Mowbray, JJ., concur.
____________
84 Nev. 20, 20 (1968) Shane v. Shane
JOSEPH P. SHANE, Appellant, v. PAULINE
V. SHANE, Respondent.
No. 5331
January 3, 1968 435 P.2d 753
Appeal from the Second Judicial District Court, Washoe County; Thomas O. Craven,
Judge.
Divorce action. The trial court awarded wife divorce and made cash award in lieu of wife's
community property rights and as and for alimony. Husband appealed. The Supreme Court,
Mowbray, J., held that trial court's granting wife divorce on ground of extreme cruelty was
supported by substantial evidence.
Affirmed.
Alex. A. Garroway, of Reno, for Appellant.
A. D. Jensen, of Reno, for Respondent.
1. Divorce.
Trial court's granting wife divorce on ground of extreme cruelty was supported by substantial evidence.
2. Divorce.
Trial court's determination of effect of cruel treatment upon health of injured spouse should be based
upon his evaluation of character and refinement and sensibilities of respondent rather than upon
complaining party alone.
3. Divorce.
It was inferable on appeal from divorce decree that trial court's conclusion holding that husband had been
guilty of such extreme cruelty as to authorize divorce was result of finding that requirements thereof were
present.
4. Divorce.
Award of $16,500 to divorced wife in lieu of all her community property rights and as and for alimony
was not, on record which included evidence of husband's failure to make contributions to family living
expenses even though receiving annual salary of $19,200, abuse of discretion. NRS 125.150.
5. Divorce.
Before appellate court will interfere with trial judge's disposition of community property of parties or
alimony award, it must appear on entire record that discretion of judge has been abused.
OPINION
By the Court, Mowbray, J.:
This is an appeal from a judgment and decree awarding to respondent a divorce on the
ground of extreme cruelty and an award to respondent of $16,500 "in lieu of all her
community property rights, and as and for alimony."
84 Nev. 20, 21 (1968) Shane v. Shane
an award to respondent of $16,500 in lieu of all her community property rights, and as and
for alimony.
Appellant's answer denied the charge. The trial court found that since the marriage of the
parties the appellant had treated the respondent with extreme cruelty and that said cruelty
caused plaintiff to become nervous and thereby lose all of her hair. That plaintiff's health
would be irreparably damaged in the event said marriage continued. A reconciliation by and
between the parties is impossible.
[Headnote 1]
On this appeal we are not concerned with the particular acts relied on by the respondent.
Appellant's contention for a reversal is that there is insufficient evidence to justify the
conclusion that the conduct of appellant, even if cruel, injured respondent's health or put her
in fear of injury to her health.
This court said in Ormachea v. Ormachea, 67 Nev. 273, 283, 217 P.2d 355, 360 (1950):
The appellant insists that it [the cruelty] is not enough and does not establish danger to
health, life, limb or the reasonable apprehension thereof. We think it does. We cannot always
expect that a party in a divorce action will express himself explicitly. In such a matter as this
we must to a great extent rely on the trial judge's impressions. He sees and hears the
witnesses, and acquaints himself with the way in which a witness expresses himself. He is in
a better position to observe the conduct and demeanor of the witness and whether the witness
tends to overstate or understate his testimony. Wittenberg v. Wittenberg, 56 Nev. 442, 55
P.2d 619. In this case the trial court had substantial evidence to make a finding, and we are
not inclined to disturb it. Porter v. Tempa Mining & Mill Co., 59 Nev. 332, 93 P.2d 741; In re
Manse Spring, 60 Nev. 280, 108 P.2d 311. As an appellate court we cannot substitute our
judgment for that of the trial judge in such matters, and will reverse only when there is no
substantial evidence to support the finding of the trial court.
We reaffirm this well established principle and find it applicable in the instant case.
[Headnote 2]
It is upon the trial judge's valuation of the character and refinement as well as the
sensibilities of the respondent, rather than upon the complaining party alone, that his
determination of the effect of the cruel treatment upon the health of the injured spouse should
be based. Ormachea v. Ormachea, supra; Bess v. Bess, 72 P.2d 285 (Idaho 1937); Bradley v.
Bradley, 284 P.2d 434 (Okla. 1955).
84 Nev. 20, 22 (1968) Shane v. Shane
[Headnote 3]
It is proper to infer that the conclusion of the trial judge, in holding that the appellant had
been guilty of such extreme cruelty as to authorize a divorce, was a result of finding that the
aforesaid requirements thereof were present. Bess v. Bess, supra.
[Headnote 4]
Appellant further complains that the trial judge's award of $16,500 to respondent in lieu
of all her community property rights, and as and for alimony was error.
The courts of this state are authorized by statute to award alimony and make such
disposition of the community property of the parties as shall appear just and equitable.
1

[Headnote 5]
Before the appellate court will interfere with the trial judge's disposition of the community
property of the parties or an alimony award, it must appear on the entire record in the case
that the discretion of the trial judge has been abused. A review of the record in the instant
case clearly establishes that the trial judge after considering all the evidence in the record
made a fair, just and equitable award in granting to respondent the sum of $ 16,500. The
record establishes and the trial court found that the appellant received through his accountant
$2,259.63 which was the community property of the parties; that $6,504.47 of the community
was transferred to the accountant, all with the purpose and design of removing said moneys
from the respondent and for the ultimate use of appellant; that at appellant's request
respondent executed an $1,800 note to an acquaintance of appellant, which appellant agreed
to pay; that respondent had throughout the marriage contributed $400 monthly for the living
expenses of the parties as requested by appellant, or over $5,400; and that appellant had failed
to make any contributions to the family living expenses, although he received a monthly
salary from the inception of the marriage of $1,600, or $19,200 annually, which salary he still
does receive.
____________________

1
NRS 125.150. Alimony and adjudication of property rights; award of attorney's fee; subsequent
modification by court on stipulation of parties.
1. In granting a divorce, the court may award such alimony to the wife and shall make such disposition of
the community property of the parties as shall appear just and equitable, having regard to the respective merits of
the parties and to the condition in which they will be left by such divorce, and to the party through whom the
property was acquired, and to the burdens, if any, imposed upon it, for the benefit of the children.
84 Nev. 20, 23 (1968) Shane v. Shane
There is no showing of abuse of discretion by the trial judge in awarding to the respondent
the sum of $16,500, and his order must be affirmed as set forth in the decree with interest at 7
percent per annum from February 17, 1967, upon the unpaid balance.
Respondent was awarded her counsel fees in the trial below, to which award and the
amount thereof we find no objection.
Affirmed.
Thompson, C. J., Collins, Zenoff, and Batjer, JJ., concur.
____________
84 Nev. 23, 23 (1968) Spillers v. State
PIERCE SPILLERS, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 5250
January 4, 1968 436 P.2d 18
Appeal from conviction for rape in violation of NRS 200.360(1). Second Judicial District
Court, Washoe County; Grant L. Bowen, Judge.
The defendant appealed from the judgment of conviction by the trial court. The Supreme
Court, Zenoff, J., held that Nevada rape statute under which only a jury could impose death
penalty if defendant were found guilty of rape with violence and under which a court's power
to punish was specifically limited to imprisonment term of not less than 20 years promulgated
a lopsided penalty scheme which was not constitutionally permissible.
Affirmed as modified.
Collins and Mowbray, JJ., dissented.
Richard E. Fray and J. Rayner Kjeldsen, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Washoe
County, for Respondent.
1. Jury.
Any party to jury trial in criminal case has right to examine prospective jurors on voir dire.
2. Jury.
Extent to which parties to jury trial in criminal case may examine prospective jurors on voir dire rests
largely in discretion of court, and on review such discretion is accorded considerable latitude.
3. Criminal Law.
Where one prospective juror at voir dire answered in the negative when asked whether she had any
inherent antagonism toward Negroes and court sustained objection to questions which asked whether
prospective juror was agreeable to having a Negro live next door or her children attending a largely Negro
populated school and thereafter no further efforts were made to develop disqualifications for prejudice by
reason of race, it must be assumed that jurors having been passed for cause and survived peremptory
challenges had unprejudiced minds with respect to Negro defendant who claimed error because of refusal
of court to allow questions concerning racial prejudice.
4. Criminal Law.
Negro defendant, accused of committing rape while an inmate of prison camp, failed to show he had been
deprived of a fair trial because of pretrial publicity resulting from fact that prison camps constituted an
issue in gubernatorial campaign being waged during same year as trial.
5. Criminal Law.
No prejudice was shown other than inconvenience in permitting defendant to remain in sheriff's custody
instead of remaining in the state prison 30 miles away, and there was no abuse of discretion by trial court
with respect to such matter.
6. Criminal Law.
Defendant claiming that he had not been allowed funds for expert witnesses and discovery failed to show
that there had been any need for funds to obtain particular material witness or evidence.
7. Criminal Law.
Upon showing of need in criminal case, court may order provision be made for necessary witnesses or
evidence.
8. Searches and Seizures.
Where person accused of rape was in prison because of a prior offense, the search of his quarters and the
seizure of his effects were not to be tested by rules which apply to citizens who are possessed of full civil
rights.
9. Arrest.
Search of accused's quarters in prison camp in which he was an inmate and seizure of clothing without a
warrant was proper as incident to lawful arrest.
10. Criminal Law.
There was no abuse of discretion by trial court in refusing to allow a jury view of premises in prosecution
for rape.
11. Criminal Law.
Jury view does not serve place of evidence; its only function is to assist jury in comprehending evidence
before it.
12. Jury.
Juror who has a fixed mind against death penalty is not unbiased and cannot adjudicate fairly the facts in
prosecution for offense punishable by death, and such person is not competent to serve as a juror. NRS
175.105, subd 9.
13. Jury.
Court did not err in prosecution for rape in dismissing prospective jurors who did not believe in capital
punishment. NRS 175.105, subd. 9.
14. Rape.
Nevada rape statute under which only a jury could impose death penalty if defendant were found guilty of
rape with violence and under which a court's power to punish was specifically limited to imprisonment term
of not less than 20 years promulgated a lopsided penalty scheme which was not constitutionally
permissible. NRS 200.360, subd. 1.
15. Jury.
Guaranty of right to trial by jury is of fundamental character and may not be diminished in value, or its
free exercise impaired or discouraged. U.S.C.A.Const. Amend. 6; Const. art. 1, 3.
16. Constitutional Law.
State may not prescribe different penalties for same offense without violating equal protection concept.
NRS 177.240, 200.360 subd. 1.
17. Criminal Law.
Supreme Court may modify an unauthorized sentence and substitute therefor any proper sentence that
was open to sentencing court. NRS 177.240.
18. Rape.
Since rape statute provided only for a minimum term of not less than twenty years court must supply
maximum in harmony with theory of indeterminate sentence, that is, a maximum which will allow for
possibility of parole. NRS 176.180.
19. Criminal Law.
Under indeterminate sentence concept, court is not authorized to preclude possibility of parole in the
fixing of maximum term unless legislature has expressly granted that authority. NRS 176.180.
20. Criminal Law.
Where death sentence imposed by jury for offense of rape accompanied with acts of extreme violence
was constitutionally impermissible, Supreme Court would modify the unauthorized sentence and substitute
therefor a sentence with a minimum of twenty years which might be extended to life. NRS 176.180.
OPINION
By the Court, Zenoff, J.:
This is an appeal from the conviction of Pierce Spillers for rape accompanied with acts of
extreme violence and with great bodily injury inflicted in violation of NRS 200.360(1).
On June 28, 1966 the prosecutrix was raped in her home in Reno during the early morning
hours as she arose and prepared to go to work. She had arisen at approximately 1:00 a.m. The
lights in various parts of the house were turned on. She heard a noise and suspecting a
prowler went to the dresser and obtained a pistol kept there. She looked out of the bedroom
into the hall and spotted the assailant. Temporarily unnerved, she was unable to fire the
pistol. Whereupon he lunged; they wrestled for the gun, and a shot was fired into the
ceiling as they struggled in the bedroom.
lunged; they wrestled for the gun, and a shot was fired into the ceiling as they struggled in the
bedroom. The assailant gained control of the gun and told the screaming victim to be quiet or
he'd choke her to death. The assailant struck the victim on the head with the gun. Stunned,
she slumped to a sitting position. When her four-year-old son awakened and entered the room
the attacker put the gun to the boy's head and ordered the prosecutrix to tell the boy to go to
his room or he'd shoot him. She so ordered the boy and he obeyed. Striking his victim once
more the assailant threw her on the bed, tore off her clothes, covered her head with a pillow,
struck her again and committed the act of rape.
After the attack she went to a neighbor's house for help. The police were called. The
victim described the attacker as a Negro, approximately 23 years old, estimated his height and
weight, and stated he was wearing prison-type garb and white tennis shoes.
With the aid of a police dog who trailed a track (by scent) to the nearby Peavine Honor
Camp, the police arrived at the camp and in due course of time apprehended Spillers because
he answered the description of the assailant, and had blood and other stains on his clothes and
bed sheets.
After a trial to a jury Spillers was found guilty of rape. The jury affixed the penalty at
death and he appeals.
His assignments of error are numerous but they can be grouped: first, in the court's refusal
to allow certain questions concerning racial prejudice at the voir dire examination; second,
rulings on the admissibility of certain evidence; third, denial of certain motions, to wit,
refusal to
(a) change venue and to grant a continuance because of pretrial and trial publicity;
(b) permit defendant to remain in the sheriff's custody in Reno instead of remaining in the
state prison in Carson City, 30 miles away;
(c) allow funds for expert witnesses and additional discovery;
(d) suppress certain evidence that did not meet search and seizure requirements;
(e) allow a jury view of the premises where the attack took place;
(f) dismiss prospective jurors who did not believe in capital punishment; and
fourth, that NRS 200.360(1) is unconstitutional because it contravenes the 6th and 14th
Amendments of the Constitution of the United States. There is no merit to any of the claims
of error except the fourth.
Without reference to the fourth assignment of error a review of the entire case leaves no
doubt as to the defendant's guilt inasmuch as the evidence thereof is convincing beyond a
reasonable doubt. The assignments of error which go to the merits of the case depend largely
upon the discretion of the trial judge which we find was not abused.
1. The prosecutrix is a white woman, Spillers is a Negro. One prospective juror at the voir
dire examination for the selection of the jury was asked, You do not feel you have any
antagonism inherent toward people of the Negro race at all? Answer: No. Question:
Would you be quite agreeable to having a Negro person live next door to you? Another
question: Would you object to your children attending school largely populated by Negro
children? Upon objection the trial court ruled that those two latter questions were improper.
Thereafter, no further efforts were made to develop disqualification for prejudice by reason of
race, creed or color.
[Headnotes 1-3]
In a criminal case any party to a jury trial has the right to examine prospective jurors on the
voir dire. Extent to which the parties may go in such an examination rests largely in the
discretion of the court. On review such discretion is accorded considerable latitude. It is
generally regarded as reversible error in a criminal case in which a Negro is a defendant to
exclude questions designed to bring out that a prospective juror is so prejudiced against the
Negro race that it would take less evidence to convince him that a Negro is guilty of a crime
charged than to convince him that a white person had committed the same crime. State v.
Higgs, 120 A.2d 152 (Conn. 1956), and cases cited therein. But here the trial judge was not
given the opportunity to rule on the questions that would directly concern the state of mind of
the jurors as would affect their abilities to sit on this case. They were not asked whether they
would require more proof because the defendant is a Negro. We must assume that the jurors
having been passed for cause and having survived the peremptory challenges had
unprejudiced minds so far as the trial of this defendant is concerned. Aldridge v. United
States, 283 U.S. 308 (1931).
2. Many rulings were made concerning the admissibility of certain testimony and
evidence. To itemize them would reflect only that they were the customary problems
presented in a trail. Our review reveals no abuse of discretion and therefore no error. We rule
the same on the objections to certain instructions given as well as those refused. The jury was
adequately instructed on the applicable law.
[Headnote 4]
3(a). Defendant stresses that pretrial publicity attending the trial of the case deprived him
of a fair trial because the subject of prison camps (Spillers was an inmate at the time of the
offense) was an issue in the gubernatorial campaign being waged during the same year. The
trial court properly denied the motion for continuance and motion for change of venue after
examining copies of the news articles and radio and television transcripts. Morford v. State,
80 Nev. 438, 395 P.2d 861 (1964). Only ordinary news value was assigned by the news media
to this incident. We do not have here the situation of Sheppard v. Maxwell, 384 U.S. 333
(1966), Estes v. Texas, 381 U. S. 532 (1965), or Rideau v. Louisiana, 373 U.S. 723 (1963),
where the communities were saturated with publicity so complete in its envelopment that the
prejudice of every juror could be presumed.
[Headnote 5]
3(b). No prejudice was shown other than inconvenience that would require defendant's
counsel to consult with him at the Washoe County Jail in Reno instead of at the state prison
30 miles away. Again, it was a discretionary matter. We find no abuse. Lewis v. United
States, 277 F.2d 378, 380 (10th Cir. 1960).
[Headnotes 6, 7]
3(c). No showing was made that funds were needed to obtain any particular material
witness or evidence. In fact, whatever the prosecution had as evidence was made available to
the defendant for examination before trial. Upon a showing of need the court may order
provision be made for necessary witnesses or evidence, but the record is void of need.
[Headnotes 8, 9]
3(d). Spillers complains that when he was arrested at the prison camp his clothing was
searched and seized without court approved warrants or his permission. As to this, he has no
standing to complain. He is in prison for a prior offense and a search of his quarters and
seizure of his effects are not to be tested by the rules which apply to citizens who are
possessed of full civil rights. People v. West, 61 Cal.Rptr. 216, 220 (Cal.App. 1967). We add,
the search and seizure was incident to a lawful arrest.
[Headnotes 10, 11]
3(e). A jury view does not serve the place of evidence. Its only function is to assist the
jury in comprehending the evidence before it.
evidence before it. There was no abuse of discretion when the court did not grant the request.
3(f). NRS 175.105(9)
1
compels the exclusion from the jury of anyone who entertains
such conscientious opinions as would preclude his finding the defendant guilty if the offense
is punishable with death.
[Headnotes 12, 13]
The determination of guilt or innocence must be made free of any biases or prejudices.
Certainly, a juror who has a fixed mind against the death penalty is not unbiased and,
therefore, cannot adjudicate the facts fairly. Such a person is not competent to serve as a
juror. We do not agree with the defendant's contention that a jury composed of 12 persons
who are sworn that they can prescribe the death penalty in a proper case are death oriented.
They are sworn only to do their duty as jurors. See State v. Williams, 50 Nev. 271, 257 P. 619
(1927).
[Headnote 14]
4. The point raised as to the constitutionality of the rape statute has merit.
2
A jury found
Pierce Spillers guilty of rape with violence and imposed the penalty of death. Under that
statute only the jury could direct death. Had Spillers entered a plea of guilty to the charge, the
court could not have sentenced him to death. The court's power to punish is specifically
limited to imprisonment for a term of not less than 20 years. Neither is the court empowered
to exact the extreme penalty had Spillers pleaded not guilty, and with the State's consent and
court approval waived a jury trial, been tried before the court and found guilty. (Rains v.
State, 83 Nev. 58, 422 P.2d 541 {1967).)
____________________

1
NRS 175.105. A challenge for implied bias may be taken for all or any of the following causes, and for no
other:
* * * * *
9. If the offense charged is punishable with death, the entertaining of such conscientious opinions as would
preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a
juror.

2
NRS 200.360(1). Rape is the carnal knowledge of a female, forcibly and against her will, and a person
duly convicted thereof shall be punished by imprisonment in the state prison for a term of not less than 5 years
and which may extend to life; but if such crime be accompanied with acts of extreme violence and great bodily
injury inflicted, the person guilty thereof shall be punished by imprisonment in the state prison for a term of not
less than 20 years, or he shall suffer death, if the jury by their verdict affix the death penalty.
(1967).) This lopsided penalty scheme is not constitutionally permissible.
3

[Headnote 15]
The Sixth Amendment to the federal constitution and art. 1, 3 of our state constitution
each guaranty the right of trial by jury to one accused of crime. This right is of fundamental
character and may not be diminished in value, or its free exercise impaired or discouraged.
4

One charged under NRS 200.360(1) is compelled to pay a terrible price for exercising his
constitutional right to a jury trialthe possibility of death. A coercion exists to forego that
right and prefer court adjudication, since the court is powerless to order death. Indeed, in
some instances the compelling force may be so great as to cause one who is not guilty to
plead guilty, or at least to attempt to place his case before the court at trial without a jury.
5
One accused under the statute may thus be discouraged from exercising his right to a jury
trial, or suffer a possible increased penalty if he does so. To suggest that one's constitutional
right to a jury trial in such circumstances is not impaired is to ignore the obvious.
It is no answer to say that Spillers voluntarily, and with the advice of competent counsel,
elected to exercise his right to trial by jury knowing the possible consequence of death.
____________________

3
Similar constitutional objections have been raised concerning 18 U.S.C. 1201 (a), the Federal Kidnapping
Statute, commonly referred to as the Lindbergh Law, which provides: Whoever knowingly transports in
interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed,
kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor,
by a parent thereof, shall be punished (1) by death in the kidnaped person has not been liberated unharmed, and
if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death
penalty is not imposed. (Emphasis added.) See United States v. Jackson, 262 F.Supp. 716 (D. Conn. 1967);
also Waley v. United States, 233 F.2d 804 (9th Cir. 1956), cert. denied 352 U.S. 896 (1956). Cf. Seadlund v.
United States, 97 F.2d 742 (7th Cir. 1938); LaBoy v. New Jersey, 266 F.Supp. 581 (D.N.J. 1967); Robinson v.
United States, 264 F.Supp. 146 (Ky. 1967), and McDowell v. United States (No. 5037, Advance Opinion, filed
October 25, 1967, E.D. Tenn., digest of opinion found in 2 Cr.L. 2129). (Jackson is presently under review by
the U.S. Supreme Court, 387 U.S. 929.)

4
Art. 1, 3, Nevada Constitution: The right of trial by jury shall be secured to all and remain inviolate
forever; * * *. (Emphasis added.)

5
NRS 174.480 requires the state's consent before a defendant can waive a jury. Although not stated, the
approval of the court is then essential and is usually not forthcoming, particularly in a capital case.
trial by jury knowing the possible consequence of death. United States v. Wiley, 278 F.2d
500, 504 (7th Cir. 1960). The constitutionality of the penalty scheme does not depend upon
what the accused does. The statute must stand or fall on its own without regard to the identity
of the defendant or the course of action selected by him.
Equally unsound is the notion that the legislature intended the court and jury to have
equivalent punishment power for the crime of rape with violence. The opposite is true since
the statute reads that only the jury may decree death.
[Headnote 16]
The equal protection clause of the Fourteenth Amendment to the federal constitution also
denies validity to the penalty scheme of NRS 200.360(1). A state may not prescribe different
penalties for the same offense without violating the equal protection concept. Thus the statute
is unconstitutional insofar as it allows a jury to impose a greater penalty than a court for the
same offense, thus violating the Sixth and Fourteenth Amendments to the federal
constitution, and art. 1, 3 of our state constitution. (United States v. Jackson, supra, footnote
3.)
[Headnote 17]
NRS 177.240
6
invests this court with authority to reverse, affirm, or modify the
judgment appealed from. The sentence imposed is a part of the judgment. Allglood v. State,
78 Nev. 326, 372 P.2d 466 (1962); Ex parte Salge, 1 Nev. 449 (1865). Thus, we may modify
an unauthorized sentence and substitute therefor any proper sentence that was open to the
sentencing court. State v. Moore, 48 Nev. 405, 233 P. 523 (1925); State v. Johnson, 75 Nev.
481, 346 P.2d 291 (1959); see also State v. Squier, 56 Nev. 386, 54 P.2d 227 (1936).
[Headnotes 18-20]
Nevada has adopted the indeterminate sentence conceptthat is, the sentence is for the
maximum period imposed by the court subject to termination by parole after service of the
minimum term. Ex parte Melosevich, 36 Nev. 67, 133 P. 57 (1913); State v. Moore, supra.
Accordingly, the sentencing court must provide for the maximum period when the statute
designates only the minimum.7 The statute before us, NRS 200.360{1) provides only for a
minimum term of not less than 20 years.
____________________

6
NRS 177.240. Determination of appeal. The appellate court may reverse, affirm, or modify the judgment
appealed from, and may if necessary or proper, order a new trial.
designates only the minimum.
7
The statute before us, NRS 200.360(1) provides only for a
minimum term of not less than 20 years. The maximum period is not set. Thus, the court must
supply the maximum in harmony with the theory of the indeterminate sentencethat is, a
maximum which will allow for the possibility of parole. A court is not authorized to preclude
the possibility of parole unless the legislature has expressly granted that authority. That
authority has not been given for the crime of rape. It is only with regard to first degree murder
that a court, or jury, may impose sentence without the possibility of parole. Consequently, in
the case at hand the new sentence shall be imprisonment for a term of not less than 20 years
which may extend to life. Ex parte Lair, 233 P. 789 (Okla. 1925).
Affirmed in part, reversed in part as modified.
Thompson, C. J., and Batjer, J., concur.
Collins and Mowbray, JJ., dissenting:
We dissent.
The majority opinion holds the penalty provision of NRS 200.360(1) is violative of the
Sixth Amendment (right to jury trial) of the United States Constitution, Art. 1, Sec. 3 of the
Nevada Constitution, and a denial of due process under the Fourteenth Amendment.
Once again this court is trying to outleap the federal courts, and in doing so reaches far
afield to thwart, confound and confuse orderly criminal procedure. The majority relies
principally upon one federal district court case, United States v. Jackson, 262 F.Supp. 716 (D.
Comm. 1967), and the tenuous circumstances that such case is under review by the United
States Supreme Court as its authority to hold the punishment imposed by the jury
unconstitutional. We say it is time enough to follow the United States Supreme Court when it
makes such a ruling and makes it binding upon the states through the Fourteenth
Amendment.
____________________

7
NRS 176.180: Indeterminate sentence of imprisonment; duties of district attorney and warden.
1. Whenever any person shall be convicted of any felony for which no fixed period of confinement is
imposed by law and where a judgment of confinement is rendered, the court shall, in addition to any fine or
forfeiture which it may impose, direct that such person be confined in the state prison for an indeterminate term
limited only by the minimum and maximum term of imprisonment prescribed by law for the offense of which
such person shall be convicted.
2. Where no minimum term of imprisonment is prescribed by law, the court shall fix the minimum term in its
discretion at not less than 1 year nor more than 5 years, and where no maximum term of imprisonment is
prescribed by law, the court shall fix such maximum term of imprisonment. * * *
and makes it binding upon the states through the Fourteenth Amendment. Until then we ought
to presume our statute to be constitutional and uphold it if we can. State v. McClear, 11 Nev.
39 (1876); State v. Jon, 46 Nev. 418, 211 P. 676 (1923); State v. Plunkett, 62 Nev. 265, 149
P.2d 101 (1944). There is a way.
In the first place there are a greater number of cases and equally respectable authority that
statutes similar to our rape statute (NRS 200.360(1)) are constitutional. Another federal
district court held that a New Jersey statute which provided that only a jury could assess the
death penalty did not violate the Sixth Amendment. LaBoy v. New Jersey, 266 F.Supp. 581,
585 (D.N.J. 1967). In LaBoy, Judge Lane discussed the Jackson case and wrote:
Concededly, the fact that only a jury may impose the death penalty is a factor which
weighs against entering a plea of not guilty and undergoing trial by a jury. However, we
disagree with the conclusion that the Jackson case draws from this. It does not necessarily
follow that this obstacle' to a jury trial is tantamount to a denial of the right to a jury trial. To
determine when such an obstacle' becomes so great as to be considered a denial of the right
to a jury trial, it is necessary to compare the degree of the obstacle' against the value of the
policy which it implements.
The New Jersey procedure involved in the instant case enunciates a legislative policy
which deems it unwise to allow a judge acting alone to impose the death penalty. In this state
the death penalty may be imposed only when a jury of twelve of the defendant's peers decides
that it is appropriate. Presumably, the legislative branch has determined that the imposition of
the death penalty is such a serious decision that it is unfair to the defendant (and possibly to
the judge) to have it rest on the shoulders of one man; that such a decision can only be
entrusted to twelve fair and open-minded citizens whose values approximate those of the
community from which they are chosen.
This is a valid legislative policy which operates primarily for the class of defendants of
which petitioner is a member. The fact that the procedure which implements this policy may
in some cases influence a defendant, who has evaluated the alternatives open to him, to
forego a trial by jury does not, in our opinion, invalidate the statutory scheme. The benefit
which results from the procedure is sufficiently great that we are not compelled to strike it
down in the name of providing an unobstructed choice of a trial by jury.
Furthermore, it has not yet been decided that the Sixth Amendment right of jury trial
under the United States Constitution is binding upon the states through the Fourteenth
Amendment.
Amendment right of jury trial under the United States Constitution is binding upon the states
through the Fourteenth Amendment. Turner v. Louisiana, 379 U.S. 466 (1965). Likewise
there is no constitutional right to a trial without a jury. Singer v. United States, 380 U.S. 24
(1965); Rains v. State, 83 Nev. 58, 422 P.2d 541 (1967). Moreover, in Nevada a defendant
may not as a matter of right demand a trial before the court alone. Both the district attorney
and the court must consent because the state too has a right to have the issue decided by a
jury. NRS 174.480.
1

In Robinson v. United States, 264 F.Supp. 146 (W.D. Ky. 1967), the federal kidnapping
statute (18 U.S.C.A., 1201 (a) was upheld on a Sixth Amendment attack against it, and
specifically disagreed with the holding in Jackson.
2

In another opinion by a federal district judge, the federal kidnapping statute was also
constitutionally upheld. McDowell v. United States, 274 F.Supp. 426 (E.D. Tenn., October
25, 1967). It is ably reasoned in that opinion, A defendant indicted for a violation of Section
1201(a) cannot be said to have it the worse because a jury, as well as a judge, must concur in
a capital sentence, than if a capital sentence could lawfully be meted out by a judge alone.
Whatever may be the merits or demerits of capital punishment, the Court is of the opinion
that the legislative policy of interposing the jury between a judge and the imposition of capital
punishment upon a defendant is a valid policy, and, moreover, one which should not be
overturned for any but the weightiest of reasons.
The majority opinion holds that Spillers is compelled to pay a terrible price for exercising
his constitutional right to a jury trialthe possibility of death. But the record does not bear
out that conclusion. Actually at the arraignment in district court Spillers, with counsel
present, stood mute and the court, under NRS 174.400, was compelled to and did enter a plea
of not guilty for him. The court then directed the case to be set down for trial before a jury,
the customary order in all felony cases. Thus it is inaccurate to say Spillers intentionally
chose one mode of trial over any other. By standing mute, he forced the court to exercise the
only choice available under those circumstances; that is, a not guilty plea and a trial by jury.
This circumstance carries the inescapable conclusion that Spillers never attempted to
exercise his right, if he even had one, to be tried by the court alone.
____________________

1
We venture to say that few, if any, trial judges in Nevada would, unless clearly compelled by law, consent to
a capital case being tried before the court alone instead of a jury.

2
It should be noted, however, that under federal law the recommendation of the death sentence is not binding
upon the court.
never attempted to exercise his right, if he even had one, to be tried by the court alone.
It is extremely difficult to see how a person has been prejudiced when he is accorded the
most valuable of all constitutional rights, the opportunity of having his guilt or innocence
decided by a jury of fellow citizens and peers. When contrasted with the fact, as disclosed by
the record, that at no time did he ever attempt in any way, directly or indirectly, to have his
guilt or innocence determined by a trial before the court alone, or that he even toyed with the
idea of a plea of guilty to the aggravated rape charge to avoid the possibility of the death
sentence, one can only conclude he knowingly waived any other right he may have had. In
making those waivers he clearly did so with competent counsel present and advising him.
After having enjoyed the full benefit and advantage of a jury trial, which resulted in a
determination of his guilt beyond a reasonable doubt, as expressly noted by the majority of
this court, he now seeks to avoid the punishment affixed by the jury, a penalty he knew to be
within their power if they found he committed the rape and it was accompanied with
violence.
The defendant and his counsel also knew under the very same statute that, if the evidence
warranted it, the jury could have found Spillers either not guilty or guilty only of nonviolent
rape. If the latter verdict had been rendered, the judge would be compelled by law to sentence
Spillers to not less than 5 years nor more than life. But here the evidence of violence and
aggravation was great.
3
The jury, no doubt contrary to the hopes and expectations of Spillers
and his counsel, not only convicted him, but fixed his punishment at death for his violent and
aggravated conduct in raping his victim.
The majority of the court engages and indulges in flights of pure fantasy and speculation,
nowhere borne out in the record, when they say Spillers was coerced or compelled in the
manner of trial he had or could have had. There is nothing constitutionally wrong with the
rape statute, which has been unchanged on the law books of Nevada since 1911. The only
thing that could and did subject Spillers to the terrible price of death was his terrible
violence and aggravation in raping an innocent woman and mother in her own home in
the dead of night within the sight and sound of her own children.
____________________

3
Spillers entered the victim's home in the dark of night; the victim and Spillers fought over a gun; a shot was
fired; Spillers threatened to choke her to death if she didn't be quiet and submit to his demands; Spillers struck
her several times; Spillers covered her head with a pillowall within the sanctity of her own home and
bedroomand as a terrifying climax, which would no doubt kill the will to resist of any woman, held the gun to
the head of and threatened to shoot her 4-year-old son.
death was his terrible violence and aggravation in raping an innocent woman and mother in
her own home in the dead of night within the sight and sound of her own children.
He seeks by hindsight a procedure he waived by foresight. As fallible human beings, we
would indeed be fortunate if we could always enjoy the wisdom of hindsight in our conduct
of life's affairs. We cannot, and because the law follows the rules of life, it should not. Those
who would try to make it different by artificial reasoning are doing a disservice to orderly
processes of the law. We are inclined to believe many courts in this land are permitting
hindsight of those accused of crime to largely control appellate review. As a result, it is not
uncommon for appellate review to continue from five to even ten years, at a cost that is
enormous. We urge a rule that sharply limits interminable reconsiderations in both the state
and federal court systems when the genesis of the point to be reviewed is attributable to
hindsight.
But this decision may have a more far-reaching effect than the majority of this court
realizes. It may open the door to every prisoner in Nevada convicted by a jury of the unlawful
killing of a human being under NRS 200.010 to 200.030 to complain that their sentences are
unconstitutional. We might well be plagued with writs of habeas corpus and we may have to
grant them under the authority of this decision. As we view it, a person convicted of homicide
pursuant to NRS 200.010 to 200.030 could urge the same argument that Spillers makes here.
Under the homicide statutes, on the plea of not guilty requiring a trial, only the jury can fix
the death penalty. The court alone could not.
Admittedly there is a distinction on a homicide charge if a defendant pleads guilty to an
open charge of murder. A three-judge district court must be assembled. NRS 200.030(3).
There is no such express provision under the aggravated rape statute. We think, however, that
the rape statute could reasonably be construed to conform to the homicide statute requiring
the calling of a three-judge district court on a plea of guilty.
In any event, neither of those questions is before us. Spillers made no effort to test the
constitutionality of the rape statute upon the questions of either a plea of guilty or a trial
before the court before he accepted the benefit of the jury trial ordered for him by the court.
The constitutionality of a statute can always be tested by habeas corpus, Ex parte Philipie, 82
Nev. 215, 414 P.2d 949 (1966). Had he initiated such test he would have avoided the terrible
price for exercising his constitutional right to a jury trial, which looms so large in the mind
of the majority.
mind of the majority. Accordingly, we would affirm the conviction and sentence.
____________
84 Nev. 37, 37 (1968) Barnum v. Williams
BRUCE BARNUM, Executive Director of the Nevada
Employment Security Department, Appellant, v.
IVAN V. WILLIAMS, Respondent.
No. 5163
January 10, 1968 436 P.2d 219
Appeal from the Eighth Judicial District Court, Clark County; John F. Sexton, Judge.
Appeal from order of the trial court reversing order of board of review of Nevada
Employment Security Department denying unemployment benefits. The Supreme Court,
Collins, J., held that evidence sustained finding of appeals referee that employee truck driver's
failure to place tachograph chart in vehicle prior to beginning trip on which he was involved
in accident or his removal of chart from the tachograph after the accident amounted to
misconduct disqualifying him from receiving benefits.
Reversed, with directions.
Harvey Dickerson, Attorney General, and Lorin D. Parraguirre, Special Deputy Attorney
General, for Appellant.
Robert L. Reid, of Las Vegas, for Respondent.
1. Social Security and Public Welfare.
That there had been no specific allegation of misconduct in original claim for unemployment benefits and
notice of protest did not preclude employer from appealing on ground of such misconduct. NRS
612.385, 612.500, subd. 2, 612.530.
Even though original claim for unemployment benefits and employer's notice of protest did not refer to
any misconduct of employee, appeals referee was entitled to properly review all of evidence including that
concerning employee misconduct. NRS 612.385, 612.500, subd. 2, 612.530.
3. Administrative Law and Procedure.
When determination of administrative board is challenged, function of district court is to review evidence
presented to board and ascertain whether that body acted arbitrarily or capriciously and, therefore, abused
its discretion.
Misconduct, such as will disqualify employee from receiving unemployment compensation benefits, is
used in industrial, not criminal sense, and consists of deliberate violation or disregard of standards of
behavior which employer has right to expect or carelessness or negligence of such degree as to show
substantial disregard of employer's interest or employee's duties and obligations to employer, but mere
inefficiency or failure to perform because of inability or incapacity, ordinary negligence in isolated
instances, or good faith errors in judgment or discretion are excluded from the definition. NRS 612.500,
subd. 2.
Evidence sustained finding of appeals referee that employee truck driver's failure to place tachograph
chart in vehicle prior to beginning trip on which he was involved in accident or his removal of chart from
the tachograph after the accident amounted to misconduct disqualifying him from receiving unemployment
benefits. NRS 612.500, subd. 2.
6. Costs.
Inasmuch as unemployment benefits claimant was not prevailing party upon reversal by Supreme Court
of decision in his favor and he should not have been before the district court, award by district court of
attorney's fees to him should be reversed. NRS 18.010, subd. 2.
OPINION
This appeal is from an order of the district court reversing an order of the board of review
of the Nevada Employment Security Department denying unemployment benefits to
respondent, Ivan V. Williams. A second question involves the propriety of an award of
attorney's fees to respondent by the district court.
We conclude the trial court's orders to be in error, reverse them and reinstate the order of
the board of review.
The record in this case indicates that Williams was employed as a truck driver for
Adelson, Inc., which did business under the name of Food Fair Markets. He was originally
hired in 1955 and worked until November 19, 1961. He was rehired in 1962 and quit in
March 1963. His last period of employment with that company began in November 1964,
which continued until he was suspended and later discharged on June 21, 1965. While driving
from Los Angeles to Las Vegas with a truckload of merchandise, he collided with the rear
end of a car going in the same direction of travel as his own. One person died as a result of
that accident and three others were injured to an unknown extent.
to an unknown extent. So far as the record shows, no fault has yet been established for that
accident.
Following the accident, Williams' employer discovered the absence of the chart in the
truck's tachograph, a device which maintains a continuous log of the truck's activity,
including its speed at all times. Company policy required that the tachograph be operated on
all trips of its trucks. Williams admitted knowledge of this policy but stated that he had
inadvertently forgotten to place the graph in the truck on that particular trip. He was
suspended from his job and shortly thereafter discharged.
Williams' first claim for unemployment benefits simply stated that he had been discharged
by his employer because of Violation of company policy. I forgot to put a chart in the
tachograph. Terminated. The employer opposed the claim and stated in its letter of objection
that Williams was discharged because he failed to have a tachograph chart in his equipment
while operating it. Neither the employee nor the employer referred to the accident in the
initial claim or objection. The department thereupon made an award of unemployment
benefits, concluding that Williams was discharged but not for misconduct under NRS
612.385. The employer upon being advised of that award filed an appeal which for the first
time asserted the fact Williams had been involved in an accident. The department then sought
rebuttal from Williams before proceeding with the appeal. Williams' reply indicated that I
did have an accident with the truck June 19, 1965 when I was returning to Las Vegas with a
load of merchandise. I did not mention it when I filed my claim because all I could report was
the reason they gave me, which was Violation of company policy.' I knew within myself that
part of the reason I was terminated was because of the accident but I cannot discuss this with
the employment service or anyone excepting the company I work for or the attorneys
involved.
The appeals referee, pursuant to NRS 612.500 (2), conducted an extensive hearing, both in
Las Vegas and in Los Angeles. Williams was present and participated in both hearings. The
referee reversed the award of benefits by the department and disqualified Williams from
receiving further compensation for 16 weeks on the ground he was discharged for misconduct
in his work. The decision of the appeals referee was affirmed in all respects by the board of
review.
Thereafter, Williams sought review of the administrative decision in the district court
pursuant to NRS 612.530. The district court found that the Employment Security Department
acted capriciously and in excess of its jurisdiction by improperly considering the issue of
misconduct on appeal and by basing its denial of unemployment benefits upon
conclusions of fact and law not supported by the evidence.
acted capriciously and in excess of its jurisdiction by improperly considering the issue of
misconduct on appeal and by basing its denial of unemployment benefits upon conclusions of
fact and law not supported by the evidence. Due to the above-mentioned reasons the court
reversed the order denying unemployment benefits to Williams and reinstated the original
award. In addition, it granted attorney's fees to respondent in the amount of $500.
This appeal presents the following issues:
(1) Was the issue of misconduct properly before the appeals referee?
(2) Was the appeals referee correct in reviewing all of the evidence?
(3) Was the district court correct in concluding that the findings of the appeals referee
were not support by the evidence?
(4) Was the award of attorney's fee proper?
[Headnote 1]
In deciding that the issue of misconduct was not properly before the appeals referee, the
district court noted that there had been no specific allegation of misconduct and also that both
the employee and the employer cited the same reason for the discharge of respondent. We do
not agree that the original claim for benefits and the notice of protest so limit the scope of the
appeal. We feel that the original claim for benefits, notice to employer, and protest of
employer amount to no more than the barest notice to each of the parties of the fact that the
claim has been made and protested, and that the procedural machinery of the act has been set
into motion. The procedure for filing claims and protest is very informal and quite summary
in nature. It is not required to be done under oath and certainly cannot be thought of as a
fact-finding hearing. Indeed, the first real opportunity to fully develop the facts surrounding
the claim and the protest comes at the hearing on appeal. We do not feel that the bare and
minimum statement of the notice of claim and notice of protest finally fix the scope of the
hearing on appeal and accordingly hold that the employer was not precluded from proceeding
with his appeal.
[Headnote 2]
We turn next to the companion issue of the scope of the appellate hearing. We think the
statute clearly confers the right upon the appeals referee to explore all the evidence. NRS
612.500 (2) states that An appeal tribunal shall inquire into and develop all facts bearing on
the issues and shall receive and consider evidence without regard to statutory and common
law rules.
law rules. In addition to the issues raised by the appealed determination, the tribunal may
consider all issues affecting the claimant's rights to benefits from the beginning of the period
covered by the determination to the date of the hearing. That is exactly what the appeals
referee did. His conduct was proper under the statute and should have been upheld by the
district court.
[Headnote 3]
The function of the district court in reviewing administrative proceedings is set forth in
both the cases and the statutes applicable here. We said recently in Board of Chiropractic
Examiners v. Babtkis, 83 Nev. 385, 432 P.2d 498 (1967): When the determination of an
administrative board is challenged, the function of this court is identical to that of the district
court. Urban Renewal Agency v. Iacometti, 79 Nev. 113, 379 P.2d 466 (1963); McKenzie v.
Shelly, 77 Nev. 237, 362 P.2d 268 (1961). It is to review the evidence presented to the board
and ascertain whether that body acted arbitrarily or capriciously and, therefore, abused its
discretion.
It is also stated in NRS 612.530(4) that In any judicial proceedings under this section, the
finding of the board of review as to the facts, if supported by evidence and in the absence of
fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of
law. We must therefore inquire whether the district court adhered to the above-stated
standard in reversing the findings of the appellate referee on the issue of Williams'
misconduct, the basis for his disqualification. NRS 612.385.
[Headnote 4]
The term misconduct has been defined by the Employment Security Department as
follows: The term misconduct is used in an industrial sense, not a criminal sense. Nevada's
highest administrative appeal body, the Board of Review, has defined misconduct as a
deliberate violation or disregard on the part of the employee of standards of behavior which
his employer has the right to expect. Carelessness or negligence on the part of the employee
of such a degree as to show a substantial disregard of the employer's interests or the
employee's duties and obligations to his employer are also considered misconduct connected
with the work. Mere inefficiency or failure of performance because of inability or incapacity,
ordinary negligence in isolated instances, or good faith errors in judgment or discretion are
excluded in the definition of misconduct. That definition is almost identical to the language
used by the court in Boynton Cab Co. v. Neubeck, 296 N.W. 636 (Wis. 1941).
After the conclusion of the hearings conducted in both Las Vegas and Los Angeles, the
importance and significance of the tachograph was clearly shown by the evidence. Testimony
was given explaining its importance in serving as silent witness to such things as the safety
stops required to be made, the speed of the vehicle at every moment of the trip, and the
duration of stops made by the vehicle along the way. The importance of the tachograph as
related to this particular accident and possible liability therefor was also brought out
extensively in these hearings. Company officials stated that if Williams was not exceeding the
speed limit at the time of the accident the graph would reveal it, and if he was exceeding it,
that also would be clearly shown. They stated that irrespective of who actually was at fault,
the absence of the tachograph chart was extremely damaging to the company and deprived
them of evidence to assist them in the resolution of the liability for the accident.
Also at these hearings it was brought out that the employer had a very strong suspicion that
Williams had removed the chart from the tachograph after the accident. This suspicion was
based on the possible incriminating effect of the tachograph in showing Williams' excessive
speed, as well as the fact that Williams had never before failed to have a chart in a truck's
device. Williams then took the stand and vehemently denied the charge, and insisted that he
had simply forgotten on this occasion to install the chart. The inference that Williams'
conduct was consistent with the suspicions of the employer is supported by evidence and
would clearly amount to misconduct.
[Headnote 5]
Using the applicable standard of review, we conclude, as should have the trial court, that
the findings of fact and conclusions of law submitted by the appeals referee were supported
by the evidence presented at the hearings. We therefore reverse the holding of the district
court and order reinstatement of the determination of the appeals referee.
[Headnote 6]
We turn now to the final issue, the propriety of the award of the district court of attorney's
fees to respondent. The award was made pursuant to NRS 18.010(2). Since Williams is no
longer the prevailing party, and should not have been before the district court, we feel that the
award should be reversed on that ground alone.
Accordingly, the decision of the trial court is reversed, both upon the merits and with
regard to the attorney's fee; the ruling of the board of review is reinstated.
upon the merits and with regard to the attorney's fee; the ruling of the board of review is
reinstated.
Thompson, C. J., Zenoff, Batjer, and Mowbray, JJ., concur.
____________
84 Nev. 43, 43 (1968) Bates v. State
DAVID ARNDT BATES, Appellant, v. THE STATE
No. 5337
January 10, 1968 436 P.2d 27
This is an appeal from a judgment and sentence finding the appellant guilty of second
degree burglary. Eighth Judicial District Court, Clark County; Clarence Sundean, Judge.
The Supreme Court, Batjer, J., held that procedural delays for good cause occasioned by
motions, stipulations, waivers, tactics, and conduct of accused as well as his incarceration on
federal charge did not constitute denial of accused's right to speedy trial, that sentencing
accused to prison when codefendant was granted probation did not constitute cruel and
unusual punishment, and that there was no right to withdraw the plea of guilty where neither
the court nor prosecution induced plea by promises in respect to punishment to be imposed.
Affirmed.
[Rehearing denied February 7, 1968]
Foley, Garner & Shoemaker, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, James L.
Buchanan, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Every defendant charged with a crime has the fundamental right to a speedy trial. NRS 169.160.
2. Criminal Law.
Whether or not defendant has been denied speedy trial depends on the circumstances of the particular
case. NRS 169.160.
3. Criminal Law.
Where all procedural delays complained of were either ordered for good cause or were directly or
indirectly occasioned by motions, stipulations, waivers, tactics, acquiescence and conduct of the accused,
as well as his incarceration on federal charge, accused's right to a speedy trial was not violated. NRS
169.160, 178.495.
84 Nev. 43, 44 (1968) Bates v. State
4. Criminal Law.
The right to speedy trial, whether within the statutory 60 days or within a reasonable time, may be waived
and is not jurisdictional. NRS 169.160, 178.495.
5. Criminal Law.
Accused's incarceration in a federal penitentiary constituted good cause for delay in bringing him to trial.
NRS 169.160, 178.495.
6. Criminal Law.
Statute requiring court to dismiss indictment or information on application of accused who is not brought
to trial within 60 days after finding of indictment or filing of information does not apply when accused is
serving sentence on another charge in state prison. NRS 169.160, 178.495.
7. Criminal Law.
Where accused entered plea of guilty to charge of second degree burglary, he waived whatever right he
had to speedy trial. NRS 169.160, 178.495.
8. Criminal Law.
Codefendants may be punished differently for the commission of the same crime.
9. Criminal Law.
That codefendant was allowed probation while application of accused was denied did not constitute cruel
and unusual punishment.
10. Constitutional Law; Criminal Law.
Where no specific promise was made by the court or prosecution that accused could withdraw his plea of
guilty and proceed to trial in the event probation was denied, there was no abuse of discretion or denial of
due process in refusing to allow defendant to withdraw his plea of guilty and proceed to trial.
11. Criminal Law.
A belief or hope alone by the accused that he will be granted probation on his plea of guilty is insufficient
to compel withdrawal of guilty plea where probation is denied.
12. Criminal Law.
Withdrawal of guilty plea should be allowed only when good cause is shown.
13. Criminal Law.
The record did not support accused's allegation that the state and accused negotiated an agreement with
respect to punishment and that the lower court erred in failure to grant the alleged negotiated punishment.
OPINION
The appellant, David Arndt Bates, was arrested on February 26, 1964, in a building in Las
Vegas, Clark County, Nevada and several charges of burglary in the first degree were lodged
against him.
84 Nev. 43, 45 (1968) Bates v. State
against him. The appellant immediately posted bail and was released from custody.
After numerous delays and continuances a preliminary hearing was concluded on
November 18, 1965, at which time the appellant and his co-defendant, Richard Jerald Clark
were bound over to answer in the district court on four charges of first degree burglary.
On November 19, 1965, an information was filed in the district court charging the
appellant and Richard Jerald Clark with four counts of first degree burglary.
On December 8, 1965, the appellant's counsel, in open court, waived the presence of the
appellant and also waived his right to be tried within 60 days after the filing of the
information as provided in NRS 178.495.
1

Continuances were again granted at the request of and for the benefit of the appellant, and
on February 14, 1966, the appellant was taken into custody by the federal authorities. On July
27, 1966, a writ of habeas corpus ad prosequendam was issued and pursuant thereto the
appellant was brought before the district court on August 30, 1966. At that time the appellant
moved for a continuance which was granted.
On September 2, 1966, a writ of habeas corpus was filed by the appellant.
On September 15, 1966, the appellant was arraigned in the district court on an amended
information filed in case No. 4777, charging the appellant with the crime of second degree
burglary, to which amended information the appellant then plead guilty. The State dismissed
the remaining charges against the appellant and the appellant abandoned his petition for a writ
of habeas corpus.
The sentencing of the appellant was continued until December 6, 1966, and was again
continued until December 20, 1966.
On December 14, 1966, the appellant filed a motion to have the question of probation
heard in another department of the district court, or in the alternate to allow him to withdraw
his plea of guilty. The motion was denied.
On December 16, 1966, the appellant filed an objection to Judge Sundean's qualifications,
which motion was heard on December 19, 1966 by Judge William P. Compton, and was
denied.
____________________

1
NRS 178.495. If a defendant whose trial has not been postponed upon his application is not brought to trial
within 60 days after the finding of the indictment or filing of the information, the court shall order the indictment
or information to be dismissed, unless good cause to the contrary is shown.
84 Nev. 43, 46 (1968) Bates v. State
On December 27, 1966, Judge Compton denied the appellant's motion to disqualify Judge
Sundean.
On January 31, 1967, the hearing on the question of probation was continued until
February 2, 1967, at which time the trial court denied probation and sentenced the appellant
to confinement in the Nevada State Prison for a period of not less than one and not more than
five years.
The appellant assigns as error his claim that he was (1) denied his right to a speedy trial;
(2) subjected to cruel and unusual punishment because he was treated differently than his
co-defendant, Clark, who was granted probation; (3) denied due process of law because the
trial court refused to allow him to withdraw his plea of guilty and, (4) that the lower court
erred in its failure to grant the alleged negotiated punishment bargained for by the State and
appellant.
[Headnotes 1, 2]
1. Every defendant charged with a crime has the fundamental right to a speedy trial.
2
Whether or not it has been denied depends upon the circumstances of the particular case. See
Klopfer v. North Carolina, 386 U.S. 213 (1967); Stabile v. Justice's Court, 83 Nev. 393, 432
P.2d 670 (1967).
Here the appellant was not denied this fundamental right.
[Headnote 3]
All the procedural delays complained of were either ordered for good cause or were
directly or indirectly occasioned by the motions, stipulations, waivers, tactics, acquiescence
and conduct of the appellant, as well as his incarceration on a federal charge. He cannot now
complain that his right to a speedy trial has been violated. Stabile v. Justice's Court, supra;
Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966); People v. Hocking, 296 P.2d 59
(Cal.App. 1956); State v. Hedrick, 377 P.2d 325 (Ore. 1962).
[Headnote 4]
The right to a speedy trial, whether within the statutory 60 days or within a reasonable
time, may be waived and is not jurisdictional. People v. Workman, 263 P.2d 458 (Cal.App.
1953); People v. Hocking, supra; State v. Hedrick, supra.
[Headnotes 5, 6]
The appellant's incarceration in a federal penitentiary constituted good cause for the delay
in bringing him to trial. See Ex parte Schechtel, 82 P.2d 762 (Colo. 1938). In Ex parte
Trammer, 35 Nev. 56
____________________

2
NRS 169.160. In a criminal action the defendant is entitled:
1. To a speedy * * * trial.
84 Nev. 43, 47 (1968) Bates v. State
Trammer, 35 Nev. 56, 126 P. 337 (1912), this court went a step further when it held that the
provisions of RL 7396 (cf. NRS 178.495), did not apply even when the defendant was serving
a sentence on another charge in the Nevada state prison.
[Headnote 7]
Furthermore, when the appellant entered his plea of guilty to the charge of second degree
burglary, he waived whatever right he had to a speedy trial. Cooper v. State, 411 P.2d 652
(Kan. 1966), People v. Hocking, supra.
[Headnotes 8, 9]
2. The fact that the co-defendant, Clark, was allowed probation while the application of
the appellant was denied, does not constitute a cruel and unusual punishment in violation of
Article 1, section 6, of the Nevada Constitution. Co-defendants may be punished differently
for the commission of the same crime. See Ex parte Knapp, 254 P.2d 411 (Idaho 1953); State
v. Gonski, 159 A.2d 182 (Conn. 1958); People v. Stevens, 215 N.E.2d 147 (Ill.App. 1966).
[Headnote 10]
3. There was no abuse of discretion or denial of due process by the district court when it
refused to allow the defendant to withdraw his plea of guilty to second degree burglary,
reinstate all previous charges and proceed to trial.
While there is authority for the position that a guilty plea may be withdrawn where such a
plea was induced by promises of the court or prosecution in respect to the punishment to be
imposed, Weatherford v. State, 277 P.2d 690 (Okla. 1954); Smith v. United States, 321 F.2d
954 (9 Cir. 1963), such a rule is not applicable to the present case. Here there is no evidence
of any specific promise made to the appellant by the prosecution or the district court. If any
assurance was ever given the appellant that he would be allowed to withdraw his plea of
guilty and proceed to trial, in the event probation was denied, it was only unilateral assurance
from his own counsel, based on their belief or hope that probation would be granted.
[Headnote 11]
The rule is clearly established that such belief or hope alone is insufficient to compel the
withdrawal of a guilty plea. See, State v. Burnett, 365 P.2d 1060 (Ore. 1961); People v. Kelly,
7 Cal.Rptr. 600, (Cal.App. 1960); State v. Harris, 357 P.2d 719 (Wash. 1960).
The record is abundantly clear that the district court made no promises that probation
would be granted, or that the plea of guilty could be withdrawn, but in fact the court
indicated that its leanings were against probation.
84 Nev. 43, 48 (1968) Bates v. State
of guilty could be withdrawn, but in fact the court indicated that its leanings were against
probation.
The district attorney's office took no position on the question of whether or not probation
should be granted. In fact, that office was admonished by the district court not to take a
position adverse to the appellant on the question of probation, nor to resist the appellant's
motion to withdraw his plea of guilty.
The appellant cites the case of United States v. Gilligan, 256 F.Supp. 244 (1966) for the
principle that fundamental fairness, as a concept of due process of law, requires that when an
accused has entered a plea of guilty based upon a promise by a judge who thereafter, for any
reason, fails to adhere to his promise, a not guilty plea must be reinstated. We agree with that
principle of law, but it does not apply in this case because the district court was did not make
any such promise.
When the appellant entered his plea of guilty, the district court carefully questioned him
about its voluntariness. We quote from the transcript at the time of the taking of the plea:
Court: To the charge contained in the amended information filed this date in Open Court,
how do you plead?
Defendant: Guilty, Your Honor.
Court: Let the record show the defendant has pled guilty.
Mr. Garner: Your Honor, at this time, I would like to make two motions.
Court: I haven't accepted his plea yet. I want to be sure that he understands what he's
doing. As your counsel has pointed out, the charge in the amended complaint is the crime of
second degree burglary, the penalty for which is
Mr. Garner: One to five years.
Court: No less than one and no more than five years in the State prison. Have you had any
inducement of any kind to make your entry to this plea?
Defendant: No, Your Honor.
Court: You are doing this knowingly and willingly?
Defendant: Yes.
Court: Your plea of guilty is accepted now.
At a hearing held on January 17, 1967, the appellant was asked if the court had made any
promises and appellant answered in the negative.
We quote from the transcript revealing the appellant's answers:
Court: Let me ask you this question: Did the Judge make any representation to you to the
effect that if you were not granted probation you could withdraw your guilty plea?
A. You did not, Your Honor, not to me.
Court: Or any representation as to what results would occur if you did enter a guilty plea?
84 Nev. 43, 49 (1968) Bates v. State
occur if you did enter a guilty plea? The Judge himself, that is me, did I make any kind of
representation to you with regard to your entering a plea of guilty?
A. No, Your Honor.
3

[Headnote 12]
Withdrawal of a guilty plea should be allowed only when good cause is shown. See Brown
v. State, 405 P.2d 698 (Okla. 1965); People v. Horton, 345 P.2d 45 (Cal.App. 1959); People
v. Johns, 343 P.2d 92 (Cal.App. 1959). In this case we find no good cause for withdrawal of
the plea.
[Headnote 13]
The appellant's fourth assignment of error is without merit. There is no evidence in the
record of a negotiated agreement between the appellant and the prosecution, and even if there
had been, the court was not party to it, and not bound by it.
The judgment is affirmed.
Thompson, C. J., Collins, Zenoff, and Mowbray, JJ., concur.
____________________

3
In this case the appellant has been represented by three different attorneys from the same law firm, who at
times seemed to disagree. On the other hand, the State was represented by two different district attorneys, and
numerous different deputy district attorneys, many of whom were unfamiliar with the previous proceedings. In
spite of this handicap the lower courts were ever careful to protect the rights of the appellant.
____________
84 Nev. 49, 49 (1968) Hahn v. Yackley
PEGGY CHARLENE HAHN and C. A. HAHN,
Appellants, v. OLIVER YACKLEY, Respondent.
No. 5268
January 16, 1968 436 P.2d 215
Motorcyclist brought action for injuries suffered in automobile-motorcycle collision. The
trial court granted new trial in absence of remittitur within 20 days. Motorcyclist took no
action and appealed from the order. Before the motorcyclist's appeal had been docketed the
court set aside its previous order, dismissing motion of the automobile driver and alleged
owner for new trial, dismissed motorcyclist's appeal and entered judgment for the
motorcyclist, and the defendants appealed. The Supreme Court, Collins, J., held that the
original conditional order for new trial in absence of remittitur could not be changed of
modified by the trial court after expiration of the time fixed except for inadvertence or
mistake in the entry thereof.
changed of modified by the trial court after expiration of the time fixed except for
inadvertence or mistake in the entry thereof.
Reversed, and remanded for new trial.
Elwin C. Leavitt, of Las Vegas, for Appellants.
Edwin S. Pomeranz and Leonard I. Gang,
1
of Las Vegas, for Respondent.
1. New Trial.
Conditional order granting new trial in absence of remittitur within 20 days was within the power of the
lower court.
2. New Trial.
Failure of motorcyclist to consent to remittitur within time fixed perfected the order granting a new trial
in absence of remittitur, where there was no inadvertence or mistake in original entry of trial court's order.
3. New Trial.
Once a trial court has entered its conditional order for a new trial in absence of remittitur within specified
time and it is not accepted, its jurisdiction is exhausted and thereafter it has no power to change or modify
the order except for inadvertence or mistake in the entry thereof.
4. Appeal and Error.
Dismissal, on motorcyclist's motion, of his appeal from court's order of remittitur or, in alternative, new
trial, was within court's power. NRCP 73(a).
5. Automobiles.
Evidence of father's ownership of automobile and that he allowed the automobile involved in accident to
be used by his daughter was sufficient for jury. NRCP 50(a), 73(a); NRS 41.440.
6. Discovery.
There is a wide discretion in trial court to control conduct of pretrial discovery by any litigant.
7. Discovery.
Party who feels he is aggrieved by action of another party in engaging in pretrial discovery must make his
complaint known in a timely manner to trial court and seek either protective order or rule establishing fault
on record to preserve question for consideration.
OPINION
This appeal is from a final judgment in favor of respondent and from an order denying a
new trial. We conclude the trial court erred, set aside the judgment, and order a
reinstatement of the new trial originally granted by the trial court.
____________________

1
Counsel on appeal only.
court erred, set aside the judgment, and order a reinstatement of the new trial originally
granted by the trial court.
The action below was for personal injuries suffered by Oliver Yackley as the result of an
automobile-motorcycle collision in Las Vegas, Nevada, in August 1964, when he was struck
by a car driven by Peggy Hahn and owned by C. A. Hahn. The jury returned a verdict against
appellants for $50,906.
The court entered judgment on the jury verdict on August 29, 1964. Thereafter, the court
granted Hahn a new trial unless Yackley accepted a judgment of $20,000 within 20 days from
the date of the order. Yackley took no action on the court's remittitur order within the time
fixed. Instead, Yackley appealed the order of the trial court.
Some time later, but before the appeal had been docketed, the district court, on motion of
Yackley, granted leave to rehear Hahn's new trial motion upon which it had already acted. At
that hearing the court set aside its former order of remittitur or alternatively for a new trial,
and thereupon denied Hahns' motion for a new trial. The lower court then granted Yackley's
motion to dismiss his appeal from the order conditionally granting the new trial. The position
of the respective parties then being exactly reversed, Hahns filed a notice of appeal from the
order refusing to grant a new trial and dismissing the appeal of Yackley. Later, Hahns
amended their notice of appeal to include an appeal from the judgment against them as well.
The assignments of error are summarized as follows:
(1) Did the district court have the authority to reconsider its conditional order of remittitur
or alternatively granting a new trial when respondent failed to act thereon within the time
fixed?
(2) Did the court have authority to dismiss respondent's appeal?
(3) Was the court in error in failing to grant a nonsuit to appellant C. A. Hahn under the
family responsibility doctrine, NRS 41.440?
(4) Was the lower court correct in requiring Peggy Charlene Hahn, appellant, to return to
Nevada at her own expense, furnish a court reporter, and otherwise finance part of
respondent's pretrial discovery costs?
Following the trial and the jury's verdict in favor of Yackley in the amount of $50,906
Hahns moved for a new trial. The grounds for the motion include, among others, that the
verdict of the jury was excessive and appeared to have been given under the influence of
passion and prejudice. The trial court in deciding the motion ordered as follows: * * * that
said motion for new trial be and the same shall be granted unless plaintiff accept a remittitur
reducing the jury verdict previously entered herein, in the sum of $20,000, on or before
20 days from the said 25th day of August, 1966."
plaintiff accept a remittitur reducing the jury verdict previously entered herein, in the sum of
$20,000, on or before 20 days from the said 25th day of August, 1966. Yackley failed to
indicate acceptance of the reduction in the verdict within the time allowed in the order, but
instead filed his notice of appeal to this court from that order. The record fails to reveal the
reasons for the trial court's conditional order and remittitur, but the obvious inference is that
the damages were excessive. The only other document which sheds any light upon the basis
for the court's ruling is contained in an affidavit of Edwin S. Pomeranz, Esq., attorney for
Yackley, which states: At the time of said hearing, the court did enter said order based upon
the misconception that by reducing such judgment to $20,000 the court had assisted in
effecting a final settlement of the said case, however subsequently thereto and although
plaintiff did at all times formally attempt to settle on said basis and as per such understanding
of the court, defendants through counsel have refused, specifying that defendants did not offer
to settle for $20,000, contrary to the court's understanding. Yackley thereupon sought a
rehearing of the motion for new trial. The trial court granted leave to rehear Hahns' motion
for new trial, reversed its previous order, denied appellants' motion for new trial, and upon
motion by respondent through his attorney dismissed Yackley's previously filed appeal.
[Headnote 1]
It clearly was within the power of the lower court to grant the original conditional order for
new trial. Hotel Riviera, Inc. v. Short, 80 Nev. 505, 396 P.2d 855 (1964). The effect of such
an order when not accepted under the conditions fixed was discussed in Bonelli v. Jones, 26
Nev. 176, 181, 65 P. 374, 375 (1901), as follows: When considered as a whole, it is clear
that the order, in effect, granted a new trial unless the respondent consented to the
modification prescribed therein; and, in case of his failure to comply with the requirements of
the order, then the right to a new trial became absolute. * * * There was, in effect, no
compliance with the terms of the order, and it thereupon became an order absolutely granting
a new trial. Thus the effect of the failure of Yackley to consent to the modification perfected
the order granting the new trial unless the trial court had unrestricted power to reconsider its
previous order and either vacate it or modify it.
There is a substantial split of authority on the question. The annotation in 61 A.L.R.2d
642, entitled Power of court to vacate or modify order granting new trial * * * states that
the general rule is to allow the trial court to reconsider its orders made during its present
term.
orders made during its present term. It is based upon the theory that during that term the court
has an inherent control over its judgment. That rule has been adopted by the federal courts
and some state courts.
[Headnote 2]
A contrary position is taken by a group of jurisdictions, of which California is a member.
Their position is that once a court had entered its order for a new trial, its jurisdiction is
exhausted and thereafter its power to change or modify the order is limited to cases of
inadvertence or mistake in the entry thereof. Holtum v. Grief, 78 P. 11 (Cal. 1904). As the
court stated in Owen v. Crocker-Huffman Land & Water Co., 177 P. 299 (Cal.App. 1918):
* * * [A] practice by which the trial court, after an order has been regularly and deliberately
entered, could after reflection for a day, re-examine or recall the testimony and reach a
different conclusion and set aside his order, thus regularly and deliberately made, would
introduce a most dangerous rule. The California court went on to say that the inadvertence
rule did not apply to a judgment given on deliberate consideration. The court noted that it can
be implied that the original motion was considered and was ruled upon by the court as it saw
proper. Allowing that considered order to be disturbed later would create confusion.
A review of the record in this case leads us to the conclusion that there was no
inadvertence or mistake in the original entry of the trial court's remittitur order or granting a
new trial.
[Headnote 3]
We adopt the California rule and hold that once a trial court has entered its conditional
order for a new trial and it is not accepted as ordered, its jurisdiction is exhausted and
thereafter it has no power to change or modify the order except for inadvertence or mistake in
the entry thereof.
We are strengthened in wisdom of this rule due to the fact that the trial courts of Nevada
do not sit in terms. Thus, conceivably a motion to reconsider an order granting a conditional
new trial could be urged almost at any time. We do not feel that is a sound rule.
[Headnote 4]
There is no doubt that the district court did have the power to dismiss the appeal of
Yackley upon motion. NRCP 73(a) reads in part: If an appeal has not been docketed, * * *
that court [the district court] may dismiss the appeal upon motion and notice by the
appellant. See 3A Barron & Holtzoff, Federal Practice and Procedure 1560. There was no
error in that order.
that order. It may well be argued that respondent dismissed his appeal upon his and the court's
misconception of the law, but we see no prejudice in view of the fact that there must be a new
trial.
[Headnote 5]
Appellants say error was committed when the trial court refused to grant an NRCP 50(a)
motion for a directed verdict after respondent's evidence and again at the close of the case as
to C. A. Hahn for failure to prove he was owner of the car or that he allowed the car to be
used by his daughter under the family car statute. See NRS 41.440. It is extremely doubtful
the complaint adequately raises such issue, however, no attack was made by appellants on the
pleadings for that reason. Proof at the trial was extremely sparse on the ownership and use of
the automobile, but at least there was some. Astonishingly, no instruction on that point was
offered by respondent or given by the court, but appellant doesn't assign that circumstance as
error for our consideration. Finally, the only mention of C. A. Hahn's liability in closing
argument was made by appellant's counsel. Notwithstanding that loose handling of the
problem, we feel the objections can all be resolved at the retrial and require no specific ruling
by us.
[Headnotes 6, 7]
On the fourth assignment of error, apparently Hahns are complaining that the trial court
somehow abused its discretion in requiring certain conditions to be met before allowing them
to proceed with discovery procedures against Yackley. We have independently searched the
record and failed to find the prejudice complained of or that the alleged error was preserved
in a proper manner for our consideration. There is wide discretion in the trial court to control
the conduct of pretrial discovery by any party to the action. However, a party who feels he is
aggrieved by the actions of another party in engaging in pretrial discovery must make his
complaint known in a timely manner to the trial court and seek either a protective order or a
ruling establishing fault upon the record to preserve the question for our consideration. We
find nothing of that sort in this record and decline further review of the assigned error.
Finally, certain other procedural questions and rulings on evidence were assigned as error
by appellants, but because we direct that the cause be retried, we need not pass upon them.
The judgment is reversed and we order a reinstatement of the new trial originally granted
by the trial court.
Thompson, C. J., concurring:
Although I agree with the result reached I would prefer to rest the decision squarely upon
our Rules of Civil Procedure. The jury returned a verdict in favor of Yackley and against the
Hahns for $50,906. Judgment was entered. The Hahns timely moved for a new trial. The
district court entered a conditional order for new trial unless Yackley would accept $20,000
within 20 days. This conditional order was permissible. Hotel Riviera, Inc. v. Short, 80 Nev.
505, 396 P.2d 855 (1964); Bonelli v. Jones, 26 Nev. 176, 65 P. 374. Yackley did not consent
to the reduction. Instead, he filed a notice of appeal. At that moment the district court lost
jurisdiction of the substance of the case. Jurisdiction over the merits was transferred to this
court. Of course, residual power remained in the district court to entertain specified
applications incidental to the appeal, such as applications pursuant to Rules 73 and 76.
However, it no longer possessed the power to reconsider the propriety of its conditional order
for a new trial. When it endeavored to do so it acted in excess of its jurisdiction. Since the
instant appeal is from an order entered by the district court upon motion to reconsider the
conditional order granting a new trial, the appeal must fail, and the matter remanded for
another trial in accordance with the conditional order therefor.
____________
84 Nev. 55, 55 (1968) State v. Billings
THE STATE OF NEVADA, Appellant, v. RUSSELL
BYRON BILLINGS, Respondent.
No. 5334
January 16, 1968 436 P.2d 212
Appeal from order of First Judicial District Court, Churchill County, granting habeas
corpus; Richard L. Waters, Jr., Judge.
The Supreme Court, Thompson, C. J., held that where defendant called police station and
said I just killed my wife, where, when police arrived and asked him what the trouble was,
he repeated what had happened in a more or less uninterrupted fashion, and where, when
defendant was taken to police station and when police attempted to advise him of his
constitutional rights, he told them he knew his rights and continued to talk, the statements
were not given in response to police interrogation, were voluntarily and openly made, and
were thus admissible although Miranda warning was not given.
Reversed and remanded for further proceedings.
Harvey Dickerson, Attorney General, of Carson City, and Dennis E. Evans, District
Attorney, Churchill County, for Appellant.
Martillaro and Bucchianeri, of Carson City, for Respondent.
1. Criminal Law.
Where defendant called police station and said I just killed my wife, where, when police arrived and
simply asked him what the trouble was, defendant related and repeated what had happened in more or less
uninterrupted fashion and where, when defendant was taken to police station and police attempted to advise
him of his constitutional rights, he told them he knew his rights and continued to talk, the statements were
not given in response to police interrogation, were voluntarily and openly made, and were thus admissible
although Miranda warning was not given.
2. Criminal Law.
Corpus delicti of crime must be established independently of any confessions or admissions of accused.
3. Homicide.
Corpus delicti of crime of murder is fact of death and criminal agency of another causing the death.
4. Homicide.
That criminal agency of another caused death, a requisite showing in proving corpus delicti of crime of
murder, was established by opinion testimony of mortician who had examined over 200 bodies that had
been inflicted with gunshot wounds and who observed gunshot wound in defendant's wife's chest, and by
fact that weapon itself was found lying on couch in another room thus suggesting improbability of suicide.
5. Homicide.
Identity of perpetrator of homicide is not an element of the corpus delicti.
OPINION
By the Court, Thompson, C. J.:
The State appeals from an order of the district court granting the petition of Russell Byron
Billings for a writ of habeas corpus. Billings was charged with the murder of his wife. After a
preliminary hearing the Justice of the Peace ordered that he be held to answer in the district
court. The petition for habeas thereafter filed challenged the sufficiency of the evidence to
hold him for trial. In honoring that challenge the district court expressed its view that the
doctrine of Miranda v. Arizona, 384 U.S. 436 (1966), rendered inadmissible most of the
significant testimony received at the preliminary hearing, and that there was not enough
other evidence produced to warrant holding the accused for trial.
there was not enough other evidence produced to warrant holding the accused for trial. At all
hearings Billings was represented by retained counsel. Since we do not agree with the district
court's interpretation of Miranda, we reverse the order granting habeas and direct that Billings
be held to answer in the district court.
Ailene Brown, radio dispatcher of the Fallon Police Department, received a telephone call
in the police department office at approximately 4 p.m. on the afternoon of September 30,
1966. Testifying to the substance of that call,
The voice asked if Pritch or any of the officers were in the office. And I said, No, not
right now, but I can get one for you.' He said, Would you send them to 655 So. Russell?' And
I said, What's the trouble?' And he said, I just killed my wife.' * * * I said, Who's calling,
please?' and he said, Russell Billings.' And I said, I'll send them right down.'
1

Rousing Fallon Police Chief Mills and Officer Love from the Fallon Nugget, she relayed
the message, and the two policemen proceeded to the South Russell address. Upon their
arrival, several things happened almost simultaneously, or at least within the space of a few
seconds: As the officers reached the top of the outside steps leading to the front door, before
they could knock or ring, Billings opened the door, Chief Mills asked What's the trouble,
Russ?, Billings pointed to a body on the kitchen floor with the statement There she is, and
to a rifle lying on a couch in the living room with the statement And that's what did it. He
continued, in explanation, that he had accused her of chippying around on him, she had
laughed at him, and so he had shot her. According to Mills' testimony,
It was all part of a general conversation. I mean, he indicated the body, he indicated the
weapon, I accused her of chippying on me, she laughed at me so I shot her.' * * * It was
justwell, almost like one single sentence.
In the course of the next twenty minutes or so, before Billings was taken to the police
station and booked, he continued in a more or less uninterrupted fashion to repeat statements
such as he had made at the door, coupled with I hope the children are ok, I hope they didn't
see it, I shouldn't have done it, she laughed at me, etc. Chief Mills testified to all statements
made from the time of the officers' arrival until Billings was removed from the premises.
____________________

1
The witness also testified that she could identify the voice on the other end of the line as that of Billings
since she had previously spoken with him face to face. Cf. King v. State, 80 Nev. 269, 392 P.2d 310 (1964),
where we held that the identity of the party on the other end of the line may satisfactorily be shown by
circumstantial evidence.
was removed from the premises. Billings was placed under arrest, and at approximately 4:30
p.m. was taken to the police station, booked, and locked in a cell.
As Billings was locked in the cell, Officer Case warned him as follows: I said, I told him
he had a right to legal counsel and the right to legal counsel immediately. He stopped me
then, he said I know what my rights are, you don't have to tell me.' So then I says, No, we've
got to tell you this.' I said, Anything you say may be held against you, and you do not have to
say anything.'
After that warning, Billings continued to talk. He said, Do not let the children in the
house to see what I have done, because they will hate me for the rest of my life. * * *
Whatever you do keep the children out of the house. I don't care what happens to me because
I'll probably burn. * * * If she hadn't laughed at me, I don't think I would have done it.
Two questions were asked of Billings at the police station: What was the address of the
deceased's parents, and would he submit to a blood test.
We have related the essence of the incriminating statements of the accused, and the
circumstances under which they were uttered. It is to be noted that the Miranda warnings
were not given at any time, although an effort to comply was made when Billings was locked
in his cell at the police station. Timely objection was made to such evidence at the
preliminary hearing. The district court upon review of the transcript of that hearing ruled that
all such evidence was precluded by the Miranda doctrine. We think that all of it is admissible
and that the officers could listen to Billings talk without observing the procedural safeguards
announced in that case.
The underlying theme of Miranda is that police interrogation is inherently compulsive
since it normally occurs in a room cut off from the outside world, is usually secret, private
and persistent, and is frequently accompanied by deception. As such, it carries a tendency to
violate the Fifth Amendment privilege against self incrimination. To effectively secure that
privilege procedural safeguards are established. Prior to any questioning, the person must be
warned that he has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney, either retained or
appointed. The defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any
stage of the process that he wishes to consult with an attorney before speaking there can be no
questioning. Likewise, if the individual is alone and indicates in any manner that he does
not wish to be interrogated, the police may not question him.
in any manner that he does not wish to be interrogated, the police may not question him. The
mere fact that he may have answered some questions or volunteered some statements on his
own does not deprive him of the right to refrain from answering any further inquiries until he
has consulted with an attorney and thereafter consents to be questioned. 384 U.S. at 444,
445.45.
The court concludes: But unless and until such warnings and waiver are demonstrated by
the prosecution at trial, no evidence obtained as a result of interrogation can be used against
him. 384 U.S. at 479.
[Headnote 1]
In the case at hand the telephone call and the statements of Billings at his home and at the
station were not given in response to police interrogation within the intendment of Miranda.
The statements were volunteered, and were voluntarily and openly made in an atmosphere
free from official compulsion or inducement of the kind invisioned by Miranda, and cannot
sensibly be said to have been obtained as a result of interrogation. During the entire time
that Billings was present with police officers in his house the single question asked was the
initial What's the trouble, Russ?, made in response to a request from Billings himself that
the officers come to his home. The statement which followed are, we think, specifically
excluded under the following Miranda language: There is no requirement that police stop a
person who enters a police station and states that he wishes to confess to a crime, or a person
who calls the police to offer a confession or any other statement he desires to make.
Volunteered statements of any kind are not barred by the Fifth Amendment and their
admissibility is not affected by our holding today. 384 U.S. at 478. See also: Davidson v.
United States, 371 F.2d 994 (10 Cir. 1966), where, although the warnings had been given, the
court based its ruling of admissibility on the fact that the statements were voluntary and
volunteered without solicitation or interrogation by the officers.
The utterances of Billings in his cell at the police station fall within the same rationale.
They were simply not the result of police interrogation [State v. Hill, 422 P.2d 675, 676 (Ore.
1967)], and were volunteered and voluntary.
[Headnotes 2, 3]
One additional issue is mentioned. The corpus delicti of the crime must be established
independently of any confessions or admissions of the accused. Ervin v. Leypoldt, 76 Nev.
297, 301, 352 P.2d 718 (1960); Sefton v. State, 72 Nev. 106, 295 P.2d 3S5 {1956); State v.
Fouquette, 67 Nev. 505
P.2d 385 (1956); State v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950). Of course, the corpus
delicti of the crime is the fact of death and the criminal agency of another causing death. The
fact of death is not disputed; the causal connection of the criminal agency is, since, according
to the accused, the mortician who examined the body at the Billings residence was not
competent to give his opinion that death resulted from a gunshot wound. An autopsy was not
performed.
[Headnotes 4, 5]
The mortician was a competent witness. He had examined over two hundred bodies that
had been inflicted with gunshot wounds. He observed the decedent's gunshot wound in the
chest. The weapon itself was found lying on the couch in another room thus suggesting the
improbability of suicide. This showing was sufficient. Morton v. State, 82 Nev. 223, 414 P.2d
952 (1966). The identity of the perpetrator of the homicide is not an element of the corpus
delicti. Ervin v. Leypoldt, supra.
Reversed and remanded for further proceedings.
Collins, Zenoff, Batjer, and Mowbray, JJ., concur.
____________
84 Nev. 60, 60 (1968) Peterson v. City of Reno
KEITH H. PETERSON, Appellant, v. CITY OF RENO,
et al., Respondents.
No. 5328
CITY OF RENO, Appellant, v. PIO A. MASTROIANNI,
et al., and FRED A. NORMAN, et al., Respondents.
Nos. 5329 and 5330
January 18, 1968 436 P.2d 417
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Consolidated appeals from multiple judgment entered by the lower court in a quiet title
action brought by the city with respect to portions of right-of-way property abandoned by
railroad. The Supreme Court, Thompson, C. J., held, inter alia, that determinable fee interest
of city in dedicated avenue, which abutted railroad right-of-way on east, qualified city as an
abutting owner of the right-of-way, and upon abandonment of the right-of-way, city acquired
determinable fee interest in the east half of the right-of-way.
No. 5328 affirmed. No. 5329 and No. 5330 reversed.
Thornton, Guinan and Griswold, and Bible, McDonald, Carano and Wilson, all of Reno,
for Keith H. Peterson.
Clinton E. Wooster, Reno City Attorney, and Roy Lee Torvinen, of Reno, for City of Reno.
Streeter, Sala & McAuliffe, of Reno, for Mastroianni, Hudgens and Grignon.
Leslie B. Gray and Wayne Capurro, of Reno, for Liddell.
Frank R. Petersen, of Reno, for Solari.
Peter I. Breen, of Carson City, for Norman.
When litigation concerns title to or possession of real property and the issues to be resolved rest upon the
same factual foundation, reversal of a district court judgment at instance of some who lost in trial court
inures to benefit of others who lost, whether by default or otherwise, and did not appeal.
2. Railroads.
Notwithstanding fact that granting clause in deed could be read as conveying fee title to railroad,
railroad's acquisition of a fee interest was precluded by statute which provided for reversion of title to
grantor or his successors upon, among other events, cessation of railroad operations and removal of its
tracks.
3. Dedication.
Dedication of street to city under statute is sufficient, to vest the fee for the public uses therein named or
intended, and the fee so vested is a determinable fee simple which may continue forever, but is liable to be
determined by some future event, such as abandonment or vacation, in which case title shall revert to
abutting property owners. NRS 116.060, 278.480, subd. 5.
4. Railroads.
Determinable fee interest of city in dedicated avenue, which abutted railroad right-of-way on east,
qualified city as an abutting owner of the right-of-way, and upon abandonment of the right-of-way, city
acquired determinable fee interest in the east half of the right-of-way.
OPINION
These are consolidated appeals from multiple judgments entered by the district court in a
quiet title action brought by the City of Reno, and concern portions of the abandoned Virginia
and Truckee Railway right of way in Reno, Nevada. The appellant Keith H. Peterson appeals
(No. 5328) from judgments against him and quieting title to certain portions of the
abandoned right of way in the City of Reno, Myrtle Grignon, Pio and Virginia Mastroianni,
Robert and June Hudgens, Fred Norman, Parker Liddell, and Camill and Julia Solari.
abandoned right of way in the City of Reno, Myrtle Grignon, Pio and Virginia Mastroianni,
Robert and June Hudgens, Fred Norman, Parker Liddell, and Camill and Julia Solari. The
appellant City of Reno appeals (Nos. 5329, 5330) from judgments against it quieting title to
certain portions of the abandoned right of way in the Mastroiannis, the Hudgenses, and Fred
Norman. We affirm the judgments against Peterson (No. 5328), and reverse the judgments
against the City of Reno (Nos. 5329, 5330).
1. The Peterson Appeal: In 1872, the Virginia and Truckee Railway acquired by deed
from four grantors (Haydon, Hatch, Lake, and Deremer) an interest in a strip of land which it
used as a railroad right of way. The language of each grant deed described the interest
conveyed as all that certain right of way over and through the land * * * described * * * and
all that certain piece of land hereinafter described for the purpose of said right of way.
The Deremer deed, however, left a gap in the strip of land supposedly conveyed, which the
V.&T. nevertheless was using as part of the right of way. In 1919, Mahalia Johnson as
Deremer's successor in interest, in order to fill the gap, deeded the omitted portion to the
V.&T. in the following terms: * * * does * * * grant, bargain, sell, convey, remise, release
and forever quitclaim, unto the said party of the second part, and to its successors and assigns,
all the right, title, interest, estate, claim and demand, both at law and in equity, as well as in
possession as in expectancy, * * * of, in and to that certain lot, piece, or parcel of land * * *.
In 1950, the V.&T. ceased railroad operations and removed its tracks. Three years later it
conveyed all of its rights and interest in the land formerly used as a right of way to the State
of Nevada, which began suit to quiet title to the right of way as against the successors in
interest of the original grantors. In that case the district court ruled for the State against all of
the defendants, only some of whom appealed the decision to the Nevada Supreme Court.
Such appeal was successful, this court holding that the language of the original granting deeds
to V.&T. did not convey a fee simple interest in the land, but merely an easement for the
exclusive use and control of the land so long as the right of way exists. City Motel, Inc. v.
State, 75 Nev. 137, 143, 336 P.2d 375 (1959). Accordingly, by reason of nonuse and removal
of the tracks, * * * an easement for railroad purposes is abandoned * * * and the owner of
the dominant fee thereafter holds such fee, and also the fee of the servient estate to the
center thereof free of the burden of the easement." Id. at 144.
the fee of the servient estate to the center thereof free of the burden of the easement. Id. at
144.
The judgment of the district court was reversed with directions to enter judgment in favor
of the appellants (with exceptions not pertinent to the case at bar). Id. at 148. Except for the
City of Reno, all respondents to this appeal (No. 5328), or their predecessors in interest, were
named defendants in the City Motel case against whom trial court default judgments were
entered for failure to appear, and none was a party to the appeal in that case.
In 1961, after the City Motel case had been decided against the State, the State reconveyed
its rights in the old right of way to V.&T., and the V.&T. trustees, in 1964, conveyed their
rights and interest in the same property to Keith H. Peterson, the appellant herein.
Peterson does not dispute the fact that the appellants in the City Motel case, or their
successors in interest, own portions of the west half of the old V.&T. right of way abutting
their property. Indeed, such was the effect of the holding of City Motel. However, Peterson
does claim the remaining western half of the right of way under the 1964 deed to him from
the V.&T. trustees on the theory that none of the defendants in the City Motel case (except
those who appealed from the district court judgment) may have the benefit of the Supreme
Court reversal of that judgment, and that such defendants are still bound by the district court
default judgments entered against them.
Peterson, as successor to the interest of the V.&T., also claims the property embraced by
the 1919 Mahalia Johnson deed. The City of Reno and the Mastroiannis dispute this claim.
By reason of the recited occurrences two legal issues are presented by the Peterson appeal.
First, the effect of the reversal of the district court judgment in City Motel on the rights of the
defaulted, non-appealing defendants; and, second, the legal effect of the deed from Mahalia
Johnson to the Virginia and Truckee Railway Co. We turn to discuss these questions.
[Headnote 1]
(a) When the litigation concerns title to or possession of real property and the issues to be
resolved rest upon the same factual foundation, it is Nevada law that a reversal of a district
court judgment at the instance of some who lost in the trial court inures to the benefit of
others who lost (whether by default or otherwise), and did not appeal. Bullion Mining Co. v.
Croesus Gold & Silver Mining Co., 3 Nev. 336 (1867); In re Forsyth's Estate, 45 Nev. 3S5
re Forsyth's Estate, 45 Nev. 385, 204 P. 887 (1922); dictum in Lanigir v. Arden, 82 Nev. 28,
37, 409 P.2d 891 (1966).
1

The overriding issues decided by this court in City Motel, Inc. v. State, supra, were
whether V.&T. acquired a fee or an easement by virtue of the Haydon, Hatch, Lake, and
Deremer deeds, and, if the latter, what happened to the strip of land upon abandonment.
These are questions of law, the resolution of which is unaffected by whether some of the
named defendants chose to participate in the litigation, and others did not. Accordingly, we
hold that the respondents to this appeal, or their predecessors in interest, who were defendants
in the City Motel case against whom trial court default judgments were entered, are entitled to
the benefit of the Supreme Court reversal of that case.
(b) Appellant Peterson next asserts that the 1919 Mahalia Johnson deed conveyed title to
the strip of property therein described to the V.&T. in fee simple absolute and that, as
successor to the interest of the V.&T. therein, his claim of fee title to that property is valid
and must be honored.
[Headnote 2]
Although the granting clause of the Johnson deed may be read to convey fee title, a
controlling Nevada statute then in effect precluded a grantee railroad company from acquiring
such an interest. That statute [NCL 6257]
2
provided for reversion of title to the grantor or
his successors upon {among other events) the cessation of railroad operations and the
removal of its tracks. In 1950, the V.&T. ceased its railroad operations and removed all of
its tracks.
The statute effectively limited the railroad's interest to that of an easement [Midwestern
Developments, Inc. v.
____________________

1
The 1921 California decision of Lake v. Superior Court, 200 P. 1041, seems to be contra to the dictum of
Lanigir v. Arden, supra. We do not agree with Lake, and note that its significance as precedent in California is
doubtful in view of a later decision. Osborn v. Osborn, 267 P.2d 333, 338 (Cal. 1954).

2
NCL 6257 read: Any railroad company, organized under the provisions of this act, or any railroad
company organized under any law of this state, which shall accept the provisions of this act, as herein provided,
is authorized to enter upon any land for the purpose of surveying the line of its proposed railroad, the company
being responsible for any damage occasioned by such; and such company is also authorized to acquire, purchase,
and hold any real estate, or any right, title, or interest therein, which may be necessary or proper for the purpose
of the construction or maintenance of the track or tracks, water stations, depots, machine or workshops,
turntables, or any other building or structure necessary for such railroad; but such company shall not hold such
real estate, or any right, title or interest therein, required or used solely or mainly for the construction or
maintenance of the track or tracks of said railroad, beyond the time of the legal existence of said company, nor
after the location of said track or tracks has been changed therefrom, nor after said company shall have failed, or
ceased, to the use of the same for the maintenance of such track for the space of five years continuously; but in
each of such cases, the said real estate, and all the right, title, and interest therein, shall revert to the person or
persons, and his or their assigns, from whom the same was acquired by said company.
sion of title to the grantor or his successors upon (among other events) the cessation of
railroad operations and the removal of its tracks. In 1950, the V.&T. ceased its railroad
operations and removed all of its tracks.
The statute effectively limited the railroad's interest to that of an easement [Midwestern
Developments, Inc. v. City of Tulsa, 259 F.Supp. 554 (1966); Gutensohn v. McGuirt, 147
P.2d 777 (Okla. 1944); State v. Union Electric Co., 148 S.W.2d 503 (Mo. 1941)] and, since
all conveyances through which Peterson now claims title to the strip of land deeded by
Johnson [the 1953 conveyance by V.&T. to the State; the 1961 conveyance by the State to
V.&T.; and the 1964 conveyance by V.&T. to Peterson] came after a statutory reversion of
title had taken place, none is effective. The V.&T. had no interest to transfer.
3

For reasons expressed we affirm the judgment of the district court against Peterson (No.
5328).
2. The City of Reno appeal: This matter concerns separate judgments entered below in
favor of the respondents Pio and Virginia Mastroianni, Robert and June Hudgens, and Fred
Norman, quieting title to certain portions of the east half of the abandoned V.&T. right of way
against the claim of the City of Reno thereto.
Each respondent is the owner of portions of the west half of the right of way by reason of
this court's decision in City Motel, Inc. v. State, and each seeks to sustain trial court
judgments enlarging his ownership to include the east half of the right of way abutting the
west half acquired by virtue of the City Motel ruling. On the other hand, the City of Reno's
claim rests upon its ownership of Holcomb Avenue, a dedicated street which abuts the
abandoned right of way to the east.
The original grants to the V.&T. (the 1872 Haydon, Hatch, Lake, and Deremer deeds) as
construed by the City Motel case, mean that the original grantors, or their successors,
continued to own the underlying fee to the center of the V.&T. right of way. Subsequent to
these grants, and prior to the 1950 right of way abandonment, the east side successors in
interest to the original grantors filed plats under the 1905 statute (now NRS 116.060)
providing: Such maps and plats when made, acknowledged, filed and recorded with the
county recorder shall be a dedication of all such avenues, streets, lanes, alleys, commons or
other public places or blocks, and sufficient to vest the fee of such parcels of land as are
therein expressed, named, or intended, for public uses for the inhabitants of the town or
for the public for the uses therein named or intended."
____________________

3
In City Motel, Inc. v. State, supra, it was not necessary to determine the effect of NCL 6257 (see footnote 1
of that opinion).
named, or intended, for public uses for the inhabitants of the town or for the public for the
uses therein named or intended.
The plats so filed and recorded dedicated Holcomb Avenue to the City of Reno. It is the
City's contention that the statutory dedications of Holcomb Avenue were grants in fee from
grantors who owned the underlying fee to the center of the previously granted V.&T. right of
way. Hence, the issue: What is the effect of a street dedication pursuant to NRS 116.060
abutting, at the time of dedication, a railway right of way which is later abandoned?
[Headnote 3]
A street dedication under NRS 116.060 is sufficient to vest the fee for the public uses
therein named or intended. Charleston Plaza, Inc. v. Board of Education, 79 Nev. 476, 387
P.2d 99 (1963); Kowalchuk v. Hall, 80 Nev. 3, 388 P.2d 201 (1964). The fee so vested is a
determinable fee simple which may continue forever, but is liable to be determined by some
future event, such as abandonment or vacation, in which case title shall revert to abutting
property owners. NRS 278.480(5); Sowadzki v. Salt Lake County, 104 P. 111 (Utah 1909);
White v. Salt Lake City, 239 P.2d 210 (Utah 1952); Mochel v. Cleveland, 5 P.2d 549 (Idaho
1930). Thus, the title of the City of Reno to Holcomb Avenue is a determinable fee title.
We have not found case authority on point to guide our determination of the issue
presented by this appeal. Persuasive arguments are offered by the adversaries. For example,
the individual respondents each insist that since the interest of the City of Reno in Holcomb
Avenue is merely a determinable fee interest, the statutory dedication by which it acquired
that interest should not be deemed to confer upon the City the rights of an abutting owner.
They point out that their interests which abut the east half of the abandoned right of way to
the west and which they acquired by reason of the City Motel decision, are fee simple
absolute interests and carry the full rights of abutting owners. The City of Reno counters by
directing our attention to the fact that at the very same instant the respondents acquired title to
the west half of the abandoned V.&T. right of way, someone to the east of the abandoned
right of way acquired title to the east half thereof. That someone must be either the City of
Reno by reason of its determinable fee ownership of Holcomb Avenue which abuts the
abandoned right of way to the east, or the owners of the property abutting Holcomb Avenue
to the east by virtue of their reversionary interests in the underlying fee of Holcomb
Avenue.4 In no event, argues the City, may the respondents lay claim to the east half of
the right of way, since to honor such a claim would jump title into the hands of strangers.
interests in the underlying fee of Holcomb Avenue.
4
In no event, argues the City, may the
respondents lay claim to the east half of the right of way, since to honor such a claim would
jump title into the hands of strangers.
As we see it, the position of the City of Reno is sound. There exists no legal basis for the
respondents' claim to the east half of the abandoned right of way since the abutting owners
to the east acquired title to that half at the same instant the abutting owners to the west
(respondents or predecessors) acquired title to the west half. Thus, one would expect the
contest over title to the east half of the right of way to be between the City of Reno, on the
one hand, and property owners abutting Holcomb Avenue to the east, on the other. As
mentioned in footnote 4, those property owners have not asserted a claim. However, as
between the City of Reno and the respondents, the City is clearly entitled to victory.
Although property owners abutting Holcomb Avenue to the east have not asserted a claim,
it is best that we indicate our view with respect to their interests and the interest of the City of
Reno to those portions of the east half of the abandoned right of way which we now have
before us, so that titles may be stabilized.
[Headnote 4]
In our opinion the determinable fee interest of the City of Reno in Holcomb Avenue
qualifies the City as an abutting owner of the east half of the abandoned V.&T. right of way.
However, the character of its title as such abutting owner is the same as its title to Holcomb
Avenue, i.e., a determinable fee interest. Should the public use in the two strips together
(Holcomb Avenue and the east half of the right of way) be some day abandoned or vacated,
title to that land will revert to the owners then abutting to the east. It seems to us that this
resolution is sensible, practical, and does no violence to established principles of property
law. The east half of the right of way is not left as a noncontiguous fee in non-adjoining land
owners; the presumed intention of the original dedicators of Holcomb Avenue would be
honored (i.e., that had not an easement already been granted to the railroad company, they
should not be presumed to have desired a retention of a strip of land on the other side of their
public dedications); isolated strips of land in divergent, often inconvenient and sometimes
vexatious ownership is avoided; and, in the event the determinable fee interest of the City
to the contiguous strips of land is later determined, title will revert to owners then
abutting to the east.
____________________

4
The owners of property abutting Holcomb Avenue to the east have not asserted a claim to the east half of
the abandoned right of way.
vexatious ownership is avoided; and, in the event the determinable fee interest of the City to
the contiguous strips of land is later determined, title will revert to owners then abutting to
the east.
In an effort to sustain the trial court's judgments quieting title in them, some of the
respondents have urged additional theories. We have carefully considered them and find that
none has merit, nor would it be useful to discuss them.
For the reasons expressed we reverse the judgments against the City of Reno, and direct
that judgment be entered in the City's favor.
____________
84 Nev. 68, 68 (1968) Hinton v. State
JAMES HINTON, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5151
January 19, 1968 436 P.2d 223
Appeal from conviction for armed robbery. Fourth Judicial District Court, Elko County;
Taylor H. Wines, Judge.
The Supreme Court, Zenoff, J., held that officer who was told by four young men in dark
hours of early morning of circumstances of their being robbed at gunpoint, was given clear
description of the assailants, and immediately thereafter accosted the defendant, who
answered one of the descriptions, had reasonable cause for arrest of defendant and
accomplice without warrant and that forewarning from complaining witnesses that defendant
and accomplice were armed justified officer's immediate search of their persons and seizure
of gun and knife found thereon.
Affirmed.
Charles L. Kellar, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, Mark C. Scott, Jr., District Attorney, and Phillip M.
Marfisi, Deputy District Attorney, Elko County, for Respondent.
1. Arrest.
Reasonable cause, justifying an officer in making a felony arrest without a warrant, exists if the facts and
circumstances known to the officer warrant a prudent man in believing that a felony had been committed by
the person arrested. NRS 171.235.
2. Arrest.
Officer who was told by four young men in dark hours of early morning of circumstances of their being
robbed at gunpoint, was given a clear description of the assailants, and immediately thereafter accosted the
defendant who answered one of the descriptions had reasonable cause for arrest of defendant without
warrant.
3. Arrest; Criminal Law.
Where from scene of defendant's lawful arrest, incident to which he and his accomplice were searched,
the defendant, the accomplice, the arresting officer, and the complaining witnesses went to nearby jail,
search without warrant of bags which defendant and accomplice were carrying was legal, and evidence
discovered in bags was admissible at defendant's trial for armed robbery.
4. Criminal Law.
Defendant from whom no statements or admissions were obtained could not complain on appeal from his
conviction of armed robbery that he had not been advised of his constitutional rights.
5. Arrest.
The purpose of giving a receipt to arrested person for articles seized from him is to inventory items taken
and to establish a chain of custody thereafter, so that when the items are proposed into evidence
identification will present no problem.
6. Arrest.
Failure of arresting officer to give defendant receipt for articles received incident to defendant's arrest
created no issue in prosecution of defendant for armed robbery where identification and possession were
conceded and the only dispute related to question of how possession of items was acquired by defendant
and accomplice.
7. Criminal Law.
Where transcript of all proceedings in prosecution of defendant for armed robbery disclosed no racial
sentiment that would have influenced the fundamental fairness of trial and conviction, reviewing court
could not disturb conviction on ground of prejudice materially and seriously concerning treatment of
defendant.
8. Arrest.
A principal reason for a search incident to an arrest is for the protection of arresting officers.
9. Arrest.
Forewarning from complaining witnesses that defendant and accomplice were armed justified officer,
who lawfully without warrant arrested them for armed robbery, in immediately searching them and seizing
gun and knife found on their persons.
10. Criminal Law.
Defendant whose trial lawyer passed each juror for cause, after each juror was examined for possible
racial bias, could not on appeal raise issue of purposeful discrimination in formation of jury.
11. Criminal Law.
Officer's testimony in defendant's trial for armed robbery that bags carried by defendant and accomplice
at time of their arrest contained pictures of nude white women was irrelevant but not error, in light of
fact that pictures were not introduced in evidence and only reference to testimony
was by defendant's counsel in final argument to jury.
not error, in light of fact that pictures were not introduced in evidence and only reference to testimony was
by defendant's counsel in final argument to jury.
OPINION
Defendant appeals from a conviction for armed robbery.
The complainants were four young men from New Zealand, Canada and Australia, who
undertook a work-travel tour of the United States. They entered this country from Canada and
proceeded down the west coast. In Roseville, California, they were forced to abandon their
old automobile and caught an east-bound freight train. Traveling in the same empty freight
car were appellant James Hinton and his companion, John Jones.
Somewhere between Sparks, Nevada, and Carlin, Nevada, the complainants alleged that
they were awakened by Hinton and Jones, who held a flashlight by the light of which the two
could be seen brandishing a knife and a .38 revolver. Hinton held the flashlight and the gun,
while Jones robbed the young men of watches, money (including traveler's checks) and
passports. They were then forced to lie prone for about five hours at gunpoint in the freight
car until, at Carlin, the train stopped and the two men left the car closing the door behind
them. Hinton, age 42, a three-time felon, and admittedly a past master at freight car traveling,
knew that the door could not be opened from the inside, and that by closing the door anyone
inside the freight car would be effectively locked in. Within a matter of minutes, however, the
banging and yelling of the four victims attracted the attention of a railroad employee who
opened the door and freed them.
A call to the Carlin police brought officer Pacini to the railroad yard. He was told of the
robbery. Given a description of Hinton and Jones, he remembered having seen two men
matching the description near the yard. With the young men in his car they drove to the
nearby highway where the two men were located and arrested. They were placed under
immediate arrest, compelled to lie against an embankment and were searched. The gun, knife
and passports were found on their persons.
Soon thereafter they were taken to the jail. There, canvas bags which Hinton and Jones
were carrying, were searched. Watches, other passports, traveler's checks, dice and money
were found.
Hinton's version (Jones was severed from this trial) differs. He contended that during the
train ride he won all of the possessions in a crap game in the freight car. He said he had taken
the passports to insure that the boys would sign over their traveler's checks to him. He and
Jones, he claimed, left the freight car because they were afraid that the boys would gang up on
them to get their money back. He explained the possession of the gun as, it was better to run
the risk of having the police catch him with it, than having his associates catch him without
it.
The jury accepting the story of the wayfarers, found Hinton guilty; the court sentenced him
for from five to ten years for armed robbery.
As one assignment of error Hinton contends that there were no grounds for the arrest and,
therefore, the search and seizure was improper and the evidence (the gun, knife and other
items) improperly admitted. He contends, also, that he received no receipts for the articles
taken at the time of the seizure; that he was not warned of his constitutional rights, that it was
improper of the arresting officer to give the articles taken from him over the complaining
witnesses, and that the searching of his bags in the police station without a search warrant
was not legally permissible.
[Headnotes 1, 2]
1. An officer may make a felony arrest if he has reasonable cause to believe that the
person arrested has committed a felony. NRS 171.235.
1
Reasonable cause exists if the facts
and circumstances known to the officer warrant a prudent man in believing that a felony had
been committed by the person arrested. Nootenboom v. State, 82 Nev. 329, 418 P.2d 490
(1966). The arresting officer was told by four young men in the dark hours of early morning
of the circumstances of being robbed at gunpoint, was given a clear description of the
assailants, and immediately thereafter accosted the persons answering the descriptions. The
sufficient cause to arrest was ample.
____________________

1
NRS 171.235. Arrests by peace officers.
1. A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a
warrant, arrest a person:
(a) For a public offense committed or attempted in his presence.
(b) When a person arrested has committed a felony, although not in his presence.
(c) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested
to have committed it.
(d) On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.
[Headnote 3]
2. From the scene of the arrest on the highway everyone present, the arresting officer, the
complaining witnesses and Hinton and Jones, went to the nearby jail in Carlin where the bags
were emptied and the watches, money and other items discovered. As a continuation of the
search already started on the highway no search warrant was necessary. Arabia v. State, 82
Nev. 453, 421 P.2d 952 (1966); Nootenboom v. State, supra; see also Heffley v. State, 83
Nev. 100, 423 P.2d 666 (1967), where evidence discovered in an automobile during a proper
inventory practice was admissible.
[Headnote 4]
3. Appellant contends he was not advised of his constitutional rights. However, since no
statements or admissions were obtained from the defendant nor used against him at trial, there
is no merit to this assignment of error.
[Headnotes 5, 6]
4. The failure of the arresting officer to give defendant a receipt for the articles that were
sequestered creates no issue. The purpose of a receipt is to inventory items taken and to
establish a chain of custody thereafter. Thus, when the items are proposed into evidence,
identification presents no problem. But here the identification and possession were always
conceded. The only dispute related to the question of how possession of these items was
acquired by Hinton and Jones.
[Headnote 7]
5. This appeal was first argued before this court in June 1967. Hinton's counsel, who was
not his attorney at the trial, was retained for the appeal by the National Association for the
Advancement of Colored People, the NAACP. Counsel indicated that there were undertones
of racial prejudice that materially and seriously concerned the treatment of the defendant, a
Negro, from the very moment of his arrest. We were handicapped by the absence of a
complete record and ordered a transcript of all of the proceedings which we now have. In our
examination, nowhere do we find anti-Negro sentiment that would have influenced the
fundamental fairness of the trial and verdict.
[Headnotes 8, 9]
The arresting officer, once informed by the complaining witnesses of the details that have
already been outlined, was fully justified in taking the precaution of immediately searching
the appellant and his companion upon their arrest. A principal reason for a search incident
to an arrest is for the protection of arresting officers.
reason for a search incident to an arrest is for the protection of arresting officers. Justification
in this instance is the fact that the police were forewarned that Hinton and Jones were armed,
and indeed, the gun and knife were found on their persons.
[Headnote 10]
After Hinton had once waived a preliminary examination his later court-appointed counsel
moved for remand which was granted. At the trial every juror was examined for possible
racial bias but none was found. Hinton's trial lawyer passed each juror for cause.
Apparently there were no Negroes on the jury panel, nor is it likely that there would be
Negroes on the panel available in every case because Elko has an extremely sparse population
of members of that race. Nevertheless, there was no challenge to the panel nor are we now
given any supporting data that lends credence to the accusation that Negroes in Elko County
in a studied manner are kept off the juries. The burden is on the appellant to prove the
existence of purposeful discrimination. Whitus v. Georgia, 385 U.S. 545 (1967).
[Headnote 11]
During the trial one of the officers testified concerning the search of the bags and stated
that he found various items, among them being some pictures of nude, white women. No
pictures were offered into evidence and the only reference to that statement was made by
Hinton's counsel in his final argument to the jury. Undoubtedly, the statement was irrelevant
but cannot be deemed error, nor in the light of the overwhelming facts was it inflammatory, if
that was its intent.
Affirmed.
____________
84 Nev. 74, 74 (1968) Dean v. Hocker
ROBERT FRANCIS DEAN, Petitioner, v. CARL
HOCKER, Warden, Respondent.
No. 4855
January 22, 1968 436 P.2d 427
Reconsideration of original petition for writ of habeas corpus on remand from the United
States District Court for the District of Nevada.
The Supreme Court, Zenoff, J., held that error in admitting into evidence illegally seized
jacket and gun of defendant was harmless, in view of overwhelming evidence of defendant's
guilt, including eyewitness testimony of two witnesses and defendant's own admission that
he didn't know why he had done it because he knew he would get caught.
Petition denied.
Mack Fry, of Reno, for Petitioner.
Harvey Dickerson, Attorney General, and C. B. Tapscott, Chief Assistant Attorney
General, for Respondent.
Criminal Law.
Error in admitting into evidence illegally seized jacket and gun of defendant was harmless, in view of
overwhelming evidence of defendant's guilt, including eyewitness testimony of two witnesses and
defendant's own admission that he didn't know why he had done it because he knew he would get caught.
OPINION
Robert Francis Dean was convicted of robbery and sentenced to not less than 5 years nor
more than 15 years in the Nevada State Penitentiary. He thereafter petitioned this court for a
writ of habeas corpus on the ground that illegally seized evidence was used to convict him.
We ruled in Dean v. Fogliani, 81 Nev. 541, 407 P.2d 580 (1965), that although the evidence
was illegally seized and should not have been admitted into evidence that the error thereby
created was harmless, relying upon Fahy v. Connecticut, 375 U.S. 85 (1963). Dean then
sought habeas corpus from the United States District Court for the District of Nevada again
contending that his constitutional right against illegal search and seizure had been violated
and that he should be released upon that ground.
84 Nev. 74, 75 (1968) Dean v. Hocker
that ground. By this time, however, the U.S. Supreme Court decided Chapman v. California,
386 U.S. 18 (1967), establishing that a federal constitutional error can be harmless if the court
is able to declare a belief that it was harmless beyond a reasonable doubt.
The United States District Court for the District of Nevada ordered the entire file
transferred to this court for reconsideration of the trial record in the light of Chapman, supra.
Our court accepted the file for that purpose.
The record has again been reviewed, including the transcript of the final arguments before
the jury, and we reaffirm our first determination.
In the arguments before the jury references were made to the jacket and gun, but in the
entire setting of the case the jacket and gun were of no real significance. The bartender,
having faced his assailant at gunpoint, positively identified Dean as the holdup man. The
jacket was so short that it did not obscure the face of the robber. The confrontation was not
merely momentary. Goff, the bartender, was taken from one room to another in the saloon,
had several opportunities to gaze, as we said in the opinion, eyeball to eyeball, at the
gunman. His identification of Dean was enough to establish the necessary proof of guilt
beyond a reasonable doubt. Added to this, was the testimony of Goff's wife who was present
in the saloon during the holdup. She identified Dean. Dean had also admitted that, he didn't
know why he had done it because he knew he would get caught.
The gun could have been any gun, the jacket could have been any jacket. Their use in
evidence did not change the result of the trial. Chapman does not purport to significantly
change the harmless error standard of Fahy. Whatever the test of either case the error here
was harmless.
Petition denied.
____________
84 Nev. 76, 76 (1968) Foy v. State
LESTER FOY, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5189
January 22, 1968 436 P.2d 811
Appeal from conviction of possession of narcotics and from denial of new trial. Eighth
Judicial District Court, Clark County; Clarence Sundean, Judge.
The Supreme Court held that police officer who had extensive experience with narcotics
violations and narcotics users, knew defendant to be user, and knew that it was common
practice of users to conceal the drug inside toy balloons which could be safely swallowed to
destroy the evidence and who observed defendant holding handkerchief in his hand and
coughing and then saw a balloon pop out of defendant's mouth into handkerchief, whereupon
defendant began to run toward his residence, had reasonable cause and probable cause for
arresting defendant without warrant.
Affirmed.
Raymond E. Sutton, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, George E. Franklin, Jr., District
Attorney, Alan R. Johns and Addeliar D. Guy, Deputy District Attorneys, Clark County, for
Respondent.
1. Arrest.
A peace officer may make arrest without warrant when felony has in fact been committed and he has
reasonable cause for believing arrested person committed it. NRS 171.235.
2. Arrest.
Reasonable cause for believing that arrested person has committed felony may result from suspicious
conduct of the arrested person in presence of an officer. NRS 171.235.
3. Arrest.
Police officer who had extensive experience with narcotics violations and narcotics users, knew
defendant to be a user, and knew that it was common practice of users to conceal the drug inside toy
balloons which could be safely swallowed to destroy the evidence and who observed defendant holding
handkerchief in his hand and coughing and then saw a balloon pop out of defendant's mouth into
handkerchief, whereupon defendant began to run toward his residence, had reasonable cause and
probable cause for arresting defendant without warrant. NRS 171.235.
4. Poisons.
Evidence supported finding that defendant who threw yellow balloon during scuffle occurring after police
officer tackled him had had possession of heroin capsules, found after the scuffle, in a yellow balloon
which was discovered in area of adjacent yard where the balloon thrown by
defendant could logically have landed.
84 Nev. 76, 77 (1968) Foy v. State
yellow balloon which was discovered in area of adjacent yard where the balloon thrown by defendant could
logically have landed.
OPINION
Per Curiam:
Lester Foy was convicted in the Eighth Judicial District Court of possession of narcotics,
and a motion for new trial denied. On appeal, two issues are presented: Was the arrest made
without probable cause, thereby rendering the narcotic found as a result of the arrest
inadmissible in evidence; and, did the facts warrant imputing ownership of this narcotic to the
appellant?
About noon on August 10, 1965, appellant was driving his automobile south on D Street
in Las Vegas, when he was observed by Detective Bolden of the Las Vegas Police
Department. Bolden turned his own car around and proceeded to follow, whereupon he
noticed appellant's head bobbing back and forth, and that appellant speeded up after
becoming aware of the officer's vehicle.
Appellant stopped his car in front of his residence, the officer pulled up a few feet in back
of him, and the two men got out of the cars at approximately the same time. As appellant got
out he was holding a white handkerchief in his hand and was coughing, at which point
Bolden observed a yellow balloon pop out of his mouth and into the handkerchief. Appellant
then began to run towards his residence, Bolden shouted to him to halt, that he was under
arrest and, when he did not respond, applied restraint in the form of a tackle to the body.
During the scuffle that ensued, appellant was observed to fling away the balloon that he held
in his hand.
After appellant had been subdued and taken to the station, two other officers (summoned
to the scene by a radio call for assistance) were delivered of a toy yellow balloon that had just
been discovered in the yard adjoining appellant's residence. This balloon was later analyzed
by a police chemist and found to contain capsules of heroin.
[Headnotes 1, 2]
1. Probable cause for arrest. Under NRS 171.235, a peace officer may make an arrest
without a warrant when a felony has in fact been committed, and he has reasonable cause for
believing the person arrested to have committed it. Reasonable cause may result from
suspicious conduct of the defendant in the presence of an officer. Schnepp v. State, 82 Nev.
257, 415 P.2d 619 (1966).
84 Nev. 76, 78 (1968) Foy v. State
[Headnote 3]
In this case, Officer Bolden had had extensive experience with narcotics violations and
narcotics users; he knew appellant to be a user; he knew that it was common practice among
users to conceal the drug inside toy balloons which, with the opening sealed, could be safely
swallowed to destroy the evidence. In light of this knowledge, appellant's conduct in the
presence of the officer was certainly suspicious: he was choking, a balloon fell out of his
mouth, and he began to run. These circumstances would warrant belief that a felony had been
committed by appellant. Probable cause for arrest without a warrant therefore existed.
Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966); Lofton v. Warden, 83 Nev. 356,
431 P.2d 981 (1967).
Appellant's contention that both the arrest and search were illegal because Bolden had no
reasonable cause for arrest prior to the time he saw the balloon and appellant started to run, is
without merit. What occurred after the officer pulled up in back of appellant's car constitutes
reasonable cause for arrest in the absence of a warrant [United States v. Williams, 314 F.2d
795 (6 Cir. 1963)], and the narcotic found subsequent thereto and in close proximity to the
place of arrest was properly admitted into evidence. Wyatt v. State, 77 Nev. 490, 367 P.2d
104 (1961); Whitley v. State, 79 Nev. 406, 386 P.2d 93 (1963); Dotson v. State, 80 Nev. 42,
389 P.2d 77 (1964).
[Headnote 4]
2. Imputation of ownership. This issue is resolved against appellant under the holding in
Stamps v. State, 83 Nev. 230, 428 P.2d 187 (1967), where the court stated: Evidence of the
throwing of a yellow object, coupled with the finding of a yellow balloon containing heroin in
the area where the thrown object would have landed, will support the inference by the jury
that defendant had possession of the object thrown. Officer Bolden not only saw a yellow
object, he saw a yellow balloon being thrown, which was recovered from an area in which it
could logically have landed. This was sufficient evidence to support the conclusion that
appellant had possession of the illegal narcotic.
Counsel for appellant was court appointed. Accordingly, we direct the district court to give
him the certificate specified in NRS 7.260(3) to enable him to receive compensation as
provided in NRS 7.260(4).
Affirmed.
____________
84 Nev. 79, 79 (1968) Garff v. J.R. Bradley Co.
MARK B. GARFF, RYBERG & GARFF CONSTRUCTION COMPANY, Also Known as
GARFF, RYBERG & GARFF, a Partnership, and U.S. ENTERPRISES OF RENO, INC., a
Nevada Corporation, Doing Business as GARFF AND ENTERPRISES, and FEDERAL
INSURANCE COMPANY, a New Jersey Corporation, Appellants, v. J. R. BRADLEY
COMPANY, a Nevada Corporation, and RAY HEATING PRODUCTS, INC., a Nevada
Corporation, Doing Business as RAY HEATING & SHEET METAL COMPANY,
Respondents.
No. 5335
January 23, 1968 436 P.2d 428
Appeal from summary judgments of the Second Judicial District Court, Washoe County;
Thomas O. Craven, Judge.
Action by suppliers of labor and material to subcontractor against general contractors and
their surety on payment bond given by them to city pursuant to and conforming with statute
requiring such bond for protection of subcontractors' suppliers. The lower court entered
summary judgment for suppliers, and general contractors and surety appealed. The Supreme
Court, Thompson, C. J., held that suppliers who had given only 90-day notice could not, on
subcontractor's failure to pay suppliers in full, recover against general contractors or surety
and that mere knowledge on the part of general contractors that suppliers were on the job or,
had supplied materials, absent representation by general contractors that suppliers need not
give the 30-day notice and reliance on such representation by suppliers, did not create an
estoppel or waiver with regard to the 30-day notice requirement.
Reversed and remanded with direction to enter summary judgments for appellants.
Zenoff, J., dissented.
Streeter, Sala & McAuliffe, of Reno, for Appellants.
Emile J. Gezelin, of Reno, for Respondent J. R. Bradley Company.
Guild, Guild & Cunningham, and Drennan A. Clark, of Reno, for Respondent Ray
Heating Products, Inc.
1. Principal and Surety.
Where general contractors and their surety had given to city a payment bond pursuant to and conforming
with statute requiring such bond for protection of subcontractor's suppliers, suppliers who had not given
notice to general contractor within 30 days after first furnishing material but who had given only 90-day
notice after last furnishing material could not, on subcontractor's failure to pay suppliers in full, recover on
bond against general contractors or surety. NRS 339.025, subd. 1(b), 339.035, subd. 2(a, b).
2. Principal and Surety.
Where general contractors and their surety had given to city a payment bond pursuant to and conforming
with statute requiring such bond for protection of subcontractor's suppliers, mere knowledge on part of
general contractors that suppliers were on the job or had supplied material did not create an estoppel or
waiver with regard to 30-day notice requirement. NRS 339.025, subd. 1(b), 339.035, subd. 2(a, b).
OPINION
This is an appeal from summary judgments in favor of suppliers of materials and labor (J.
R. Bradley Company and Ray Heating Products, Inc.) to a subcontractor (Monroe Plumbing
and Heating), and against the general contractors (Ryberg & Garff Construction Company
and U.S. Enterprises of Reno, Inc.) and their surety (Federal Insurance Company). The
contractors and surety also appeal from the refusal of the district court to enter summary
judgments for them.
The cases arise out of the construction of the Carson City law enforcement facility. The
subcontractor failed to fully pay the suppliers. Consequently, the suppliers each brought suit
upon the payment bond given by the general contractors and their surety pursuant to NRS
339.025(b). The amount claimed due each supplier is not disputed. A direct contractual
relationship existed between each supplier and the subcontractor, thus placing each case
within the provisions of NRS 339.035(2) providing for suit upon a payment bond only when a
claimant has given the notices provided for by subparagraphs (a) and (b) thereof.
1
Neither
claimant gave the 30-day notice required by subparagraph {a).
____________________

1
NRS 339.035(2) reads: Any claimant who has a direct contractual relationship with any subcontractor of
the contractor who gave such payment bond, but no contractual relationship, express or implied, with such
contractor, may bring an action on the payment bond only: (a) If he has, within 30 days after furnishing the first
of such materials or performing the first of such labor, served on the contractor a written notice
30-day notice required by subparagraph (a). The general contractors, however, had actual
knowledge of the matters specified in that subparagraph. Each claimant did give the 90-day
notice required by subparagraph (b).
The general contractors and surety contend that compliance with the notice provisions is a
precondition to a claim for relief on the bond. Since neither claimant gave the 30-day notice
his claim for relief must fail. On the other hand, the claimants each argue that the coverage of
the bond here given is broader than required by NRS 339.025(b),
2
and, upon the authority of
Royal Indemnity Co. v. Special Service, 82 Nev. 148, 413 P.2d 500 (1966), recovery on the
bond is allowable. Subordinately, the claimants suggest that actual knowledge on the part of
the contractors of the matters specified in subparagraph (a) of NRS 339.035(2) worked an
estoppel against, or a waiver by, the contractors of any right to rely upon the claimants' failure
to give the 30-day notice.
In ruling for the suppliers and against the general contractors and surety, the district court
did not reach the notice issue. That court reasoned that the holding of the Royal Indemnity
case controlled this litigation and permitted recovery on the payment bond.
It is our opinion that the Royal Indemnity case is inapposite. It is also our view that the
general contractors did nothing to create an estoppel or to waive their rights with regard to the
30-day notice requirement, and that compliance by the suppliers with such requirement is a
precondition to suit on the bond. Accordingly, we reverse the summary judgments entered
below, and remand with direction to enter summary judgment for the general contractors and
surety in each case.
____________________
which shall inform the latter of the nature of the materials being furnished or to be furnished, or the labor
performed or to be performed, and identifying the person contracting for such labor or materials and the site for
the performance of such labor or materials; and (b) After giving written notice to such contractor within 90 days
from the date on which the claimant performed the last of the labor or furnished the last of the materials for
which he claims payment. Each written notice shall state with substantial accuracy the amount claimed and the
name of the person for whom the work was performed or the material supplied, and shall be served by being sent
by registered mail, postage prepaid, in an envelope addressed to such contractor at any place in which he
maintains an office or conducts business, or at his residence.

2
NRS 339.025(b) provides: A payment bond in an amount to be fixed by the contracting body, but not less
than 50 percent of the contract amount. Such bond shall be solely for the protection of claimants supplying labor
or materials to the contractor to whom the contract was awarded, or to any of his subcontractors, in the
prosecution of the work provided for in such contract.
1. In the Royal Indemnity case we held that the surety was liable on a bond where, by
expressly denying liability for prior materials supplied, the surety, by implication, accepted
liability for materials supplied to the contractor after the date of the bonding agreement.
There, the bond afforded coverage for labor and material bills incurred by the contractor, even
though the contractor's licensing statute pursuant to which the bond was furnished did not
specifically require such coverage.
Royal Indemnity is not on point with the instant matter. The statute with which we are
concerned (NRS 339.025(b)) requires the contractor to furnish a payment bond solely for the
protection of claimants supplying labor or materials * * * to any of his subcontractors, in the
prosecution of the work provided for in such contract. The bond here in question was given
pursuant to the statute and conformed with it. The condition of the bond is: if said contractor
* * * shall fail to pay, or cause to be paid, all just debts contracted by such contractor or any
of his subcontractors, for labor performed upon or materials furnished for the contractor, * *
* then said surety shall pay * * *. The bond did not provide a broader coverage than
contemplated by the statute, thus removing this case from the reach of the doctrine announced
in Royal Indemnity Co. v. Special Service, supra.
[Headnote 1]
2. The statutory preconditions to suit upon a payment bond are specified in NRS
339.035(2)(a) and (b). The claimant must, within 30 days after furnishing the first of such
materials or performing the first of such labor serve on the contractor a written notice of the
nature of the materials furnished or labor performed, identifying the person contracting for
the labor or materials, and the site of performance. The claimant must also, within 90 days
after performing the last of the labor or furnishing the last of the material, give the contractor
written notice of the amount claimed, and the name of the person for whom the work was
performed or the material supplied. As before stated, the 30-day notice was not given by the
claimants in this case; the 90-day notice was. The statute allows suit on the bond only if
each notice is given.
3

[Headnote 2]
The claimants assert that the general contractors and surety are estopped to rely upon the
failure of the claimants to comply with the 30-day notice requirement, since the
contractors had actual knowledge that the claimants had performed work and furnished
materials.
____________________

3
We have not found other state statutes containing the double notice requirement. Such appears to be
peculiar to Nevada. Consequently, case authority squarely on point is lacking.
with the 30-day notice requirement, since the contractors had actual knowledge that the
claimants had performed work and furnished materials. Such actual knowledge does not
create an estoppel. The statute places a duty upon the suppliers to give the notices therein
specified. The contractors did not represent to the claimants that they need not comply with
the notice requirements. Mere knowledge on the part of the contractors that the claimants
were on the job or supplied materials does not constitute a representation by the contractors
that the claimants need not follow the statute in perfecting their claims for relief on the bond.
Absent such a representation, and a reliance thereon, the doctrine of estoppel cannot apply.
Woods v. Bromley, 69 Nev. 96, 241 P.2d 1103 (1952); Farmers & Merchants National Bank
v. Eureka Land & Stock Co., 56 Nev. 218, 49 P.2d 354 (1935); State ex rel. Thatcher v.
Court, 46 Nev. 133, 207 P. 1105 (1922). Neither did the contractors waive their rights to
insist that the claimants comply with the preconditions to suit upon the bond. Nothing
appears in the record to suggest that this occurred.
As we see it, contractors frequently are aware of the identity of the suppliers of materials
to subcontractors; frequently know the identity of those performing labor for the
subcontractor. However, such awareness or knowledge, standing alone, does not erase the
duty which the legislature has placed upon claimants to give the 30- and 90-day notices
before becoming eligible to file suit on a payment bond given pursuant to NRS 339.025(b).
The legislative provision for suit on the bond creates a remedy in circumstances where
none existed before. It is not unfair to demand compliance with the preconditions for suit.
Fairness does not suggest that we force the general contractor to pay twice (the subcontractor
had been given funds with which to pay the suppliers) when the suppliers have failed to take
essential steps to perfect their claims against the bond.
For the reasons expressed we reverse the summary judgments entered below, and remand
with direction to enter summary judgments for the general contractors and surety in each
case.
Collins, Batjer, and Mowbray JJ., concur.
Zenoff, J., dissenting:
This is an appeal by Ryberg & Garff Construction Company and U.S. Enterprises of Reno,
Inc., general contractors, and their surety, Federal Insurance Company, from summary
judgments granted in favor of J. R. Bradley Company and Ray Heating Products, Inc., two
suppliers of a subcontractor, C. J. Monroe Company.
Heating Products, Inc., two suppliers of a subcontractor, C. J. Monroe Company.
On July 29, 1965 Garff and U.S. Enterprises were awarded a contract to build the Carson
City law enforcement facility by the Board of County Commissioners of Ormsby County.
Since this was a public building project, no lien rights could accrue. But in accordance with
NRS 339.025(1) (b),
1
Garff and U.S. Enterprises secured a payment bond from Federal
Insurance Company which bound that company to the board to pay all just debts contracted
by the contractors or any subcontractors for labor and materials furnished for the contractors.
The bond further provided that for all purposes all who had performed labor or furnished
materials to any subcontractors would be deemed to have done the same at the instance of the
contractor.
In connection with the project, Garff and U.S. Enterprises entered into a subcontract with
C. J. Monroe Company for plumbing and heating. Monroe, in turn, contracted with Ray for
the installation of the heating system and with J. R. Bradley Company for certain plumbing
materials.
During the course of the construction, Monroe was unable to make full payment to Ray
and Bradley. They commenced suits naming appellants as defendants, alleging the terms of
the payment bond. Summary judgments were allowed in their favor from which the general
contractors and their surety appeal.
The real question confronting us is the significance of the failure of both Ray and Bradley
to serve written notices upon the general contractor within 30 days after they commenced
their participation in the construction as required by NRS 339.035(2) (a).
2
The bond
provides that payments under the bond would be made provided that all persons claiming
under the bond shall have complied with the provisions of said act.
____________________

1
NRS 339.025(1)(b): A payment bond in an amount to be fixed by the contracting body, but not less than
50 percent of the contract amount. Such bond shall be solely for the protection of claimants supplying labor or
materials to the contractor to whom the contract was awarded, or to any of his subcontractors, in the prosecution
of the work provided for in such contract.

2
NRS 339.035(2)(a). 2. Any claimant who has a direct contractual relationship with any subcontractor of
the contractor who gave such payment bond, but no contractual relationship, express or implied, with such
contractor, may bring an action on the payment bond only:
(a) If he has, within 30 days after furnishing the first of such materials or performing the first of such labor,
served on the contractor a written notice which shall inform the latter of the nature of the materials being
furnished or to be furnished, or the labor performed or to be performed, and identifying the person contracting
for such labor or
the bond shall have complied with the provisions of said act. (Chapter 339, NRS.) The giving
of a 30-day notice is one of those provisions and it is urged that the failure to so give
precludes suit in this case.
That portion of the statute which requires 30 days' notice is peculiar to Nevada. Statutes of
other states and the federal government by Section 270(b), 40 U.S.C.A., known as the Miller
Act, require only that a 90-day notice be given after the completion of the construction.
Unquestionably, the 90-day notice requirement which was complied with here, is a
condition precedent to commencing an action on a claim in connection with the job. The
so-called Miller acts are remedial in nature and are entitled to a liberal construction in order
to effectuate the legislative intent. That intent clearly is to protect those whose labor and
materials go into public projects. But another apparent purpose and intent is to fix a time limit
after which the prime contractor can make payment to its subcontractors with a certainty that
he will not thereafter be faced with claims of those who furnished labor for and supplied
material to the subcontractors. United States v. York Electric Construction Co., 184 F.Supp.
520, 522 (D.N.D. 1960); Maynard v. Ivey, 21 Nev. 241, 29 P. 1090 (1892) (relating to liens).
While the statute uses the general term, notice, it is intended to be in legal effect the
presentation of a claim (United States v. York, supra) without which a cause of action under
the statute cannot come into being. Zalk-Josephs v. Wells Cargo, 77 Nev. 441, 366 P.2d 339
(1961). Cf. Robinson Clay Product Co. v. Beacon Construction Co. of Mass. Inc., 159 N.E.2d
530 (Mass. 1959).
The function of the 30-day notice is to alert the contractor to the presence and participation
of possible claimants. If the general contractor has actual knowledge of the services of the
suppliers, no prejudice to the general contractor should result, absent special circumstances.
Such warning notice does not bear the finality of the presentation of a claim as does the
90-day notice.
Actual knowledge consists not only of what one certainly knows, but also consists in
information which he might obtain by investigating facts which he does know and which
impose upon him a duty to investigate. Smith v. Pacific Mut. Life Ins.
____________________
materials and the site for the performance of such labor or materials; * * *.
Sec. 339.035(2)(b) provides: After giving written notice to such contractor within 90 days from the date on
which the claimant performed the last of the labor or furnished the last of the materials for which he claims
payment * * *.
Co., 192 F.2d 248 (6th Cir. 1951); Shapiro v. Equitable Life Assur. Soc., 172 P.2d 725
(Cal.App. 1946); Brown v. Copp, 232 P.2d 868 (Cal.App. 1951); Greenlees v. Owen Ames
Kimball Co., 66 N.W.2d 227 (Mich. 1954); James v. Hutchinson, 211 S.W.2d 507 (Mo.App.
1948); Hotel Hay Corp. v. Milner Hotels Inc., 39 N.W.2d 363 (Wis. 1949); Hodges v.
Beardsley, 112 So.2d 482, 484, 485 (Ala. 1959). Actual knowledge is actual notice.
Millowners' Mut. Life Ins. Co. v. Goff, 232 N.W. 504 (Iowa 1930); Bowman v. Bowman, 13
P.2d 1049 (Cal.App. 1932).
There was sufficient evidence in this case to show the general contractor had actual
knowledge of the participation of Bradley and Ray. Before actual work was even started,
prices were quoted to Monroe, the plumbing and heating contractor. A meeting was held
attended by the general contractor's architects, one Elkins, president of the general
contractor's corporation, and representatives from Ray, at which everyone agreed that Ray
would furnish and install the heating, air conditioning and ventilating system for Monroe.
After the job was commenced and the bond executed, Knudson, foreman for Ray Heating,
was constantly on the job site and conversed often with Pierce, the job superintendent for
appellant general contractor. One Fred Heap, sheet metal foreman and job superintendent for
Ray Heating, had direct dealings with Pierce. When Ray became financially stressed he
furnished the general contractor a status report as to its accounts regarding labor and materials
furnished on the job. An assignment of the contract retention funds of Monroe was obtained
from Monroe and was accepted by appellant general contractor.
With Bradley, a representative of U.S. Enterprises inquired of Bradley about Monroe's
credit, stating his inquiry was made because Monroe had been awarded a subcontract by U.S.
Enterprises to do the plumbing work for the Ormsby County jail construction and that
Monroe was to obtain the necessary materials and supplies from Bradley for the purpose.
All of the foregoing took place before the construction began and during its progress.
While a party may deny expressly that he had notice of a fact, yet the circumstances may
be such as to justify the court in concluding that he did not have written notice of a meeting
with other subdivision lot owners, nevertheless, he attended the meeting, hence from the
circumstances he had actual notice. Vaughan v. Fuller, 175 So.2d 103, 105 (Ala. 1965).
It is well-settled that notification proposed to inform may be replaced by actual
knowledge. And this is especially so when the knowledge has been acted upon without
reliance upon the notifications' absence or its defects.
the knowledge has been acted upon without reliance upon the notifications' absence or its
defects. Clark v. Wolman, 221 A.2d 687, 688 (Md. 1966) (reclassification of property).
Were we to hold that at the early stages of a public construction that the requirement of the
30-day notice is absolutely mandatory, the strict technical interpretation would be a departure
from the legislative intent. Western Standard Uranium Co. v. Thurston, 355 P.2d 377, 387,
388 (Wyo. 1960). Bond requirements should be liberally construed. Maryland Casualty Co. v.
Ohio River Gravel Co., 20 F.2d 514 (4th Cir. 1927). Actual prejudice must be shown in order
to discharge a surety. Fred Christensen, Inc. v. Hansen Construction Co., 21 P.2d 195 (Ore.
1933); Maryland Casualty Co. v. Ohio River Gravel Co., supra; Fidelity and Deposit Co. of
Maryland v. John Gill & Sons Co., et al., 270 S.W. 700, 705, 706 (Mo. 1924).
Keeping in mind that this case is before us on appeal from summary judgments, Garff and
U.S. Enterprises assert in their affidavit to support their own motion for summary judgment
and to refute those of the respondents that they had no actual knowledge of who furnished the
materials and labor to Monroe. But that mere conclusion (Dredge Corp. v. Husite Co., 78
Nev. 69, 369 P.2d 676 (1962), does not contest the affirmative allegations of both Bradley
and Ray which recite the numerous personal contacts between their representatives and those
of the general contractors before and during the job construction. From this record no
material issue of fact is presented, only the issue of law as stated. According to the supporting
affidavits the general contractors had actual knowledge that Bradley and Ray were furnishing
materials and labor. The actual knowledge in this case served the function and purpose of the
30-day notice.
I therefore respectfully dissent.
____________
84 Nev. 88, 88 (1968) Andrews v. Kingsbury General Improvement
JOHN ANDREWS and KARIN ANDREWS, Appellants, v. KINGSBURY GENERAL
IMPROVEMENT DISTRICT NO. 2, a Municipal Corporation, Respondent.
No. 5341
January 24, 1968 436 P.2d 813
Appeal from judgment of the First Judicial District Court, Douglas County; Richard L.
Waters, Jr., Judge.
Landowner appealed from portion of a judgment of the lower court in a condemnation case
denying them severance damages and refusing to tax as costs the fee of their expert witness
for court testimony and for preparation of an appraisal report. The Supreme Court,
Thompson, C. J., held, inter alia, that denial of severance damages on ground that landowners
did not offer evidence that they intended to subdivide their property for single family
dwellings was error requiring reversal since landowners were not required to offer evidence
of their intention to subdivide for single family residence use.
Reversed, and remanded for further proceedings consistent with this opinion.
Lester H. Berkson, of Zephyr Cove, for Appellants.
Manoukian and Manoukian, of Zephyr Cove, for Respondent.
1. Eminent Domain.
A landowner is entitled to compensation for the highest and best use to which his property may be put,
and is not limited by the use actually made of it.
2. Eminent Domain.
Severance damages must be given by trier of fact if such damages are incurred, the burden resting with
the owner to prove such damages. NRS 37.110.
3. Eminent Domain.
Evidence in condemnation case that appropriate authority might grant a variance from square footage
restriction on condemned property if landowners make application therefor, if offered through a competent
witness, would be relevant to severance damages.
4. Eminent Domain.
Denial of severance damages in condemnation case on ground that landowners did not offer evidence that
they intended to subdivide their property for single-family dwellings was error requiring reversal, since
landowners were not required to offer evidence of their intention to subdivide for single-family residence
use. NRS 37.110.
5. Eminent Domain.
Since general cost statutes do not provide for inclusion of cost of securing an appraisal report or for the
expert witness fee of an expert witness, denial of recovery for cost of appraisal in condemnation case was
proper, but court erred in allowing more than $5 for the witness fee. NRS 37.190, 43.290.
OPINION
The property owners appeal from that part of a district court judgment in a condemnation
case denying them severance damages and refusing to tax as costs the fee of their expert
witness for court testimony and preparation of an appraisal report.
1

John and Karin Andrews own a rectangular parcel of land within the Kingsbury General
Improvement District, Douglas County, near Lake Tahoe. The improvement District brought
a condemnation suit to acquire a strip of the Andrews' property for a public road. The
proposed road courses approximately through the middle of the Andrews' property in a
general north-south direction. The area is zoned for single family residences and the zoning
regulations require 12,000 square feet of lot area for each dwelling. The east side of the
property where the Andrews have their residence is susceptible of division into two single
family dwelling lots each meeting the 12,000 square feet requirement. However, the proposed
road will not leave two dwelling lots on the west side of their property each with enough area
to meet the zoning regulation. But for the road, the regulation would be met on the west side
as well.
2
By reason of this circumstance the Andrews sought severance damages which their
expert appraiser fixed at $4,024.15.
[Headnotes 1, 2]
The adversaries agree that single family residences constitute the highest and best use for
the Andrews' property. The district court ruled out severance damages simply because the
Andrews did not offer evidence that they intended to subdivide their property for single
family dwellings.
____________________

1
The part of the judgment awarding compensation for the land actually taken is not challenged.

2
According to the record, if the Andrews were to sell one portion of their property on the west side
containing 12,000 square feet, they would be left with an area containing 11,499 square feet which would not
meet zoning standards. On the other hand, if they were to sell two lots on the west side of equal size (11,749
square feet each), neither lot would meet the area requirement.
did not offer evidence that they intended to subdivide their property for single family
dwellings. Such evidence is not required. A landowner is entitled to compensation for the
highest and best use to which his property may be put, and is not limited by the use actually
made of it [State v. Jacobs, 397 P.2d 463, 464 (Utah 1964); People v. Ocean Shore R.R., 196
P.2d 570, 584 (Cal. 1948); Moyle v. Salt Lake City, 176 P.2d 882, 888 (Utah 1947)], and
severance damages must be given by the trier of fact if such damages are incurred. NRS
37.110.
3
The burden rests with the owner to prove such damages. Mack v. Department of
Highways, 77 Nev. 422, 424, 365 P.2d 1117 (1961); State v. Pinson, 66 Nev. 227, 236, 207
P.2d 1105 (1949).
[Headnotes 3, 4]
In the case at hand the landowner offered and the court received competent evidence of
severance damage. It seems clear that such damage may result if the 12,000 square feet per lot
requirement is strictly enforced. However, the trial court's erroneous belief that the owners
were also required to offer evidence of their intention to subdivide for single family residence
use, caused it to deny severance damages out of hand, and effectively precluded the
condemnor from submitting competent countervailing evidence on the issue. For example,
there is a suggestion in the record that the appropriate authority would probably grant a
variance from the square footage restriction, if the Andrews made application therefor.
Evidence of that kind, if offered through a competent witness, is relevant to severance
damage. School Dist. No. 13 v. Wicks, 227 N.Y.S.2d 768 (1962); In re Old Riverhead Road,
264 N.Y.S.2d 162 (1965).
4
Since there was not a full hearing on this aspect of the severance
damage issue, we must remand for further consideration.
With regard to costs in an eminent domain case, our statute provides that Costs may be
allowed or not, and if allowed may be apportioned between the parties on the same or adverse
sides, in the discretion of the court. NRS 37.190. Here, the property owners contend that
they are entitled to recover the fee charged by their expert appraiser for his appraisal
report {$475) and court testimony {$150).
____________________

3
NRS 37.110 reads in part: The court, jury, commissioners or master must hear such legal testimony as may
be offered by any of the parties to the proceedings, and thereupon must ascertain and assess:
* * *
2. If the property sought to be condemned constitutes only a part of a large parcel, the damages which will
accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be
condemned * * *.

4
As to zoning as a factor in the determination of damages in eminent domain, see cases collected in 9
A.L.R.3d 291.
property owners contend that they are entitled to recover the fee charged by their expert
appraiser for his appraisal report ($475) and court testimony ($150). The district court denied
recovery for the report, but did allow $100 for the court testimony of the expert.
[Headnote 5]
Our statute was borrowed from California. See Code of Civil Procedure, Sec. 1255. The
California courts, after noting that the code does not specify what items may be included as
costs, have ruled that they are the same as those recoverable in ordinary civil actions. People
v. Bowman, 343 P.2d 267 (Cal.App. 1959). We approve that construction. Since our general
cost statutes do not provide for the inclusion of the cost of securing an appraisal report or the
expert fee of an expert witness (NRS 48.290(1) limits witness fees as costs to $5 for each
day's attendance in court), we must conclude that the lower court correctly denied recovery
for the cost of the report, but erred in allowing more than $5 for the witness fee.
Although it was not essential to discuss the cost issue (since our remand for further
proceedings itself effectively nullifies the judgment for costs), perhaps an expression of our
view will aid the district court in settling costs following completion of the case in the trial
court.
Reversed, and remanded for further proceedings consistent with this opinion.
____________
84 Nev. 91, 91 (1968) Holland Realty v. Nevada Real Estate Commission
HOLLAND REALTY INVESTMENT CO., a Corporation and GRANT HOLLAND,
Appellants and Cross-Respondents, v. STATE OF NEVADA, DEPARTMENT OF
COMMERCE, REAL ESTATE DIVISION, and NEVADA REAL ESTATE
ADVISORY COMMISSION, Respondents and Cross-Appellants.
No. 5313
January 25, 1968 436 P.2d 422
Appeal from the Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Proceeding to review order of Real Estate Advisory Commission, revoking real estate
licenses. The lower court affirmed and the licensees appealed. The Supreme Court,
Mowbray, J., held that real estate commission did not abuse its discretion in revoking real
estate license of broker who had engaged in "double escrowing" by buying through
escrow from one party at $3,500 in his own name and selling to another party at $4,500
through escrow using the buyer's money to complete the purchase in the first escrow
without informing the buyer he was acting for himself or informing either party that he
had a better offer than he presented to them.
and the licensees appealed. The Supreme Court, Mowbray, J., held that real estate
commission did not abuse its discretion in revoking real estate license of broker who had
engaged in double escrowing by buying through escrow from one party at $3,500 in his
own name and selling to another party at $4,500 through escrow using the buyer's money to
complete the purchase in the first escrow without informing the buyer he was acting for
himself or informing either party that he had a better offer than he presented to them.
Affirmed.
Cornwall & Nitz, of Las Vegas, for Appellants and Cross-Respondents.
W. Bruce Beckley, of Las Vegas, for Respondents and Cross-Appellants.
1. Brokers.
On appeal from judgment sustaining commission's revocation of broker's license, Supreme Court was
limited to determination of question whether there has been an abuse of commission's discretion. NRS
645.760, subd. 3.
2. Brokers.
Violation of basic fiduciary trust of licensed real estate broker makes the broker subject to same punitory
consequences that are provided for disloyal or recreant trustee.
3. Brokers.
Licensed real estate broker is charged with duty of fullest disclosure of all material facts concerning the
transaction that might affect the principal's decision. NRS 645.630.
4. Brokers.
Even if broker had not been the buyer's broker and under no fiduciary duty, once he discussed the
question whether a lower price was attainable, broker had to speak the whole truth and not by partial
suppression or concealment make the utterance untruthful and misleading. NRS 645.630.
5. Brokers.
Agent who also has right to purchase cannot wait until someone makes an offer of an amount in excess of
agreed purchase price and then elect to purchase property at lesser price without informing owner of higher
offer and, after agent has obtained consent from owner to buy property, then immediately sell it for higher
price as his own property. NRS 645.630.
6. Brokers.
Purpose of real estate licensure is to bar the dishonest or incompetent from entry into this occupation.
NRS 645.630.
7. Brokers.
Single standard of honesty and competence should guide a broker's real estate activities whether
performing as broker or owner.
8. Brokers.
Trial court reviewing revocation of broker's license was limited to determination whether there had been
an abuse of discretion by the commission of their decision. NRS 645.760.
9. Brokers.
Real estate commission did not abuse its discretion in revoking real estate license of broker who had
engaged in double escrowing by buying through escrow from one party at $3,500 in his own name and
selling to another party at $4,500 through escrow using the buyer's money to complete the purchase in the
first escrow without informing the buyer he was acting for himself or informing either party that he had a
better offer than he presented to them. NRS 645.630.
OPINION
Appellant Grant Holland was a duly licensed real estate broker operating in Las Vegas
under the style and name of Holland Realty Investment Co.
The State of Nevada, Department of Commerce, Real Estate Division, filed a complaint
against Holland and his corporation, charging them with numerous violations of NRS chapter
645, Real Estate Brokers and Salesmen. After a hearing before the Nevada Real Estate
Advisory Commission, appellants' real estate licenses were revoked.
Specifically, the Commission found that appellants violated NRS 645.630, paragraphs 1,
2, 3, 9, 10, 16, 18, and 19; NRS 645.660; and also section VII, paragraphs 1 and 9, of the
Rules and Regulations of the Nevada Real Estate Advisory Commission.
1
Appellants
appealed to the district court from the Commission's order revoking their real estate
licenses.

____________________

1
NRS 645.630. The commission shall have the power to suspend, revoke or reissue, * * * any license
issued under the provisions of this chapter at any time * * * where the licensee, whether or not acting as a
licensee, is deemed to be guilty of:
1. Making any substantial misrepresentation.
2. Making any false promises of a character likely to influence, persuade or induce.
3. Pursuing a continued and flagrant course of misrepresentation, or making of false promises through
agents or salesmen or advertising or otherwise.
* * *
9. Disregarding or violating any of the provisions of this chapter or of any rule or regulation promulgated
thereunder.
10. Paying or receiving any rebate, profit, compensation or commission in violation of this chapter.
* * *
16. The claiming or taking by a licensee of any secret or undisclosed amount of compensation, commission
or profit or the failure of
Appellants appealed to the district court from the Commission's order revoking their real
estate licenses. The record of the proceedings before the Commission was submitted to the
district judge. No new evidence was offered in the court hearing. The district judge, after
reviewing the record, filed a written decision finding that the Commission did not abuse its
discretion in revoking appellants' licenses on the grounds that appellants were guilty of
violating paragraphs 10 and 16 of NRS 645.630.
Appellants appeal from the district court order of revocation, while respondents
cross-appeal, asserting the district judge should have found appellants guilty of each and all
of the remaining violations found by the Commission.
Factually, Holland engaged in what is euphemistically termed in real estate transactions as
double escrowing. There were two transactions. In one escrow he purchased a residential
home from the true owner (Edwards) for $3,500 and sold the home in the second escrow to
the true buyer (Jeppson) for $4,500, retaining for himself the $1,000 difference less the cost
of the two escrows. Upon close of the escrows Holland, without buyer's or seller's knowledge,
arranged that sufficient moneys deposited in the buyer's (Jeppson's) escrow be transferred to
the seller's (Edwards') escrow to complete the Edwards escrow. Both escrows were opened
either on the same or consecutive days. Both escrows closed simultaneously.
____________________
a licensee to reveal to the employer of such licensee the full amount of such licensee's compensation,
commission or profit under any agreement authorizing or employing such licensee to sell, buy or exchange real
estate for compensation or commission prior to or coincident with the signing of such agreement evidencing the
meeting of the minds of the contracting parties, regardless of the form of such agreement, whether evidenced by
documents in an escrow or by any other or different procedure.
* * *
18. Being unworthy or incompetent to act as a real estate broker or salesman in such manner as to
safeguard the interests of the public.
19. Any other conduct, whether of the same or a different character from that hereinbefore specified, which
constitutes improper, fraudulent or dishonest dealing.
Paragraphs 1 and 9 of section VII, Rules and Regulations of the Nevada Real Estate Advisory Commission,
read as follows:
1. The Code of Ethics of the National Association of Real Estate Boards is adopted by reference herein and
each licensee shall abide by said code.
9. Unless he shall first notify the interested parties in writing, no licensee shall attempt to buy, or offer to
buy, or attempt to sell, sell or offer to sell, for himself, directly or indirectly, any interest in any real property,
including any right under any option.
The parties have admitted that at no time did Holland advise the buyer that he was acting
for himself.
Shortly thereafter Holland sold the same residential unit for Jeppson to a third party
(Wesley). In this deal Holland misrepresented to Jeppson that he had received from Wesley a
$500 cash down payment against a purchase price of $8,500. In reliance on this, Jeppson
agreed to compensate Holland with one-third of the expected profits, or about $1,250.
Jeppson actually paid Holland $750 in cash, which amount, with the $500 supposedly
received as a down payment, comprised Holland's commission. Actually, Holland did not
receive $500 in cash as he represented to Jeppson, but only $100 plus Wesley's note for $400.
Wesley later defaulted on his payments and was evicted by Jeppson.
Holland admits:
1. He was not the record owner of the property.
2. He did not tell the buyer that he was the owner of the property or who the owner was.
3. The Jeppson escrow was opened June 11, the Edwards escrow was opened June 10, and
both closed simultaneously.
4. He failed to tell the Jeppsons that he was making a simultaneous purchase of the
property from Edwards for $3,500 or that he was using the Jeppsons' money to make the
purchase.
5. He failed to tell the Jeppsons that he was making an $880.88 or any other profit on the
transaction.
6. He did not tell the Jeppsons that he could purchase the property for $3,500, or tell
Edwards that the Jeppsons had offered to pay $4,500 for it.
7. He did not advise the Jeppsons in writing (other than as they may have seen his name in
the escrow instructions) that he was the seller of the property.
It is also clear from the record before the Commission that Holland told Mrs. Jeppson she
was buying not from Holland but from a man down the street. Mrs. Jeppson testified:
Q. And when he contacted you with regard to this piece of property, what did he tell you?
A. Well, he asked if we wanted to buy a house. So I wanted to know what he had in
mind. He said, well, he had a small house that he could get for us, that the man had been
having quite a bit of trouble with it, and he wanted seven thousand for it, but Holland got him
to bring his price down to $4,500.
Q. And is that the price at which he told you he could get this property for you? "A.
A. Yes.
Q. Did he identify the owner of the property?
A. Noby the way, he said it was a man who lived down the street from the house. That
is the only way I knew anything about who it was.
Q. Did you examine the property?
A. Yes.
Q. And was it at this time that he told you that it was a man who lived down the street, if
you remember?
A. Well, we discussed it because he said there wasthe man down the street had the
pump to the cooler, and that is where he lived, evidently.
Mrs. Jeppson further testified that even though Holland's name appeared on the escrow
papers she considered Holland as her agent:
Q. Now, at the time that you signed these escrow instructions, did you recognize or
realize that Holland or Holland Investment Company was the actual seller of the property?
A. Well, I should have, but I guess I didn't pay too much attention to it because all the
papers and all the dealings that we have done with the trust deeds that we have bought, all the
papers have Holland's name on it, appears there on all the business that we have done with
him, but that wasit just did not register, I guess, but I did see it.
Q. In any event, you did not recognize, or it did not register with you that his name there
was listed as the seller?
A. No, because it didn'the had discussed the man down the street, we were buying the
house from him. Well, it didn't occur to me that he was a go-between. He was doing business
for ushe always has.
The record clearly shows that when Holland first approached Mrs. Jeppson to purchase the
property he indicated that he was acting as a broker, not as a principal. He had had previous
real estate transactions with the Jeppsons, and the Jeppsons knew him as a broker because he
had previously acted for them in that capacity.
[Headnote 1]
Under NRS 645.760 it is provided that the district court, on an appeal from the decision of
the Commission, is limited solely to a consideration and determination of the question
whether there has been an abuse of discretion on the part of the commission in making such
decision. And the burden of proof is upon the appellant. The function of the court at this
time is the same as that of the lower court. McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268
(1961).
The district judge said in his written decision:
* * * In this case the appellant bought a piece of property from one Edwards, opened an
escrow and on the following day contacted the Jeppsons. The Appellant bought the property
from Edwards for $3,500.00, taking the title in its corporate name and reselling the same
property to Jeppson the following day for the sum of $4,500.00, using Jeppson's money to
complete the transactions entered into the day previous with Edwards.
There was no disclosure by the Broker specifically that he was selling this property for a
profit of a thousand dollars less cost. * * * The sin of the transaction was in not advising the
Jeppsons that he had the previous day opened an escrow to buy the property for $3,500.00.
His remaining silent on this transaction is more deceit than any other category that the Court
can find which violates the provisions of the real estate act.
The very practice of double escrowing is fraught with deception, and one who engages in
it cannot do so with the candor and honesty demanded of a duly licensed real estate broker
without violating and breaching the basic fiduciary trust which is expected of him.
[Headnote 2]
Violation of this trust is subject to the same punitory consequences that are provided for a
disloyal or recreant trustee. King v. Wise, 43 Cal. 628 (1872); Langford v. Thomas, 252 P.
602, 603 (Cal. 1926).
[Headnote 3]
Such an agent is charged with the duty of fullest disclosure of all material facts concerning
the transaction that might affect the principal's decision. Langford v. Thomas, supra;
Williams v. Lockwood, 166 P. 587 (Cal. 1917); Feckenscher v. Gamble, 85 P.2d 885 (Cal.
1938); Curry v. King, 92 P. 662 (Cal. 1907); Silver v. Logue, 16 P.2d 183 (Cal. 1932); Jolton
v. Minster-Graf & Co., 128 P.2d 101 (Cal. 1942); Baird v. Madsen, 134 P.2d 885 (Cal. 1943).
[Headnote 4]
In the instant case there can be no doubt that Jeppson would not have purchased the
property for $4,500 had he known it could be purchased for $3,500. Holland not only failed to
disclose the truth but represented to Jeppson that he had prevailed upon the seller to reduce
the price to $4,500. Even if Holland had not been Jeppson's broker and under no fiduciary
duty, once he discussed the question whether a lower price was attainable he had to speak
the whole truth and not by partial suppression or concealment make the utterance
untruthful and misleading." Am. Trust Co. v. Cal. W. States Life Ins. Co., 9S P.2d 497, 50S
{Cal.
suppression or concealment make the utterance untruthful and misleading. Am. Trust Co. v.
Cal. W. States Life Ins. Co., 98 P.2d 497, 508 (Cal. 1940); Rattray v. Scudder, 169 P.2d 371,
377 (Cal. 1946).
A broker when pursuing his own interest cannot ignore those of his principal and will not
be permitted to enjoy the fruits of an advantage taken of a fiduciary relationship, whose
dominant characteristic is the confidence reposed by one in another. Curry v. King, supra, at
665.
[Headnote 5]
The law does not allow the agent who also has a right to purchase to wait until someone
makes an offer of an amount in excess of the agreed purchase price and then elect to purchase
the property at the lesser price without informing the owner of the higher offer, and, after the
agent has obtained the consent from the owner to buy the property, then immediately sell it
for the higher price as his own property. Neighbor v. Pac. Realty Ass'n, 124 P. 523, 526 (Utah
1912).
In the language of the Restatement of Agency 390, Comment a: Before dealing with the
principal on his own account * * * an agent has a duty, not only to make no misstatements of
fact, but also to disclose to the principal all material facts fully and completely. A fact is
material * * * if it is one which the agent should realize would be likely to affect the
judgment of the principal in giving his consent to the agent to enter into the particular
transaction on the specified terms. Hence, the disclosure must include not only the fact that
the agent is acting on his own account * * *, but also all other facts which he should realize
have or are likely to have a bearing upon the desirability of the transaction from the viewpoint
of the principal. Rattray v. Scudder, supra.
The decisive consideration is that when Holland told Jeppson he had succeeded in
reducing the purchase price to $4,500, his firm was at that very moment purchasing the
property for $3,500, unbeknown to Jeppson.
[Headnote 6]
Accepting Holland's position that he was truly not acting as a broker but as an owner only,
there can be no justification of an interpretation of the licensing act which would allow a
broker to be honest as a broker and dishonest as a property owner. A broker who is dishonest
or incompetent in the real estate activities in which he is involved as owner, is not likely to be
honest or competent in his activities which are purely brokerage in nature. The purpose of
real estate licensure is to bar the dishonest or incompetent from entry into this occupation:
Roman v. Lobe, 243 N.Y. 51, 152 N.E. 461, 50 A.L.R. 1329.
bar the dishonest or incompetent from entry into this occupation: Roman v. Lobe, 243 N.Y.
51, 152 N.E. 461, 50 A.L.R. 1329. * * *
[Headnote 7]
We believe that a single standard of honesty and competency should guide a broker's real
estate activities whether performing as broker or owner. State Real Estate Comm'n v. Tice,
190 A.2d 188 (Pa. 1963).
[Headnote 8]
Under paragraph 3 of NRS 645.760, the trial court was limited in making its decision with
respect to the penalty to be imposed in the same manner as with respect to defendants' guilt;
that is, solely to a consideration and determination of the question whether there has been an
abuse of discretion on the part of the commission in making such decision.
[Headnote 9]
The trial court found that the evidence received by the Commission supported the
Commission's findings that paragraphs 10 and 16 of NRS 645.630 had been violated, and
sustained the Commission's order that appellants' licenses be revoked, finding that the
Commission did not abuse its discretion in making such decision. We concur with the order
of the district judge. In view of our ruling on the appeal, it is not necessary to discuss the
issues raised by respondents' cross-appeal.
Affirmed.
____________
84 Nev. 99, 99 (1968) McMillan v. United Mortgage Co.
JAMES B. McMILLAN, Appellant, v. UNITED
MORTGAGE CO., a Nevada Corporation, Respondent.
No. 5365
January 30, 1968 437 P.2d 878
Appeal from a judgment of the Eighth Judicial District Court, Clark County; John F.
Sexton, Judge.
Action on notes brought by payee against maker. The lower court, after remand, 82 Nev.
117, 412 P.2d 604 (1966), rendered judgment in favor of payee, and maker appealed. The
Supreme Court held that under statute providing that there shall be but one action for the
recovery of any debt, or for the enforcement of any rights secured by mortgage or lien on
real estate or personal property, holder of 27 notes secured by second deeds of trust
could maintain personal action on the notes against maker after security had been lost by
foreclosure of first deed of trust without any participation or wrongdoing on part of
holder of the 27 notes.
there shall be but one action for the recovery of any debt, or for the enforcement of any rights
secured by mortgage or lien on real estate or personal property, holder of 27 notes secured by
second deeds of trust could maintain personal action on the notes against maker after security
had been lost by foreclosure of first deed of trust without any participation or wrongdoing on
part of holder of the 27 notes.
Affirmed.
Robert L. Reid, of Las Vegas, for Appellant.
Deaner, Butler & Adamson, of Las Vegas, for Respondent.
1. Mortgages.
Under statute, holder of 27 notes secured by second deeds of trust could maintain personal action on the
notes against maker after security had been lost by foreclosure of first deed of trust without any
participation or wrongdoing on part of holder of the 27 notes. NRS 40.430.
2. Mortgages.
Statute providing that there shall be but one action for the recovery of any debt, or for the enforcement of
any rights secured by mortgage or lien on real estate or personal property, was inapplicable to a sold-out
junior lienor where his security had been lost by foreclosure of a senior lienor. NRS 40.430.
3. Mortgages.
Purpose of statute providing that there shall be but one action for the recovery of any debt, or for the
enforcement of any rights secured by mortgage or lien upon real estate or personal property, is to compel
one who has taken a special lien to secure his debt to exhaust the secured property before having recourse
to the general assets of the debtor. NRS 40.430.
4. Mortgages.
Where, without the fault of one who has taken a special lien to secure his debt, the security has been lost
by a foreclosure of senior lienor, policy of the law permits personal action on the note. NRS 40.430.
OPINION
Per Curiam:
[Headnote 1]
The narrow question for decision in this case is whether, under the One-action Rule
announced in NRS 40.430,
1
the holder of 27 promissory notes totaling $52,650, which
were secured by a second deed of trust, may maintain a personal action on the notes
against the maker after the security has been lost by the foreclosure of a first deed of
trust without any participation or wrongdoing on the part of the holder of the promissory
notes which the second deed of trust secures.
____________________

1
NRS 40.430. There shall be but one action for the recovery of any debt, or for the enforcement of any
right secured by mortgage or lien upon real estate, or personal property, which action shall be in accordance with
the provisions of this section, and NRS 40.440 and 40.450. In such action, the judgment shall be rendered for the
amount
holder of 27 promissory notes totaling $52,650, which were secured by a second deed of
trust, may maintain a personal action on the notes against the maker after the security has
been lost by the foreclosure of a first deed of trust without any participation or wrongdoing on
the part of the holder of the promissory notes which the second deed of trust secures.
[Headnote 2]
We answer in the affirmative and hold that the One Form of Action Rule does not apply
to a sold-out junior lienor where his security has been lost by foreclosure of a senior lienor.
There is clearly no reason to compel a junior lienor to go through a foreclosure and sale when
there is nothing left to sell.
The position of a junior lienor whose security is lost through a senior sale is different from
that of a selling senior lienor. A selling senior can make certain that the security brings an
amount equal to his claim against the debtor, or the fair market value, whichever is less,
simply by bidding in for that amount. He need not invest any additional funds.
The junior lienor, however, is in no better position to protect himself than is the debtor.
Either would have to invest additional funds to redeem or buy in at the sale. Equitable
consideration favors placing the burden on the debtor, not only because it is his default which
provokes the senior sale, but also because he has the benefit of his bargain with the junior
lienor, who, unlike the selling senior, might otherwise end up with nothing.
[Headnote 3]
The obvious purpose of the One-action Rule is to compel one who has taken a special
lien to secure his debt to exhaust the secured property before having recourse to the
general assets of the debtor.
____________________
found due the plaintiff, and the court shall have power, by its decree or judgment, to direct a sale of the
encumbered property, or such part thereof as shall be necessary, and apply the proceeds of the sale to the
payment of the costs and expenses of the sale, the costs of the suit, and the amount due to the plaintiff. If the land
mortgaged consists of a single parcel, or two or more contiguous parcels, situated in two or more counties, the
court may, in its judgment, direct the whole thereof to be sold in one of such counties by the sheriff, and upon
such proceedings, and with like effect, as if the whole of the property were situated in that county. If it shall
appear from the sheriff's return that there is a deficiency of such proceeds and balance still due to the plaintiff,
the judgment shall then be docketed for such balance against the defendant or defendants personally liable for
the debts, and shall, from the time of such docketing, be a lien upon the real estate of the judgment debtor, and
an execution may thereupon be issued by the clerk of the court, in like manner and form as upon other
judgments, to collect such balance or deficiency from the property of the judgment debtor.
the secured property before having recourse to the general assets of the debtor.
[Headnote 4]
Where, however, without his fault, the security has been lost by a foreclosure of the senior
lienor, the policy of the law permits a personal action on the promissory note. Sav. Bank v.
Central Mkt. Co., 54 P. 273 (Cal. 1898); Brophy v. Downey, 67 P. 312 (Mont. 1902);
Roseleaf Corp. v. Chierighino, 378 P.2d 97 (Cal. 1963); McMillan v. United Mortgage Co.,
82 Nev. 117, 412 P.2d 604 (1966).
Affirmed.
____________
84 Nev. 102, 102 (1968) Searchlight Development Inc. v. Martello
SEARCHLIGHT DEVELOPMENT, INC., a Nevada Corporation; EL REY OPERATIONS,
INC., a Nevada Corporation; CASINO CORPORATIONS, INC., a Nevada Corporation;
JUDITH F. BAYLEY, CALVIN C. MAGLEBY and PIONEER TITLE INSURANCE
COMPANY OF NEVADA, Now Known as TITLE INSURANCE and TRUST COMPANY,
a California Corporation, Appellants, v. WILLIAM J. MARTELLO, C. W. LYNN and
BONNIE G. CANTER, on Behalf of Themselves and All Other Stockholders of
SEARCHLIGHT DEVELOPMENT, INC., a Nevada Corporation, and EL REY
OPERATIONS, INC., a Nevada Corporation, and SEARCHLIGHT DEVELOPMENT, INC.,
Respondents.
No. 5276
February 5, 1968 437 P.2d 86
Appeal from a judgment of the Eighth Judicial District Court, Clark County, entered
pursuant to NRCP 54(b); John F. Sexton, Judge.
Derivative action by stockholders of two corporations to have deed of trust on one
corporation's realty declared void, to have two of plaintiff stockholders declared to be
directors and officers of corporation, to recover damages, and to have receivers appointed for
the two corporations. The lower court entered, pursuant to NRCP 54(b), judgment appointing
corporate receiver and enjoining all of corporations' creditors from bringing any action
against corporations and enjoining foreclosure of a trust deed, and defendants appealed.
The Supreme Court, Batjer, J., held that District Court was without jurisdiction, where, at
time trial commenced, one defendant was legal owner of one stockholder's interest in
issued and outstanding stock of both corporations, and remaining plaintiff stockholder
held less than one-tenth of issued and outstanding stock.
foreclosure of a trust deed, and defendants appealed. The Supreme Court, Batjer, J., held that
District Court was without jurisdiction, where, at time trial commenced, one defendant was
legal owner of one stockholder's interest in issued and outstanding stock of both corporations,
and remaining plaintiff stockholder held less than one-tenth of issued and outstanding stock.
Samuel S. Lionel, of Las Vegas, for Appellants.
C. W. Lynn, David Canter, and Louis Wiener, Jr., of Las Vegas, and Samuel Riesman, of
Los Angeles, California, for Respondents.
1. Corporations.
In absence of physical delivery of stock certificate to stockholder's assignee, assignee received at most
only stockholder's promise to transfer, not an interest which would make sheriffs sale, which was made
under order to levy upon and sell stockholder's interest in corporation which had issued the certificates, and
which occurred day after assignment, void, and, therefore, purchaser at otherwise valid sheriff's sale,
subject to interest of Internal Revenue Service, became legal owner of the stock subject to such interest.
NRS 79.050, 79.140, 79.180.
2. Execution.
Order which, in another case, directed sheriff to levy upon and sell stockholder's interest in corporate
stock, subject to interest therein of Internal Revenue Service, and which was valid on its face, was not
subject to collateral attack in stockholder's derivative action in which stockholder was one of the plaintiffs.
NRS 79.180.
3. Motions.
Order of court of general jurisdiction cannot be assailed by collateral attack unless, upon face of record,
court lacks jurisdiction.
4. Motions.
In collateral attack upon court proceedings which result in order of court, every intendment is to be
indulged in support of regularity of the proceedings and determination.
5. Corporations.
District court lacked jurisdiction, in stockholders' derivative action, to appoint receiver for corporations
involved where, at time trial commenced, one defendant was legal owner of one plaintiff stockholder's
interest in issued and outstanding stock of both corporations, and remaining plaintiff stockholder held less
than one-tenth of issued and outstanding stock. NRCP 54(b); NRS 78.650, subd. 1.
6. Corporations.
District court lacks jurisdiction to appoint corporate receiver unless applicant holder or holders of
one-tenth of issued and outstanding stock has legal title at time court consider's application. NRS 73.650,
subd. 1.
OPINION
This is an appeal taken by the defendants in the district court from a judgment entered and
filed pursuant to NRCP 54(b).
1
The case was tried to the court below without a jury. The
appellants contend that the district court was without jurisdiction to hear the particular matter
and enter its judgment. We agree with this contention.
On August 31, 1966, William J. Martello and Bonnie G. Canter, respondents, individually
and on behalf of all other stockholders of Searchlight Development, Inc., a Nevada
corporation (hereinafter referred to as Searchlight), and El Rey Operations, Inc., a Nevada
corporation (hereinafter referred to as El Rey), and Searchlight brought an action against
Searchlight, El Rey, Casino Operations, Inc., a Nevada corporation, Judith F. Bayley, Calvin
C. Magleby and Title Insurance and Trust Company, a California corporation (hereinafter
referred to as Title Company), to (1) declare a trust deed on Searchlight's real property
void; (2) to declare that Martello, Canter and Louis E. Cooper are the directors and officers of
Searchlight; (3) to obtain damages in the amount of $1,250,000; and (4) to appoint receivers
of Searchlight and El Rey. At the time that the action was commenced Martello owned 46
percent and Canter owned 4 percent of the stock in Searchlight and El Rey.
On September 7, 1966, Judge George E. Marshall granted a continuance of the
respondent's motion for a preliminary injunction and the appointment of a receiver.
____________________

1
NRCP 54(b). When more than one claim for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the
entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an express direction for the entry of judgment. In
the absence of such determination and direction, any order or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate
the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any
time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
a continuance of the respondent's motion for a preliminary injunction and the appointment of
a receiver. The motion was heard on October 18, and 19, 1966, and at that time Judge
Marshall continued a prior restraining order against Judith F. Bayley, one of the appellants,
enjoining her from foreclosing a second deed of trust against Searchlight.
Trial was set for November 14, 1966. On that date Judge Marshall was out of the judicial
district, and not wishing to hear any protracted cases, as his term in office was nearing an end,
he transferred the case to Judge John F. Sexton of the Third Judicial District. There was no
written request by Judge Marshall that Judge Sexton hear the case.
On December 19, 1966, the respondents appeared before Judge Sexton and moved for an
early trial. Trial was set for December 28, 1966, and was later continued until January 5,
1967.
Meanwhile on December 8, 1966, under a court order made pursuant to NRS 79.180, in
the case of D. W. Mercer, doing business as Mercer Enterprises, plaintiff, and William J.
Martello, doing business as El Rey Resort, defendant, Clark County case No. 116449, which
in the record is identified as defendant's exhibit No. 1, the sheriff of Clark County was to levy
upon and sell all of Martello's right, title and interest in Searchlight and El Rey, subject to the
interest therein of the Internal Revenue Service.
On December 27, 1966, after notice, the sheriff sold Martello's interest to appellant Bayley
for $2,000.
Later that same day Judge Sexton, in the case of C. W. Lynn, plaintiff, v. Judith F. Bayley,
Calvin C. Magleby, D. W. Mercer, Howard Babcock, Ralph Lamb, Searchlight Development,
Inc., and El Rey Operations, Inc., defendants, Clark County case No. A39354, issued a
restraining order prohibiting Bayley, et al., from selling or encumbrancing the interest which
she purchased at the sheriff's sale.
The next day, December 28, 1966, respondent Lynn filed the complaint in case No.
A39354, supra, alleging that on December 26, 1966, he had purchased the stock in question
from Martello by an assignment separate from the certificates, and that the sheriff's sale was
null and void.
On January 4, 1967, the appellants filed a motion to drop Martello as a plaintiff on the
ground that all his interest in Searchlight and El Rey had been sold at the sheriff's sale of
December 27, 1966.
The motion was denied and the court added Lynn as a party-plaintiff.
On January 13, 1967, a Judgment Pursuant to Nevada Rules of Civil Procedure-Rule
54(b) was filed, which judgment appointed a corporate receiver for the property of
Searchlight and El Rey, and enjoined all creditors of the two corporations from bringing any
action against the two corporations and specifically enjoined the appellant Title Company and
one Marshall W. Sawyer, the holder of a first trust deed on some of Searchlight's real
property, from foreclosing such trust deed. Findings of Fact and Conclusions of Law were
filed the same day.
Among the many assignments of error, appellants claim that the district court was without
jurisdiction to appoint a receiver for Searchlight and El Rey because the respondents Martello
and Canter were not the holders of one-tenth of the issued and outstanding capital stock of
those corporations on the date the trial of the matter commenced as required by NRS
78.650(1).
2

[Headnote 1]
There is no merit in respondent Lynn's contention that he acquired all of the stock in
Searchlight and El Rey from Martello prior to the sheriff's sale on December 27, 1966.
There was no physical delivery of the certificates by Martello to Lynn and the purported
transfer did not meet the requirements of NRS 79.050.3 All Lynn received, if anything, was
a promise to transfer {see NRS 79.140),4 and Lynn's remedy, if any, is against Martello.
____________________

2
NRS 78.650(1). 1. Any holder or holders of one-tenth of the issued and outstanding capital stock may
apply to the district court, held in the district where the corporation has its principal place of business, for an
order dissolving the corporation and appointing a receiver to wind up its affairs, and by injunction, restrain the
corporation from exercising any of its powers or doing business whatsoever, except by and through a receiver
appointed by the court, whenever:
(a) The corporation has willfully violated its charter; or
(b) Its trustees or directors have been guilty of fraud or collusion or gross mismanagement in the conduct or
control of its affairs; or
(c) Its trustees or directors have been guilty of misfeasance, malfeasance or nonfeasance; or
(d) The corporation shall be unable to conduct the business or conserve its assets by reason of the act, neglect
or refusal to function of any of the directors or trustees; or
(e) The assets of the corporation are in danger of waste, sacrifice or loss through attachment, foreclosure,
litigation or otherwise; or
(f) The corporation has abandoned its business; or
(g) The corporation has not proceeded diligently to wind up its affairs, or to distribute its assets in a
reasonable time; or
(h) The corporation has become insolvent; or
(i) The corporation, although not insolvent, is for any cause not able to pay its debts or other obligations as
they mature; or
(j) The corporation is not about to resume its business with safety to the public.
requirements of NRS 79.050.
3
All Lynn received, if anything, was a promise to transfer (see
NRS 79.140),
4
and Lynn's remedy, if any, is against Martello.
The sale of Martello's right, title and interest in his outstanding stock in Searchlight and El
Rey, by the sheriff pursuant to the order of the district court, was valid, and Bayley became
the legal owner of Martello's interest subject to the rights of the Internal Revenue Service.
[Headnote 2]
The district court was authorized under NRS 79.180
5
(now NRS 104.837), to issue the
order in Mercer v. Martello, No. 116449, supra, and being valid on its face is not subject to
collateral attack in this case.
[Headnotes 3, 4]
An order of a court of general jurisdiction cannot be assailed by collateral attack unless
upon the face of the record it lacks jurisdiction. In Rowe v. Blake, 44 P. 1084 (Cal. 1896), the
court said: But it must be observed that this is not a direct, but a collateral, attack upon the
proceedings of the court which resulted in such order, and in such case every intendment is
to be indulged in support of the regularity of those proceedings and such determination."
____________________

3
NRS 79.050. Title to a certificate of and to the shares represented thereby can be transferred only:
1. By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by
the certificate to be the owner of the shares represented thereby; or
2. By delivery of the certificate and a separate document containing a written assignment of the certificate
or a power of attorney to sell, assign, or transfer the same or the shares represented thereby signed by the person
appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of
attorney may be either in blank or to a specific person.
The provisions of this section shall be applicable although the charter or articles of incorporation or code of
regulations or bylaws of the corporation issuing the certificate and the certificate itself provide that the shares
represented thereby shall be transferable only on the books of the corporation or shall be registered by a registrar
or transferred by a transfer agent.

4
NRS 79.140. An attempted transfer of title to a certificate or to the shares represented thereby without
delivery of the certificate shall have the effect of a promise to transfer and the obligation, if any, imposed by
such promise shall be determined by the law governing the formation and performance of contracts.

5
NRS 79.180. A creditor whose debtor is the owner of a certificate shall be entitled to such aid from courts
of appropriate jurisdiction, by injunction and otherwise, in attaching such certificate or in satisfying the claim by
means thereof as is allowed at law or in equity, in regard to property which cannot readily be attached or levied
upon by ordinary legal process.
resulted in such order, and in such case every intendment is to be indulged in support of the
regularity of those proceedings and such determination.
In the case of Lieberman v. Superior Court, 236 P. 570 (Cal. 1925), the court said: The
rule against collateral impeachment of judgments applies generally to all varieties of
judgment, decrees, or orders made by courts of competent jurisdiction, in all kinds of judicial
proceedings.
Respondents contend that the order of the district court under NRS 79.180 (now 104.837),
is erroneous, and that the sheriff's sale made pursuant thereto was void.
In the case of Rowe v. Blake, supra, the court went on to say: The order was sufficiently
pleaded and found, and is to be sustained by the same presumptions of regularity as attach to
a judgment, and is not subject to be overthrown otherwise than in a direct proceeding for the
purpose. However erroneously the court may have acted in the premises, it being within its
jurisdiction to make the order, its order is not absolutely void, and mere error cannot affect its
binding effect for present purposes. This being true, the process issued in pursuance of such
order was not void, even if erroneous, and the proceedings taken thereunder in execution of
the judgment are protected by the same presumptions of regularity as attach to the judgment
itself. A collateral attack can no more be made upon an erroneous execution than upon an
erroneous judgment. Like erroneous judgments, an erroneous execution is valid until set aside
upon a direct proceeding brought for that purpose, and until set aside all acts which have been
done under it are also valid. In a collateral action it cannot be brought in question, even by a
party to it, much less, as in this case, by a stranger to it. Hunt v. Loucks, 38 Cal. 382.
Minardi v. Collopy, 316 P.2d 952 (Cal. 1957); Flynn v. Janssen, 266 S.W.2d 666 (Mo. 1954);
Salt Lake City v. Industrial Commission, 22 P.2d 1046 (Utah 1933).
In Flynn v. Janssen, supra, the court said: An order made by a court in the course of a
judicial proceeding imports the same absolute verity as does a judgment. State ex rel. Sprately
v. Maries County, 339 Mo. 577, 580[2], 98 S.W.2d 623, 624[3-5]. Thus an order or judgment
(at least one which is not absolutely unintelligible) cannot be void on its face or an absolute
nullity if it appears that the court which entered it had jurisdiction of the parties and of the
subject matter and had jurisdiction to enter the particular order.
[Headnote 5]
When the trial commenced on January 6, 1967, Judith F. Bayley was the legal owner of all
of Martello's interest in the issued and outstanding stock of both Searchlight and El Rey,
and the district court was without jurisdiction to consider the matter and enter its
judgment pursuant to NRCP 54{b) because the respondents were not then holders of
one-tenth of the issued and outstanding capital stock as required by NRS 7S.650{1).
issued and outstanding stock of both Searchlight and El Rey, and the district court was
without jurisdiction to consider the matter and enter its judgment pursuant to NRCP 54(b)
because the respondents were not then holders of one-tenth of the issued and outstanding
capital stock as required by NRS 78.650(1). Transcontinental Oil Co. v. Free, 80 Nev. 207;
391 P.2d 317 (1964).
[Headnote 6]
The district court does not have jurisdiction to appoint a corporate receiver, unless the
applicant holder or holders of one-tenth of the issued and outstanding stock has legal title at
the time the court considers the application.
In Hill v. Vaill, 176 A.2d 881 (N.J. 1961), that court said: Here, as of the moment when
the court is determining whether or not a temporary receiver should be appointed, with due
regard to the relevant statutes,' less than the required statutory percentage of the stock is now
demanding such appointment. This is the controlling time, rather than the moment when the
complaint and application were originally drafted or signed or even filed in court.
Finding the district court without jurisdiction to hear this matter, the appellant's remaining
assignments of error are not here considered or decided.
The judgment pursuant to NRCP 54(b) is reversed, the injunction granted therein is hereby
dissolved, and this case is remanded for further proceedings not inconsistent with this
opinion.
____________
84 Nev. 109, 109 (1968) Paradise Homes v. Central Surety
PARADISE HOMES, INC., Appellant, v. CENTRAL SURETY AND INSURANCE
CORPORATION, and JOSEPH PHILLIPS, Respondents.
No. 5343
February 5, 1968 437 P.2d 78
Contract action by a contractor against subcontractor's surety. The trial court rendered
judgment for contractor but limited recovery of interest to time of judgment, and contractor
appealed. The Supreme Court, Collins, J., held that where contractor, subcontractor, and
subcontractor's surety agreed that contractor might complete subcontractor's work if
subcontractor defaulted and that surety would pay contractor all costs so incurred and
where default occurred and contractor completed the work and sued surety under the
contract and upon performance bond, surety's performance was due before suit was
commenced, but contractor, having sought interest only from time of instituting suit, was
entitled to interest beginning then.
contractor, subcontractor, and subcontractor's surety agreed that contractor might complete
subcontractor's work if subcontractor defaulted and that surety would pay contractor all costs
so incurred and where default occurred and contractor completed the work and sued surety
under the contract and upon performance bond, surety's performance was due before suit was
commenced, but contractor, having sought interest only from time of instituting suit, was
entitled to interest beginning then.
Reversed and remanded with direction.
Samuel S. Lionel, of Las Vegas, for Appellant.
Jack J. Pursel, of Las Vegas, and Richard A. Williams, of San Francisco, for Respondent.
1. Interest.
In deciding whether interest is allowable prior to or at judgment, great significance is attached to question
of liquidated versus unliquidated damages, under statute providing that where there is no express contract
in writing fixing different rate of interest, interest shall be allowed at 7 percent per annum upon all money
from time it becomes due upon contracts, express or implied, other than book accounts. NRS 99.040,
subd. 1.
2. Interest.
Interest is permissible only when authorized by statute. NRS 99.040.
3. Interest.
To enable trial court to make appropriate award of interest, determination of rate of interest, time when it
commences to run, and amount of money to which the rate must be applied is necessary. NRS 99.040.
4. Interest.
Money becomes due, within statute providing that where there is no express contract in writing fixing
different rate of interest, interest shall be allowed at 7 percent per annum upon all money from time it
becomes due under contracts, express or implied, other than book accounts means the time when
performance is due as resolved upon trial. NRS 99.040, subd. 1.
5. Interest.
Under statute allowing interest at 7 percent per annum upon contracts, express or implied, other than
book accounts if no written contract fixes a different rate, the amount to which interest rate will be applied
is determinable by the following factors: (1) if contract breached provides for definite sum, that sum; (2) if
required performance, the value of which is stated in money or is ascertainable by mathematical calculation
from standard fixed in contract or established market prices, that sum, and pre-judgment interest shall be
allowed after making all proper deductions. NRS 99.040, subd. 1.
6. Interest.
Where contractor, subcontractor, and subcontractor's surety agreed that contractor might complete
subcontractor's work if subcontractor defaulted and that surety would pay contractor all costs so incurred
and where default occurred and contractor completed the work and sued surety under the contract and upon
performance bond, surety's performance was due before suit was commenced, but contractor, having
sought only interest from time of instituting suit, was entitled to interest beginning then. NRS 99.046, subd.
1.
OPINION
This is a contract action. The only issue with which we are concerned on appeal involves
the question of interest. The trial court limited the recovery of interest to the time of
judgment. We conclude that to be error, reverse the order and remand with direction.
Paradise Homes entered into a subcontract with Jamieson Drywall and Paint Company, a
partnership, wherein Jamieson agreed to perform labor and supply material to Paradise valued
at $133,800. Central Surety provided a performance bond for Jamieson.
Jamieson experienced difficulty in performing its contract with Paradise. Another contract
was entered into between Paradise, Central Surety and Jamieson, which allowed Paradise to
complete Jamieson's work if it defaulted, in which event Central Surety would pay Paradise
all costs incurred in the completion thereof, including a reasonable cost for overhead,
together with all labor paid for and materials purchased * * *. Jamieson defaulted on its
contract.
Paradise completed Jamieson's subcontract work and sued Central Surety under the latter
contract and upon the performance bond. After extensive hearings before a master, during
which many of the items claimed by Paradise were contested, the court ordered judgment for
Paradise
1
in the amount of $60,039.47 with costs. The court also found Central Surety was
entitled to an offset in the amount of $3,109.50 for extra work done by Jamieson under the
subcontract.
The trial judge directed that interest commence to run from the date of the judgment at the
statutory rate of 7 percent per annum.
____________________

1
Judgment in favor of Paradise was entered also against Phillips, one of the partners. In turn judgment was
entered in favor of Central Surety against Abraham and Phillips, partners with Jamieson, as indemnitors on the
performance bond.
annum. Appellant urges that interest should have been allowed from the time of the filing of
the suit.
Allowance of interest incident to civil litigation is a vexatious question not only in
Nevada, but everywhere. There seems to be little uniformity on the matter in either the
statutes, the cases, or the law of the several jurisdictions in this country.
Nevada has dealt with this question both by statute and decisions of this court. The first
legislative enactment was in 1861,
2
which provided:
When there is no express contract, in writing, fixing a different rate of interest, interest
shall be allowed at the rate of ten per cent. [sic] per annum, for all moneys after they become
due on any bond, bill, or promissory note, or other instrument of writing, on any judgment
recovered before any court in this territory, for money lent, for money due on the settlement
of accounts, from the day on which the balance is ascertained, and for money received to the
use of another.
The 1861 statute was amended in 1887
3
reducing the rate of interest from ten to seven
percent.
In 1917 the statute was further amended
4
to its present form. It read: * * * When there is
no express contract in writing fixing a different rate of interest, interest shall be allowed at the
rate of seven per cent per annum upon all money from the time it becomes due, in the
following cases:
(a) Upon contracts, express or implied, other than book accounts. See also 1919 RL
2499; NCL 4322; NRS 99.040.
This court has construed these statutes in many cases, allowing pre-judgment interest on
occasions but generally allowing interest only from the date of judgment.
The initial construction of Nevada's interest statute was in Flannery v. Anderson, 4 Nev.
437 (1868), a suit upon an open account wherein after concluding the trial court improperly
allowed interest prior to judgment, the court observed: * * * [T]his statute does not allow
interest on money due on an open account; and it is a legal presumption that it was not the
intention of the Legislature to allow it in any cases save those mentioned in the Act. The
account here sued on was open and unsettledhence under this statute no interest is
recoverable on it. We know of no good reason why it should not be allowed on all money due
on account from the time it becomes payable, except that the Legislature has provided
otherwise." Id. at 443.
____________________

2
Territorial Laws of Nevada, 1861, Chap. 34, p. 99-100, 4.

3
Stats. of Nev. 1887, Chap. 87, p. 82.

4
Stats. of Nev. 1917, Chap. 188, p. 351.
becomes payable, except that the Legislature has provided otherwise. Id. at 443.
In Skinker v. Clute, 9 Nev. 342 (1874), this court concluded interest prior to judgment was
a proper allowance in a suit upon an open account where plaintiff's demand was admitted and
the issue at the trial was the correctness of defendant's counterclaim. This court held: The
complainant prays for interest upon $314.30, from June 6, 1873. It would seem that this
interest was not allowed, since the verdict is for $312.93. In the case of Flannery v. Anderson,
4 Nev. 437, it was decided under Sec. 32 (Comp. Laws) that in the absence of an express
contract thereto in writing, interest was not recoverable upon money due upon an open
account. The same statute declares that interest shall be allowed upon money due on the
settlement of accounts from the day on which the balance is ascertained.
In our view of this case the account was liquidated and the balance ascertained by the
admissions of the answer, and interest upon the balance was, therefore, allowable. Id. at 345.
In Vietti v. Nesbitt, 22 Nev. 390, 41 P. 151 (1895), this court construed the 1887 statute,
concluded the trial court had erroneously allowed interest prior to judgment and said:
Although interest is frequently allowed in actions involving torts to property, it is simply by
way of damages, and in actions where the amount of damages is more or less in the discretion
of the court or jury. In such cases, in the absence of special circumstances of fraud or
oppression, the legal rate of interest from the time of the commission of the wrong is a safe
and uniform measure of damages. (Glass Factory v. Reid, 5 Cow. 587, 609.) But this is not
that kind of a case, and interest was not included as a part of the plaintiff's damages, but as an
incident to the amount due him under the contract, and allowed as a matter of law. As such, it
does not come within the terms of our statute (Gen. Stats., sec. 4903, as amended, Stats.
1887, p. 82) and consequently was improper. Id. at 399.
In Hobart Estate Co. v. Jones, 51 Nev. 315, 274 P. 921 (1929), the lower court's allowance
of interest prior to judgment was upheld by this court when it said: The first contention we
will consider is that the court erred in giving judgment for interest on the amount due for
supplies furnished. * * * [I]n view of the fact that there is no evidence before us, every
presumption must be indulged that there was a showing in the lower court that the claim in
question was not an unliquidated claim as of the date from which the court ordered that it
draw interest.
claim as of the date from which the court ordered that it draw interest.
Our statute provides that, when there is no express contract in writing fixing a different
rate of interest, interest shall be allowed at the rate of 7 per cent per annum upon all money
from the time it becomes due in certain cases, of which this is one. Stats. 1917, p. 351; 3
Rev.Laws, p. 2855, sec. 4. The complaint alleges the time when the amount sued for became
due. In the circumstances we must assume that the amount claimed fell due at the time fixed
by the court. Id. at 320.
In Agricultural Ins. Co. v. Biltz, 57 Nev. 370, 64 P.2d 1042 (1937), this court upheld an
order of the trial court denying interest prior to judgment and said: This stipulation [Section
4322 N.C.L.] provides methods for establishing the loss, in other words, for liquidating the
claim and fixing a time thereafter for payment. But as there was no satisfactory proof of loss,
or valid award, the demand was unliquidated until the rendition of judgment.
The money did not become due under the statute until then. The statute is in harmony
with the general rule that interest is not recoverable upon unliquidated demands, but is
allowable only after such demands have been merged in a judgment. 33 C.J. 211.
* * * * *

It regards interest allowed as damages when the amount of damages is more or less in the
discretion of the court. Such is not this case. Here interest is allowable only by reason of the
statute. Id. at 385.
This court upheld an award of interest prior to judgment in Dollar Inv. v. Modern Market,
Inc., 77 Nev. 393, 365 P.2d 311 (1961), and said: [I]n the case before us, the contract
specifically provided that the full purchase price would be due and payable, and the escrow
would close on August 1, 1958. By that time the retail cost inventory had been taken and the
exact amount due seller under the contract was known to both parties. Dollar did not refuse to
pay because the amount due was unknown; it refused because of its claim that the contract
did not correctly state the parties' intended agreement, an entirely different matter.
NRS 99.040 provides that, upon an express contract, interest shall be allowed at the rate
of 7 percent per annum upon all money from the time it becomes due.' The lower court was
clearly correct in allowing interest from August 2, 1958. Id. at 397.
In Arley v. Liberty Mutual Fire Ins., 80 Nev. 5, 388 P.2d 576 (1964) this court again
upheld an interest award as of the date of judgment and said: "As to each and all of these
three items, the respective amounts were not liquidated other than by the judgment
itself.
the date of judgment and said: As to each and all of these three items, the respective
amounts were not liquidated other than by the judgment itself. Accordingly, interest did not
commence to run prior to the entry of judgment. Id. at 14-15.
In Sierra Pacific Power Co. v. Nye, 80 Nev. 88, 389 P.2d 387 (1964), this court reversed
the trial court's ruling which denied interest prior to judgment and said: The amount of
overpayment within the four years prior to the filing of the complaint was definitely
ascertainable by mere mathematical calculation, being the difference between the K and C
rates. * * * Plaintiffs were entitled to repayment by the defendant on the date each
overpayment was made, and therefore they are entitled to the statutory rate of interest from
each of such dates. Id. at 96.
Finally in Dudrey v. Milner, 80 Nev. 447, 396 P.2d 30 (1964), this court modified a
judgment of the trial court allowing interest prior to judgment and said: [T]he partnership
agreement, as quoted above, provides for the determination of the purchase price of the
deceased partner's share only after an audit. Until such audit was accomplished the amount to
be paid for the deceased's share of the partnership was unknown. Therefore, the amount due
the deceased's estate upon the exercise of the option by Dudrey was not definitely
ascertainable by a mere mathematical calculation,' at the time of the deceased partner's death,
as in Sierra Pacific Power Co. v. Nye. Nor was the amount due at the time of the exercise of
the option known to both parties as in Dollar Inv. v. Modern Market, 77 Nev. 393, 365 P.2d
311, 1117. The amount due Milner was unknown until the rendition of judgment and did not
become due until then. It follows that the rule in Agricultural Insurance Co. v. Biltz, 57 Nev.
370, 64 P.2d 1042, is applicable, and therefore interest on the amount due and owing at the
time of the judgment commenced to run only from the date of the judgment. Id. at 451.
[Headnote 1]
It becomes immediately apparent that this court has attached great significance to the
question of liquidated versus unliquidated damages in deciding whether interest would be
allowed prior to or at judgment. Looking backward into our cases, this rule apparently
solidified through the Agricultural Ins. Co. v. Biltz, supra, holding where it was said, The
statute [Section 4322 N.C.L.] is in harmony with the general rule that interest is not
recoverable upon unliquidated demands, but is allowable only after such demands have been
merged in a judgment. 33 C.J., 211.
Yet over the years this court has never undertaken to define when damages are liquidated
or unliquidated which would or would not support a pre-judgment allowance of interest. We
have never really considered the problem in depth or fixed a meaningful definition of the
statutory words from the time it becomes due, so that litigants and the courts could resolve
the problem with reasonable certainty using a realistic yardstick of entitlement.
We must keep foremost in mind the exact problem with which we are concerned. First,
there is a legislative pronouncement upon the subject. Second, we are dealing in this case
only with subparagraph 1 of NRS 99.040. Third, there is involved here an express contract, in
writing, wherein no different rate of interest was fixed by the parties.
[Headnote 2]
At common law, no interest was allowed and it is only permissible now when authorized
by statute. 47 C.J.S. Interest 3(a). The legislature in Nevada has abrogated the common law
and specifically directed that interest shall be allowed at the rate of 7 percent per annum
upon all money from the time it becomes due * * *.
(1) Upon contracts, express or implied, other than book accounts. The problem centers
then on the meaning of the words from the time it becomes due.
It is beyond argument that interest is recoverable as a matter of right in actions upon
contracts, express or implied, upon all money from the time it becomes due.
[Headnotes 3-5]
Three items must be determined to enable the trial court to make an appropriate award of
interest: (1) the rate of interest; (2) the time when it commences to run; and (3) the amount of
money to which the rate of interest must be applied. The rate of interest is set by our statute at
seven percent per annum. NRS 99.040. The statute also states that interest runs from the time
money becomes due. We construe that to be the time when performance was due as
resolved by the court upon trial of the cause. The amount of money to which the interest rate
will be applied must be determined by the following factors: (1) if the contract breached
provides for a definite sum of money, that sum; (2) if the performance called for in the
contract, the value of which is stated in money or is ascertainable by mathematical calculation
from a standard fixed in the contract or from established market prices of the subject matter,
that sum. Pre-judgment interest shall be allowed on the amount of the debt or money value
so determined, after making all the deductions to which the defendant may be entitled.
the amount of the debt or money value so determined, after making all the deductions to
which the defendant may be entitled. 1 Restatement of the Law, Contracts 337 (a);
5
O'Meara v. Commercial Insurance Company, 376 P.2d 486 (N.M. 1962). See also Dollar Inv.
v. Modern Market, supra; Sierra Pacific Power Co. v. Nye, supra. A seemingly different
conclusion in any other Nevada case cited above is specifically overruled.
This action by Paradise against Central Surety is upon an express contract seeking money
damages for its breach. The money was due when Central Surety breached the contract to pay
a definite sum of money, or to render a performance the value of which in money was stated
in the contract, or was ascertainable by mathematical calculations from a standard fixed in the
contract or from established market prices of the subject matter. This sum when determined
should be reduced by all deductions to which the defendants may be entitled. The net amount
should bear interest at 7 percent per annum prior to and after judgment.
[Headnote 6]
We conclude as a matter of law from the record in this case, that performance was due
appellant sometime prior to commencement of its action. However, since appellant sought in
the court below and here interest as of the commencement of its action, we reverse the ruling
of the trial court limiting interest to the time of judgment and remand with direction to
modify its judgment allowing interest to appellant at the rate of 7 percent per annum from the
commencement of its action on the net amount recovered.
____________________

5
In 1 Restatement of the Law, Contracts 337, in addition to subparagraph (a) there is a subparagraph (b)
which reads as follows: Where the contract that is broken is of a kind not specified in Clause (a), interest may
be allowed in the discretion of the court, if justice requires it, on the amount that would have been just
compensation if it had been paid when performance was due. However, since the facts in this case fall squarely
within the provisions of subparagraph (a) we express no opinion upon the applicability of subparagraph (b) to
the law of Nevada.
____________
84 Nev. 118, 118 (1968) Walker v. Walker
SHIRLEY ANN TOWNER WALKER, Appellant, v.
ALEXANDER STUART WALKER, Respondent.
No 5348
February 5, 1968 437 P.2d 91
Appeal from order denying motion to dissolve a preliminary injunction. Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
Declaratory relief action by husband, after receiving divorce, to settle property and
alimony questions. The lower court granted preliminary injunction restraining wife from
proceeding with divorce action commenced in California and denied wife's motion to
dissolve injunction, and wife appealed. The Supreme Court, Zenoff, J., held that preliminary
injunction against further prosecution of prior divorce action in sister state to determine
property and alimony questions should not have been granted when question of residence in
sister state was best decided by that state.
Reversed with directions.
Frank W. Daykin, of Carson City, Russell W. McDonald, of Reno, and Ralph W.
Thompson, of Monterey, California, for Appellant.
John J. McCune, of Reno, and Richard G. Burns, of Corte Madera, California, for
Respondent.
1. Courts.
Preliminary injunction against further prosecution of wife's prior California divorce action for
determination of property and alimony questions after husband's Nevada divorce had been accepted should
not have been granted by Nevada court as question of wife's residence in California was best decided by
California court.
2. Injunction.
Power to restrain parties from proceeding with prior action pending in another jurisdiction is to be
sparingly and reluctantly exercised and clear showing must be made that restraint is necessary to prevent
manifest wrong or injustice.
OPINION
Shirley Walker appeals from an order denying her motion to dissolve a preliminary
injunction restraining her from proceeding with a divorce action commenced in California.
Shirley Walker and Alexander Walker were married at Reno, Nevada, on April 2, 1960.
They lived in Reno until August 24, 1962 when they moved to Carmel, California. On
October 5, 1963 the parties separated. Shirley commenced a divorce action in California on
February 3, 1964 praying for divorce, a division of property and alimony. She was granted
temporary alimony and the case remains pending for resolution. Alexander Walker returned
to Nevada and procured a Nevada ex parte divorce, but without distribution of property or a
determination of alimony. Soon thereafter, he commenced this action for declaratory relief to
settle property and alimony questions.
We do not on this appeal determine the propriety of declaratory relief as a remedy in these
circumstances. The sole issue is whether the Nevada trial court acted within the permissible
limits of its discretion in enjoining further prosecution of the California lawsuit. It is to be
noted that Shirley does not there contest the validity of Alexander's Nevada divorce. Indeed,
she concedes that the nature of the California action was automatically changed by the entry
of the intervening Nevada decree dissolving the marriage. Her prayer for divorce in the
California case is now moot. Only alimony and property remain to be adjudicated. Hudson v.
Hudson, 344 P.2d 295 (Cal. 1959). See also Portnoy v. Portnoy, 81 Nev. 235, 401 P.2d 249
(1965).
In the instant matter Alexander apparently convinced the district court that Shirley could
not qualify as a California resident and that California lacks jurisdiction to proceed with the
case pending there.
[Headnotes 1, 2]
On the face of the record Nevada and California each have jurisdiction of the subject
matter and of the parties. As already indicated, our concern is with the propriety of a
preliminary injunction against the further prosecution of an extra state lawsuit involving the
same parties and issues. In Brunzell Construction Co., Inc. v. Harrah's Club, 81 Nev. 414, 404
P.2d 902 (1965), we ruled that considerations such as local Nevada conditions, convenience
to the Nevada plaintiff, and his desire to litigate in Nevada rather than elsewhere, were not
persuasive considerations, and we approved the notion that the power to restrain the parties
from proceeding in another jurisdiction is to be sparingly and reluctantly exercised. By reason
of Brunzell, it is clear that our policy is to avoid where possible the restraint of a prior action
pending in another state. A clear showing must be made that restraint is necessary to prevent
manifest wrong or injustice.
The controversy over the validity of Shirley's residence in California does not suggest that
Nevada should entertain the litigation and preclude California from further action. Indeed, the
question whether Shirley has established a residence, sufficient in nature and duration to meet
the requirements of California, is peculiarly one of California law. If in fact the California
court lacks jurisdiction, then we must assume that the California court will correctly decide
this point of California law. In the event California rules that Shirley's domicile is in that
state, it is appropriate that the California court should also determine her right to support. See
Portnoy v. Portnoy, supra at 237.
In line with Brunzell Construction Co., Inc. v. Harrah's Club, supra, we hold that the
injunction issued by the district court was improvidently granted and it is hereby dissolved.
We further order that further proceedings in the district court be stayed pending determination
of the California litigation.
Reversed with directions.
____________
84 Nev. 120, 120 (1968) Schnepp v. State
DONALD JAMES SCHNEPP, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 5393
February 5, 1968 437 P.2d 84
Appeal from the Second Judicial District Court, Washoe County; John B. Gabrielli, Judge.
Prosecution for burglary. The trial court entered a judgment of conviction of first degree
burglary and the defendant appealed. The Supreme Court, Collins, J., held that questioning of
defendant as to ownership of television set observed in front seat of automobile which was
being driven by defendant when police stopped the same were proper pre-custody inquiries
which were investigative and noncoercive in nature and were justified by legitimate police
practice, and defendant's answers of I don't know were admissible even though there had
not been a Miranda warning from officer who had interrogated him.
Affirmed.
Howard F. McKissick, Jr., of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Virgil D. Dutt,
Deputy District Attorney, Washoe County, for Respondent.
Criminal Law; Municipal Corporations.
Questioning of defendant as to ownership of television set observed in front seat of automobile which
was being driven by defendant when police stopped the same were proper pre-custody inquiries which were
investigative and non-coercive in nature and were justified by legitimate police practice, and defendant's
answers of I don't know were admissible in burglary prosecution even though there had not been a
Miranda warning from officer who had interrogated him.
OPINION
Appellant Schnepp was convicted of first degree burglary. His appeal contends it was error
for the trial court to admit in evidence his answers to two questions asked of him by an officer
prior to his arrest. We disagree and affirm the conviction.
Schnepp was previously convicted of the same crime. That conviction was affirmed on
appeal, Schnepp v. State, 82 Nev. 259, 415 P.2d 619 (1966). However, in a post-judgment
attack on the conviction by habeas corpus, he was granted a new trial. Schnepp v. Fogliana,
83 Nev. 131, 425 P.2d 141 (1967). He was retried, convicted and this appeal resulted.
The circumstances of the offense are well stated in the first Schnepp opinion in 82 Nev. at
page 259, and we quote therefrom with slight modification:
At approximately 9:00 p.m., April 23, 1965, the manager of Jimmy's Motel, Reno,
Nevada, observed a man leaving an unoccupied room in the motel carrying a large object.
The manager ran to the room and found the television set missing and called the police.
The police dispatcher immediately broadcast the reported burglary, gave the location of
the crime, stated that a television set had been taken, and reported that the culprit had left in
an automobile. An officer in the immediate vicinity responded. Some two to five minutes
after the broadcast, the officer arrived at the scene and observed defendant's automobile
approximately one-half block west of the motel moving at a slow speed. This was the only car
on the street at the time, had an Oregon license plate tied loosely on by wire, and its
occupants were seated crowded against their respective doors. After radioing for assistance,
the officer stopped defendant's car.
radioing for assistance, the officer stopped defendant's car. The defendant came running back
to the police car, but the officer worked his way up to defendant's car to get a better look at
the passenger. When alongside, the officer observed a television set partially covered with a
sweater on the front seat. Defendant stated, I don't know who it belongs to.'
1

Two other officers came to the aid of the officer who stopped the car, and they requested
the passenger in defendant's automobile to remove himself from the car. At that time, one of
the officers also observed the TV set on the seat.
The defendants were then arrested for first degree burglary.
Two principal points are assigned as error:
2

(a) The doctrine of Miranda v. Arizona, 384 U.S. 436 (1966), applies to a retrial taking
place after June 13, 1966, the effective date of the Miranda rule announced in Johnson v.
New Jersey, 384 U.S. 719 (1966).
(b) The trial court wrongfully admitted in evidence Schnepps' two answers of I don't
know in the absence of a Miranda warning from the officer who interrogated him.
We shall deal only with assigned error (b) because it is dispositive of the appeal.
We conclude that although the answers I don't know were in response to police
propounded questions, neither the questions nor the answers were custodial interrogation
and thus totally without the purview of the Miranda doctrine. The United States Supreme
Court has defined custodial interrogation as questioning instituted by law enforcement
officers after a person has been taken into custody or otherwise deprived of his freedom of
action in any significant way. Miranda v. Arizona, supra, at page 444. The questions directed
to Schnepp by the officer were proper, pre-custody inquiries, investigative and non-coercive
in nature, and justified by the circumstances as a legitimate police practice. Brown v. United
States, 365 F.2d 976 (D.C. Cir. 1966); White v. United States, 222 A.2d 843 (D.C. App.
1966); Washington v. Persinger, 433 P.2d 867 (Wash. 1967); 1 Cr.L.Rep. 2082 (N.Y.
Sup.Ct.App.Div. 1967); Dixon v. State, 1 Cr.L.Rep. 2304 (Md.App. 1967). Also see State v.
Billings, 84 Nev. 55, 436 P.2d 212 (1968).
____________________

1
The record indicates Schnepp was asked two questions, (1) to whom did the television set belong; and (2)
how did it get into the car? Schnepp answered, I don't know to both questions.

2
Other errors were urged by counsel which we decline to consider because they were either conceded to be
not well taken or would not affect the result announced.
We never reach assigned error (a) and express no opinion upon the point. We shall
consider it when a proper case is presented to us.
Appellant's counsel was appointed to take this appeal. We direct the lower court to give
him the certificate specified in subsections 3 and 4 of NRS 7.260, to enable him to receive
compensation for his services on appeal.
The conviction is affirmed.
Thompson C. J., Zenoff, Batjer, and Mowbray JJ., concur.
____________
84 Nev. 123, 123 (1968) Hardison v. State
WILLIE RICHARD HARDISON, Appellant, v. THE
No. 5042
February 6, 1968 437 P.2d 872
Appeal from conviction of forgery. Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
The Supreme Court, Zenoff, J., held, among other things, that the taking of handwriting
exemplars did not violate defendant's constitutional rights.
Affirmed.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, Alan R.
Johns and Addeliar Guy, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
The taking of handwriting exemplars did not violate defendant's Fifth Amendment privileges against
self-incrimination. U.S.C.A.Const. Amend. 5.
2. Criminal Law.
The taking of handwriting exemplars was not a violation of defendant's Sixth Amendment rights since the
taking of these exemplars was not at a critical stage of the criminal proceedings in which the absence of
counsel might have derogated from his rights to a fair trial. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
In prosecution for forgery, record showed that trial court did not allow prosecution attempt to use, in any
fashion, evidence relating to a suppressed document.
4. Criminal Law.
A claim of error, that there is no probable cause to be held to answer and stand trial, must be presented
before trial and will not be entertained following trial and conviction.
OPINION
On March 27, 1965 the offices of the Bruni Construction Co. were burglarized of several
blank payroll checks. On or about the day of the robbery the Foodland Food Market in Las
Vegas cashed a check purporting to be a Bruni payroll check in the amount of $156.38. The
check was payable to one John W. Pinkney and was ostensibly signed by Sam Bruni, son of
Anthony Bruni, owner of the construction company. It turned out to be a forgery and Willie
Hardison was identified from a group of pictures in the police files by the manager of the
market as the John W. Pinkney for whom he cashed the check. Hardison was convicted of
forgery. He appeals from the conviction assigning as error: the admission of handwriting
exemplars into evidence, the admission of evidence obtained from a suppressed document,
and the lack of probable cause to be held to answer and face trial.
1. The thrust of appellant's contention that it was error to admit handwriting exemplars
into evidence is grounded on the premise that the taking of handwriting exemplars violated
his constitutional rights. The arguments here advanced are similar to those propounded by the
appellant in Scott v. State, 83 Nev. 468, 434 P.2d 435 (1967), relating to fingerprint evidence.
We here rule as we did in Scott v. State, supra.
[Headnotes 1, 2]
The taking of handwriting exemplars does not violate the appellant's Fifth Amendment
privilege against self-incrimination. Nor is there a violation of the appellant's Sixth
Amendment rights since the taking of these exemplars is not a critical stage of the criminal
proceedings in which the absence of counsel might derogate from his right to a fair trial. The
handwriting exemplars were properly admitted into evidence. Gilbert v. California, 388 U.S.
263 (1967). See Scott v. State, supra; Schmerber v. California, 384 U.S. 757 (1966); United
States v. Wade, 388 U.S. 218 (1967).
[Headnote 3]
2. Next, the appellant contends that the trial court permitted expert testimony to relate
evidence obtained from a suppressed document.
Our review of the record discloses that the trial court did not allow nor did the prosecution
attempt to use, in any fashion, evidence relating to the suppressed document. This contention
is without merit.
[Headnote 4]
3. Further, the appellant asserts that there was no probable cause to be held to answer and
stand trial in the district court. Such claim of error must be presented before trial and will not
be entertained following trial and conviction. See Scott v. State, supra.
The conviction must be affirmed.
Thompson, C. J., Collins, Batjer, JJ., and O'Donnell, D. J., concur.
____________
WILLIE RICHARD HARDISON, Appellant, v. THE
No. 5197
February 6, 1968 437 P.2d 868
Appeal from conviction of first degree burglary and adjudication of being an habitual
criminal. Eighth Judicial District Court, Clark County; John Mowbray, Judge.
Defendant was convicted in the trial court of burglary and of being an habitual criminal
and he appealed. The Supreme Court, Zenoff, J., held that method of taking fingerprint
exemplars used as evidence was not in violation of defendant's constitutional rights and that
statute making it felony for person previously convicted of felony to possess a weapon
capable of being concealed on his person did not violate defendant's Second Amendment
right to possess and bear arms and indictment did not charge a separate offense in charge of
being an habitual criminal, and separate sentence could not be imposed.
Johns and Addeliar Guy, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Method of taking fingerprint exemplars used as evidence was not in violation of defendant's
constitutional rights.
2. Criminal Law.
Although failure either to utilize the statutory procedures for suppression of inadmissible evidence prior
to trial or to object at trial will ordinarily preclude appellate consideration of the issue, where defendant's
contentions are grounded on constitutional questions they will be considered on appeal. NRS 174.465.
3. Criminal Law.
Question of whether a particular witness is qualified as an expert and should be permitted to give opinion
evidence is to be determined by trial court in its discretion.
4. Criminal Law.
Weight of testimony of properly qualified expert witness is for jury.
5. Criminal Law.
Where police officer had six months of formal training studying fingerprint classification and
identification methods, 16 months of in-service tutelage from his supervisor and had lifted almost 1,000
latent fingerprints, court did not abuse its discretion in receiving his testimony regarding fingerprints as
expert testimony.
6. Criminal Law.
Fact that police officer had testified only once previously at trial had no bearing on his qualification as an
expert witness.
7. Criminal Law.
In prosecution under habitual criminal statute, defendant had requisite standing to collaterally attack
statute upon which previous conviction was based. NRS 202.360, 207.010, subd. 1.
8. Weapons.
Statute making it felony for person previously convicted of felony to possess a weapon capable of being
concealed on his person did not violate defendant's Second Amendment right to possess and bear arms.
NRS 202.360.
9. Weapons.
Second amendment of the United States Constitution applies only to federal government and absent state
constitutional provisions does not restrain state's authority to regulate weapons within its police powers.
U.S.C.A.Const. Amend. 2.
10. Weapons.
Regulation of weapons is valid subject for state regulation. NRS 202.360.
11. Criminal Law.
The words any felony, in habitual criminal statute contemplate a prior conviction under statute making
it a felony crime for person previously convicted of felony to possess a weapon capable of being concealed
on his person. NRS 207.010, subd. 1, 202.360.
12. Criminal Law.
Although, while serving in district attorney's office defendant's counsel had successfully prosecuted him,
no inherent conflict of interest was present in his subsequent representation of defendant.
Indictment did not charge a separate offense in charge of being an habitual criminal, and separate
sentence could not be imposed.
14. Criminal Law.
Supreme Court has power to modify erroneous sentences.
OPINION
Jerry Mackta returned to his apartment at about 10:00 p.m. of the evening of July 3, 1964.
He parked his car behind a red Pontiac automobile which, in turn, was parked in front of the
apartment. Mackta noticed some clothes sticking out of the Pontiac which upon closer
inspection turned out to be his clothes. Just then a man, later identified as the appellant, came
out of the locked apartment, ordered Mackta out of the way, and sped off in the Pontiac.
Mackta finding his apartment ransacked notified the police, giving them a description of the
burglar and the license number of the Pontiac. In a very short time the police picked up
Hardison in the Pontiac but the stolen items were never found.
Hardison was charged with burglary on one count, and with being an habitual criminal on
a second count. He was convicted of both. His sentence was 1 to 15 years on the burglary and
10 to 50 years for being an habitual criminal.
As grounds for appeal Hardison assigns as error:
1. Fingerprint records used as exemplars were unlawfully obtained in violation of
appellant's constitutional rights; therefore, such should have been suppressed as inadmissible
evidence.
2. The police officer who obtained the fingerprints from the apartment and the appellant
was not qualified as an expert; therefore, the trial court abused its discretion in admitting his
testimony as expert opinion evidence.
3. The Nevada statute, NRS 202.360, which makes it a felony crime for an ex-felon to
possess a weapon capable of being concealed on his person, is unconstitutional in violation of
his right to possess and bear arms. If this is true, the appellant was erroneously found to be an
habitual criminal. Even if this is not true, such a felony conviction based on NRS 202.360 is
not within the purview of the habitual criminal statute NRS 207.010(1).
4. Since defense counsel had previously been engaged in the prosecution of criminal cases
as a member of the Clark County District Attorney staff and had likewise successfully
prosecuted the appellant, there was a conflict of interest and appellant was denied the right to
adequate defense by his counsel.
5. Count 2 of the information charging appellant with being an habitual criminal does not
state a separate offense; therefore, separate sentences were erroneously imposed.
[Headnote 1]
1. It is contended that the fingerprint exemplars used as evidence were obtained in
violation of appellant's constitutional rights, therefore, such evidence should have been
suppressed and not admitted.
NRS 174.465 requires that motions to suppress evidence shall be made prior to trial. This
was not done. Nor was there such objection made at the trial of the case. The issue is now
presented for the first time on appeal.
[Headnote 2]
It is a general rule that failure either to utilize the statutory procedures to raise the question
prior to trial or to object at the trial of the case will preclude appellate consideration of the
issue when presented on appeal. Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967);
O'Briant v. State, 72 Nev. 100, 295 P.2d 396 (1956); Cranford v. State, 76 Nev. 113, 349
P.2d 1051 (1960); Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962). However, since
appellant's contentions are grounded on constitutional questions this court is obligated to
consider them on appeal. Noting that the issue as raised and the arguments advanced in
support thereof are identical to those considered and determined in Scott v. State, 83 Nev.
468, 434 P.2d 435 (1967), the contention is rejected as being without merit.
[Headnotes 3, 4]
2. The question whether a particular witness is qualified as an expert and should be
permitted to give opinion evidence is to be determined by the trial court in its discretion. The
weight of his testimony is, of course, a question for the jury. Recognizing this, the trial court,
itself, questioned the police officer regarding his qualifications as an expert, then permitted
voir dire by the appellant. Satisfied, the trial court then ruled that the fingerprint testimony of
the police officer may be introduced as expert testimony.
[Headnotes 5, 6]
The record reveals that the police officer had some six months of formal training at the
Institute of Applied Science studying fingerprint classification and identification methods. He
had some 16 months of in-service tutelage from his supervisor, likewise he studied on his
own from monthly F.B.I. fingerprint bulletins. He had lifted almost 1,000 latent fingerprint
made comparison of 600 latent fingerprints with those in police record, and had made 15
positive comparisons.
in police record, and had made 15 positive comparisons. The appellant stresses the fact that
the officer was not experienced in testifying at trial, having done so but once shortly before.
This had no relevancy to the question of his expertise. Indeed, it can be said of many
well-recognized experts that they have never testified. The trial court acted within the
permissible limits of its discretion in receiving the officer's testimony.
[Headnotes 7-10]
3. Next, it is contended that NRS 202.360, making it a felony crime for a person
previously convicted of a felony to possess a weapon capable of being concealed on his
person, is violative of the appellant's Second Amendment constitutional right to possess and
bear arms. Noting this contention to be a collateral attack on a 1961 conviction which is an
integral part of the habitual criminal finding in the present action, the appellant does have
requisite standing to raise the relevant question here on appeal. However, based on the
rationale of our decision in Harris v. State, 83 Nev. 404, 432 P.2d 929 (1967), the appellant's
contention is deemed to be without merit. That case firmly established that the Second
Amendment right is not absolute. The provision only applies to the federal government, and
absent federal or state constitutional restraints the authority to regulate weapons comes from a
state's police powers. This is a valid subject for state regulation.
Thus the adjudication of being an habitual criminal was proper as two prior felony
convictions were factually established by the state.
[Headnote 11]
NRS 207.010(1) Provides that any person convicted of any felony, who shall previously
have been twice convicted * * * shall be adjudged to be an habitual criminal * * *. To say
that any felony does not contemplate a prior conviction under NRS 202.360 is to ignore the
plain wording of this statute. The appellant is in fact and law an habitual criminal within the
purview of NRS 207.010(1).
[Headnote 12]
4. It is contended that, because defense counsel had several years previously been a
prosecuting attorney for the district attorney's office and had successfully prosecuted the
appellant, a conflict of interest was present and the attorney did not adequately represent the
appellant. The basis of this contention appears to be that a former prosecuting attorney is
presumed to have a conflict of interest in representing a criminal defendant. Such a
presumption is logically unwarranted. Further, the record is devoid of any showing that
defense counsel did not adequately and effectively represent the appellant's interests.
record is devoid of any showing that defense counsel did not adequately and effectively
represent the appellant's interests.
[Headnotes 13, 14]
5. The appellant correctly asserts that count 2 of the information, being an habitual
criminal, does not charge a separate offense for which a separate sentence could be imposed.
Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Hollander v. State, 82 Nev. 345, 418 P.2d
802 (1966).
It is well-recognized that this court has the power to modify erroneous sentences. Lisby v.
State, supra; Hollander v. State, supra; Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968). The
sentence is modified to read:
That Willie Richard Hardison is guilty of the crime of first degree burglary and that he be
punished by imprisonment in the Nevada State Penitentiary for a term from ten to fifty years
as provided for under NRS 207.010(1) upon a felony conviction which was followed by proof
of the two prior felonies alleged.
The District Court of the Eighth Judicial District is directed to correct its records
accordingly.
Affirmed as modified, and so ordered.
Thompson, C. J., Collins, Batjer, JJ., and O'Donnell, D. J., concur.
____________
84 Nev. 130, 130 (1968) State General Obligation Bond v. Koontz
STATE Ex Rel. STATE GENERAL OBLIGATION BOND COMMISSION, Relator, v.
JOHN KOONTZ, Secretary of State, Respondent.
No. 5486
COLORADO RIVER COMMISSION OF NEVADA, Petitioner, v. THOMAS R. RICE,
Secretary of the Colorado River Commission of Nevada, Respondent.
No. 5487
February 8, 1968 437 P.2d 72
Original proceedings in mandamus.
Proceedings to compel Secretary of Colorado River Commission and Secretary of State to
send out notice of sale of state bonds. The Supreme Court, Mowbray, J., held that bonds
issued by Colorado River Commission for purpose of building water treatment plant were
separate class of debt issued under the exemption provision of state debt statute and that
where state debt limitation of one per cent of assessed valuation had not been reached,
State General Obligation Bond Commission could issue bonds up to such limitation
notwithstanding bonds which would have brought total debt in excess of such limitation
had been previously authorized by Colorado River Commission for construction of water
treatment plant.
building water treatment plant were separate class of debt issued under the exemption
provision of state debt statute and that where state debt limitation of one per cent of assessed
valuation had not been reached, State General Obligation Bond Commission could issue
bonds up to such limitation notwithstanding bonds which would have brought total debt in
excess of such limitation had been previously authorized by Colorado River Commission for
construction of water treatment plant.
Writs granted.
Russell W. McDonald and Frank W. Daykin, of Carson City, for State General Obligation
Bond Commission.
Harvey Dickerson, Attorney General, and Robert A. Groves, Deputy Attorney General, of
Carson City, for John Koontz, Secretary of State.
Robert E. Jones, of Las Vegas, for Colorado River Commission.
Toy R. Gregory, Jr., of Las Vegas, for Thomas R. Rice, Secretary of the Colorado River
Commission.
1. States.
A water supply is one of natural resources of state within exemption from debt limitation. Const. art. 9,
3.
2. States.
If intake of waters of boundary river was within state, debt incurred for purification plant was within
exemption of state debt limitation. Const. art. 9, 3; Stats. Nev. 1967, ch. 268.
3. States.
Term notwithstanding the foregoing limitations as used in provision exempting bonds for protection
and preservation of state's natural resources from state debt limitation applied to all limitations contained in
debt limitation provision. Const. art. 9, 3; Stats. Nev. 1967, ch. 520.
4. States.
Both ordinary and natural resource debt may constitute single class, which is permitted to exceed debt
limit only if last added amount which produced excess was natural resource debt; or ordinary debt may
constitute one class, which may be incurred up to one per cent limit, while natural resource debt constitutes
separate class, which may be incurred without limitation as to amount. Const. art. 9, 3.
5. States.
Bonds issued by Colorado River Commission for purpose of building water treatment plant were separate
class of debt issued under the exemption provision of state debt statute.
under the exemption provision of state debt statute. Const. art. 9, 3; Stats. Nev. 1967, ch. 268.
6. States.
Where state debt limitation of one percent of assessed valuation had not been reached, State General
Obligation Bond Commission could issue bonds up to such limitation notwithstanding bonds which would
have brought total debt in excess of such limitation had been previously authorized by Colorado River
Commission for construction of river treatment plant. Const. art. 9, 3; Stats. Nev. 1967, chs. 263, 520.
7. States.
Not all bonds issued for protection and preservation of state's natural resources constitute separate class
of bonds not within provision restricting state's debt. Const. art. 9, 3.
8. Statutes.
In construing statute court must look to entire sentence and construe each clause in light of purpose of
whole.
9. States.
Construction of mandatory repayment provisions for ordinary state general obligation bonds which would
confine source of debt service to ad valorem taxation would frustrate, rather than further, fundamental
purpose of avoiding default upon state's obligations. Stats. Nev. 1967, ch. 267, 45-51; NRS
349.080-349.140.
10. States.
Statute which permitted payment of state's bonds by (1) payment of principal and interest from
consolidated bond interest and redemption fund (2) levy of annual tax sufficient to provide for such debt
service, and (3) use of any other available revenue for such debt service and corresponding diminution of
special tax were valid. Stats. Nev. 1967, ch. 267, 45-51.
11. States.
Procedural requirements contained in section of constitution covering limitation of state debt applied to ordinary
debt. (Overruling State ex rel. Nightingill v. Bd. of Comm'rs, 1 Nev. 264.)
12. States.
Tax levies for debt service may be consolidated and tax may be diminished only to extent of actual
payment from other sources.
OPINION
These cases concern the effect of the state debt limit upon the financing of a facility for the
treatment of water from the Colorado River for use in the metropolitan area of Las Vegas.
Since its adoption, the Constitution of this State has imposed a limit upon the amount of
debt which the Legislature may contract. The general limitation, originally $300,000, was
amended to its present form in 1916, and appears as the first paragraph of the debt limit
section as printed in the margin.1
amended to its present form in 1916, and appears as the first paragraph of the debt limit
section as printed in the margin.
1

The second paragraph was added in 1934. It was designed to enable the State to take over
and put to beneficial use the electric power allotted to it from the Boulder Canyon project,
now Hoover Dam.
Meanwhile, the rights to another resource, even more vital in the desert Southwest, were
being determined: the waters of the Colorado River. Five times, beginning in 1930, litigation
came before the Supreme Court of the United States. The last case, begun in 1952 and lasting
12 years, decreed to the State of Nevada, subject to certain conditions, the right to consume
300,000 acre-feet of that water annually. Arizona v. California, 376 U.S. 340 (1964).
The decision came at an opportune moment. The metropolitan area of Las Vegas had since
World War II experienced an explosive growth in population. Its natural water resources were
those of the artesian basin in which it lies. By 1964, it was estimated that water was being
withdrawn from the artesian reservoir at a rate 50 percent greater than the rate of input. To
meet this situation, the Congress of the United States authorized the Secretary of the
Interior to construct the Southern Nevada Water Project,2 by which Colorado River water
will be diverted from Lake Mead and transported to places of public use within Clark
County at an estimated cost of $52,000,000.
____________________

1
Nevada Constitution, art. 9, 3. The state may contract public debts; but such debts shall never, in the
aggregate, exclusive of interest, exceed the sum of one per cent of the assessed valuation of the state, as shown
by the reports of the county assessors to the state controller, except for the purpose of defraying extraordinary
expenses, as hereinafter mentioned. Every such debt shall be authorized by law for some purpose or purposes, to
be distinctly specified therein; and every such law shall provide for levying an annual tax sufficient to pay the
interest semiannually, and the principal within twenty years from the passage of such law, and shall specially
appropriate the proceeds of said taxes to the payment of said principal and interest; and such appropriation shall
not be repealed nor the taxes postponed or diminished until the principal and interest of said debts shall have
been wholly paid. Every contract of indebtedness entered into or assumed by or on behalf of the state, when all
its debts and liabilities amount to said sum before mentioned, shall be void and of no effect, except in cases of
money borrowed to repel invasion, suppress insurrection, defend the state in the of war, or, if hostilities be
threatened, provide for the public defense.
The state, notwithstanding the foregoing limitations, may, pursuant to authority of the legislature, make and
enter into any and all contracts necessary, expedient or advisable for the protection and preservation of any of its
property or natural resources, or for the purposes of obtaining the benefits thereof, however arising and whether
arising by or through any undertaking or project of the United States or by or through any treaty or compact
between the states, or otherwise. The legislature may from time to time make such appropriations as may be
necessary to carry out the obligations of the state under such contracts, and shall levy such tax as may be
necessary to pay the same or carry them into effect.
authorized the Secretary of the Interior to construct the Southern Nevada Water Project,
2
by
which Colorado River water will be diverted from Lake Mead and transported to places of
public use within Clark County at an estimated cost of $52,000,000. A single link remained
to be forged: a means of treating this water to make it potable and thus suitable for domestic
use.
The Nevada Legislature responded by authorizing the Colorado River Commission of
Nevada to issue bonds in an amount not to exceed $10,000,000 to build such a treatment
plant.
3

In Case No. 5487, the Colorado River Commission, pursuant to this enabling act, adopted
a resolution to sell the bonds and directed its secretary to give notice of the sale to prospective
bidders.
The secretary refused, challenging the validity of the proceedings on two grounds: (1) That
the amount of the bonds would exceed the state debt limit and (2) that the repayment
provisions (a) exceed the 20-year limits
4
and (b) require the levy of taxes only generally and
authorize the use of other moneys for the payment of principal and interest.
5

The Commission, contending that both the amount and the repayment of the bonds are
within the terms of the second paragraph of section 3 of article 9 as quoted above, applied to
this court for a writ of mandate to require the secretary to give notice.
In Case No. 5486, the State General Obligation Bond Commission, acting after the
adoption of the resolution to issue the Colorado River bonds as stated above, resolved to sell
$50,000 worth of general obligation improvement bonds previously authorized by the
Legislature,
6
and directed the Secretary of State to give notice of the sale to prospective
bidders. The Secretary of State refused, on the grounds (1) that these bonds, if issued in
addition to the Colorado River bonds, would be in excess of the State debt limit and (2) that
the enabling act provides for the diminution of the tax levied for repayment of the bonds to
the extent of their repayment from other moneys made available.
The Commission seeks a writ of mandate to compel the giving of the notice.
____________________

2
79 Stat. 1063 (1965), as amended, 80 Stat. 312 (1966).

3
Stats. Nev. 1967, ch. 268.

4
In fact they extend to 40 years.

5
Revenues of the project are pledged as additional security and, in fact, as was stated in argument, are
relied on to service the bonds.

6
Stats. Nev. 1967, ch. 520.
giving of the notice. The issue raised by its contentions are discussed at length below.
Because of the close relationship of the issues and the public importance of a speedy
decision, we consolidated the cases for argument.
All parties agree that the outstanding debt and debt limit of the State are substantially as
set forth in the affidavit of the State Controller, filed in Case No. 5486 as follows:
Outstanding general obligation bonded indebtedness September
1, 1967........................................................................................
....................................................................................................
$8,442,000.00
Additional bonds authorized by the 1967 Legislaturesold
September 12, 1967....................................................................
....................................................................................................
General obligation bonds pursuant to chapter 520, Statutes of
Nevada 1967, page 1393..............................................................
....................................................................................................
4,085,000.00
Total bonded indebtedness, outstanding and sold............................
....................................................................................................
$12,527,000.00
1967 assessed valuation...................................... $1,479,572,673.00
Limitation: 1 percent........................................................................
$14,795,727.00
Outstanding and sold on September 12, 1967..................................
....................................................................................................
12,527,000.00
Balanceunused limitation, September 12, 1967..........................
....................................................................................................
$2,268,727.00
Both respondents likewise concede the appropriateness of the remedy. Marlette Lake Co.
v. Sawyer, 79 Nev. 334, 383 P.2d 369 (1963); City & County of San Francisco v. Linares,
106 P.2d 369 (Cal. 1940).
[Headnotes 1, 2]
The first issue to be resolved is whether the bonds whose issuance is proposed by the
Colorado River Commission fall within the exemption provided by the second paragraph of
the debt limit. This court held in Marlette Lake Co. v. Sawyer, supra, that a water supply is
one of the natural resources of the State, and that the exemption extends to all natural
resources found within the geographical limits of Nevada. We are not convinced by
respondent's argument in Case No. 5487 that a specified amount of the waters of a boundary
river cannot be definitely located as within this State. If the intake is within this State, the
waters taken must come within this State to reach it.
[Headnote 3]
The subsidiary issue of the propriety of the repayment provisions of the Colorado River
bonds then turns on the meaning of the words, notwithstanding the foregoing limitations,
which introduce the second paragraph. We hold that these words apply to all the limitations
formed in the first paragraph: the amount of debt, the term for which it may be contracted,
and the requirement of a specific tax appropriated for its repayment. The last sentence
7
would otherwise be superfluous, if not inconsistent.
[Headnote 4]
The third issue is whether, after the Colorado River bonds have been issued, there remains
any unused debt limitation against which the $50,000 worth of ordinary state general
obligation bonds can be issued. The question is essentially one of classification. Both
ordinary and natural resource debt may constitute a single class, which is permitted to
exceed the debt limit only if the last added amount which produced the excess was natural
resource debt; or ordinary debt may constitute one class, which may be incurred up to the 1
percent limit, while natural resource debt constitutes a separate class, which may be
incurred without limitation as to amount.
The concept of separate classes of state debt is not new in Nevada; the territorial debt
assumed was expressly made a separate class by section 7 of article 17 of the Constitution.
Under a former provision of the California Constitution, which imposed a money limit upon
ordinary debt but permitted debt in excess of that amount to be incurred if approved by vote
of the people, the Supreme Court of that state held that debt so approved constituted a
separate class whose existence did not preclude the incurring of ordinary debt within the
money limit. Bickerdike v. State, 78 P. 270 (Cal. 1904).
The same result is reached in all of the factually similar cases brought to our attention
which have construed similar provisions with respect to municipal debt. For example, in
Buntman v. City of Phoenix, 255 P. 490, 492 (Ariz. 1927), the court explained the two
possible constructions (essentially as set forth in the preceding paragraph, except that the debt
limit was 4 percent) and said:
We are of the opinion that the latter construction is more consonant with reason and the
presumable spirit and purpose of our Constitution.
____________________

7
The legislature may from time to time make such appropriations as may be necessary to carry out the
obligations of the state under such contracts, and shall levy such tax as may be necessary to pay the same or
carry them into effect.
of our Constitution. The construction first set forth would mean that, should a city incur an
indebtedness of 4 per cent for special enterprises * * * it could never become indebted for any
other legitimate municipal purpose unless and until the total indebtedness, including that for
* * * [special enterprises], was reduced below the 4 percent. Such a construction would
greatly limit and hamper our municipalities in the performance of their legitimate duties.
In Rice v. City of Watertown, 281 N.W. 116, 117 (S.D. 1938), where two exceptions had
been added by amendment to an original limit, the court found three independent and
mutually exclusive limitations. The court explained its holding thus:
Such [the contrary] interpretation would convict the Legislature which proposed the
amendments and the people who adopted them of the improbable and unreasonable intention
of rendering the debt limitation * * * dependent upon an insignificant circumstance, namely
the order in which it [a city] had incurred the several debts.
[Headnote 5]
We concur in the reasoning of these decisions, and we hold that the bonds proposed to be
issued by the Colorado River Commission (together with the Marlette Lake bonds and any
others which may be issued under the exemption of the second paragraph debt limit section)
will constitute a separate class of debt.
[Headnote 6]
Therefore, ordinary state general obligation bonds, including those proposed to be issued
in Case No. 5486, may be issued up to the full amount of 1 percent of the assessed valuation
of the State.
[Headnote 7]
In so holding, we wish not to be understood, as was suggested in argument, as holding that
any bonds issued for any purpose enumerated in the second paragraph automatically
constitute part of this separate class. We believe that the words, pursuant to authority of the
legislature, make the exemption discretionary. The Legislature may, therefore, initially issue
bonds for such purposes as ordinary debt within the 1 percent limit, if it so chooses.
We turn to the last issue presented, which concerns the mandatory repayment provisions
for ordinary state general obligation bonds. The enabling act for the issuance of the bonds
which are the subject of Case No. 5486 adopts by reference the provisions of sections 45 to
51, inclusive, of the State Securities Law,S and it is these sections with whose validity we
are concerned.
State Securities Law,
8
and it is these sections with whose validity we are concerned. These
sections provide in relevant part for (1) payment of principal and interest from the
Consolidated Bond Interest and Redemption Fund pursuant to NRS 349.080-349.140, (2)
levy of an annual tax sufficient to provide for such debt service, and (3) the use of any other
available revenue for such debt service and the corresponding diminution of the special tax.
The Secretary of State objects to provision (3), which the State General Obligation Bond
Commission concedes is inconsistent with a literal reading of certain words at the end of the
second sentence of the first paragraph of the debt limit section: nor [shall] the taxes [be]
postponed or diminished until the principal and interest of said debts shall have been wholly
paid.
[Headnotes 8, 9]
The court must, however, look to the entire sentence and construe each clause in the light
of the purpose of the whole. That purpose clearly is to avoid default upon the State's
obligations. This purpose can be as well served, if not better, by the use of moneys from more
than one source. Therefore, a construction which would confine the source of debt service on
general obligation bonds to ad valorem taxation would frustrate, rather than further, the
fundamental purpose. Nor is there reason to suppose that the framers of the Constitution
intended so to narrow the source, as a matter of deliberate choice. Double-barreled
repayment provisions, which couple a pledge of ad valorem tax revenues with a conditional
or unconditional pledge of other revenues, are a modern development. The language at the
end of the opinion in State ex rel. Nightingill v. Bd. of Comm'rs, 1 Nev. 264 (1865),
contemporaneous with the Constitution, indicates an automatic recourse to ad valorem
taxation without consideration of other means of servicing state debt.
In this situation, there is precedent for not construing the specification of an ad valorem
tax as precluding other sources. The Supreme Court of the United States, in Cohen v.
Virginia, 19 U.S. 264 (1821), held (at page 395 of the lengthy opinion) that although
affirmative words may imply a negative or exclusive sense, where they have full operation
without it, or where a negative or exclusive implication would destroy an important object of
the provision, affirmative words ought not to be construed negatively. The Supreme Court
of New Jersey, in Reilly v. Ozzard, 166 A.2d 360 (N.J. 1960), explained the rule of
construction as follows: "We see no basis to invoke the maxim, expressio unius est
exclusio alterius.
____________________

8
Stats. Nev. 1967, ch. 267, 45-51.
We see no basis to invoke the maxim, expressio unius est exclusio alterius. The maxim at
best is a mere aid to interpretation. Perhaps more accurately, it usually serves to describe a
result rather than to assist in reaching it. The final question is whether in a given context an
express provision with respect to a portion of an area reveals by implication a decision with
respect to the remainder. The issue is one of intention. The answer resides in the common
sense of the situation. A constitution does not resolve all policy problems. Rather it
establishes the framework of government with such specific restraints as are thought to be of
eternal value and hence worthy of immunity from passing differences of opinion.
In fact, there has been a gradual evolution in the concepts of state debt service in Nevada
over a period of many years. In 1939, the Legislature created the Consolidated Bond Interest
and Redemption Fund and pledged to it the revenues of the Liquor License Law and such
additional ad valorem tax as might be necessary.
9
This departed from the concept of the sole
property tax, and contravened the literal requirement of a special tax specially appropriated
to the payment of each bond issue.
In 1957, the Legislature repealed both the liquor and the property tax provisions, and
provided for replenishing the Consolidated Bond Interest and Redemption Fund by
appropriation from the General Fund.
10

In 1961, the Legislature authorized an issue of bonds, to be serviced from the Consolidated
Bond Interest and Redemption Fund, without provision for any special tax.
11

[Headnote 10]
These statutes represent a continuing construction by the Legislature which, while
adhering to the fundamental purpose of the restriction, has adapted its details to modern
practice. Obviously, this construction was not contemporaneous with the adoption of the
original constitutional provision, but this court has previously, in Marlette Lake Co. v.
Sawyer, supra, attached significance to a legislative construction of the second paragraph
without the requirement of contemporaneity. We therefore find no violation of the
Constitution in sections 45 to 51 of the State Securities Law.
[Headnotes 11, 12]
Two caveats are in order. Counsel in briefs and argument brought to our attention the
holding of State ex rel. Nightingill v. Bd. of Comm'rs, supra, that none of the procedural
requirements of the first paragraph apply to ordinary debt.
____________________

9
Stats. Nev. 1939, ch. 197.

10
Stats. Nev. 1957, ch. 162. See NRS 349.120.

11
Stats. Nev. 1961, ch. 357, 12.
v. Bd. of Comm'rs, supra, that none of the procedural requirements of the first paragraph
apply to ordinary debt. We expressly overrule this holding of that case, for it finds no support
in a reasonable reading of the successive sentences. Nor do we approve any relaxation of the
mandatory ad valorem tax requirement beyond that found in sections 45 to 51 of the State
Securities Law. Tax levies for debt service may be consolidated and the tax may be
diminished only to the extent of actual payment from other sources.
We conclude, therefore, that each of the proposed bond issues is constitutionally
permissible, and each respondent has a mandatory duty to give the required notice.
It is the order of this court that the peremptory writs of mandate issue.
____________
84 Nev. 140, 140 (1968) Tellis v. State
MILTON TELLIS, Appellant, v. THE STATE
No. 5165
February 12, 1968 437 P.2d 69
Appeal from judgment of conviction and denial of habeas corpus; Eighth Judicial District
Court, Clark County; Clarence Sundean and John F. Sexton, Judges.
The lower court found defendant guilty of forgery and denied a subsequent application for
writ of habeas corpus. On defendant's appeal, the Supreme Court, Collins, J., held that in
view of fact that record contained no evidence to indicate that trial court participated in any
plea bargaining or even knew of it, it could not be said that the court, in sentencing defendant
on his plea of guilty and in denying him probation, permitted the guilty plea to be exacted by
inducement and then ignored and failed to grant the probation for which the plea was
allegedly exchanged.
Affirmed.
Johns, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Supreme Court cannot accept contentions or arguments in appellant's brief as substitute for court record.
SCR 23.
2. Criminal Law.
In view of fact that record contained no evidence to indicate that trial court participated in any plea
bargaining or even knew of it, it could not be said that the court, in sentencing defendant on his plea of
guilty and in denying him probation, permitted the guilty plea to be exacted by inducement and then
ignored and failed to grant the probation for which the plea was allegedly exchanged.
OPINION
This case is an appeal (1) from denial of habeas corpus in one department of the lower
court; and (2) from conviction of forgery and the sentence of 1 to 14 years in another
department. We conclude there is no merit to either appeal and sustain the conviction.
Milton Tellis was arrested and charged with uttering, publishing and passing a forged
check, a felony. He was represented by Nelle Price in the justice court. Upon arraignment, the
district court continued her representation of Tellis, an indigent.
As shown by the record, Tellis, with counsel present, at first entered a plea of not guilty
and asked for a trial, which was ordered. At his request bail was reduced by the district judge
from $2,500 cash or $5,000 property bond to $1,000 cash or $2,000 property bond.
On January 26, 1966, three weeks later, Tellis with counsel, appeared before Judge
Sundean and informed the court he desired to change his plea to guilty. The court accepted
his guilty plea to forgery, continued the sentencing upon appellant's request for probation and
ordered an investigation and report by the Parole and Probation Department. Bail was further
reduced to $500 cash or surety.
On March 2, 1966 Tellis, again accompanied by counsel, appeared before Judge Sundean
for consideration of his request for probation. The record shows counsel asked the court to
consider a fact not shown in the report that Tellis had a firm offer of employment, * * * if
your Honor sees fit to grant this probation * * *. The request was granted.
Judge Sundean denied probation, sentenced Tellis to 1 to 14 years in the penitentiary and
remarked, You have a very outstanding record for getting in trouble. It's the kind of record
that would recommend that something be done to put an end to your turmoil with the law
enforcement agencies."
that would recommend that something be done to put an end to your turmoil with the law
enforcement agencies. He was forthwith remanded to the sheriff's custody for disposition in
accordance with the sentence.
Following denial of probation and sentencing, Mr. Kellar was retained by Tellis and on
March 4, 1966 petitioned Judge Sexton for a writ of habeas corpus contending that Tellis was
unlawfully in custody because of Judge Sundean's order in that he was induced to plead guilty
because of a promise of the district attorney he would receive a suspended sentence and
probation. Counsel further alleged that at the time of sentencing nothing was said of the
promise of probation, nor was any consideration given to it and that Tellis was summarily
sentenced to 1 to 14 years. He also asked that Judge Sexton, vacate the plea of guilty and the
judgment of conviction and [give Tellis] his day in court unless the district attorney * * * is
willing to keep his promise and give the petitioner the opportunity to be rehabilitated on
probation as promised at the time of the entry of the petitioner's plea.
The return to the writ indicated, That the Petitioner's Attorney, Nelle Price, conferred
several times with Deputy District Attorney, Earl Gripentrog in regard to a change of plea and
possibility of probation. That the Petitioner's Attorney, Nelle Price, was informed that the
District Attorney's Office had no authority to grant or deny probation, however a letter would
be sent to the Probation Department recommending probation conditioned upon complete
restitution and that failure to comply with this condition would mean revocation of probation.
Defense counsel was also informed that the Probation Department could ignore any
recommendation of Probation from the District Attorney's Office and any probation to be
granted would be a matter for the Probation Department and the District Court Judge. On
January 26, 1966 the Defendant, Milton Tellis, requested the presence of Deputy District
Attorney, Earl Gripentrog again to confer as to the possibility of probation. At that time the
defendant was informed in the presence of his Attorney, Nelle Price and also in the presence
of Harry Publow, partner of Nelle Price that the District Attorney's Office could do nothing
more than recommend probation and if the Petitioner changed his plea, he could be subject to
a sentence of from 1-14 years in the Nevada State Penitentiary.
At no time was the Petitioner ever informed that probation would be granted by the
District Attorney's Office.
During the hearing on the writ before Judge Sexton, the deputy district attorney argued that
Tellis was in custody because he pleaded guilty to forgery and was sentenced to the
penitentiary.
Mr. Kellar argued: Now, the defendant was perfectly willing to make the deal and he was
going to get the opportunity to be probated and to get the opportunity to make restitution and
work and support his family. He realized that he had never had any supervision in his life and
hadn't had the kind of exposure that the Probation Officer would make available to him, and
he thought that it was a good point in his life to start this sort of thing. Well, of course, when
it came before the Judge, the Judge did not see fit to go along with it. The District Attorney's
Office did make recommendation for probation for him and there is such a recommendation
in the file, so that the defendant feels that he certainly would never have pleaded if he did not
feel that they were going to keep their end of the bargain. Now, I am not going to blame the
District Attorney or anybody whatsoever. This is not a case of blame, but it's a case of fact.
He did not get probation. He did not get a chance to be restituted and to get restitution and to
be rehabilitated and he certainly says that he did not desire to plead himself into the jail at
Carson City. He would prefer for the jury to do that, and he is asking now to withdraw his
plea unless we can transfer this to a department where the District Attorney's
recommendation will be honored, that's fine, he is still willing to go through with that
because he wants the opportunity to get the supervision and direction of the Court and to
make restitution and to start a new life for himself. If he can't do that, then he would prefer to
withdraw his plea, Sir.
At the conclusion of the hearing Judge Sexton ruled, Well I actually don't think I have
jurisdiction so long as judgment has been passed on him and sentence imposed, so therefore I
will deny the writ. However, on Mr. Kellar's statement that Tellis intended to appeal, Judge
Sexton continued bail fixed by him in the amount of $1,000 when he directed the writ to
issue.
The foregoing is a recitation of all that appears in the record before us which bears on the
issues purportedly raised on appeal and hereafter discussed in this opinion.
Appellant's opening brief, in near total disregard of SCR 23,1 and upon the record
recited above, in a section entitled "Statement of the Case" contends as follows: "Prior to
the entry of the plea, the Appellant, his counsel, and as Assistant District Attorney had
discussed at length the possibility of his entering a plea of guilty and it had been
negotiated that this plea of guilty would be entered in exchange for the granting to the
Appellant of suspension of the sentence to be imposed and a period of probation.
23,
1
and upon the record recited above, in a section entitled Statement of the Case
contends as follows: Prior to the entry of the plea, the Appellant, his counsel, and as
Assistant District Attorney had discussed at length the possibility of his entering a plea of
guilty and it had been negotiated that this plea of guilty would be entered in exchange for the
granting to the Appellant of suspension of the sentence to be imposed and a period of
probation. The Appellant asserts that the Presiding Judge was aware of the contract made
which induced the entry of his plea. The Assistant District Attorney filed with the Judge a
recommendation that the Appellant be granted probation and the Judge ordered a probation
report.
* * * * *

The Appellant then made application to the Court to withdraw his plea, which the Court
would not countenance. The Court also refused to entertain any motion to arrest judgment or
to vacate the sentence imposed. * * * There appeared to be no great controversy as to the
knowledge of the Judge prior to the entry of the plea of guilty of the arrangements and
negotiations which had prefaced the Appellant's decision to plead guilty and the entry of the
plea.* * *
The record is totally devoid of any application by Tellis to withdraw his plea or that any
motions to arrest judgment or vacate the sentence were even made or considered by any
department of the lower court.
Further serious allegations were made in Mr. Kellar's opening brief when he stated, For
the Court to have permitted this plea to have been enacted by inducement and then to insist
that it be a valid basis for the conviction, while ignoring and failing to grant the condition
for which the said plea was exchanged, is to induce disrespect for courts and to foster
basic immorality which will eventually be the undoing of our democratic society."
____________________

1
1. A brief must designate the page and line, or the folio, in the record where the evidence or matter
referred to may be found, and in case of failure to do so the court may ignore the point made.
2. The opening brief on appeal shall include in separate divisions the following:
(a) A brief statement of the nature of the action and of the judgment or order appealed from.
(b) A brief statement specifying the legal issues presented by the appeal.
(c) A specification of the errors of law which the appeal seeks to correct.
(d) A statement of facts necessary to explain the issues presented and the assignments of error. Disputed facts
shall be specified as such.
(e) Argument upon the issues of law.
Where more than one legal issue is involved, and where deemed preferable by counsel for purposes of
clarity, the statement of facts may be incorporated into the argument and so divided that the facts pertinent to
each issue are separately stated in relation to such issue.
failing to grant the condition for which the said plea was exchanged, is to induce disrespect
for courts and to foster basic immorality which will eventually be the undoing of our
democratic society.
The record is absolutely barren of anything which would support such a contention either
directly or even inferentially.
[Headnote 1]
Apparently counsel for appellant is of the mistaken belief that this court will accept
contentions or arguments in his brief as a substitute for the court record. The law neither
permits us to do so nor do we have any inclination to exercise our discretionary powers under
such circumstances even in a criminal appeal.
[Headnote 2]
Accordingly, upon the record before us, there is not the slightest evidence to indicate that
Judge Sundean participated in any plea bargaining or even knew of it. Likewise, Judge
Sexton was eminently correct, upon the showing made, in denying appellant's application for
habeas corpus for want of jurisdiction.
____________
84 Nev. 145, 145 (1968) Plunkett v. State
WAYNE HARRISON PLUNKETT, Appellant, v. THE
No. 5397
February 12, 1968 437 P.2d 92
Appeal from judgment of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Defendant was convicted in the trial court of first-degree burglary, and appeal was taken.
The Supreme Court, Thompson, C. J., held that statutes permitting a witness to be impeached
by showing his previous conviction for felony did not preclude inquiry into number and
names of prior felony convictions; such was a matter addressed to trial judge's discretion.
Affirmed.
Dorsey and Harrington, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney and Alan
R. Johns, Deputy District Attorney, Clark County, for Respondent.
1. Witnesses.
A witness may be impeached by showing his previous conviction for felony. NRS 48.020, 48.130.
2. Witnesses.
Statutes permitting a witness to be impeached by showing his previous conviction for felony did not
preclude inquiry into number and names of prior felony convictions; such was a matter addressed to trial
judge's discretion. NRS 48.020, 48.130.
3. Criminal Law.
Exhibits consisting of copies of two prior felony convictions were prima facie proof of such convictions,
and proof of identity from name alone would sustain the adjudication of habitual criminality. NRS
49.060, 207.010, subd. 6.
4. Criminal Law.
Certified fingerprint cards and photographs secured from wardens of institutions where defendant had
been previously incarcerated were admissible at hearing relating to habitual criminality. NRS 49.060,
207.010, subd. 6.
OPINION
This appeal by Wayne Harrison Plunkett is from a conviction of the primary offense of
first degree burglary and the judgment and sentence thereafter pronounced adjudicating him
to be an habitual criminal. The sufficiency of the evidence to support conviction of the
primary offense is not questioned. However, he does assert that the trial court erred when it
allowed the prosecutor to cross-examine him about prior felonies, and where he had first met
his codefendant Lentz. Furthermore, he claims that the proof of habitual criminality submitted
by the state at the post-trial hearing was legally insufficient. None of his claims has merit, and
we affirm.
[Headnotes 1, 2]
1. On cross-examination the prosecutor asked Plunkett how many times he had been
convicted of a felony, and whether any of the convictions was for burglary. The court
permitted answers over objection of defense counsel. Our statutes NRS 4S.020 and 4S.130,1
allow impeachment of a witness by showing his previous conviction for felony.
statutes NRS 48.020 and 48.130,
1
allow impeachment of a witness by showing his previous
conviction for felony. Johnson v. State 82 Nev. 338, 342, 418 P.2d 495 (1966). However, the
appellant suggests that the statutes should be construed to limit inquiry to one prior felony,
and to preclude entirely its description by name. Except for Montana (State v. Quinlan, 244
P.2d 1058 (1952); State v. Coloff, 231 P.2d 343 (1951)), case authority does not support him.
The California statute,
2
as ours, speaks in the singular. The highest court of that state allows
inquiry about the number and names of prior felony convictions. People v. Smith, 409 P.2d
222, 230 (Cal. 1966); People v. Terry, 370 P.2d 985, 1000 (Cal. 1962). Other states agree.
State v. Sayward, 404 P.2d 783 (Wash. 1965); State v. Williams, 417 P.2d 62 (N.M. 1966);
State v. Owen, 253 P.2d 203 (Idaho 1953). The details and circumstances of the prior crimes
are, of course, not appropriate subjects of inquiry. People v. Smith, supra. In line with
California, we hold that our statutes do not preclude inquiry into the number and names of the
prior felony convictions. It is a matter addressed to the discretion of the trial judge and he
may allow or rule out such inquiry according to his view of the demands of fairness in the
case before him.
The appellant first met his codefendant Lentz in prison. On cross-examination he was
asked where he first met Lentz. The propriety of the question was upheld and he answered. In
the context of this case the inquiry was innocuous since the accused had already mentioned
six prior felony convictions, four or five of which were for burglary.
[Headnotes 3, 4]
2. At the habitual hearing the State offered exemplified copies of two prior felony
convictions, one of Wayne H.
____________________

1
NRS 48.020. No person shall be disqualified as a witness in any action or proceeding * * * by reason of his
conviction of felony, but such conviction may be shown for the purpose of affecting his credibility * * *.
NRS 48.130. A witness shall answer questions legal and pertinent to the matter in issue, though his answer
may establish a claim against himself, but he need not give an answer which will have a tendency to subject him
to punishment for a felony, nor need give an answer which will have a direct tendency to degrade his character,
unless it be to the very fact in issue, or to a fact from which the fact at issue would be presumed. But a witness
shall answer as to the fact of his previous conviction for felony.

2
Cal. Evid. Code 788 (former C.C.P. 2051) reads: For the purpose of attacking the credibility of a witness,
it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of
a felony * * *.
Plunkett, and the other of Wayne Plunkett.
3
These exhibits were prima facie proof [NRS
207.010(6)] and, under the rule of Hollander v. State, 82 Nev. 345, 418 P.2d 802
(1966)proof of identity from name alonewould sustain the adjudication of habitual
criminality. In contrast with Hollander, supra, the State here submitted additional proof of
identitycertified fingerprint cards and photographs secured from the wardens of penal
institutions where Plunkett had been confined. These certified records were admissible. 28
U.S.C.A. 1739. The fingerprint cards were compared with prints taken when Plunkett was
booked on the present charge and expert testimony received that all prints were of the same
person. The proof in this case even satisfies the burden placed upon the State by the
dissenting opinion in Hollander, supra. We perceive no error.
____________________

3
The judicial records were properly authenticated. NRS 49.060; 28 U.S.C.A. 1738.
____________
84 Nev. 148, 148 (1968) Calbert v. State
CHARLES CALBERT, Appellant, v. THE
No. 5394
February 20, 1968 437 P.2d 628
Appeal from conviction of grand larceny. Second Judicial District Court, Washoe County;
John W. Barrett, Judge.
The Supreme Court, Zenoff, J., held that record disclosing that defendant was placed in
police lineup with other Negro males, all of whom wore prison attire, and that witnesses were
told only that the possible suspect was in the lineup did not show that in totality of
circumstances defendant was denied due process of law in respect to the lineup or that trial
court erred in admitting testimony of police officer concerning manner in which defendant
was identified by witnesses.
Affirmed.
Samuel B. Francovich, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, and Virgil D.
Dutt, Deputy District Attorney, Washoe County, for Respondent.
1. Courts.
Procedural safeguards announced in United States Supreme Court decisions of June 12, 1967, respecting
right to counsel at police lineups, have prospective application only.
If confrontations with witnesses at police lineup are so unnecessarily suggestive as to endanger mistaken
identification, there is denial of due process of law.
Record disclosing that defendant was placed in police lineup with other Negro males, all of whom wore
prison attire, and that witnesses were told only that the possible suspect was in the lineup did not show that
in totality of circumstances defendant was denied due process of law in respect to the lineup or that trial
court erred in admitting testimony of police officer concerning manner in which defendant was identified
by witnesses.
OPINION
Charles Calbert appeals from a conviction of grand larceny. On May 1, 1966,
approximately $560 was stolen from a supermarket in Reno. That same day, the defendant
was arrested for the theft. On the day of the arrest a police lineup was held. It consisted of
Calbert, a Negro, and four other Negro males, all of whom wore prison attire. Witnesses to
the theft identified Calbert in the lineup. The next day, another lineup was held consisting of
Calbert and three other Negro prisoners. Apparently, other witnesses not present at the first
lineup identified the defendant. He did not have assistance of counsel at either lineup.
At the trial the state's evidence consisted of eye-witness testimony, $240.06 in $20
denominations, and lineup identification testimony. The defense offered no evidence. Calbert
was found guilty and sentenced to be imprisoned for a term of from 2 to 14 years.
For reversal Calbert contends that the trial court erred in admitting the testimony of a
police officer concerning the manner in which Calbert was identified by the witnesses.
For the purpose of this appeal the extract of the testimony of the police officer was
presented. That testimony relates the manner in which the lineups were conducted and the
identification made by the witnesses. (At the trial, the photographs of the men placed in the
lineup were introduced.) According to his testimony the men in the lineup were Negroes,
approximately the same height, Calbert being no more than two inches taller, and dressed in
the same attire. The officer testified if they {the witnesses) are told anything, the possible
suspect is in the lineup, and that is all they are told."
they (the witnesses) are told anything, the possible suspect is in the lineup, and that is all they
are told. Calbert's contention is that the procedure used by the officer was greatly suggestive,
that it had one purpose only, which was to have someone identify Calbert as the perpetrator of
the alleged crime.
[Headnote 1]
1. The procedural safeguards announced in United States v. Wade, 388 U.S. 218; Gilbert
v. California, 388 U.S. 263; and Stoval v. Denno, 388 U.S. 293, decided June 12, 1967, have
prospective application only effective as of that date. The proceedings in this case are not
embraced by these decisions rendered six months subsequent. Hummel v. Sheriff, 83 Nev.
370, 432 P.2d 330 (1967).
[Headnotes 2, 3]
2. Notwithstanding the prospective application, if the confrontations conducted were so
unnecessarily suggestive as to endanger mistaken identification, then Calbert was denied due
process of law and we would be concerned regardless of the June 12, 1967 cutoff date. The
due process argument is a recognized ground of attack independent of any right to counsel
claim. Stovall v. Denno, supra. However, the record does not present facts to show that in the
totality of the circumstances Calbert was denied due process of law in respect to the lineups.
Counsel for appellant was court appointed. Accordingly, we direct the district court to give
him the certificate specified in NRS 7.260(3) to enable him to receive compensation as
provided in NRS 7.260(4).
Affirmed.
____________
84 Nev. 150, 150 (1968) Bonnenfant v. Sheriff
JOHN L. BONNENFANT, Appellant, v. SHERIFF OF
WASHOE COUNTY, NEVADA, Respondent.
No. 5367
February 21, 1968 437 P.2d 471
Appeal from an order of the Second Judicial District Court, Washoe County, denying
application for habeas corpus; Grant L. Bowen, Judge.
Proceeding on petition for habeas corpus by accused who contended that he was denied his
right to speedy trial. The trial court denied application, and appeal was taken.
trial court denied application, and appeal was taken. The Supreme Court held that under
record devoid of any allegations or evidence of a prior conviction, defendant who was
arrested for automobile theft on February 8, 1965 and charged by complaint on February 27,
1967 with taking an automobile without consent could only be charged with committing a
gross misdemeanor so that his prosecution was precluded by one-year statute of limitations on
misdemeanor charges.
Remanded.
Breen and Young, and David R. Hoy, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Herbert F.
Ahlswede, and Virgil D. Dutt, Deputy District Attorneys, Washoe County, for Respondent.
Criminal Law.
Under record devoid of any allegations or evidence of a prior conviction, defendant who was arrested for
automobile theft on February 3, 1965 and charged by complaint on February 27, 1967 with taking an
automobile without consent could only be charged with committing a gross misdemeanor so that his
prosecution was precluded by one-year statute of limitations on misdemeanor charges. NRS 171.090,
205.272 and subd. 3.
OPINION
Per Curiam:
Prior to arraignment appellant filed a petition for a writ of habeas corpus with the district
court contending that he had been denied his right to a speedy trial. The trial court, after a
hearing, denied the application for the writ, and the appellant appeals from that order.
The appellant was first arrested on February 8, 1965 upon the charge of burglary in the
first degree. At about the same time the arresting officers determined that the motor vehicle in
which the appellant was a passenger was a stolen vehicle, and also arrested the appellant on
the charge of Grand Theft of an Automobile. Bail was fixed on this charge at $2,500 and
the appellant was released upon the posting of bail.
The state proceeded to trial against the appellant on the burglary charge and obtained a
conviction. The appellant was sentenced to the Nevada State Prison upon the conviction of
burglary, but was released from the penitentiary upon a writ of habeas corpus granted January
5, 1966. The State appealed from the order granting the writ of habeas corpus, but thereafter
voluntarily dismissed the appeal on August 12, 1966.
The State then attempted to retry the appellant on the charge of burglary. The original
indictment on the burglary charge against the appellant was dismissed.
A second indictment on the burglary charge was found and the appellant was again
arrested on November 1, 1966. No arraignment, trial or other proceedings were apparently
had upon this second indictment.
A third indictment on the charge of burglary was returned by the Washoe County Grand
Jury on January 27, 1967, and this third indictment served as the basis for another arrest of
the appellant on January 28, 1967.
The appellant thereupon petitioned the Second Judicial District Court for a writ of habeas
corpus releasing him from the charge of burglary on the ground that he had been denied his
right to a speedy trial. The State stipulated that the writ could be granted and an order
granting the writ was entered February 27, 1967.
On February 27, 1967, a complaint was filed against the appellant charging him with
taking a motor vehicle without consent, a violation of NRS 205.272. A preliminary hearing
was held for the appellant on that charge on March 27, 1967, whereupon he was bound over
to district court, and on April 10, 1967 an information was filed against the defendant
charging him with a felony under NRS 205.272(3).
1

The record is devoid of any allegations or evidence of a prior conviction suffered by
appellant in violation of NRS 205.272, consequently he could only be charged with the
commission of a gross misdemeanor.
NRS 171.090 provides: An indictment for any misdemeanor must be found, or an
information or complaint filed, within 1 year after its commission.
Clearly the statute of limitations had run against the gross misdemeanor charge at the time
this case was filed, and when raised in defense below will require dismissal of this case.
Accordingly, we decline to consider the speedy trial issue raised here and remand the matter.
____________________

1
NRS 205.272(3). Any person who assists in, or is a party to or an accomplice in, any such unauthorized
taking or driving shall also be guilty of a gross misdemeanor or, if previously convicted of so assisting or being a
party or accomplice, shall be guilty of a felony.
____________
84 Nev. 153, 153 (1968) Nevada Industrial Commission v. Strange
NEVADA INDUSTRIAL COMMISSION, an Agency of the State of Nevada, Appellant, v.
WILLIAM H. STRANGE, Respondent.
No. 5354
February 28, 1968 437 P.2d 873
Appeal from a judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Workmen's compensation claimant who received disabling injuries to his back when he
fell from ladder was awarded $2,000 by Industrial Commission but thereafter commenced
action against Industrial Commission in the district court. The trial court awarded claimant
$9,900 and Industrial Commission appealed. The Supreme Court, Mowbray, J., held that
proceeding in district court was an original proceeding and was not an appeal from the award
made by the Industrial Commission and District Court had power to hear and consider
evidence and make its own independent findings and appropriate award based thereon.
Affirmed.
William J. Crowell, of Carson City, for Appellant.
Richard P. Wait and Roger L. Erickson, of Reno, for Respondent.
1. Workmen's Compensation.
Proceeding in district court by claimant against industrial commission after claimant chose not to accept
award made by commission for injuries claimant sustained when he fell from ladder was an original
proceeding in district court and was not an appeal from the award made by the industrial commission and
district court had power to hear and consider evidence and make its own independent findings and
appropriate award based thereon. Stats. Nev. 1913, ch. 111; NRS 463.315, subd. 1.
2. Statutes.
Where court's interpretation that industrial act vested in an aggrieved employee right to bring original
action in district court received tacit acquiesence of Legislature for period of 52 years, the Legislature in
effect approved the interpretation and the acquiescence was effective as though Legislature had expressly
provided for such procedure. Stats. Nev. 1913, ch. 111.
It is within province of Legislature to create rights and liabilities from which may grow justiciable
controversies which may be enforced by original actions filed in district court.
Evidence supported trial court's finding that claimant, who was 65 years of age at time of trial and who
suffered disabling injuries to his back, including severely ruptured and herniated
intervertebral disc with blocking of lumbosacral levels, as result of fall from ladder
and was thereby deprived of five years' potential earnings, was entitled to an award
of $9,900.
injuries to his back, including severely ruptured and herniated intervertebral disc with blocking of
lumbosacral levels, as result of fall from ladder and was thereby deprived of five years' potential earnings,
was entitled to an award of $9,900. NRS 616.665, subd. 2.
Where claimant who was dissatisfied with award of $2,000 made by industrial commission subsequent to
his fall from ladder resulting in disabling injuries to his back thereafter instituted suit in district court which
resulted in award of $9,900, interest granted on the award by the court should run only from date of entry
of trial court's award and not from date Industrial Commission offered claimant the $2,000 award. NRS
17.130, subd. 2.
OPINION
Respondent fell from a ladder while attempting to install a sign at the candy counter at the
Granada Theater in Reno, where he was then employed by United California Theaters, Inc.
As a result of the fall, respondent received disabling injuries to his back, including a
severely ruptured and herniated intervertebral disc with blocking of the lumbosacral levels,
massive protrusion of the disc, and a compression fracture of the first lumbar vertebral body.
He was hospitalized for surgical repair including a partial hemilaminectomy and removal of
an intervertebral disc. On the date of his accident he was earning $80 per week.
Respondent timely filed his claim for compensation with appellant, jurisdiction was
assumed, and the Commission offered an award of 15 percent permanent partial disability or
15 months' disability at $100 per month, totaling $1,500, plus an additional award of 5
percent for loss of future earning capacity and other factors and considerations or 5 months at
$100 per month, totaling $500, making a grand total award of $2,000.
He chose not to accept the award but instead commenced this action against appellant in
the district court. A full hearing before the trial judge was conducted, evidence, both
documentary and oral, was received, and at the conclusion of the trial the district judge filed a
decision finding that respondent was entitled to the benefits of the Nevada Industrial
Insurance Act and fixing his award in the sum of $9,900 with interest from date of judgment
at the rate of 7 percent per annum.
The issues raised by the appeal may be grouped under three headings: 1.
1. What is the precise duty of the trial court in proceedings of this nature? Is it a court of
review? Is it bound by the findings of the Nevada Industrial Commission? Or are its powers
the same as in any other original law suitto hear and consider the evidence and make its
own independent findings and an appropriate award based thereon?
2. Was there substantial evidence received to support the findings of the trial court and the
award granted to respondent?
3. Should the trial court's judgment be modified to provide that the interest on the award
run from the date respondent was terminated by appellant, rather than from the date of the
entry of judgment in the trial court?
[Headnote 1]
1. The law of Nevada has always been that proceedings such as the instant case are
original in the district court. Our Legislature approved the Nevada Industrial Act on March
15, 1913.
1
By its terms, employers and employees in this State contribute to a fund from
which employees incurring injuries during their employment are compensated by the
Commission.
State ex rel. Brown v. Nev. Indus. Comm'n, 40 Nev. 220, 161 P. 516 (1916), was the first
case of this court construing the Act. In Brown, this court clearly established that an
aggrieved employee who was dissatisfied with the award of compensation granted by the
Commission had the right to bring an original action in district court against the Commission
and that the enforcement of that right in the district court involved a justiciable controversy
over which our district courts have original jurisdiction as provided in the Nevada
Constitution.
While in the Brown case the employee sought a writ of mandamus from this court
directing the Commission to award him compensation in excess of the award he had received,
this court, in denying his application for the writ on the grounds that he had a plain, speedy,
and adequate remedy at law, held, at 225: That there is a remedy at law against respondent
upon a rejected claim of an employee, we think permits of no question. Suppose, for example,
a claim is rejected by the commission upon the ground that the relation of employer and
employee did not exist at the time of the accident, * * *. Again, if the commission should
determine that the extent of the claimant's injuries are not as great as that asserted by the
claimant, and the claimant is unwilling to accept the compensation which the commission
determines he is entitled to, the claimant is entitled to have the question of the extent of
his injuries determined as a fact by a court of law.
____________________

1
Stats. Nev. 1913, ch. 111.
is entitled to, the claimant is entitled to have the question of the extent of his injuries
determined as a fact by a court of law. * * *
In the administration of the important duties imposed upon the Nevada Industrial
Commission, that commission will doubtless often be required, as it interprets its duty, to
reject claims in whole or in part, and both upon questions of fact and law. If a claim is finally
rejected in tolo, that is the end of it so far as the commission is concerned, unless a judgment
is obtained against the commission in a court of competent jurisdiction, in which event the
judgment will have the force of an allowed claim. * * * A district court is the proper forum to
determine the legality of his [employee's] claim, and, if a legal claim, the amount he is
entitled to recover under the statute. If, after a judgment in the district court, either party is
dissatisfied with such judgment, the remedy of appeal to this court is available.
If the legislature had not adopted the statute under which petitioner claims compensation,
he would, if he sought to enforce compensation from his employer, be compelled to institute
his suit in the district court. It cannot, in reason, we think, be contended that a person entitled
to compensation for personal injury has, by virtue of the statute, been granted any different
remedy to establish his right to such compensation than that which before existed.
This court, in Dahlquist v. Nev. Indus. Comm'n, 46 Nev. 107, 119, 206 P. 197, 207 P.
1104 (1922), reaffirmed the holding of the Brown case, and among other things stated:
Counsel seem to base their entire argument upon the theory that the case in the district
court, wherein the judgment was rendered which was appealed to this court, was tried by that
court de novo. Since the term de novo' means anew, it may be that, literally speaking, the
trial in that court was de novo; but in legal parlance the term de novo' signifies that there had
already been a trial before some tribunal, and that the trial de novo was not before a court
upon an original hearing, but upon appeal, whereas this case was originally instituted in the
district court. We are sure that learned counsel are well aware of the terms of section 1, art. 6,
of our constitution, and of the holding in Ormsby County v. Kearney, 37 Nev. 314, 142 Pac.
803, and followed in V. L. & S. Co. v. District Court, 42 Nev. 1, 171 Pac. 166, wherein it was
held that the legislature had no authority to create a tribunal with judicial powers, other than
as provided in the section of the constitution mentioned, from which an appeal might be taken
to the district court in this state.
We have not been cited to any provision of the Workmen's Compensation Act (Stats.
1913, c. 111, as amended by Stats. 1915, c. 190, Stats. 1917, c. 233, and Stats. 1919, c. 176)
authorizing an appeal from the commission to the court, nor do we understand that it is
contended that there can be such an appeal. * * * There is absolutely no connection between
the proceeding before the commission and that before this court, * * *. In the case before us
the [trial] court reviewed nothing; it merely determined a suit commenced before it. There
was no connection between the proceedings before the commission and the [trial] court
proceeding. Also, Provenzano v. Long, 64 Nev. 412, 183 P.2d 639 (1947); Nevada Indus.
Comm'n v. Prosig, 74 Nev. 209, 326 P.2d 736 (1958).
It is to be particularly noted that this court in the Brown case decided that the legislative
intent was to vest in the aggrieved employee his cause of action against the Commission, and
held in the Dahlquist case that the proceeding before the district court was not a trial de novo
but an original proceeding.
The Nevada Industrial Insurance Act contains no provisions for a judicial review. The
reason is obvious. There simply is nothing to review. The only available procedure, as
indicated in the cases cited above, is an original proceeding in the district court.
Appellant urges Nevada Indus. Comm'n v. O'Hare, 76 Nev. 107, 349 P.2d 1058 (1960), as
authority for the proposition that the medical board's findings are binding on the Commission
and therefore shall be binding on the trial court. The question was not directly presented to
this court and was not decided by it, the language being dictum. The court did discuss the
proper appellate procedure from a ruling of the Nevada Tax Commission
2
(rather than the
Nevada Industrial Commission), but nevertheless said at 112:
The assignment of error in the court's failure to find that the medical board's findings and
recommendations were binding upon the commission, and thus binding upon the court, must,
under the circumstances, be held to be without merit.
We reaffirm the holdings in Brown and Dahlquist, and any indication to the contrary
which may appear in the case of O'Hare is expressly disavowed.
____________________

2
NRS 463.315(1). Any person aggrieved by a final decision or order of the [Nevada Tax] commission
made after hearing or rehearing by the commission pursuant to NRS 463.312, and whether or not a petition for
rehearing was filed, may obtain a judicial review thereof in the district court of the county in which the petitioner
resides or has his or its principal place of business.
indication to the contrary which may appear in the case of O'Hare is expressly disavowed.
[Headnotes 2, 3]
The interpretation given to the Act of 1913 by this court in the Brown case that it was the
legislative intent to vest in an aggrieved employee the right to bring an original action in the
district court has received the tacit acquiescence of the Legislature for a period of 52 years.
This can be construed in no other way than legislative approval of such an interpretation and
is as effective as though the Legislature had expressly provided for such a procedure. It is
certainly within the province and power of the Legislature to create rights and liabilities from
which may grow justiciable controversies which may be enforced by original actions filed in
the district court. This is precisely what the Brown case decided the Legislature had done in
the Act of 1913.
[Headnote 4]
2. The trial judge filed a written decision setting forth his reasons for his award to
respondent. This was followed by findings of fact, conclusions of law, and an appropriate
judgment. The trial judge, in his opinion, stated in part that a fair appraisal of all of the
foregoing [evidence] is that (1) All Doctors with perhaps one exception failed to give * * *
significance to Dr. Mack's finding of some caudal contusion' at the L-5 S-1 levelwhich
could account for and be consistent with Mr. Strange's persistent pain complaint; (2)
Sufficient significance was not given to the October 6, 1964, temporary flare up of the old
compression fracture which he has involving the first lumbar vertebral body' as reported by
Dr. Neff, and resulting in Dr. Neff's opinion that the best treatment would consist of a
application of a Taylor brace' which was done; * * *.
The Court is of the opinion that because of his age, almost 60 at the time of the injury
(now 65) he could have had approximately five productive years of labor available to him in
the normal labor market. However, because of his age and resultant physical condition which
is generally conceded here to be from at least 15% to Dr. Herz's 40% permanent partial
disability coupled with the other factors' of N.R.S. 616.605 (2), his injury has had the net
effect of totally depriving him (although not totally physically disabled) of about 5 years
potential earnings. Even if he had made some effort to obtain gainful employment, (and he
didn't apparently because his efforts at even menial tasks about the homesweeping,
painting, etc.were sufficiently uncomfortable and painful to discourage and did
discourage him from looking for work) the Court is satisfied he could not have held or
performed it with any reasonable degree of continuity and this even if it was strictly
sedentary in nature.
discourage and did discourage him from looking for work) the Court is satisfied he could not
have held or performed it with any reasonable degree of continuity and this even if it was
strictly sedentary in nature. Any employer in this day and age would be greatly reluctant to
regularly employ a man of that age with such an injury, limited experience and training for
any type of work.
This court said in Crosby v. Nev. Indus. Comm'n, 73 Nev. 70, 77, 308 P.2d 60, 63 (1957):
In an early annotation in 33 A.L.R. 115 under title Workmen's Compensation: Statutory
phrase incapacity to work or the like, as including inability to obtain work following an
injury,' are listed a great many cases in the American and English courts in which such terms
as incapacity for work,' disability,' power to earn,' inability to procure work' etc. are
defined and explained. The actual words used in the different statutory provisions do indeed
vary, but the conclusions reached are clear irrespective of the particular words used in the
statutes. This is illustrated by the remark contained in the opinion of Kuhnle v. Department of
Labor and Industries, 15 Wash.2d 427, 120 P.2d 1003, 1006: The courts have found great
difficulty in defining what is meant by incapacity to perform any work at any gainful
occupation, and equivalent expressions used in workmen's compensation acts. They agree
that they do not mean that the workman must be absolutely helpless or physically broken and
wrecked for all purposes except merely to live. * * * The purpose of the act is to insure
against loss of wage earning capacity. A workman's wage earning capacity may be
completely destroyed, though he still has some capacity to perform minor tasks. * * *.'
We are unable to say that the trial court's findings were not supported by substantial
evidence. Nevada Indus. Comm'n v. Frosig, supra.
[Headnote 5]
3. The judgment entered by the trial court was in the sum of $9,900 with interest at the
rate of 7 percent per annum. Respondent asks that interest begin on May 15, 1961, the date
the Commission offered respondent a $2,000 award. Respondent did not file his suit to
recover in district court till October 29, 1963. We find no reason why the rule announced in
NRS 17.130(2)
3
is not applicable in the instant case and that interest should run only from
the date of entry of the trial court's award.
____________________

3
NRS 17.130(2). When no rate of interest is provided by contract or otherwise by law, or specified in the
judgment, the judgment shall draw interest at the rate of 7 percent per annum from the time of the entry of the
judgment until satisfied.
that interest should run only from the date of entry of the trial court's award.
The judgment of the trial court is affirmed.
____________
84 Nev. 160, 160 (1968) Guyette v. State
HAROLD CHESTER GUYETTE, Appellant, v.
No. 5360
February 29, 1968 438 P.2d 244
Appeal from judgment of conviction of the First Judicial District Court, Churchill County;
Frank B. Gregory, Judge.
Defendant was convicted in the trial court of first-degree murder and he appealed. The
Supreme Court, Thompson, C. J., held that where defendant was not advised during
interrogations of his right to presence of counsel, either retained or appointed, but his
statements were not coerced and the law in effect when interrogations occurred prior to
Miranda was complied with and where the most damning statements were volunteered and
were not made in response to interrogation, admission of statements at defendant's trial
constituted harmless error.
Judgment of conviction affirmed.
James W. Johnson, Jr., and James F. Sloan, of Reno, for Appellant.
Harvey Dickerson, Attorney General, and Dennis E. Evans, District Attorney, Churchill
1. Criminal Law.
Where defendant was never told during his interrogations that he had right to presence of attorney, either
retained or appointed, his privilege against self-incrimination was not fully protected. U.S.C.A.Const.
Amend. 5.
2. Criminal Law.
Where defendant was advised of his absolute right to remain silent, that anything he said would be used
against him and that he had right to consult with retained counsel prior to interrogation though he was not
told of his right to presence of attorney, either retained or appointed, the warnings were sufficient to protect
his right to counsel under the Escobedo doctrine. U.S.C.A.Const. Amend. 6.
3. Criminal Law.
Where officers during interrogations gave defendant phonebook, phone, and left room after he made
request to consult with counsel and defendant then chose not to consult with counsel, defendant was not
denied his right to counsel and officers could resume questioning without further warnings. U.S.C.A.Const.
Amend. 6.
4. Courts.
Where trial court received in evidence statements made by defendant without being told of his right to
have counsel, either retained or appointed, present and trial was held after Miranda was decided, though
interrogations were held prior to Miranda, admission of the evidence was error. U.S.C.A.Const. Amend. 5.
5. Criminal Law.
Automatic reversal occurs in those cases in which substantive due process is denied defendant.
6. Criminal Law.
Denial of procedural safeguards of Miranda as to necessity of telling defendant of his right to have
counsel, either retained or appointed, present may constitute harmless error. U.S.C.A.Const. Amend. 5;
NRS 169.110.
7. Criminal Law.
Where defendant who was subsequently convicted of murder, was not advised during interrogations of
his right to presence of counsel, either retained or appointed, but his statements were not coerced and the
law in effect when interrogations occurred prior to Miranda was complied with and where the most
damning statements were volunteered and were not made in response to interrogation, admission of
statements at defendant's trial constituted harmless error. U.S.C.A.Const. Amend. 5; NRS 169.110.
8. Criminal Law.
Pictures which were of part of building in which homicides occurred and of bodies where found within
building and which were accurate portrayals were admissible at defendant's trial for murder.
9. Witnesses.
Letters from defendant, who was subsequently convicted of murder, written to his wife before trial and
not folded, sealed in envelope or otherwise arranged to suggest confidentiality were not privileged as being
between husband and wife and were admissible at his trial for murder. NRS 48.040.
OPINION
A jury convicted Harold Chester Guyette of first degree murder and directed his
imprisonment for life without the possibility of parole. Judgment and sentence have been
entered upon the verdict. On this appeal he contends that evidence obtained in violation of the
Fifth [Miranda v. Arizona, 384 U.S. 436 {1966)] and Sixth [Escobedo v. Illinois, 37S U.S.
47S {1964)] Amendments was used to convict him.
U.S. 436 (1966)] and Sixth [Escobedo v. Illinois, 378 U.S. 478 (1964)] Amendments was
used to convict him. Other claims of error concerning the reception of evidence relevant to
the case, but without constitutional implications, also are pressed. We turn first to consider
the claims of constitutional error.
1. Guyette was charged with the March 12, 1966, murder of one Dean Briggs, at Briggs'
Sav'n Sam's Service Station forty miles north of Fallon, Nevada. Mrs. Briggs, the mother of
Dean Briggs, also was found dead. The trial below, however, concerned only the killing of
Mr. Briggs. On April 1, 1966, Guyette was arrested at Elkhart, Indiana, pursuant to a city
court warrant for failing to appear in court regarding a prior traffic accident. The arresting
officers also suspected that he might be the person who, according to an all points bulletin,
had committed a double murder near Fallon, Nevada. Guyette has been in custody since his
arrest.
The claim that the federal protections of the Fifth and Sixth Amendments were not
honored is directed to a series of in-custody interrogations conducted by Indiana and Nevada
law officers and was presented to the trial court in the absence of the jury. The thrust of his
contention is that required warnings were not given to assure awareness of constitutional
rights. He does not assert that his response to interrogation was coerced or forced from him
except to the extent that the failure to fully warn him bears upon that subject. In line with
Jackson v. Denno, 378 U.S. 368 (1964), and Sims v. Georgia, 389 U.S. 404 (1967), the lower
court made specific findings. It ruled that the warnings met constitutional standards, and that
all statements of the suspect were voluntarily given without coercion, actual or psychological.
All interrogations occurred after the Escobedo decision but before Miranda was handed
down. However, the trial itself was post-Miranda. It is within this framework that we must
evaluate the legal consequences flowing from the series of interrogations which we shall now
summarize.
A. The Indiana interrogations.
1. On the day of arrest, April 1, Guyette was questioned for about one and one half hours
concerning the Nevada killings. Before questioning, the officer advised him that he had the
right to talk to an attorney if he wished; the right to remain silent; and that anything he said
could and would be used in court against him. He was not advised that he had the right to the
presence of an attorney, either retained or appointed. The interrogation and responses,
however, do not appear in the record before us.
appear in the record before us. The prosecution did not offer that evidence.
2. On the following day, April 2, he was again examined for about one hour. The record
does not reflect that warnings were given before questioning. Neither does the record show
the questions or responses. It reveals only the fact that interrogation took place.
3. On April 3, the record is the same as the April 2 occurrence, and shows only the fact of
interrogation.
4. On April 4, another interrogation occurred. Again, the substance is not disclosed.
About 15 minutes before the end of that session the suspect indicated that perhaps he should
consult an attorney. He was handed a phone book and left alone with a phone to use. He did
not use it. Questioning was resumed. He was not told that he had the right to the presence of
an attorney, either retained or appointed.
5. On April 5, Guyette was questioned once more. The trial record does not tell us about
that session; only that it happened. It is likewise silent with respect to warnings.
6. The next day, April 6, at still another interrogation, the suspect made an incriminating
statement which was received as trial evidence. When asked about the killings in Nevada,
Guyette said that he would be willing to admit this thing if his wife would. Before
questioning started on this day, he was warned that he had the right to use the phone and
consult with a lawyer; the right to remain silent; and that if he did respond, his statements
could be used against him. He was not told that he had the right to the presence of an
attorney, either retained or appointed.
7. On April 7, Guyette was taken before the court in connection with extradition
proceedings. After explanatory remarks by the Judge, Guyette waived the appointment of
counsel at that time, and also signed a waiver of extradition. While being transported from
court back to jail, he volunteered incriminating information to the transporting officer. So far
as the trial record shows, there was no questioning at all. The officer's immediate task was to
transport, not interrogate. During this trip, Guyette stated, among other things, that he didn't
have anything to worry about since they didn't have the gun in Nevada, and that his wife was
the only witness and she could not testify against him. These statements were received in
evidence at trial.
8. By April 14, the district attorney from Churchill County, Nevada, had arrived at
Elkhart, Indiana. He wished to interview Guyette. Before doing so, he told Guyette that
anything he said could be used against him; that he need not say anything and could remain
silent; that he had the right to an attorney; that if he wished an attorney the interview
would cease.
say anything and could remain silent; that he had the right to an attorney; that if he wished an
attorney the interview would cease. The prisoner was not told that he had the right to the
presence of an attorney, either retained or appointed. Guyette said, I want to tell you my
story. He did so, and the story he told concerned his trip across Nevada. No mention was
made of killing anyone, or that he had been at Briggs' Service Station on March 12. The scene
now shifts to Nevada.
B. The Nevada interrogations.
1. On April 19, the sheriff met Guyette at Lovelock, Nevada, and took him by patrol car to
the scene of the crime. He there questioned him, asking whether he had ever been there
before, and if he had ever seen Mr. and Mrs. Briggs whose photograph was submitted to
Guyette for study. He denied ever having been there, and did not recognize the persons in the
photo. The record does not show that the sheriff warned Guyette of his rights before inquiring
of him.
2. On April 27, at the district attorney's office, Guyette gave a statement which was
recorded by longhand, typed, read by Guyette and then signed. The statement is a confession
of guilt. In it he related that he got an urge to kill, shot the man when he was in the
bathroom, got scared, turned around and shot the mother. The circumstances preceding the
giving of the statement are significant. Guyette had been allowed to visit with his wife alone
in the district attorney's office. The visit lasted about one-half hour, after which Guyette
advised the district attorney that he wished to make a statement. He was told that he need
not do so unless he had an attorney present, and that anything he said regarding the case could
be used in court against him. Notwithstanding that advice, his confession followed.
3. The defendant testified at the trial. He detailed his trip through Nevada in March
mentioning stops and occurrences at various places. He denied the killings and denied being
at Briggs' Station on March 12. Much of his tale was corroborated by other witnesses who
had seen or spoken to him at those places on the dates specified. In rebuttal, the State offered
still another conversation between the accused and an officer which occurred on June 14
while awaiting trial. The officer first asked whether he had been informed of his rights, to
which he answered yes. During that conversation Guyette inquired about the state prison,
dress, work, whether the prison had a school for barbering, etc., and stated that he was going
to plead guilty. The officer told him that he had better contact his attorney, and Guyette
replied that it would do no good.
Guyette then confessed that he had done some crazy things, shoplifting, now murder, and
proceeded to tell the officer how and why he had killed Mr. and Mrs. Briggs.
The foregoing is a fair summary of the evidence offered, and to which the claim of
constitutional error is directed.
In evaluating the sufficiency of the warnings given from time to time throughout the many
interrogations we must bear in mind that Miranda had not yet been decided. Only Escobedo
had been announced. There exist basic differences between the two cases. For example,
Escobedo rests squarely upon the Sixth Amendment right to counsel, and Miranda upon the
Fifth Amendment privilege against self-incrimination. Escobedo concerns the right to consult
with retained counsel prior to interrogation. Miranda, on the other hand, speaks in terms of
the presence of counsel, either retained or appointed, in order to protect the privilege against
self-incrimination. There are, of course, other differences unrelated to the warning problem
now confronting us.
[Headnotes 1, 2]
None of the warnings given in this case satisfies Miranda. Guyette was never told that he
had the right to the presence of an attorney, either retained or appointed, and to this extent, his
privilege against self-incrimination was not fully protected. Notwithstanding this fact, it
strikes us that warnings sufficient to protect his Sixth Amendment right to counsel as
carefully delineated in Escobedo were given. From the outset, he was advised of his absolute
right to remain silent, that anything he said would be used against him, and that he had the
right to consult with retained counsel prior to interrogation. Those warnings were repeated
from time to time, although not every time he was questioned.
[Headnote 3]
The case at hand is unlike prior cases decided by this court in the wake of Escobedo. In
Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), we ruled that Escobedo was inapposite since
the suspect did not request the right to consult with counsel. Here, after three interrogations a
request was made and, we think, honored, since the officers gave Guyette a phone book, a
phone, and left the room. Guyette chose not to consult. [Cf. White v. State, 82 Nev. 304, 417
P.2d 592 (1966), where such a request was made, and the officer told the suspect that he
would be given an attorney eventually. We believed such conduct to be a denial of the
suspect's right to counsel.] When Guyette chose not to consult with counsel it was
permissible, under the law as it then existed, to resume questioning without further
warnings.
questioning without further warnings. Troiani v. State, 82 Nev. 357, 418 P.2d 814 (1966). In
short, we find nothing in the explicit holding of Escobedo, nor in our construction of that
opinion, which would render inadmissible any of the evidence received at trial in this case.
The interrogators complied with the law in existence when the interrogations occurred.
[Headnote 4]
The rub, of course, arises from the fortuitous circumstance that this case went to trial after
Miranda was decided, and we must, as directed by Johnson v. New Jersey, 384 U.S. 719
(1966), apply the Miranda doctrine to our consideration of the matter. Thus, we are
compelled to rule that error occurred when the trial court received in evidence the statements
of the defendant which do not qualify as volunteered statements. Though this be so, our
careful study of the record persuades us that the error was harmless, even within the strict
federal standard of harmless error as defined first in Fahy v. Connecticut, 375 U.S. 85 (1963),
and as further explained by Chapman v. California, 386 U.S. 18 (1967). We are obliged to
state why we deem the error harmless within the context of this case.
[Headnote 5]
Although the High Court has not yet ruled that the doctrine of harmless error may be
applied to a Miranda warning violation, the drift of its opinions would suggest that the rule of
harmless error may be utilized when any of the new procedural safeguards, as expressed in
Mapp v. Ohio, 367 U.S. 643 (1961); Griffin v. California, 380 U.S. 609 (1965); Escobedo v.
Illinois, 378 U.S. 478 (1964); Miranda v. Arizona, 384 U.S. 436 (1966); and Gilbert v.
California, 388 U.S. 263 (1967), are breached. We say this mainly because the constitutional
doctrines of those cases were not given retrospective application, apparently for the reason
that a violation may occur without necessarily affecting the fundamental fairness of the trial.
Due process in the traditional sense is not necessarily denied the accused. The very integrity
of the fact finding process is not necessarily infected by the violation. The reliability of the
evidence received is not necessarily suspect. Hence, the rule of automatic reversal does not
control appellate disposition.
1

In Chapman v. California, supra, regarding the Griffin doctrine (impermissible comment
upon the defendant's failure to testify), the Court acknowledged this distinction between a
violation of the procedural safeguards and a breach of substantive due process.
____________________

1
Automatic reversal occurs in those cases in which substantive due process is denied the defendant: Example:
1. Coerced confession: Clewis v. Texas, 386 U.S. 707 (1967); Davis v. North Carolina. 384
testify), the Court acknowledged this distinction between a violation of the procedural
safeguards and a breach of substantive due process. It wrote: We conclude that there may be
some constitutional errors which in the setting of a particular case are so unimportant and
insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not
requiring the automatic reversal of the conviction. 386 U.S. at 22. And in Johnson v. New
Jersey, supra, the Court wrote: Thus while Escobedo and Miranda guard against the
possibility of unreliable statements in every instance of in-custody interrogation, they
encompass situations in which the danger is not necessarily as great as when the accused is
subjected to overt and obvious coercion. 384 U.S. at 730.
____________________
U.S. 737 (1966); Haynes v. Washington, 373 U.S. 503 (1963); Lynumn v. Illinois, 372 U.S. 528 (1963); Spano
v. New York, 360 U.S. 315 (1959).
2. Right to counsel at trial: Gideon v. Wainwright, 372 U.S. 335 (1963); Glasser v. United States, 315 U.S.
60 (1942); Doughty v. Maxwell, 376 U.S. 202 (1964).
3. Right to counsel at time plea is entered assuming no intelligent, knowing waiver: White v. Maryland, 373
U.S. 59 (1963); Hamilton v. Alabama, 368 U.S. 52 (1961).
4. Right to impartial judge: Tumey v. Ohio, 273 U.S. 510 (1927).
5. Community saturated with prejudicial pretrial publicity: Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes
v. Texas, 381 U.S. 532 (1965); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961).
6. Discrimination in jury selection: Whitus v. Georgia, 385 U.S. 545 (1967); Eubanks v. Louisiana, 356 U.S.
584 (1958); Patton v. Mississippi, 332 U.S. 463 (1947); Hill v. Texas, 316 U.S. 400 (1942).
7. Right to confront witnesses and cross-examine through counsel: Pointer v. Texas, 380 U.S. 400 (1965);
Douglas v. Alabama, 380 U.S. 415 (1965); Smith v. Illinois, 390 U.S. 129 (1968), decided January 29.
8. Right to compulsory process: Washington v. Texas, 388 U.S. 14 (1967).
9. Prosecution's knowing use of perjured testimony: Miller v. Pate, 386 U.S. 1 (1967); Napue v. Illinois, 360
U.S. 264 (1959).
10. Defendant incompetent to stand trial: Pate v. Robinson, 383 U.S. 375 (1966); Bishop v. United States,
350 U.S. 961 (1956).
11. Right to impartial jury, etc.: Parker v. Gladden, 385 U.S. 363 (1966); Turner v. Louisiana, 379 U.S. 466
(1965).
In the following Nevada cases we automatically set aside the conviction since substantive due process was
denied: Krause v. Fogliani, 82 Nev. 459, 421 P.2d 949 (1966), where accused may have been legally
incompetent when he pled guilty; Messmore v. Fogliani, 82 Nev. 153, 413 P.2d 360 (1966), where there was a
total preclusion of right to confront and cross-examine through counsel, a material witness against the defendant;
Bundrant v. Fogliani, 82 Nev. 388, 419 P.2d 293 (1966), and Garnick v. Miller, 81 Nev. 372, 403 P.2d 850
(1965), where there was an insufficient showing that accused knowingly and intelligently waived counsel when
guilty plea accepted.
[Headnote 6]
California has found room for harmless error application when the doctrines of Mapp v.
Ohio, supra (see People v. Parham, 384 P.2d 1001 (1963)), and Griffin v. California, supra
(see In re Gaines, 404 P.2d 473 (1965)), have been violated. We have heretofore
acknowledged that a violation of the Fourth Amendment proscription against unreasonable
searches and seizures may be harmless within a particular factual setting. Dean v. Fogliani, 81
Nev. 541, 407 P.2d 580 (1965); Dean v. Hocker, 84 Nev. 74, 436 P.2d 427 (1968). Cf.
Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965). We now rule that there is limited room
for a state court to consider the rule of harmless error when the procedural safeguards of
Miranda are not fully honored.
[Headnote 7]
We turn, then, to articulate why we deem the procedural default (the failure to advise the
defendant of his right to the presence of counsel, either retained or appointed) harmless in the
context of this case. First, there is not the slightest suggestion that the statements were
coerced in any manner whatsoever. The defendant testified that his confession of April 27
was voluntarily given, and did not indicate that any of his other utterances were other than
voluntary. Neither at trial nor in this court did his counsel assert that the responses to
interrogation were involuntary. The thrust has always been that appropriate protective
warnings were not given. It seems to us that the basic test of reliability was met in this case.
Second, the law in effect when the interrogations occurred was complied with. Consequently,
any concern to deter unlawful police activity is not involved here. Finally, we note that
perhaps the most damning evidence (the April 7 admissions and the April 27 confession) was
volunteered, not in response to interrogation, and, therefore, untouched by the Miranda
doctrine. State v. Billings, 84 Nev. 55, 436 P.2d 212 (1968).
Our ruling on this point comes about by reason of the peculiar circumstances of this case
and is not intended to mean that a violation of the procedural safeguards of Miranda will be
deemed harmless in every case. Each case must turn upon its own set of circumstances. Here,
we are convinced beyond a reasonable doubt that the error did not affect the result. Chapman
v. California, supra.
2
[Headnote S]

____________________

2
NRS 169.110 reads: No judgment shall be set aside, or new trial granted, in any case on the ground of
misdirection of the jury or the improper admission or rejection of evidence, or for error as to any
[Headnote 8]
2. The claims of nonconstitutional error are not worthy of extensive treatment. It is
suggested that certain black and white snapshots were inflammatory. The pictures were of a
part of the building in which the homicides occurred, and of the bodies where found within
the building, and, apparently, were accurate portrayals and admissible. State v. Gambetta, 66
Nev. 317, 208 P.2d 1059 (1949); Morford v. State, 80 Nev. 438, 395 P.2d 861 (1964);
Archibald v. State, 77 Nev. 301, 362 P.2d 721 (1961); State v. Holt, 47 Nev. 233, 219 P. 557
(1923).
[Headnote 9]
During rebuttal, the State introduced two letters written by Guyette to his wife before trial.
The main contention is that the written communications were privileged and, therefore, not
admissible. NRS 48.040.
3
The circumstances do not fall within the preclusion of the statute
since the communications apparently were never intended, by either spouse, to be
confidential. Neither letter was folded, sealed in an envelope, or otherwise arranged to
suggest confidentiality. Guyette handed them to the sheriff for delivery to his wife. They were
delivered. Sometime later Mrs. Guyette redelivered them to a deputy. The letters were
admissible. Wolfle v. United States, 291 U.S. 7 (1934); State v. Sysinger, 125 N.W. 879
(S.D. 1910); People v. Hayes, 35 N.E. 951 (N.Y. 1894); McNeill v. State, 173 S.W. 826 (Ark.
1915).
We have considered other minor claims of error. None has substance.
The defendant is an indigent and has been represented throughout by court-appointed
counsel. We commend them for their diligent service. The lower court is directed to give
them the certificate specified in subsection 4 of NRS 7.260 in order that they be
compensated for services on appeal.
____________________
matter or pleading or procedure, unless in the opinion of the court to which application is made, after an
examination of the entire case, it shall appear that the error complained of has resulted in a miscarriage of
justice, or has actually prejudiced the defendant, in respect to a substantial right.

3
NRS 43.040 reads: A husband cannot be examined as a witness for or against his wife without her consent,
nor a wife for or against her husband without his consent; nor can either, during the marriage or afterwards, be,
without the consent of the other, examined as to any communication made by one to the other during marriage.
But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal
action or proceeding for a crime committed by one against the other.
them the certificate specified in subsection 4 of NRS 7.260 in order that they be compensated
for services on appeal.
The judgment of conviction is affirmed.
Collins, Zenoff, Mowbray, JJ., and O'Donnell, D. J., concur.
____________
84 Nev. 170, 170 (1968) City of Reno v. Silver State Flying Service
CITY OF RENO, a Municipal Corporation, Appellant and Cross-Respondent, v. SILVER
STATE FLYING SERVICE, INC., a Corporation, Respondent and
Cross-Appellant.
No. 5349
March 1, 1968 438 P.2d 257
Gabrielli, Judge.
Action by corporate lessee of various rights as base operator at municipal airport against
city for damages for termination of lease and cancellation of modification agreement 14 years
before lease termination date. The trial court entered judgment on jury's verdict for damages
for the remaining 14 years of the lease and modification agreement and also awarding
damages for the 10-year extension suggested in lease renewal provision, and appeal was
taken. The Supreme Court, Batjer, J., held that renewal provision that lessor and lessee
mutually agreed to negotiate as to terms and conditions of extension, that if negotiations
accomplished mutual understanding lessor would extend the term 10 years, and that in any
event lessee should have right of first refusal to extend the lease on terms and conditions
offered to any other person was so indefinite and uncertain in all respects as to be a nullity
and unenforceable.
Affirmed in part, reversed in part and remanded.
Vargas, Bartlett & Dixon, and John C. Renshaw, of Reno, for Appellant and
Cross-Respondent.
Streeter, Sala and McAuliffe, of Reno, for Respondent and Cross-Appellant.
1. Municipal Corporations.
Lease renewal provision that municipal lessor and corporate lessee mutually agreed to negotiate as to
terms and conditions of extension, that if negotiations accomplished mutual understanding lessor would
extend the term 10 years, and that in any event lessee should have right of first
refusal to extend the lease on same conditions and terms offered to any other person
was so indefinite and uncertain in all respects as to be a nullity and unenforceable.
lessor would extend the term 10 years, and that in any event lessee should have right of first refusal to
extend the lease on same conditions and terms offered to any other person was so indefinite and uncertain
in all respects as to be a nullity and unenforceable.
In view of indefiniteness and uncertainness of right of first refusal of lease extension, corporate lessee
was not entitled to damages for municipal lessor's breach of the lease and modification agreement beyond
termination date fixed in lease, and submission to jury of question of damages for alleged breach of right of
first refusal and the giving of instruction that right to negotiate for extension and right of first refusal might
be considered in determining damages constituted error.
3. Aviation.
Indefiniteness and uncertainness of lease renewal provision which required municipal airport lessor and
corporate lessee to negotiate as to terms and conditions of 10-year extension and which gave lessee right of
first refusal to extend lease on same conditions and terms offered to any other person were not cured by
statute permitting municipalities to lease privilege of using airports. NRS 496.090.
Municipal airport lessor sued by corporate lessee for damages for termination of lease and cancellation of
modification agreement was not harmed by erroneous admission of letters which were written to lessee
after it filed its complaint and which were to effect that lessee's aircraft dealership was to be terminated and
someone else would be appointed, in view of award of less than lessee claimed. NRCP 61.
5. Trial.
Instruction that corporate lessee was justified if it elected to consider municipal airport lease terminated
and sue city for damages after cancellation notice of specified date and that lessee could not be forced to
enter into contract or abandon right of action for damages stated conclusions of law except for statement
that notice was given on specified date, and the instruction was not objectionable as invading province of
jury in absence of controversy about that fact. Const. art. 6, 12.
6. Trial.
An instruction can properly comment upon conclusory or undisputed fact. Const. art. 6, 12.
7. Trial.
A court may instruct as to conclusions of law or upon application of the law to the facts.
8. Aviation.
Provision of agreement modifying municipal airport lease that corporate lessee should be entitled to tie
down aircraft in area north of hangar to the north airport boundary between barbed wire fence on west and
east end of lessee's hangar, that the arrangement was temporary and the area to be set aside should be for
lessee's use only until it perfected relocation in accordance with prior negotiations, and that the lease
should in no way be changed by the modification was not uncertain as to term.
9. Aviation.
Evidence was sufficient to sustain a verdict for corporate lessee against municipal airport lessor which
lessee sued for breach of lease and modification agreement following notice by city council terminating the
lease and cancelling the modification agreement and which moved for directed verdict. NRCP 50(a).
10. Aviation.
Municipal airport lessor which produced no evidence to support instruction that corporate lessee might
recover present cash value of future profits was not entitled to such an instruction in lessee's action against
lessor for breach of the lease and modification agreement by premature cancellation and termination.
Absent request for an instruction, appellant was not permitted to complain on appeal of failure to give the
instruction.
12. New Trial.
Plaintiff which made no objection to any error of law touching on punitive damages was not entitled to
limited new trial on that issue under rule providing that new trial may be granted to all or any of the parties
on all or part of the issues for error in law occurring at trial and objected to by the party making the motion.
NRCP 59(a)(7).
13. New Trial.
Substantial justice precluded plaintiff from obtaining limited new trial on question of punitive damages
after discharge of original trial jury in case wherein plaintiff had been allowed to amend complaint early in
proceedings to seek exemplary damages and defendant's motion to dismiss the prayer for exemplary
damages had been granted before commencement of the jury trial.
14. Damages.
Punitive damages cannot be awarded by jury unless it first finds compensatory damages.
OPINION
The appellant and cross-respondent (defendant below), City of Reno, a municipal
corporation of the State of Nevada, hereinafter referred to as Reno, leased to the respondent
and cross-appellant (plaintiff below), Silver State Flying Service, a corporation, hereinafter
referred to as Silver State, various rights as a base operator at the Reno Municipal Airport,
Washoe County, Nevada, commencing November 1, 1959, and terminating October 31, 1979.
This agreement hereinafter referred to as the base contract contained the following renewal
provision: Lessee, may, if not then in default, at least one hundred days before the expiration
of the term provided herein serve written notice on Lessor's Airport Manager of Lessee's
desire to obtain a extension of the within term for an additional period of ten years.
within term for an additional period of ten years. Lessor and Lessee hereby mutually covenant
and agree to negotiate as to the terms and conditions of said ten year extension of term and if
such negotiations accomplish mutual understanding and agreement, City will extend such
term as aforesaid subject to the terms and conditions arrived at by such negotiations. In any
event, Lessee shall have the right of first refusal to extend the lease for such term and on the
same conditions and terms offered to any other person for the uses contemplated in this
Agreement.
On October 30, 1964, the parties entered into a modification of the lease, hereinafter
referred to as modification agreement, which, in pertinent part, reads: 1. Paragraph 1 of
said Agreement, shall be entitled to tie down local and itinerant aircraft in the area north of
Lessee's hangar to the north airport boundary, which said area is bounded on the west by a
barbed wire fence and on the east by the east end of Lessee's hangar. 2. This arrangement is
temporary, and the area so set aside to Lessee shall be for its use only until Lessee perfects its
relocation on the line in accordance with prior negotiations between the parties. 3. Said
agreement of 30 November, 1959 shall in no way be changed by this modification.
On April 5, 1965, by a unanimous vote, the Reno City Council took action to immediately
cancel the modification agreement and to terminate the base contract effective May 15, 1965.
On April 8, 1965, Reno sent a letter to Silver State notifying it of the City Council's action.
On April 20, 1965, Silver State filed a claim against Reno in the total amount of $380,024 for
the anticipatory breach of the base contract and modification agreement, and on April 26,
1965, Reno denied the entire claim. Silver State then commenced this action on May 12,
1965.
The next day the City Council of Reno extended the cancellation notice for 30 days, and
on June 15, 1965, the council purported to entirely rescind the notice. No significance,
bearing on this case, appears to attach to this action of the City Council.
The trial below began on January 9, 1967, and at its conclusion the jury returned a verdict
for Silver State awarding $115,200 damages for breach of the modification agreement of
October 30, 1964, and $99,624 damages for breach of the base contract on November 1,
1959, for a total of $214,824.
This appeal is taken from the judgment entered pursuant to that verdict.
Silver State, early in the proceedings was allowed to amend its complaint to pray for
exemplary damages in the amount of $500,000. Reno thereafter moved to dismiss Silver
State's prayer for exemplary damages, and this motion was granted before the commencement
of the jury trial.
On January 27, 1967, after the trial jury returned its verdict and judgment had been
entered, Silver State moved for a limited new trial under NRCP 59(a)(7),
1
on the issue of
punitive damages. On February 27, 1967, the trial court entered its order denying the motion
for a limited new trial and the cross-appeal is taken from the denial of that motion.
As its assignments of error on appeal, Reno claims:
(a) It was error to submit to the jury, for its determination, the question of damages for the
alleged breach of the right of first refusal, and to give instruction No. 24, because such right
was too speculative and uncertain, and was not an enforceable contract right.
(b) It was error and a denial to defendant of a fair trial and its substantial rights, to admit
into evidence plaintiff's Exhibit Q and plaintiff's Exhibit R.
(c) The court erred in giving instruction No. 18.
(d) It was error to allow the jury to consider the modification of agreement and to refuse
the defendant's proposed instruction because the term was too uncertain, and therefore was
not an enforceable contract right.
(e) The court erred in refusing to grant appellant's motion for directed verdict.
(f) The court erred in its failure to instruct the jury that plaintiff may recover only present
cash value of future profits.
The appellant first contends that the district court committed error when it gave Instruction
No. 24,
2
and submitted to the jury for its determination, the question of damages for the
alleged breach of the right of first refusal. We agree.
____________________

1
NRCP 59(a)(7). A new trial may be granted to all or any of the parties and on all or part of the issues for
any of the following causes or grounds materially affecting the substantial rights of an aggrieved party:
* * * Error in law occurring at the trial and objected to by the party making the motion. On a motion for a new
trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional
testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the
entry of a new judgment.

2
Instruction No. 24. The right to negotiate for an extension of the lease together with a right of first refusal
for the extension of the lease may be considered by you in your determination of damages. It can reasonably be
expected that Silver State would renew its lease where there is no comparable rental space for its business.
[Headnote 1]
1. We must first address attention to that portion of the renewal provisions which purports
to give Silver State an option to renew both the base contract and the modification agreement,
and we find that the renewal provision purporting to give an option is so indefinite and
uncertain in all respects that it is in fact a nullity and unenforceable.
It is enough that the renewal clause is indefinite and uncertain, but added thereto is the
burden of section 15(b)
3
of the base contract which renders not only the question of renewal,
but the very continuation of the base contract subject to the rules, regulations and orders of
the federal government.
Silver State relies on a series of cases holding that an option to renew, at a rental to be
negotiated, is not too indefinite for specific performance, however, in this case Silver State's
problem is far greater because the base contract is indefinite and uncertain not only as to
rental but as to all terms and conditions of the proposed re-lease.
The case of Ablett v. Clauson, 272 P.2d 753 (Cal. 1954), an action for declaratory relief,
trespass and injunction, dealt with an option for a renewal lease for a period of five years
upon terms to be then agreed upon. Holding the option to be unenforceable the court said,
The general rule regarding contracts to agree in the future is stated to be as follows:
Although a promise may be sufficiently definite when it contains an option given to the
promisor or promisee, yet if an essential element is reserved for the future agreement of both
parties, the promise can give rise to no legal obligation until such future agreement. Since
either party by the terms of the promise may refuse to agree to anything to which the other
party will agree, it is impossible for the law to affix any obligation to such a promise.' 1
Williston, On Contracts (Rev.Ed. 1936), 131, 45. The rule is well established in this state
[citations], and, in conformity with the weight of authority in other states [citation], it has
been held that an option agreement which leaves an essential term to future agreement is not
enforceable. [Citations.] See Roberts v. Adams, 330 P.2d 900 (Cal.App. 1958).
____________________

3
15(b). Lessor, in addition to any other rights to which it may be entitled by law or otherwise, may cancel
this lease upon or after the occurrence of any one of the following events, by giving Lessee thirty (30) days
advance notice in writing of its intention so to do:
The existence or operation of any rule, regulation or order of the Federal Aviation Agency, directly or
indirectly, requiring the discontinuance or substantial reduction of the use of the Airport for any of the purposes
for which Lessee is authorized hereunder to use the same.
We next turn our attention to that part of the renewal provisions in the base contract which
are claimed, by Silver State, to give it a right of first refusal' to re-lease the premises.
The base contract does not vest in Silver State an absolute right to a further term, but only
a preferential right to negotiate all the terms, conditions, rent and duration of the renewal
lease, conditioned on Reno's desire to lease the premises to anyone at the end of the present
term.
Reno had the right to reject all offers or merely to convert the premises to its own use in
connection with the entire airport operation.
The entire renewal provision, in the base contract, is too indefinite and uncertain to be
regarded as a binding agreement and it amounts to a nullity and is unenforceable.
In the case of Southern Style Shops v. Mann, 4 S.W.2d 959 (Tenn. 1928), the court in
construing a first refusal provision in a lease said: This is no more than a request for an
opportunity to negotiate and does not rise to the dignity of a contract.
The clause in question was not intended to give complainant the right to renew, but only
the right or option to negotiate for a renewal. In reaching this holding the Supreme Court of
Tennessee adopted the following language from one of the lower courts: The words used in
the clause referred to suggest negotiation between the lessor and lessee looking to a possible
renewal on terms to be agreed upon in future, and such words are incompatible with the idea
of an existing right in the lessee.
In the present case, Reno and Silver State were looking to a possible renewal on terms to
be agreed upon in the future and at the time of Reno's notice of revocation dated April 8,
1965, there was no existing right in Silver State for which damages could be properly
awarded. See Frierson v. Gant, 134 S.W.2d 193 (Tenn. 1939); Camichos v. Diana Stores
Corp., 25 So.2d 864 (Fla. 1946); R. J. Reynolds Realty Co. v. Logan, 3 S.E.2d 280 (N.C.
1939).
In Salomon v. Cooper, 220 P.2d 774 (Cal.App. 1950), the court said: An agreement to
agree at a future time is nothing and will not support an action for damages.
In the case of Levin v. Munk, 169 N.E. 82 (Ind. 1929), the court held: The agreement as
pleaded contained no terms, time lease was to run, or of rental to be paid. It was therefore
without legal force and effect; it was void for uncertainty. See Leckrone v. Lawler, 118
N.E.2d 381 (Ind. 1954).
[Headnote 2]
In the contract before us we find a similar situation, and following this line of authority,
hold that because the right of first refusal provision is too indefinite and uncertain, Silver
State is not entitled to any damages for a breach of the base contract or the modified
agreement beyond October 31, 1979.
[Headnote 3]
The respondent, Silver State, suggests that any defect in the renewal provisions of the base
contract and modification agreement for want of being definite and certain is cured by NRS
496.090.
4
We do not agree.
2. In its second assignment of error, Reno maintains that its substantial rights were
infringed and it was denied a fair trial when the lower court admitted Silver State's exhibits
Q and R.
5
Reno bases its contention upon the grounds that those two exhibits were
inflammatory and prejudicial, and adversely influenced the jury in assessing damages.
[Headnote 4]
The judge of the trial court has conceded that the admission of exhibits Q and R was
error. Reno contends that to allow this judgment to stand would make a guessing game as
to the effect of the error in the admission of the exhibits.
____________________

4
NRS 496.696. 1. In operating an airport or air navigation facility owned, leased or controlled by a
municipality, such municipality may, except as may be limited by the terms and conditions of any grant, loan or
agreement pursuant to NRS 496.180, enter into contracts, leases and other arrangements with any persons:
(a) Granting the privilege of using or improving such airport or air navigation facility or any portion or
facility thereof or space therein for commercial purposes.
(b) Conferring the privilege of supplying goods, commodities, things, services or facilities at such airport or
air navigation facility.
(c) Making available services to be furnished by the municipality or its agents at such airport or air
navigation facility.
2. In each case the municipality may establish the terms and conditions and fix the charges, rentals or fees
for the privileges or services, which shall be reasonable and uniform for the same class of privilege or service
and shall be established with due regard to the property and improvements used and the expenses of operation to
the municipality.

5
Exhibit Q was a letter dated April 22, 1966, from Jack Ulstad, general manager of Sierra Aircraft
Company to Joe Williams of Silver State Flying Service, to the effect that they had appointed Casair Inc., as the
Piper dealer for the Reno trade area.
Exhibit R was a letter dated February 9, 1966 from George D. Rodgers, general manager of Sierra Aircraft
Company, Piper Aircraft Distributor to Joe Williams of Silver State Flying Service to the effect that as soon as
they could make other arrangements they would terminate Silver State's dealership and appoint someone else.
allow this judgment to stand would make a guessing game as to the effect of the error in the
admission of the exhibits. This contention is without merit. The record reveals that exhibits
Q and R were both written after Silver State filed its claim against Reno on April 8,
1965, and after it filed its complaint in this case on May 12, 1965, and the damages awarded
Silver State by the jury were less than those claimed by Silver State in its claim and original
complaint. The admission of the two exhibits did not adversely affect the substantial rights of
the appellant, was not prejudicial, and the error is harmless within NRCP 61.
6

[Headnote 5]
3. In its third assignment of error Reno contends that by giving Instruction No. 18
7
the
trial court invaded the province of the jury on a material issue of fact on which there was a
conflict of evidence. This contention is not supported by a careful reading of the instruction.
That a notice was given by Reno to Silver State on April 15, 1965 is the only statement of
fact in the entire instruction, and the fact is entirely uncontroverted. Every other expression in
Instruction 18 is a statement of the law or the conclusion of law.
It does not violate the Nevada Constitution Article 6 12.
8
When Reno states that
Instruction No. 18 is a judicial pronouncement and an instruction to the jury on a disputed
fact, it is simply misinterpreting its clear meaning. The authorities cited by Reno support its
position, but that position cannot be accepted.
Instruction No. 18 only says that after Silver State's claim was rejected and it chose to file
a law suit, Reno's course was to answer the lawsuit because nothing further could be done
on the administrative level.
____________________

6
NRCP 61. No error in either the admission or the exclusion of evidence and no error or defect in any
ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new
trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless
refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of
the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights
of the parties.

7
Instruction No. 18. Plaintiff was justified, if he so elected, to consider the lease terminated and sue for
damages after the notice of April 8, 1965, Plaintiff could not be forced to enter into contracts or to abandon its
right of action for damages.

8
Nevada Constitution, Article 6, 12. Judges shall not charge juries in respect to matters of fact, but may
state the testimony and declare the law.
to answer the lawsuit because nothing further could be done on the administrative level.
[Headnote 6]
In Instruction No. 18, the court was not commenting upon a disputed fact or invading the
province of the jury. It is well settled principal of law that an instruction can comment upon
conclusory or undisputed fact. See Blom v. Kumbier, 81 N.W.2d 528 (Wis. 1957).
[Headnote 7]
It is also clearly established that a court can instruct as to conclusions of law or upon the
application of the law to the fact. See Wood v. Moore, 148 P.2d 91 (Cal.App. 1944); Thaller
v. Skinner and Kennedy Co., 339 S.W.2d 487 (Mo. 1960); Simons v. Jennings, 46 P.2d 704
(Mont. 1935).
[Headnote 8]
4. In its fourth assignment of error, Reno contends that the district court committed
prejudicial error by allowing the jury to consider the modification agreement dated 30th
October, 1964, because as a matter of law the term thereof was too uncertain and therefore
not an enforceable contract right.
The only item of a contemporary nature in the supplemental agreement was the physical
location of the tie-down area. It is obvious from a careful reading of the modification
agreement that the phrase This arrangement is temporary refers to the tie-down area, and
that all other terms and conditions not specifically recited in the modification agreement were
adopted from the base contract.
A tie-down area was to be available to Silver State for the duration of the base contract.
Only the eventual location of the permanent tie-down site was left to negotiations. Reno's
contention that the modification agreement is too uncertain and not an enforceable contract
right is therefor without merit.
[Headnote 9]
5. Reno contends that the trial court erred in refusing to grant its motion for a directed
verdict. The last sentence of NRCP 50(a), reads as follows: If the evidence is sufficient to
sustain a verdict for the opponent, the motion shall not be granted. The record, from the
beginning of the trial to the time of the appellant's motion, is weighted with evidence
sufficient to sustain a verdict for Silver State.
We find that the trial court was correct in denying Reno's motion for a directed verdict.
6. Reno, in its final assignment of error, claims the trial court should have instructed the
jury that the plaintiff {Silver State) may recover only present cash value of future profits.
court should have instructed the jury that the plaintiff (Silver State) may recover only present
cash value of future profits.
[Headnote 10]
We find that Reno was not entitled to an instruction on the question of present cash value
of future profits. In the first instance, it produced no evidence, during the course of the trial to
support such an instruction. The only suggestion in the record about the question of present
cash value was a passing remark by counsel for the appellant in his final argument.
[Headnote 11]
Secondly, Reno made no request to the trial court for an instruction on the question of
present cash value and cannot now complain that the court failed to give the instruction.
In the case of Western & Atlantic Railroad v. Hughes, 278 U.S. 496 (1929), a similar
situation arose and the court held: The Railroad argues also that the charge failed to make it
clear to the jury that, in computing the damages recoverable for the deprivation of future
benefits, adequate allowance must be made, according to circumstances, for the earning
power of money; that the verdict should be for the present value of the anticipated benefits;
and that the legal rate of interest is not necessarily the rate to be applied in making the
computation. Chesapeake & Ohio Ry. v. Kelly, 241 U.S. 485, 491; Gulf, Colorado & Santa
Fe Ry. v. Moser, 275 U.S. 133. There is no room for a contention that the charge failed to
state correctly the applicable rule. If more detailed instruction was desired, it was incumbent
upon the Railroad to make a request therefor. Louisville & Nashville R.R. v. Holloway, 246
U.S. 525. It did not do so.
We now turn to Silver State's cross-appeal from the trial courts order denying its motion
for a limited new trial, and we affirm the action of the lower court. Silver State cannot bring
itself within the provisions of NRCP 59(a)(7).
[Headnotes 12-14]
No where in the record do we find any error of law occurring at trial, objected to by Silver
State and touching on the question of punitive damages. Beyond the limitations of NRCP
59(a)(7), substantial justice would preclude Silver State from having a limited new trial on
the question of punitive damages after the original trial jury had been discharged. Punitive
damages cannot be awarded by a jury unless it first finds compensatory damages. Novack v.
Hoppin, 77 Nev. 33, 359 P.2d 390.
P.2d 390. Gerlach Live Stock Co. v. Laxalt, 52 Nev. 191, 284 P. 310; Clark v. McClurg, 9
P.2d 505 (Cal. 1932).
Silver State cannot, after the trial of the case and the discharge of the jury, expect a new
jury to be empaneled to re-hear the entire matter on the question of compensatory damages in
order to get to the question of punitive damages. We do not reach the questions of whether or
not punitive damages may be awarded against a municipality in this state, or whether or not
punitive damages can be awarded for breach of contract.
The damages awarded to Silver State by the trial jury for the remaining fourteen (14) years
of the base contract and modification agreement are affirmed. The damages awarded to Silver
State for the ten (10) year extension suggested in the renewal provisions of the base contract
are reversed and the total damages awarded to Silver State are reduced from $214,824 to
$125,314. In all other matters the trial court is affirmed and the case is remanded with
instructions to enter a judgment in conformity with this opinion.
____________
84 Nev. 181, 181 (1968) Kitchin v. Mori
DONALD M. KITCHIN, Appellant, v.
TULIO MORI, Respondent.
No. 5373
March 4, 1968 437 P.2d 865
Appeal from a NRCP 41(b) judgment of dismissal. First Judicial District Court, Churchill
County; Frank B. Gregory, Judge.
Suit by a buyer for return of moneys paid as deposit and down payment for purchase of
business. The trial court dismissed complaint, and appeal was taken. The Supreme Court,
Zenoff, J., held that buyer, who entered into contract for purchase of casino business that was
conditioned upon his obtaining a casino license from appropriate state authorities and who
spoke informally with one of gaming commission's members who indicated that he might not
be able to get a license and thereupon withdrew his application and called deal off failed to
exercise reasonable diligence to comply with condition and was not entitled to recover
moneys paid as deposit and down payment in absence of showing that seller suffered no
damage from failure of sale to be consummated, or that amount of seller's damage was
less than sum retained.
and down payment in absence of showing that seller suffered no damage from failure of sale
to be consummated, or that amount of seller's damage was less than sum retained.
Affirmed.
Collins and Mowbray, JJ., dissented in part.
Gordon W. Rice, of Reno, for Appellant.
Diehl, Recanzone & Evans, of Fallon, for Respondent.
1. Sales.
Defaulting buyer may recover moneys paid as deposit and down payment upon his showing that
payments made by him exceeded amount of seller's damages.
2. Sales.
Buyer, who purchased casino on condition that he obtain a casino license, and who spoke informally with
one of gaming commission's members who indicated that he might not be able to get a license and
thereupon withdrew his application and called deal off, failed to exercise reasonable diligence to comply
with condition and was not entitled to recover moneys paid as deposit and down payment in absence of
showing that seller suffered no damage from failure of sale to be consummated, or that amount of seller's
damage was less than sum retained.
OPINION
This was a suit by a buyer, Kitchin, for return of moneys paid as deposit and down
payment for the purchase of a business. The trial court dismissed the complaint after
presentation of the buyer's evidence on the ground that he had failed to prove a sufficient case
for the court upon the facts and the law, and also that no basis for restitution had been proved.
In May 1965, Kitchin and Mori entered into negotiations for the purchase of Mori's bar,
restaurant and casino business known as the Club Horseshoe, in Fallon. In June they
entered into a written contract for the purchase and sale of the club. Kitchin paid $500 to
Mori as earnest money for the purchase. The essentials of their agreement were not in dispute
save for the buyer's contention that the transaction was conditioned upon his obtaining a
casino license from the appropriate Nevada authorities. The condition was not expressed in
the written memorandum of the transaction, but the trial court allowed testimony concerning
it without objection from the seller. The full purchase price was $30,000, payable $5,000
upon execution of the agreement {which was paid) and the balance of $25,000, at $400
per month, including interest at 4 percent per annum.
price was $30,000, payable $5,000 upon execution of the agreement (which was paid) and the
balance of $25,000, at $400 per month, including interest at 4 percent per annum. The unpaid
purchase price was to be secured by a chattel mortgage of the personal property. In addition,
Kitchin was to purchase the stock in trade for cash at cost price. Although the effective date
of the sale was July 1, 1965, the buyer was to come upon the premises and assist in the
operation until he took over. He did go upon the premises, familiarized himself with the
operation and made application for a liquor license from the city of Fallon, applied for
transfer of the utilities in his name and made application for a gaming license. He further
provided $1,350 for minor repairs and operating money in contemplation of the purchase of
the business.
In early July, Kitchin, not having heard from the gaming commission, spoke informally
with one of its members who indicated that he might not be able to get a license. Thereupon,
Kitchin withdrew his application and called the deal off. Upon Mori's refusal to refund the
moneys paid in, Kitchin commenced this action for the amounts already paid and the $1,350
invested in the operation of the business, in all $6,850. His claim for restitution is predicated
upon his failure to obtain a gaming license, apparently acknowledged as a condition
precedent of the sale, or in the alternative, upon a theory of unjust enrichment in light of all
the circumstances.
The trial court granted Mori's motion for judgment of dismissal under Rule 41(b) NRCP
from which Kitchin appeals. We affirm the ruling of the trial court.
[Headnote 1]
1. On occasion, failure to exert reasonable efforts under all the circumstances to perform a
condition incumbent upon the buyer to perform will, without more, justify retention by the
seller of the earnest money deposited. Glassie v. King, 360 F.2d 503 (D.C.Cir. 1965);
Margolis v. Joh, 220 A.2d 542 (Md.App. 1966). But the great weight of authority which we
choose to follow allows recovery to a defaulting buyer upon his showing that the payments
made by him exceed the amount of the seller's damages. Freedman v. Rector, 230 P.2d 629
(Cal. 1951); Harriman v. Tetik, 366 P.2d 486 (Cal. 1961); Honey v. Henry's Franchise
Leasing Corp. of America, 415 P.2d 833 (Cal. 1966); Anaheim Company v. Holcombe, 426
P.2d 743 (Ore. 1967); Malmberg v. Baugh, 218 P. 975 (Utah 1923); Schwartz v. Syver, 59
N.W.2d 489 (Wis. 1953); Corbin on Contracts, Vol. 5A, 1122-1124, 1129-1135 (1964);
40 Yale L.J. 1013 (1931); Restatement, Contracts, 357 {1932).
357 (1932). Even a wilfully defaulting vendee may recover the excess of his part payments
over the damages caused by his breach. Harriman v. Tetik, supra; Honey v. Henry's Franchise
Leasing Corp. of America, supra.
2. If the payments made by the buyer exceed the seller's damages, the burden is on the
party who charges that unjust enrichment to prove it. Absence of such showing or failure of
proof will preclude recovery. Adkins v. Morgan, 338 S.W.2d 921, 923 (Ark. 1960); Nourse v.
Azvedo, 195 P. 669 (Cal. 1921); Quillen v. Kelley, 140 A.2d 517, 522 (Md.App. 1958);
Oliver v. Lawson, 223 A.2d 355, 358 (N.J.App. 1966).
[Headnote 2]
The casual observation by one member of the Gaming Control Board is not sufficient to
justify Kitchin's withdrawal of the gaming application so it cannot be said that Kitchin
exercised reasonable diligence to comply with the condition. (Cf. Saltzman v. McCombs, 71
Nev. 93, 281 P.2d 394 (1955)). He testified that at the time he withdrew the application for a
gaming license he did not know whether or not it would be granted. This is further borne out
by the fact that he later made application for a gaming license for a casino in another location.
Thus, Kitchin's only recourse was to show affirmatively that Mori suffered no damage from
the failure of the sale to be consummated, or that the amount of Mori's damage was less than
the sum retained. No proof whatsoever was given bearing on the amount of damages. We
therefore hold with the trial court that this case was properly dismissed under Rule 41(b)
NRCP.
Our perception of the damage issue differs from that of the dissenting opinion only in
respect to our refusal to give the plaintiff, Kitchin, a second bite of the apple. In the Honey v.
Henry's Franchise Leasing Corp. of America, supra, and Malmberg v. Baugh, supra, cases,
both trial courts entertained the damage question but applied the wrong measure and were
reversed on that ground. In our case, Kitchin offered no proof of Mori's damages, or lack of
them, whatsoever. He failed to carry his burden of proof. The principle announced today is
not so new as to require us to give him relief for his omission since the law reflected by the
majority has been clearly and universally established for many years.
Affirmed.
Collins, J., concurring in part; dissenting in part:
I agree with the rule of law announced by the court in its opinion.
I do not agree with the manner in which it is applied in this case. In other words, I do not
believe we should sustain the NRCP 41(b) ruling granted in favor of Mori. Instead, we should
reverse that ruling and remand the cause for either a full trial or at least a limited hearing on
the question of damages under the rule of law announced in this decision.
There is evidence in the record to indicate that Kitchin breached his contract with Mori in
failing to process his application for a gaming license to a formal determination. It appears to
me that we could sustain the 41(b) ruling to that extent and remand for a limited hearing on
damages only.
While the rule of law which allows recovery to a defaulting buyer upon his showing that
payments made by him exceed the amount of the seller's damages is not new (see Malmberg
v. Baugh, 218 P. 975 (Utah 1923)), still in Nevada it becomes binding precedent for the first
time by this decision. A reading of the record in this case clearly indicates that neither counsel
nor the court considered the issues here with that rule in mind.
The 41(b) ruling of the trial court, as sustained in this decision, works a forfeiture of
Kitchin's $6,850 payments under the contract, and approves retention of both the property and
the money by Mori. This harsh result should be avoided, especially when it is reached by a
procedural ruling. I would prefer to see a full trial on the merits. It might well be Mori's
compensatory damages would either equal or exceed the $6,850 in dispute after evidence
from both sides was taken under the rule here announced. Should that be ultimately the
decision, at least our judicial conscience would be salved.
In granting a 41(b) motion the trial judge must accept plaintiff's evidence as true, draw all
permissible inferences in his favor and not pass upon the credibility of the witnesses nor
weigh the evidence. Gordon v. Cal-Neva Lodge, Inc., 71 Nev. 336, 291 P.2d 1054 (1955);
Schmidt v. Merriweather, 82 Nev. 372, 418 P.2d 991 (1966); Kline v. Robinson, 83 Nev.
244, 428 P.2d 190 (1967).
There is testimony in the record from Kitchin
1
that he wanted Mori to give him back part
of his money.
____________________

1
A. We went over to Mr. Mori's bookkeeper, Mr. Sirano, I believe his name was, and sat down and
discussed the financial condition of the business. Actually I wasn't too concerned about it because the inventory
was about $200 more when I came around the premises. It
wanted Mori to give him back part of his money. He testified he offered to settle for $4,000
of the $6,850. The clear inference to be drawn from this testimony is that Kitchin intended
that Mori have compensatory damages and he (Kitchin) estimated them to be $2,850. This is
enough evidence on compensatory damages adduced by plaintiff in his case-in-chief, in my
opinion, to survive a rule 41(b) attack.
Thus the trial judge was obliged to consider the amount of compensatory damages, if any,
due Mori resulting from Kitchin's breach of the contract. This was not done because the effect
of the lower court's 41(b) rule is to approve either a forfeiture, punitive damages or arbitrarily
determined compensatory damages.
There is authority for this handling of the matter. In Malmberg v. Baugh, 218 P. 975 (Utah
1923), at p. 981, the court said, In view of the fact that all of the parties to the proceeding,
including the court, seem to have proceeded upon a wrong theory as to the measure of
damages, the court is of opinion that justice can only be done by reversing the judgment and
remanding the cause for a new trial, with directions to the trial court to permit the parties,
upon their request, to amend their pleadings, so that the case may be tried and determined in
accordance with the view herein expressed. It is so ordered. Also in Honey v. Henry's
Franchise Leasing Corp. of America, 415 P.2d 833 (Cal. 1966), at p. 836, Justice Traynor
said, In the present case, defendant repossessed some of the property before trial, and it is
impossible to determine from the record whether the value of all of the property at the time of
the trial was equal to its value at the time of the breach plus any consequential damages that
may have been incurred. On retrial the burden will be on plaintiff to prove the excess, if any,
of his payments over the amount necessary to give defendant the benefit of his bargain.
[Citations.]
No error appears except in the trial court's determination of the issue of damages.
Accordingly, the judgment is reversed with directions to retry the issue of damages only
and to enter the appropriate judgment."
____________________
exceeded the original inventory. Repair work had been done around there and a few other things. Mr. Mori had
his bookkeeper make up a list of things that he felt I owed him an additional six thousand or something like that.
This was his reply. * * *
A. I requested that he give me some money back. Q. Some money. Please be specific. A. I told him at first I
would settle out for $4,000 cash, this is my words, and forget about the rest of it and Mr. Mori says Well, you
have lost your money.' I said, Well, we'll have to just take it to court and let the judge decide it.'
with directions to retry the issue of damages only and to enter the appropriate judgment.
Mowbray, J., concurs in the dissent.
____________
84 Nev. 187, 187 (1968) State v. Jarman
STATE OF NEVADA, Appellant, v. GLENN
JARMAN, Respondent.
No. 5409
March 4, 1968 433 P.2d 250
Appeal from order granting writ of habeas corpus and discharging respondent from
custody. Fifth Judicial District Court, Mineral County; Peter Breen, Judge.
Defendant filed petition for writ of habeas corpus before trial on criminal charge of
issuance of check without sufficient funds. The trial court granted habeas corpus and
dismissed complaint. State appealed. The Supreme Court, Batjer, J., held that defendant who
wrote check without sufficient funds to pay pre-existing balance on open account due grocery
store was not guilty of violation of statute making a criminal offense to issue check without
sufficient funds.
Affirmed.
Harvey Dickerson, Attorney General, Leonard P. Root, District Attorney, Mineral County,
for Appellant.
Leonard E. Blaisdell, of Hawthorne, for Respondent.
1. False Pretenses.
Statute making issuance of check without sufficient funds a crime is not applicable to pre-existing debt
situations. NRS 205.130, subd. 1.
2. Limitation of Actions.
Six-year statute of limitations for obligation founded on instrument in writing applied, not four-year open
account statute of limitation, where check without sufficient funds was issued to pay pre-existing debt of
open account. NRS 11.190.
3. False Pretenses.
Gravamen of crime of issuing a check without sufficient funds is intent to defraud. NRS 205.130,
subd. 1.
4. False Pretenses.
To defraud means to deprive a person of property or interest, estate or right by fraud, deceit or artifice.
5. False Pretenses.
Defendant who wrote check without sufficient funds to pay balance on pre-existing open account due
grocery store did not show intent to defraud and was not guilty of violation of statute making a criminal
offense of issuing check without sufficient funds. NRS 205.130, subd. 1.
OPINION
Appellant State of Nevada, hereinafter referred to as the state or the appellant, charged
respondent Glenn Jarman, hereinafter referred to as Jarman or the respondent, with issuing
a check without sufficient funds, and appeals from an order of the lower court making
permanent a writ of habeas corpus, dismissing the complaint and discharging the respondent
from custody.
Jarman, a civilian employee of the Department of Navy, owed Big T Market, Inc., the sum
of $130 for groceries previously purchased. The amount was carried by Big T Market, Inc., as
an open account for two weeks prior to April 21, 1967, when Jarman gave Big T Market, Inc.,
a check for $130 in full payment of his grocery account. The check was drawn on the North
Reno Branch of Nevada Bank of Commerce, Reno, Nevada, and was not honored by the bank
because of insufficient funds in Jarman's account.
After the check was returned to Big T Market, Inc., the proprietors of the market contacted
Jarman and urged him to redeem the check. On June 7, 1967, Garland R. Rowlett, one of the
owners of Big T Market, Inc., caused a criminal complaint to be filed against Jarman, alleging
violation of NRS 205.130(1). A preliminary hearing was held on July 6, 1967, at which time
Jarman moved to quash the complaint and demurred to the complaint on the ground that it did
not allege facts sufficient to constitute a crime under the laws of this state.
At the close of the preliminary hearing, Jarman moved for dismissal of the case upon the
ground that the drawing of the check to pay a pre-existing debt did not amount to a criminal
offense. In support of his position, respondent cited Hoyt v. Hoffman, 82 Nev. 270, 416 P.2d
232. The motions and demurrer of the respondent were denied and he was bound over for
trial in the district court.
Immediately after the preliminary hearing, respondent filed a petition for a writ of habeas
corpus in the district court.
a petition for a writ of habeas corpus in the district court. On July 7, 1967, the day after the
preliminary hearing, the petition was heard and the learned judge found this case directly in
point with the case of Hoyt v. Hoffman, supra, made the writ of habeas corpus permanent,
dismissed the complaint and released respondent from custody.
The appellant contends that the trial court erred in applying the case of Hoyt v. Hoffman,
supra, to the facts in this case. The appellant's contention is without merit. We find that the
case of Hoyt v. Hoffman, supra, is directly in point on the law and the facts in this case, and
affirm the order of the trial court.
[Headnote 1]
In Hoyt v. Hoffman, supra, this court said: The legislature did not intend to make it a
crime to issue a worthless check absent damage or injury to the payee thereof. Such damage
or injury does not exist when the check is given for a preexisting debt * * *. Therefor, we
hold that NRS 205.130(1) does not apply to checks given for pre-existing debts. Harris v.
Florida, 123 So.2d 752 (Fla.App. 1960); Blue Bonnet Creamery, Inc. v. Gulf Mills
Association, 172 So.2d 133 (La. 1965); Jackson v. State, 170 So.2d 438 (Miss. 1965); 59
A.L.R.2d 1159.
In reaching its conclusion in Hoyt v. Hoffman, supra, this court said: In this case Hoyt did
not receive a benefit as a result of making and delivering the check to his creditor, Kirn, nor
was Kirn's position improved or damaged. In the instant case we find that the position of Big
T Market, Inc., was not damaged, but in fact improved, in a legal sense. Its preexisting open
account was converted to a written instrument for a definite admitted amount.
[Headnote 2]
Furthermore, the moment when the limitations of actions began to run was advanced to the
21st of April, 1967, and instead of a four year limitations of actions on the open account, the
market gained the benefit of a six year limitations of actions.
1

____________________

1
NRS 11.190. Actions other than those for the recovery of real property unless further limited by NRS
11.205, can only be commenced as follows: [Headnotes 3, 4]
1. Within 6 years:
(a) An action upon a judgment or decree of any court of the United States, or of any state or territory within
the United States.
(b) An action upon a contract, obligation or liability founded upon
[Headnotes 3, 4]
The gravamen of the crime of issuing a check without sufficient funds is intent to defraud.
To defraud means to deprive a person or property or interest, estate or right by fraud, deceit or
artifice. Sterner v. Lehmanowsky, 113 N.W.2d 588 (Neb. 1962); State v. Harris, 313 S.W.2d
664 (Mo. 1958); Benedict v. State, 89 N.W.2d 82 (Neb. 1958); People v. Griffith, 262 P.2d
355 (Cal. 1953). In the case of State v. Vandenburg, 2 A.2d 916 (Del. 1938), the court,
adopting a definition from Webster's New Inter. Dict., held that: To defraud' means to
deprive of some right, interest or property by a deceitful device; to cheat; to overreach;
* * *'.
In Maggard v. Commonwealth of Kentucky, 262 S.W.2d 672 (Ky. 1953), a case involving
a prosecution for issuing a worthless check, the court said: A necessary element of the
offense is an intent to defraud, and it is well settled that when a check is given in payment of
a debt without simultaneously obtaining money or property, the offense is not complete.
[Headnote 5]
Here Big T Market, Inc., was not damaged. The pre-existing debt was not affected by
Jarman's conduct in giving a worthless check. He did not deprive Big T Market, Inc., of some
right, interest or property. Intent to defraud, the essential element of the crime of issuing a
worthless check, is absent.
There is nothing in the record to show Jarman received a benefit as a result of making and
delivering the check to his creditor, Big T Market, Inc., only the nature of his debt was
changed from an open account to a written instrument.
No intent to defraud could be implied. We follow Hoyt v. Hoffman, supra, and affirm the
action of the district court.
____________________
an instrument in writing, except those mentioned in the preceding sections of this chapter.
2. Within 4 years:
(a) An action on an open account for goods, wares and merchandise sold and delivered.
(b) An action for any article charged in a store account.
(c) An action upon a contract, obligation or liability not founded upon instrument in writing * * *.
____________
84 Nev. 191, 191 (1968) Burton v. State
JOHN EVANS BURTON, Appellant, v. THE
No. 5357
March 5, 1968 437 P.2d 861
Appeal from the Eighth Judicial District Court, Clark County; Thomas J. O'Donnell,
Judge.
Defendant was convicted in the trial court of robbery and appeal was taken. The Supreme
Court, Collins, J., held, inter alia, that evidence which placed third person at scene of crime
was highly relevant in trial of defendant for robbery since third person and defendant were
found together shortly after the robbery.
Affirmed.
[Rehearing denied March 26, 1968]
Richard H. Bryan, Public Defender, Robert N. Peccole, Chief Deputy, Clark County, for
Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, George
Spizzirri, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Foundation laid for photograph was proper in robbery prosecution, as against contention that the
photograph was not a fair, correct and true representation of the scene it purported to represent since
witness had stated, in response to a preliminary question, the participants were in a different order in the
actual lineup in the photograph, where photograph was admitted not as a correct representation of the
lineup but as a true and accurate depiction of the six individuals involved in the lineup.
2. Courts.
Absence of counsel at defendant's lineup was not, in itself, reversible error since such occurred nearly six
months prior to United States Supreme Court decision setting out procedural safeguards in relation to
lineups.
3. Criminal Law.
Issue of fairness of lineup itself could be examined regardless of whether it preceded date of decision of
United States Supreme Court announcing constitutional safeguards in relation to lineups.
Fact that four of six participants in lineup were suspects in robbery prosecution did not require a finding
that the lineup lacked inherent fairness necessary to satisfy the requirement of due process where
inconsistencies of victim's identification, made at lineup, at preliminary hearing and at trial, were brought
to jury's attention by defense counsel.
5. Criminal Law.
Evidence must be relevant to the case at bar to be admissible.
6. Criminal Law.
Evidence which placed third person at scene of crime was highly relevant in trial of defendant for robbery
since third person and defendant were found together shortly after the robbery.
7. Criminal Law.
Evidence justifying motion for severance did not amount to a conclusive ruling that such evidence was
inadmissible against defendant at trial, since it cannot be said ipso facto that a motion for severance
operates as a motion to suppress. NRS 175.205.
8. Criminal Law.
Testimony by officers as to fruits of search of apartment did not prejudice defendant in robbery
prosecution since jury was no doubt aware of difference between amount stolen, approximately $150, and
much smaller amount found by officer in the apartment, and it was for jury to assign to such evidence the
weight and credibility they felt proper.
9. Arrest.
Since arrest of defendant for robbery, although made without a warrant, was based upon sufficient
probable cause and was therefore lawful, search of apartment conducted incident thereto was also legal.
10. Criminal Law.
To satisfy statute allowing new trial on basis of newly discovered evidence there must be a factual
showing that newly discovered evidence could not have been obtained through diligence prior to trial, and
that it would have the probable effect of a different verdict on retrial. NRS 175.535.
11. Criminal Law.
Defendant charged with robbery was not entitled to a new trial on grounds of newly discovered evidence,
which allegedly consisted of admission by codefendant which purported to exculpate defendant, as well as
an affidavit of defendant's attorney relating to circumstances and time of discovery of the new evidence,
since fact that codefendant was known before and during trial to all other parties and this counsel as a
source of evidence as to commission of the robberies could not be refuted from the record. NRS
175.535.
OPINION
On November 28, 1966, Ruth Johnson, the cashier at the J & J Market in Las Vegas,
Nevada, called the police and reported that the market had just been robbed by three Negro
males in their mid-20's. When officers arrived on the scene, she and Lawrence Thornton, who
had also been robbed of his wallet, told the officers that three Negroes between 20-30 years of
age had robbed them and gave descriptions of those persons to the police. A witness who was
outside the market at the time of the robbery stated he saw four Negro males in an auto drive
up to the market; that three of them left the car, went inside, and hurriedly came out a short
lime later; that the engine was running all the time the three were inside the store; that
this overall conduct aroused his suspicion, causing him to take down the license number
of the vehicle.
the engine was running all the time the three were inside the store; that this overall conduct
aroused his suspicion, causing him to take down the license number of the vehicle.
The above information was broadcast over the police radio and approximately 15 minutes
later a car bearing the license number in question was found at an apartment house at 1500
Helen Street. Upon questioning people outside the building, the officers learned that four
males had driven up in the car a short time before and had entered the building.
In response to a knock on one of the doors in the apartment building, Dennis Blood
answered. The officers placed him under arrest for the robbery when they learned the car in
question belonged to him. They immediately entered the apartment and found three other
Negro males, among them the defendant Burton, a person named Himmage and one named
Walker. They were also placed under arrest for robbery.
Burton requested a separate trial on the grounds that 1) evidence inadmissible as to him
would be used against his co-defendants; 2) the defendants wished to rely on different alibis;
3) Himmage had a prior felony recordevidence admissible as to Himmage but potentially
prejudicial and inadmissible as to himself. The motion was granted.
At appellant Burton's separate trial, the following evidence was introduced: (1) a group
photograph of the persons involved in the police line-up; (2) identification by the cashier,
Mrs. Johnson, of co-defendant Himmage from the above-mentioned photograph; (3)
testimony of the witness Thornton, including an identification by him of Burton, Blood, and
Himmage from the photograph; (4) a latent fingerprint of Himmage taken from the place of
the robbery; (5) testimony of the arresting officers concerning the results of their search of the
apartment. The jury found appellant guilty of two counts of robbery and this appeal followed.
1. Appellant contends that the photograph showing the participants involved in the police
line-up and testimony concerning the result of that line-up were improperly admitted into
evidence due to the impropriety of (1) the foundation laid for the photograph, and (2) the
line-up itself.
[Headnote 1]
The foundation is questioned because the witness Thornton stated, in response to a
preliminary question, that the participants were in a different order in the actual line-up than
in the photograph, and therefore the photograph was not a fair, correct and true
representation of the scene it purported to represent. State v. Gambetta, 66 Nev. 317, 208
P.2d 1059 (1949). However, the record shows that the photograph was admitted not as a
correct representation of the line-up1 but as a true and accurate depiction of the six
individuals involved in the line-up that day.
was admitted not as a correct representation of the line-up
1
but as a true and accurate
depiction of the six individuals involved in the line-up that day. The foundation thus laid for
the photograph was proper.
Appellant next contends that the line-up itself was constitutionally infirm because he did
not have counsel present at the time and because four of six participants in the line-up were
suspects in this particular case.
[Headnote 2]
Since the proceedings in this case were nearly six months prior to the announcement of the
procedural safeguards set forth in United States v. Wade, 388 U.S. 218 (1967); Gilbert v.
California, 388 U.8. 263 (1967); and Stovall v. Denno, 388 U.S. 293 (1967), the absence of
counsel, in itself, is not reversible error. Hummel v. Sheriff, 83 Nev. 370, 432 P.2d 330
(1967).
[Headnotes 3, 4]
We therefore turn to the issue of the fairness of the line-up itself, a complaint which may
be examined regardless of the date of the proceedings. Stovall v. Denno, supra; Calbert v.
State, 84 Nev. 148, 437 P.2d 628 (1968). Appellant contends that because four of the six
participants in the line-up were suspects in this case, the line-up lacked the inherent fairness
necessary to satisfy the requirement of due process. To illustrate his point he cites the facts
that the cashier, Mrs. Johnson, identified Himmage and Walker at the line-up, Himmage and
Blood at the preliminary hearing, and only Himmage at the trial. However, these
inconsistencies were all brought to the attention of the jury by defense counsel whose
exclusive function it was to determine credibility of the witness and weigh her testimony. See
People v. Diaz, 427 P.2d 505 (Cal. 1967); State v. Villegas, 420 P.2d 940 (Ariz. 1966).
Appellant urges no other grounds in his claim of unfairness, such as substantial variances in
the height, weight, or age of the participants in the line-up. We conclude from examining the
totality of the circumstances, pursuant to Stovall, that there was no inherent unfairness.
[Headnotes 5, 6]
2. Appellant's next assignment of error attacks evidence presented by the prosecution
identifying Himmage as being a participant in the crime. Evidence to be admissible must be
relevant to the case at bar. The state's position is that the evidence placing Himmage at the
scene of the crime is highly relevant in the trial of the appellant Burton.
____________________

1
An objection to its introduction on this basis was sustained.
relevant in the trial of the appellant Burton. We agree. The relevancy arises out of the fact that
Himmage and the appellant were found together shortly after the robbery. The car with the
previously identified license number was parked downstairs; the number and descriptions of
the men found in the apartment are consistent with that given the police by the robbed
victims; the time lapse between the crime and the arrest was also relatively short. For the state
to prove those facts and also that Himmage was a participant in the crime creates a chain of
circumstantial evidence tending to show that appellant Burton was a participant as well.
People v. Asey, 229 N.E.2d 368 (Ill.App. 1967). The evidence would therefore be relevant
and admissible.
[Headnote 7]
Appellant's next contention is that evidence justifying his motion for severance pursuant to
NRS 175.205 amounted to a conclusive ruling that such evidence was inadmissible against
him at trial. That argument is without merit. We cannot say ipso facto a motion for severance
operates as a motion to suppress. Each motion serves a different purpose and object. Granting
of one motion does not preclude consideration of the other.
3. Appellant next raises for our consideration the propriety of the testimony of the
arresting officers as to the fruits of their search of the apartment. He questions particularly the
fact that the officers were allowed to testify that they found a gun and some money, when the
items themselves were not admitted in evidence when objected to for lack of a proper
foundation. He also questions the legality of the search itself.
The record indicates that the court sustained an objection to the mention of the pistol,
strongly admonished the jury to disregard the remark and, out of the presence of the jury,
admonished both the witnesses and counsel not to mention the weapon again.
2
The
witnesses and the counsel adhered to the admonishment.
[Headnote 8]
Officer Lyons testified that he found $20 in a brown leather cigarette case between the
mattress and boxsprings of one of the beds. Officer Huggins testified that he found
approximately $34 in bills and change secreted in a bag inside the apartment's waterheater.
Defense counsel objected to the mention of the latter money because, for want of proper
foundation, the money itself had not been admitted in evidence.
3
The court overruled his
objection.
____________________

2, 3
While these rulings are not challenged on appeal by the state, we are not convinced of their correctness.
Circumstantially they both tend to prove guilt.
overruled his objection. Defense counsel then attempted to impeach Officer Huggins by
introducing his signed report showing the amount of money found by him to be
approximately $15. Since the jury was no doubt aware of the difference between the amount
stolen, approximately $150, and the amount found by the officer, as well as the possible
doubt thrown upon his testimony, it was for them to assign to such evidence the weight and
credibility they felt proper. Under these circumstances, we see no prejudice to defendant.
[Headnote 9]
The contention that the entire search was improper is without merit. The arrest, although
made without a warrant, was based upon sufficient probable cause and therefore lawful.
(Schnepp v. State, 82 Nev. 257, 259, 415 P.2d 619 (1966); Gordon v. State, 83 Nev. 177, 426
P.2d 424 (1967)). The search conducted incident thereto is also legal. Fairman v. Warden, 83
Nev. 332, 431 P.2d 660 (1967).
[Headnotes 10, 11]
4. Finally, appellant says that the trial court erred in not granting him a new trial on the
basis of newly discovered evidence. NRS 175.535. The evidence presented to the court
consisted of a letter written by Himmage in which he stated he would take the stand and
prove that Burton was not guilty, an affidavit of Himmage admitting his own guilt and
purporting to exculpate Burton, and an affidavit of Burton's counsel relating to circumstances
and the time of discovery of the evidence. To satisfy NRS 175.535 there must be a factual
showing that the newly discovered evidence could not have been obtained through due
diligence prior to trial, and that it would have the probable effect of a different verdict on
retrial. Pacheco v. State, 81 Nev. 639, 408 P.2d 715 (1965). That Himmage was known
before and during trial to all other parties and their counsel as a source of evidence as to the
commission of the robberies cannot be refuted from the record. We believe evidence of the
kind offered here from a co-defendant following his own conviction should be viewed with
caution. Under these standards, the trial court's denial of the motion was proper.
____________
84 Nev. 197, 197 (1968) Lentz v. Boles
MALCOLM L. LENTZ, Appellant, v. DAVID L. BOLES dba
COMFORT AIR MECHANICAL CONTRACTORS CO., Respondent.
No. 5368
March 6, 1968 438 P.2d 254
Appeal from a judgment of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Action for goods sold and delivered. The trial court after entry of default judgment in favor
of plaintiff, granted defendant's motion to set aside default, and plaintiff appealed. The
Supreme Court, Mowbray, J., held that granting of defendant's motion to set aside default
judgment, based on his affidavit that when he received copies of summons and complaint, he
gave them to employee with instructions to deliver them to his attorney but that papers were
not delivered as directed but filed with other records in his office and based on affidavit of
defendant's counsel that he had meritorious defense that order for goods supplied by plaintiff
was given by corporate entity and that defendant was not personally liable, was not abuse of
discretion.
Affirmed.
Stanley W. Pierce, of Las Vegas, for Appellant.
Lionel & Sawyer and Robert M. Buckalew, of Las Vegas, for Respondent.
Lower court's exercise of discretion in setting aside default judgment or refusing to do so will not be
disturbed in absence of abuse of discretion. NRCP 60(b)(1).
2. Judgment.
Tendency to grant relief from default judgment does not imply that trial court should always grant relief
from default, and litigants and their counsel may not properly be allowed to disregard process or
procedural rules with impunity and lack of good faith or diligence or of merit in proposed defense may
warrant denial of motion for relief from judgment. NRCP 60(b)(1).
3. Judgment.
Granting of defendant's motion to set aside default judgment, based on his affidavit that when he received
copies of summons and complaint, he gave them to employee with instructions to deliver them to his
attorney but that papers were not delivered as directed but filed with other records in his office and based
on affidavit of defendant's counsel that he had meritorious defense that order for goods supplied by plaintiff
was given by corporate entity and that defendant was not personally liable, was not abuse
of discretion.
84 Nev. 197, 198 (1968) Lentz v. Boles
entity and that defendant was not personally liable, was not abuse of discretion. NRCP 60(b)(1).
OPINION
Appellant sued respondent for goods sold and delivered and upon respondent's default
secured judgment in the sum of $5,833.71, attorney's fees and costs. Respondent moved
under NRCP 60(b)(1)
1
to set aside the default judgment which the trial court granted.
Appellant appeals on the ground that the trial court abused its discretion and committed
prejudicial error. This is the precise question we must decide.
Appellant's complaint was filed on November 9, 1966. Process was served on November
16 by the sheriff's leaving copies of the summons and complaint with respondent's wife at
their residence in Clark County. Respondent failed to answer, and default was taken on
December 8 and judgment entered on December 29, with notice of entry of judgment filed on
January 4. Copies of the notice of entry of judgment and the judgment were mailed to
respondent and writ of execution issued with order that defendant appear for a debtor
examination on February 22, at which time respondent appeared with counsel and was
granted a continuance. His motion to vacate judgment by default and to quash the writ of
execution was filed on March 3 and heard and granted on March 27.
Respondent in his motion to set aside his default on the ground of excusable neglect states
in his affidavit that when he received the copies of the summons and complaint he gave them
to an employee with instructions to deliver them to his then attorney; that when he received
notice by mail of his default he telephoned his attorney and was advised that his attorney had
not received copies of the summons and complaint and that no responsive pleading had been
filed. Respondent then searched his files and found that the summons and complaint had not
been delivered as directed, but filed with other records in respondent's office.
Respondent's present counsel filed his affidavit supporting respondent's motion and
annexed the answer to be filed should the motion be granted.
____________________

1
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a
final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence surprise, or excusable
neglect; * * *.
84 Nev. 197, 199 (1968) Lentz v. Boles
the motion be granted. Counsel alleges in his affidavit that respondent does have a
meritorious defense, in
* * * That Comfort Air Mechanical Contractors Company, which plaintiff has alleged in
the caption of his complaint herein that defendant is doing business as, is in fact a
corporation, organized, existing, and doing business under the laws of the State of Nevada,
and that the Articles of Incorporation of the said Comfort Air Mechanical Contractors
Company, a Nevada corporation, were filed in the office of the Secretary of State of the State
of Nevada on the 10th day of December, 1965; * * *.
This court has ruled as follows as to a trial court's exercise of discretion in setting aside a
default judgment or refusing to do so. Cases where a default judgment was set aside and the
ruling affirmed on appeal: Howe v. Coldren, 4 Nev. 171 (1868); State v. Consol. Va. Mining
Co., 13 Nev. 194 (1878); Bowman v. Bowman, 47 Nev. 207, 217 P. 1102 (1923); Cicerchia
v. Cicerchia, 77 Nev. 158, 360 P.2d 839 (1961); Blakeney v. Fremont Hotel, Inc., 77 Nev.
191, 360 P.2d 1039 (1961); Anderson v. Havas, 77 Nev. 223, 361 P.2d 536 (1961); cases
where a default judgment was set aside and the ruling reversed on appeal: Haley v. Eureka
County Bank, 20 Nev. 410, 22 P. 1098 (1889); Esden v. May, 36 Nev. 611, 135 P. 1185
(1913); Lukey v. Thomas, 75 Nev. 20, 333 P.2d 979 (1959); Kelso v. Kelso, 78 Nev. 99, 369
P.2d 668 (1962); cases where the default judgment was not set aside and the ruling affirmed
on appeal: Harper v. Mallory, 4 Nev. 447 (1868); Guardia v. Guardia, 48 Nev. 230, 229 P.
386 (1924); Bryant v. Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952); Nevada Ind. Guaranty v.
Sturgeon, 80 Nev. 254, 391 P.2d 862 (1964); Intermountain Lumber v. Glens Falls Ins., 83
Nev. 126, 424 P.2d 884 (1967); cases where the default judgment was not set aside and ruling
reversed on appeal: Evans v. Cook, 11 Nev. 69 (1876); Horton v. New Pass Gold & Silver
Mining Co., 21 Nev. 184, 27 P. 376 (1891); Stretch v. Montezuma Mining Co., 29 Nev. 163,
86 P. 445 (1906); Bauman v. Nev. Colony Corp., 44 Nev. 10, 189 P. 245 (1920); Wagner v.
Anderson, 63 Nev. 453, 174 P.2d 612 (1946); Hotel Last Frontier v. Frontier Properties, Inc.,
79 Nev. 150, 380 P.2d 293 (1963).
[Headnote 1]
As the court said in Hotel Last Frontier v. Frontier Properties, Inc., supra, the various
result of the cases cited are for the most part explainable because of the different facts
involved and that the general principle of review to be applied is the lower court's exercise
of discretion will not be disturbed in the absence of an abuse.
84 Nev. 197, 200 (1968) Lentz v. Boles
is the lower court's exercise of discretion will not be disturbed in the absence of an abuse.
Blakeney v. Fremont Hotel, Inc., supra; Bryant v. Gibbs, supra.
In Hotel Last Frontier, the court suggested certain guides for the trial court in deciding the
question now before us. The court said, at 154: (1) The showing required by NRCP 60(b)(1),
formerly NCL 8640, of mistake, inadvertence, surprise, or excusable neglect, singly, or in
combination, must, of course, be made. Blundin v. Blundin, 38 Nev. 212, 147 P. 1083. What
facts will establish the existence of one or more of the specified conditions is largely
discretionary. Yet, guides have been declared. Prompt application to remove the judgment is
a persuasive factor. Howe v. Coldren, * * *; likewise, the absence of an intent to delay
proceedings, Blakeney v. Fremont Hotel, Inc., * * *; Anderson v. Havas, * * *. The lack of
knowledge of the party or counsel as to procedural requirements has been given weight,
Cicerchia v. Cicerchia, * * *. Good faith is significant. Haley v. Eureka Co. Bank, * * *. (2)
The showing required by case precedent that a meritorious defense' exist to the claim for
relief asserted, also must be made. The total absence of such a showing has defeated the
movant's application to set aside the judgment. Kelso v. Kelso, * * *; Guardia v. Guardia,
* * *; Lukey v. Thomas * * *.
And in announcing a proper guide to the exercise of discretion, the court, in Hotel Last
Frontier at 155, stated further:
* * * the basic underlying policy [is] to have each case decided upon its merits. In the
normal course of events, justice is best served by such a policy. Because of this policy, the
general observation may be made that an appellate court is more likely to affirm a lower court
ruling setting aside a default judgment than it is to affirm a refusal to do so. In the former
case a trial upon the merits is assured, whereas in the latter it is denied forever. * * *.
[Headnote 2]
We wish not to be understood, however, that this judicial tendency to grant relief from a
default judgment implies that the trial court should always grant relief from a default
judgment. Litigants and their counsel may not properly be allowed to disregard process or
procedural rules with impunity. Lack of good faith or diligence, or lack of merit in the
proposed defense, may very well warrant a denial of the motion for relief from the judgment.
84 Nev. 197, 201 (1968) Lentz v. Boles
[Headnote 3]
In the instant case the trial judge chose to believe and accepted the affidavit of respondent
as a sufficient showing of excusable neglect. We cannot say as a matter of law that in doing
so the trial judge abused his discretion.
The proposed defense that Comfort Air Mechanical Contractors Co. is a corporate entity
and that respondent is not personally liable in the cause may provide respondent with a
meritorious defense to appellant's claim. If so, justice dictates that he have an opportunity to
be heard and have the issues properly resolved by the trial court. We do not find an abuse of
discretion by the trial judge, and therefore the court's order setting aside respondent's default
must stand.
Affirmed.
____________
84 Nev. 201, 201 (1968) Drew Rentals v. District Court
DREW RENTALS, Petitioner, v. FIRST JUDICIAL
DISTRICT COURT, Respondent.
No. 5410
March 7, 1968 438 P.2d 253
Original petition for writ of prohibition.
Petition for writ precluding the district court from proceeding further against foreign
automobile rental agency as a codefendant. The Supreme Court held that statute relating to
service of process on foreign manufacturers, producers, and suppliers in products liability
cases cannot be used to obtain service in a case where there is absolutely no allegation that
product supplied was defective in any manner.
Writ granted.
Goldwater, Taber, Hill and Mortimer, of Reno, for Petitioner.
Bradley & Drendel, of Reno, and Gary A. Sheerin, of Carson City, for Respondent.
1. Process.
Statute relating to service of process on foreign manufacturers, producers, and suppliers in products
liability cases cannot be used to obtain service in a case where there is absolutely no
allegation that product supplied was defective in any manner.
be used to obtain service in a case where there is absolutely no allegation that product supplied was
defective in any manner. NRS 14.030.
2. Process.
Statute relating to service of process on foreign manufacturers, producers, and suppliers in a products
liability case was intended to provide a means whereby persons harmed in Nevada by a defective product
originating from outside the state could obtain jurisdiction over the responsible party. NRS 14.080.
OPINION
Per Curiam:
Petitioner, Drew Rentals, seeks a writ of prohibition precluding the district court from
proceeding further against it as a co-defendant. This petition follows a motion to quash
service of process upon petitioner and the entry of an order denying the motion.
Plaintiffs' complaint in the court below alleges that on or about February 8, 1966,
defendant, Brian John Arrow, a visitor from Richmond Surrey, England, rented a car
registered in the State of California from either Drew Rentals or National Car Rental
Systems, Inc. It is alleged that the lessor authorized Mr. Arrow to operate the automobile in
the State of Nevada and that while driving in the State of Nevada, Mr. Arrow drove the
automobile across a double yellow line and collided with an oncoming tractor, thus causing
the injuries which have given rise to this action.
The complaint alleges that petitioner Drew Rentals is responsible 1) as owner of the
automobile, 2) for negligently authorizing and permitting Mr. Arrow to rent the automobile,
and 3) for negligently failing to control the operation of the automobile.
Plaintiffs have attempted to serve process on Drew Rentals pursuant to NRS 14.080,
which provides: Products liability: Service of process on foreign manufacturers, producers,
suppliers.
1. Any company, * * * created and existing under the laws of any other state, * * * which
manufactures, produces, makes, markets or otherwise supplies directly or indirectly any
product for distribution, sale or use in this state may be lawfully served with any legal process
in any action to recover damages for injury to person or property resulting from such
distribution, sale or use in this state in the manner prescribed in this section.
[Headnotes 1, 2]
The initial question with which we are faced is whether NRS 14.080 can be used to obtain
service in a case where there is absolutely no allegation that the product supplied was
defective in any manner. We think it cannot. The clear intent of the Nevada legislature in
enacting the statute was to provide a means whereby persons harmed in this state by a
defective product originating from outside the state could obtain jurisdiction over the
responsible party.
Long arm statutes seek to provide one injured in the forum state with a method of
acquiring jurisdiction over foreign corporations whose defective product within the forum
state has caused injury.
* * * * *
We conclude that under NRS 14.080 Nevada may acquire jurisdiction over a foreign
manufacturer of a product which it reasonably may expect to enter interstate commerce,
which does enter interstate commerce, and because of an alleged defect, causes injury in
Nevada to the plaintiff. (Emphasis added.) Metal-Matic, Inc. v. District Court, 82 Nev. 263,
265-268, 415 P.2d 617 (1966).
There being no allegation that the automobile leased by petitioner was defective, the
district court is without jurisdiction to proceed against the petitioner. A discussion of whether
or not the asserted jurisdiction would violate due process is unnecessary.
Writ granted.
____________
84 Nev. 203, 203 (1968) Jackson v. State
JOHN ROBERT JACKSON, Appellant, v. THE
No. 4932
March 13, 1968 433 P.2d 795
Appeal from conviction of first-degree murder. Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Defendant was convicted in the trial court of first-degree murder, and he appealed. The
Supreme Court, Zenoff, J., held that where distance from scene of fight between defendant
and deceased to defendant's automobile, to which defendant walked after being knocked
down by deceased and the time it took to go there, remove his rifle from automobile, load
and fire it, was so great as to rule out sudden irresistible impulse, trial court did not err in
refusing to instruct jury on voluntary manslaughter.
took to go there, remove his rifle from automobile, load and fire it, was so great as to rule out
sudden irresistible impulse, trial court did not err in refusing to instruct jury on voluntary
manslaughter. The court further held that evidence of intoxication of accused was relevant for
purpose of jury determination as to whether defendant lacked requisite capacity to deliberate
and premeditate.
Affirmed.
[Rehearing denied April 10, 1968]
Samuel B. Francovich, of Reno, for Appellant.
1. Homicide.
In prosecution for murder, evidence of intoxication of accused is relevant for purpose of a jury
determination as to whether defendant lacked requisite capacity to deliberate and premeditate required of
first-degree murder.
2. Criminal Law.
The right and wrong test of legal insanity, the M'Naghten rule, is the law of Nevada.
3. Homicide.
Where the distance from scene of fight between defendant and deceased, to defendant's automobile, to
which defendant walked after being knocked down by deceased and the time it took to go there, remove his
rifle from automobile, load and fire it, was so great as to rule out sudden irresistible impulse, trial court did
not err in refusing to instruct jury on voluntary manslaughter. NRS 200.050, 200.060.
4. Criminal Law.
Trial court's refusal to permit arresting police officer to give his opinion as to whether defendant was
intoxicated at scene of homicide was harmless, in view of fact that several witnesses had similar
opportunity to observe defendant and record was replete with descriptions of defendant's condition as well
as blood alcohol content.
A capital case can be prosecuted by information.
6. Criminal Law.
In prosecution for first-degree murder, trial court properly sustained objection to question asked of expert
psychiatric witness as to whether defendant did in fact premeditate and deliberate to kill deceased, since the
issue of mental capacity is one which must be stated in terms of an opinion.
7. Criminal Law.
Refusal of court to instruct that no consideration be given to defendant's failure to take witness stand was
not error in view of admonition to jury, that, in accordance with a right guaranteed by
the Constitution of the State of Nevada, no person can be compelled in a criminal
action to be a witness against himself.
admonition to jury, that, in accordance with a right guaranteed by the Constitution of the State of Nevada,
no person can be compelled in a criminal action to be a witness against himself.
OPINION
John Robert Jackson was convicted for the murder in the first degree of Robert England
and was sentenced to life imprisonment with the possibility of parole.
Jackson and Rebecca Jackson were married in 1956, shortly thereafter divorced, but later
remarried in 1957. The couple had considerable marital problems, most of which stemmed
from Jackson's drinking. There were occasional separations leading to another divorce in July
1964.
At the time of the last divorce Rebecca was employed as a waitress in a coffee shop in
which England was a frequent customer. On the evening of August 7, 1964 Rebecca and
England went out on a date. Jackson, who had been drinking intermittently throughout the
course of that evening, called Rebecca's house to inquire if she was there. The babysitter for
the Jackson's eight-year-old daughter informed him that Rebecca was not there. Later Jackson
came over to the house, stated to the babysitter that he wanted to see Rebecca and the little
girl. The babysitter refused him admittance because Rebecca was not there and the little girl
was sleeping, so he left the house. Shortly thereafter Rebecca and England returned about
1:00 a.m. and had just driven up to the house when Jackson again drove past Rebecca's place.
Seeing Rebecca and England sitting in England's pickup truck in front of the house, Jackson
approached the vehicle on the driver's side and opened the door. It is not clear whether
Jackson pulled England from the seat or whether England got out voluntarily, but in any
event a fight ensued and Jackson was knocked to the ground. He got up, went to his auto,
picked up and loaded a deer rifle taken that morning from a roommate's closet and returned
pointing the weapon at England. England, saying that he didn't know what this was all
about, sought protection behind a telephone pole when he was shot in the back. He died two
weeks later.
Rebecca witnessed the shooting, ran to the house with Jackson following and pleading for
entry. Neighbors summoned the police and held Jackson at bay until they arrived. A brief
scuffle preceded his arrest and handcuffing by the police. After England's death Jackson was
charged with murder, a violation of NRS 200.030, tried and convicted, and this appeal
follows.
England's death Jackson was charged with murder, a violation of NRS 200.030, tried and
convicted, and this appeal follows.
[Headnote 1]
1. The appeal is directed principally to Jackson's defense that because he was intoxicated,
despondent and jealous his state of mind was such that he could not be guilty of the murder at
all by reason of insanity, or alternatively, that he was guilty of a lesser offense, either second
degree murder or voluntary manslaughter. In this state it is well-recognized that in a
prosecution for murder evidence of the intoxication of the accused is relevant for the purpose
of a jury determination whether the defendant lacked the capacity to deliberate and
premeditate required of first degree murder. Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964);
King v. State, 80 Nev. 269, 392 P.2d 310 (1964); State v. Bourdlais, 70 Nev. 233, 265 P.2d
761 (1954); State v. Arellano, 68 Nev. 134, 227 P.2d 963 (1951); Ex parte Kramer, 61 Nev.
174, 122 P.2d 862 (1942); State v. Fisko, 58 Nev. 65, 70 P.2d 1113 (1937); State v.
Holdaway, 56 Nev. 278, 48 P.2d 420 (1935); State v. Jukich, 49 Nev. 217, 242 P. 590 (1926);
State v. Randolph, 49 Nev. 241, 242 P.697 (1926); State v. Casey,34 Nev. 154, 117 P.5
(1911); State v. Johnny, 29 Nev. 203, 87 P. 3 (1906). Also State v. Thompson, 12 Nev. 140
(1877). The jury was presented considerable evidence relative to his intoxication. Further,
evidence was offered to show that he was despondent over his domestic troubles with
Rebecca and that he had mentioned suicide on at least one occasion.
[Headnote 2]
We do not accept Jackson's plea that we should overturn our previous ruling that the right
and wrong test of legal insanity, the M'Naghten rule, is the law of Nevada. Mears v. State, 83
Nev. 3, 422 P.2d 230 (1967); Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965); Kuk v. State,
supra; Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957); State v. Lewis, 20 Nev. 333, 11 P.
241 (1889). Those portions of this appeal relating to the insanity question including proffered
instructions thereon are denied as being contrary to the law of this state. Harris v. State, 83
Nev. 404, 432 P.2d 929 (1967).
[Headnote 3]
2. The trial court refused to give two requested instructions to the jury on voluntary
manslaughter. We agree with the trial court that there is no evidence in the record to justify
those instructions. NRS 200.050 and 200.060 prescribe voluntary manslaughter: NRS
200.050.
NRS 200.050. In cases of voluntary manslaughter, there must be a serious and highly
provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion
in a reasonable person, or an attempt by the person killed to commit a serious personal injury
on the person killing.
NRS 200.060. The killing must be the result of that sudden, violent impulse of passion
supposed to be irresistible, for, if there should appear to have been an interval between the
assault or provocation given and the killing, sufficient for the voice of reason and humanity to
be heard, the killing shall be attributed to deliberate revenge and punished as murder.
The distance between the scene of the fight at the pickup truck to Jackson's car to which he
walked after he was knocked to the ground by England and the time it took to go there,
remove the rifle from his automobile, load and fire it, rules out the sudden irresistible impulse
that makes up voluntary manslaughter. See State v. Fisko, supra; Lisby v. State, 82 Nev. 183,
414 P.2d 592 (1966); Holland v. State, 82 Nev. 191, 414 P.2d 590 (1966).
[Headnote 4]
3. Other contentions of error are also without merit. When the lower court did not permit
the arresting police officer to give his opinion of whether or not Jackson was intoxicated at
the scene of the crime the record is not clear if the reason for the ruling was for lack of proper
foundation or whether the court felt the question was improper. Whatever the reason,
intoxication is a matter of common perception, one which most mature persons are qualified
to observe, particularly a police officer. We think the officer should have been permitted to
testify relative to the defendant's intoxication. However, the record is replete with
descriptions of Jackson's condition as well as his blood alcohol content. We do not accept
defendant's contention that the officer's testimony was of vital significance in that he was the
only witness who could relate the defendant's condition at about the time of the shooting.
There were several witnesses who likewise had similar opportunity to observe the defendant
shortly after the event. The error was harmless.
[Headnote 5]
Further, we reject the contention that this being a capital case it should have been
prosecuted by indictment instead of by information. Morford v. Fogliani, 82 Nev. 79, 411
P.2d 122 (1966); United States ex rel. Morford v. Hocker, 268 F.Supp. 864 (1967).
[Headnote 6]
Also, the expert psychiatric witness for the defense was asked whether Jackson did in fact
premeditate and deliberate to kill England. An objection to the question was correctly
sustained. While an expert may testify relative to an ultimate fact in issue, his answers should
be limited to an opinion based upon his observations and conclusions. The issue of mental
capacity is one which must be stated in terms of an opinion. Actually, preceding the question
in issue the witness properly answered a similar question by stating that in his opinion that
defendant did not have the capacity to deliberate or premeditate at the time. Moreover, in this
case the witness answered other questions bearing on the effects of the drinking, despondency
and jealousy so that facts enabling the jury to decide the merits of the defense were fully
presented.
[Headnote 7]
Lastly, Jackson was refused a requested instruction that no consideration be given to his
failure to take the witness stand. The instruction requested was similar to that requested in
Bruno v. United States, 308 U.S. 287 (1939). No special instruction relating exclusively to
the testimony of the defendant may be given. NRS 175.170; Graves v. State, 82 Nev. 137,
413 P.2d 503 (1966). The trial court did instruct the jury, In accordance with a right
guaranteed by the Constitution of the State of Nevada no person can be compelled in a
criminal action to be a witness against himself. We know of no right that requires the giving
of an instruction additional to that which was given. Cf. Bruno v. United States, supra; see
Griffin v. California, 380 U.S. 609 (1965).
We affirm.
____________
84 Nev. 208, 208 (1968) Continental Coffee v. Estate of Clark
CONTINENTAL COFFEE COMPANY, Appellant, v.
THE ESTATE OF WILBUR I. CLARK, Respondent.
No. 5398
March 18, 1968 438 P.2d 818
Appeal from the Eighth Judicial District Court, Clark County; John Mowbray, Judge.
Appeal from judgment of the lower court refusing to allow filing of late creditor's claim in
probate proceeding. The Supreme Court, Collins, J., held that where creditor knew of
debtor's death soon after it occurred, statement of creditor's vice president that, during
three-month period subsequent to date notice to creditors was allegedly first published,
creditor did not have notice of Nevada proceedings involving administration of debtor's
estate did not justify late filing of claim.
Supreme Court, Collins, J., held that where creditor knew of debtor's death soon after it
occurred, statement of creditor's vice president that, during three-month period subsequent to
date notice to creditors was allegedly first published, creditor did not have notice of Nevada
proceedings involving administration of debtor's estate did not justify late filing of claim.
Affirmed.
[Rehearing denied May 2, 1968]
Wiener, Goldwater & Galatz and J. Charles Thompson, of Las Vegas, for Appellant.
Foley Brothers, of Las Vegas, for Respondent.
1. Executors and Administrators.
Nonclaims statute applies to contingent and noncontingent claims and to resident and nonresident
claimants. NRS 147.010, subds. 1, 2, 147.040.
Where claimant against estate of decedent, who had guaranteed payment of four notes, knew of
decedent's death soon after it occurred, it was incumbent upon claimant to inquire about estate proceedings.
NRS 147.010, subds. 1, 2, 147.040.
The burden is upon him who seeks to file a late creditor's claim in probate proceeding to present facts to
trial court which justify favorable exercise of discretion. NRS 147.010, subds. 1, 2, 147.040.
4. Executor and Administrators.
Where creditor knew of debtor's death soon after it occurred, statement of creditor's vice president that,
during three-month period subsequent to date notice to creditors was allegedly first published, creditor did
not have notice of Nevada proceedings involving administration of debtor's estate did not justify late filing
of claim. NRS 147.010, subds. 1, 2, 147.040.
5. Constitutional Law; Executors and Administrators.
Nonclaim statute with respect to claims against estate does not violate constitutional due process
requirements. NRS 147.010.
OPINION
This appeal is from a judgment of the lower court refusing to allow filing of a late
creditor's claim in a probate proceeding. We hold that there was no abuse of discretion in the
ruling and affirm the judgment.
The late Wilbur I. Clark had, during his lifetime, guaranteed payment upon demand of
four promissory notes payable to Continental Coffee Company, an Illinois corporation.
payment upon demand of four promissory notes payable to Continental Coffee Company, an
Illinois corporation. The different corporate makers of those four promissory notes were
business associates of Clark. The sums due on the notes totaled approximately $72,000.
Clark, a resident of Nevada, died testate in California on August 27, 1965. He owned
property in both states. The bulk of it however was located in Nevada.
Primary probate of his will and administration of his estate were initiated in Clark County,
Nevada. Notice to creditors was published commencing September 17, 1965 pursuant to NRS
147.010(1).
1
The time within which claims could be filed as limited in 147.040
2
expired
December 17, 1965. None of the claims in issue was filed within that time.
Ancillary administration of Clark's estate was initiated in San Diego, California, October
15, 1966. The foreign will was admitted to probate and notice to California creditors given in
accordance with the requirements of the law of that jurisdiction. The four claims in issue here
were timely filed in the California proceeding. The claims were rejected and suit was filed on
them in the courts of that state.
On October 27, 1966, some 13 months after the first notice to creditors was published and
10 months after the time to file claims had ended, Continental Coffee Company filed its
creditor's claims in the Nevada probate proceeding. They were rejected by the executors as
coming too late. Thereafter, on December 30, 1966, a motion supported by the affidavit of
Stanley Owens,
3
was filed with the court seeking permission to file the late claims.
____________________

1
147.010(1). 1. Immediately after his appointment, every executor or administrator shall:
(a) Cause to be published a notice of his appointment as executor or administrator in some newspaper
published in the county, if there be one; if not, then in such newspaper as may be designated by the court or
judge.
(b) Post a copy of the notice at the courthouse of the county. The notice shall be published at least once a
week for 4 weeks.

2
147.040. 1. All persons having claims against the deceased must, within 3 months after the first
publication of the notice specified in NRS 147.010, file the same, with the necessary vouchers, with the clerk of
the court, who shall file and register each claim.

3
I, STANLEY OWENS, being first duly sworn, deposes and states as follows:
1. I am a vice-president of Continental Coffee Company, the claimant herein. Claimant is an Illinois
corporation.
2. Wilbur B. (sic) Clark, the deceased, prior to his death guaranteed the certain promissory notes more
particularly described in the Creditor's Claim, filed concurrently herewith. Copies of each of the
file the late claims. The motion was denied and suit was commenced. The lower court ruled
in favor of the estate, and said in pertinent part:
The document filed in support of the pending motion is an affidavit of Stanley Owens,
vice president of the claimant. Said affidavit merely recites that during the three month
period subsequent to September 14, 1965, Continental Coffee Company did not have notice
of the Nevada proceedings involving the administration of the Estate of Wilbur B. (sic)
Clark.' The date when such notice was obtained does not appear, nor is there any explanation
for the additional delay of 10 months after the time for filing claims had expired.
* * * * *

The court finds that the record fails to show any basis for granting permission to file the
late creditor's claim. Appeal was then taken to this court.
Appellant creditor assigns three errors:
1. The Nevada Revised Statute 147.040(2) allows the filing of a late claim by a
non-resident creditor corporation who has no actual knowledge of estate administration
proceedings in the State of Nevada.
2. Appellant is entitled to file its claim as the holder of a contingent obligation of Wilbur
Clark.
3. The statutory provisions for notice to creditors violates constitutional due process.
On those issues appellant contends the following:
(1) The benefits of the statute (NRS 147.040(2)) providing for the filing of late claims
were extended not only to nonresidents but to all persons who do not have notice as provided
in the probate statutes and that as a matter of law, it has been shown "to the satisfaction of a
reasonable, fair and impartial mind" that there was no notice.
____________________
guarantees of the deceased are also attached as exhibits to said Creditor's Claim.
3. Each of said guarantees were contingent in nature, in that the payment by the deceased pursuant to said
guarantees was contingent upon the corporations referred to in the Creditor's Claim not paying the promissory
notes described therein. Affiant is informed that the first notice to creditors in the above-captioned proceedings
was published on September 14, 1965. It was not until April 5, 1966 that claimant made the demand upon the
guarantors to pay the aforesaid promissory notes.
4. During the three month period subsequent to September 14, 1965, Continental Coffee Company, did not
have notice of the Nevada proceedings involving the administration of the Estate of Wilbur E. (sic) Clark.
Dated: September 16th, 1966.
s/ Stanley Owens
shown to the satisfaction of a reasonable, fair and impartial mind that there was no notice.
(2) That, as a matter of law, the obligation of Wilbur I. Clark presented to the estate should
be considered contingent until April 5, 1966, some 3 1/2 months subsequent to the last day
for filing claims and under the rule of Pruett v. Caddigan, 42 Nev. 329, 176 P. 787 (1918), a
late filing allowed.
(3) That NRS 147.010, as applied to appellant, violates constitutional due process, in that
appellant did not receive the notice to creditors required by due process, thus the trial court
could not deny the filing of the claim.
[Headnote 1]
In companion cases recently decided by this court (Gardner Hotel Supply of Houston v.
Estate of Clark and Southern National Bank of Houston v. Estate of Clark, 83 Nev. 388, 432
P.2d 495 (1967)), we had occasion to deal with some of the same issues presented here. In
them we decided our nonclaim statute intended efficient and expedient administration of
estates and that it applied to contingent and non-contingent claims alike; that it applies
equally to residents and nonresident claimants; that the trial judge is vested with discretion
upon good cause shown to allow the filing of a late claim or to deny it for lack of such
showing. We further ruled that knowledge of death or any knowledge of the estate
proceedings, coupled with failure to act after such knowledge, are enough to support the
lower court's discretion in denying a late filing.
[Headnote 2]
The record shows that the claimant had knowledge of the death of Clark soon after it
occurred. With such knowledge it was incumbent upon the claimant to inquire about estate
proceedings. There is no showing that the claimant did anything at all in this regard. It failed
to act, to inquire, to investigate.
[Headnote 3]
The burden is upon him who seeks to file a late creditor's claim in a probate proceeding to
present facts to the trial court which justify favorable exercise of discretion.
[Headnote 4]
The only proof offered by appellant to the lower court was the affidavit of Stanley Owens,
vice-president of Continental Coffee Company, which states that, During the 3 month period
subsequent to September 14, 1965, Continental Coffee Company, did not have notice of the
Nevada proceedings involving the administration of the Estate of Wilbur B. (sic) Clark. The
lower court concluded this was not adequate showing to persuade it to exercise its
discretion in allowing the late filing of the claim in view of all the other circumstances.4
In line with Gardner Hotel, supra, knowledge of death coupled with the failure to act will
support the lower court's discretion in denying a late filing.
showing to persuade it to exercise its discretion in allowing the late filing of the claim in view
of all the other circumstances.
4
In line with Gardner Hotel, supra, knowledge of death
coupled with the failure to act will support the lower court's discretion in denying a late filing.
We are not prepared to say as a matter of law that the lower court abused its discretion
requiring our reversal.
Appellant's second contended error regarding the contingency of its claim against Clark's
estate was disposed of in our Gardner Hotel Supply of Houston v. Estate of Clark decision,
supra.
[Headnote 5]
Appellant's final contention that NRS 147.010 violates constitutional due process
requirements as set down in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306
(1950), is without merit. We are not convinced that doctrine has applicability to our
non-claim statute. New York Merchandise Co., Inc. v. Stout, 264 P.2d 863 (Wash. 1953);
Chalaby v. Driskell, 390 P.2d 632 (Ore. 1964).
Thompson, C. J., Zenoff, Batjer, JJ., and Young, D. J., concur.
Mowbray, J., being disqualified, the Governor designated Honorable Llewellyn A. Young,
of the Sixth Judicial District Court, to sit in his place.
____________________

4
Counsel for appellant urged in their brief there was nothing in the California probate proceedings to indicate
it was ancillary or that primary proceedings were underway in Nevada, Clark's legal residence. The record
clearly indicates the contrary.
____________
84 Nev. 213, 213 (1968) Atteberry v. State
GORDON ELLIS ATTEBERRY, Appellant, v.
No. 5430
March 18, 1968 438 P.2d 739
Proceeding attacking constitutionality of Registration of Convicted Persons Act. The trial
court upheld Act, and an appeal was taken. The Supreme Court, Collins, J., held that
Registration of Convicted Persons Act requiring, inter alia, convicted person to register
and to notify sheriff of change of address does not constitute violation of privilege against
self-incrimination or right to freedom and equality guaranteed by state constitution.
Registration of Convicted Persons Act requiring, inter alia, convicted person to register and to
notify sheriff of change of address does not constitute violation of privilege against
self-incrimination or right to freedom and equality guaranteed by state constitution.
Affirmed.
Robert L. Reid, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, John G. Spann, Deputy Attorney General, Carson
City, for Respondent.
1. Criminal Law.
Proceeding under Habitual Criminal Act does not charge separate substantive crime but is averment of
fact affecting punishment. NRS 207.010.
2. Criminal Law.
Prima facie proof of prior convictions in habitual criminal proceeding may be by exemplified copy of
conviction, together with proof of unusual name, and additionally by certified fingerprint cards and
photographs from penal institutions. NRS 207.010.
3. Criminal Law.
Burden of proof in habitual criminal proceeding remains with state, and it must be beyond reasonable
doubt. NRS 207.010.
4. Criminal Law.
Hearing in habitual criminal proceeding is procedural and does not increase punishment for principal
offense but merely allows increased punishment for recidivist. NRS 207.010.
5. Criminal Law.
Disclosure required by Registration of Convicted Persons Act is merely compilation of former
convictions already publicly recorded in jurisdiction where obtained. NRS 207.080-207.150.
Defendant, who knew of his duty to register under Registration of Convicted Persons Act, who had once
previously registered under such Act, and who was prosecuted for failing to advise of subsequent change of
address within county as required by Act, was not denied due process by provisions of Act requiring, inter
alia, convicted person to register and to notify sheriff of change in address. NRS 207.090, 207.100;
U.S.C.A.Const. Amend. 5, 14.
Registration of Convicted Persons Act requiring, inter alia, convicted person to register and to notify
sheriff of change of address does not constitute violation of privilege against self-incrimination or right to
freedom and equality guaranteed by state constitution. NRS 207.090, 207.100; Const. art. 1, 1,
8.
Question of exempting convicted persons from requirements of registration imposed by
Registration of Convicted Persons Act is matter for legislative consideration.
of registration imposed by Registration of Convicted Persons Act is matter for legislative consideration.
NRS 207.080-207.150.
OPINION
This appeal attacks the constitutionality of the Registration of Convicted Persons Act
(NRS 207.080 to 207.150). Appellant contends its enforcement against him violates his
federal and state constitutional rights. The trial court upheld the act. We affirm that decision.
Appellant, James Ellis Atteberry, is admittedly a convicted person required to register
under the act. He had once registered with the sheriff of Clark County. He failed, however, to
notify the sheriff of his change of residence from one place in Clark County to another and
was arrested.
Appellant contends NRS 207.090 and 207.100
1
violate his privilege against
self-incrimination under Article 1, section S, of the Nevada Constitution, the Fifth
Amendment made binding upon the states through the Fourteenth Amendment of the
United States Constitution and his right to freedom and equality guaranteed by Article 1,
section 1, of the Nevada Constitution.
____________________

207.090. 1. It shall be unlawful for any convicted person to be or remain in the State of Nevada for a
period of more than 48 hours without, during such 48-hour period, registering with the sheriff of any county or
the chief of police of any city in the manner hereinafter prescribed.
2. Any convicted person who does not reside in the State of Nevada but who has a temporary or permanent
place of abode outside the State of Nevada, and who comes into the state on five occasions or more during any
30-day period, shall be subject to the provisions of NRS 207.080 to 207.150, inclusive.
3. Any person who has once registered as a convicted person, with the sheriff of any county or the chief of
police of any city, shall not be required to register again, except as provided in NRS 267.100; but any person
convicted of any of the crimes enumerated in paragraph (d) of subsection 1 of NRS 207.080 shall register as
provided in this section, regardless of whether he has previously so registered as a convicted person by reason of
his conviction of some crime other than those enumerated in paragraph (d) of subsection 1 of NRS 207.080.
4. Every person required by this section to register shall do so by filing with the sheriff or chief of police a
statement in writing, signed by such person, upon a form prescribed and furnished by the sheriff or chief of
police, giving the following information:
(a) His true name and all aliases which he has used or under which he may have been known.
(b) A full and complete description of his person.
(c) The kind, character and nature of each crime of which he has been convicted.
(d) The place where each of such crimes was committed and the place or places of conviction.
(e) The name under which he was convicted in each instance and the date thereof.
(f) The name, if any, and the location of each prison, reformatory,
his privilege against self-incrimination under Article 1, section 8, of the Nevada Constitution,
the Fifth Amendment made binding upon the states through the Fourteenth Amendment of
the United States Constitution and his right to freedom and equality guaranteed by Article 1,
section 1, of the Nevada Constitution.
More specifically, appellant complains that by registering under the act he is compelled to
make disclosures and provide information under threat of fine or imprisonment which might
tend to incriminate him under the Nevada Habitual Criminal Act (NRS 207.010). He argues
the information he is required to disclose by registration supplies investigatory leads to the
police and constitutes incriminating information about himself which would be admissible in
a subsequent criminal prosecution. As his principal authority for these contentions, he cites
Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965), and Tehan v. United
States ex rel. Shott, 382 U.S. 405 (1966). None of these contentions is sound.
____________________
jail or other penal institution in which he was confined or to which he was sentenced.
(g) The location and address of his residence, stopping place, living quarters or place of abode, and if more
than one residence, stopping place or place of abode, that fact must be stated and the location and address of
each given.
(h) A statement of the kind of residence, stopping place, or place of abode in which he resides, whether the
same is temporary or permanent; that is, whether the same is a private residence, hotel, apartment house or other
building or structure.
(i) The length of time he has occupied each such place of residence, stopping place or place of abode; and the
length of time he expects or intends to remain in the State of Nevada.
(j) Such other and further information as may be required by the sheriff or chief of police for the purpose of
aiding and assisting in carrying into effect the provisions and intent of NRS 207.080 to 207.150, inclusive.
207.100. Any convicted person, except a nonresident, who is required to register under the provisions of
NRS 207.080 to 207.150, inclusive, who changes his place of residence, stopping place or place of abode, shall,
within 48 hours after such change, and any nonresident mentioned in subsection 2 of NRS 207.090 who has
registered and changes his place of residence, stopping place or place of abode, shall, upon his next entry into
the state after such change, notify the sheriff or chief of police of such fact and furnish to such sheriff or chief of
police the address of his new residence, stopping place or place of abode in the same manner and with the same
detailed information as is required in the filing of the original statement under the provisions of NRS 207.090.
[Headnotes 1-4]
We have held that a proceeding under the Habitual Criminal Act does not charge a
separate substantive crime, but is an averment of fact which affects punishment. State v.
Bardmess, 54 Nev. 84, 7 P.2d 817 (1932); Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966);
Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966); Howard v. State, 83 Nev. 53, 422 P.2d
548 (1967); Hardison v. State, 84 Nev. 123, 437 P.2d 872 (1968). Prima-facie proof of prior
convictions in a habitual criminal proceeding may be by exemplified copy of convictions
(NRS 207.010(6)), together with proof of an unusual name (Hollander v. State, supra); and
additionally, certified fingerprint cards and photographs from penal institutions (Plunkett v.
State, 84 Nev. 145, 437 P.2d 92 (1968). The burden of proof in such a proceeding continues
to remain with the state, and it must be beyond a reasonable doubt. Hollander v. State, supra;
Howard v. State, supra. The hearing is procedural, and does not increase punishment for the
principal offense. It allows increased punishment for a recidivist. Howard v. State, supra.
[Headnote 5]
We do not feel the rules announced by the United States Supreme Court in Albertson v.
Subversive Activities Control Board, supra; Haynes v. United States, 390 U.S. 85 (1968);
Marchetti v. United States, 390 U.S. 39 (1968); or Grosso v. United States, 390 U.S. 62
(1968), apply to this case. We fail to see where the information required to be disclosed by
the Nevada statutes in question per se incriminates the registrant. Cf. Albertson v. Subversive
Activities Control Board, supra. Nor has appellant shown any circumstances which would
justify his raising his privilege against self-incrimination as a defense. Cf. United States v.
Sullivan, 274 U.S. 259 (1927); Marchetti v. United States, supra; Haynes v. United States,
supra; Grosso v. United States, supra. The disclosure required by the act is merely a
compilation of former convictions already publicly recorded in the jurisdiction where
obtained. Lambert v. California, 355 U.S. 225 (1957). Moreover, this information is always
available through fingerprints from the extensive criminal identification files of the FBI and
various state agencies.
[Headnote 6]
Due process requirements were clearly satisfied in that appellant knew of his duty to
register. Lambert v. California, supra. He had once previously registered under the act in
Clark County.
Clark County. He was prosecuted in this case for failing to advise of his subsequent change of
address within the county.
[Headnote 7]
Appellant has failed to demonstrate by authority or argument how his rights under Article
1, section 1, of the Nevada Constitution have been violated by the enactment.
[Headnote 8]
The registration requirement of the act is no doubt a valuable tool in the hands of the
police, because it gives them a current record of the identity and location of ex-felons. On the
other hand, we can visualize how the enforcement of the act could be used for rousting
purposes by the Police. That, however, is not the issue before us. It might even be desirable
and wise to exempt certain formerly convicted persons from the requirements of registration,
i.e., convictions followed by many years of law-abiding conduct. These, and other problems
arising from the requirements of the act are, however, properly directed to the legislature for
its consideration.
The judgment of the lower court is affirmed.
Thompson, C. J. Zenoff, Batjer, and Mowbray, JJ., concur.
____________
84 Nev. 218, 218 (1968) Western Mercury, Inc. v. The Rix Co.
WESTERN MERCURY, INC., Appellant, v. THE
RIX COMPANY, INC., Respondent.
No. 5413
March 22, 1968 438 P.2d 792
Appeal from the Second Judicial District Court, Washoe County; John W. Barrett, Judge.
Action to recover for merchandise supplied. The lower court denied defendant's motion to
vacate a summary judgment granted to plaintiff and defendant appealed. The Supreme Court,
Collins, J., held that where defendant did not answer plaintiff's request for admissions and
answered plaintiff's interrogatories only after plaintiff's motion for summary judgment had
been served, court did not abuse its discretion in denying defendant's motion to vacate
summary judgment.
Affirmed.
[Rehearing denied May 2, 1968] George G.
George G. Holden, of Reno, for Appellant.
Stewart & Horton, of Reno, for Respondent.
1. Discovery.
Where plaintiff served a motion for summary judgment after defendant failed to answer its interrogatories
and request for admissions and defendant belatedly answered interrogatories, court could deem each of
matters of which an admission was requested true. NRCP 33, 36, 56(c).
2. Discovery; Judgment.
Requested admissions, deemed true by court because not answered, can support summary judgment and
unverified answer can be disregarded. NRCP 36, 56(c).
3. Judgment.
In considering motion for summary judgment, court is not bound to consider answers to interrogatories
tardily filed to offset unanswered requested admissions. NRCP 33, 36, 56(c).
4. Judgment.
Where defendant did not answer plaintiff's request for admissions and answered plaintiff's interrogatories
only after plaintiff's motion for summary judgment had been served, court had considerable discretion in
granting or denying defendant's motion to set aside summary judgment.
5. Judgment.
Where defendant did not answer plaintiff's request for admissions and answered plaintiff's interrogatories
only after plaintiff's motion for summary judgment had been served, court did not abuse its discretion in
denying defendant's motion to vacate summary judgment. NRCP 33, 36, 56(c).
6. Judgment.
Local court rule which provided equal or greater opportunity for party to be notified of motion for
summary judgment and to oppose it was not in conflict with general rule relating to summary judgment.
NRCP 56(c), 33.
OPINION
This is an appeal from summary judgment in favor of respondent. We affirm the judgment.
Respondent (plaintiff below) sued appellant (defendant below) for merchandise supplied
in the amount of $9,606.14. Appellant answered, generally denying any indebtedness.
On October 4, 1966 respondent served interrogatories upon appellant. No answers to them
were filed by appellant within 15 days as required in NRCP 33, nor did appellant seek
additional time for answering as permitted by that rule.
On November 1, 1966, the previously served interrogatories not having been answered,
respondent served a request for admissions encompassing many of the questions in the
interrogatories. The record reveals appellant took none of the steps open to it in NRCP 36.
On November 25, 1966 respondent moved for summary judgment on the ground there was
no issue as to any material fact and upon the authority that The judgment sought shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on
file, together with affidavits, if any, show that there is no genuine issue as to any material
fact. NRCP 56(c). This motion was served upon counsel for appellant by mail.
On December 2, 1966, appellant filed its answers to respondent's interrogatories, and
served counter-interrogatories of its own. The latter were answered by respondent on
December 22, 1966.
On December 30, 1966 the lower court entered summary judgment in favor of respondent
in the sum of $9,606.14, accrued interest of $448.24, costs and an attorney's fee of $1,500.
Notice of entry of that judgment was given appellant January 3, 1967 by mail.
While the minutes of the lower court are not a part of the record, it is apparent that court
considered the motion for summary judgment in accordance with its local Rule 11.
1
The
provisions of that rule permitted appellant to have a hearing on the motion if requested by its
counsel. No such request appears in the record.
____________________

1
Rules of Practice, Second Judicial District Court of the State of Nevada. Rule 11. (a) All motions except as
provided in Rule 13 shall be accompanied by points and authorities and any affidavits relied upon, together with
a draft of the order proposed.
(b) Responding party shall file and serve upon all parties, within 10 days after service of a motion, answering
points and authorities and counter-affidavits, together with a draft of such form of order as to which he has no
objection.
(c) Moving party may serve and file reply points and authorities within five days after service of responding
party's points and authorities.
(d) Upon the expiration of the time for the filing of the reply points and authorities the calendar clerk shall
assign the matter to a judge for decision. Decision shall be rendered without oral argument unless oral argument
is requested by the court, in which event the calendar clerk shall set a date and time for hearing.
(e) In all cases where the granting of a motion would dispose of the action on the merits, with prejudice, the
party resisting the motion may request oral argument, and such request shall be granted unless the motion is
denied. If no such request is made, oral argument shall be deemed to have been waived.
The court apparently chose to disregard the answer to the complaint and the answers to the
interrogatories in granting summary judgment because it ruled there was no genuine issue of
material fact to be resolved.
Appellant, upon being notified of the entry of judgment in favor of respondent, moved on
January 13, 1967 to vacate the judgment and to quash the request for admissions; and on June
5, 1967 for a new trial, for reconsideration of its previous motion to vacate the summary
judgment and for stay of execution. All these motions were denied.
In its post-judgment motions appellant urged the following grounds for relief from the
judgment: (1) that the judgment was rendered ex parte without notice of hearing; (2) that
there were genuine issues of fact; (3) that the request for admissions served no other purpose
than to harass appellant and increase its expenses in the litigation; (4) the matter was at issue
upon the pleadings; (5) that there was insufficient evidence to support the summary
judgment; (6) that the court lacked jurisdiction to grant the judgment and appellant was
deprived of its property without due process of law. By these post-judgment motions the
lower court's attention was specifically called to the circumstance that appellant's answers to
respondent's interrogatories were on file when the court undertook favorable consideration of
respondent's request for summary judgment. The trial court obviously felt that circumstance
was not sufficient alone to justify discretionary relief to appellant because its motions were
denied. Conversely, the trial court must have relied upon NRCP 36(a) and deemed admitted
all the information sought by respondent in its request for admissions, because, in view of the
denials of appellant's answer, in no other way could the court have concluded there was no
genuine issue of material fact, a mandatory legal finding necessary to sustain the summary
judgment.
Accordingly, the main or principal issue before us becomes this: May a trial judge, where a
party totally fails to respond to a request for admissions, deem the requests admitted so as to
support summary judgment? Subordinate issues involve (1) a suggested or possible conflict
between a locally adopted district court rule (Rule 11 (b), Second Judicial District Court) and
the Nevada Rules of Civil Procedure (NRCP 56(c)); and (2) whether the trial court abused its
discretion in refusing to grant relief from the judgment upon the showing made by appellant.
[Headnote 1]
NRCP 36 provides in pertinent part: Each of the matters of which an admission is
requested shall be deemed admitted unless, within a period designated in the request, not
less than 10 days after service thereof or within such shorter or longer time as the court
may allow on motion and notice, the party to whom the request is directed serves upon
the party requesting the admission either {1) a sworn statement denying specifically the
matters of which an admission is requested or setting forth in detail the reasons why he
cannot truthfully admit or deny those matters or {2) written objections on the ground
that some or all of the requested admissions are privileged or irrelevant or that the
request is otherwise improper in whole or in part, together with a notice of hearing the
objections at the earliest practicable time.
unless, within a period designated in the request, not less than 10 days after service thereof or
within such shorter or longer time as the court may allow on motion and notice, the party to
whom the request is directed serves upon the party requesting the admission either (1) a
sworn statement denying specifically the matters of which an admission is requested or
setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2)
written objections on the ground that some or all of the requested admissions are privileged or
irrelevant or that the request is otherwise improper in whole or in part, together with a notice
of hearing the objections at the earliest practicable time. * * * Appellant did none of these
things. Its only indirect effort to deal with the request for admissions was to belatedly serve
answers to respondent's interrogatories. The court was therefore permitted by the rule to deem
each of the matters of which an admission was requested true.
In Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964), we held admissions of such type
can be the basis for summary judgment. There a plaintiff in a personal injury action failed to
answer defendant's request for admissions. We said:
By virtue of the failure of Darlene Abbey to respond to the said request for admissions,
the matters contained therein are deemed admitted. NRCP 36(a).
[Headnotes 2-5]
It was incumbent upon the respondent court, therefore, to accept such admissions
together with the affidavits of petitioners in support of the motion for summary judgment, and
to disregard the unverified complaint. We now hold requested admissions deemed true by
the court because not answered, can support summary judgment and the unverified answer
can be disregarded. Nor is the court bound to consider answers to interrogatories tardily filed
to offset the unanswered requested admissions. A trial judge has considerable discretion in
granting or withholding relief from summary judgment under circumstances disclosed in this
case. We are not prepared to say, on the showing made in this record, he violated his
discretion.
[Headnote 6]
The remaining subordinate issue involves the suggested conflict between a local district
court rule and the general rules of procedure promulgated by this court. The district courts
have rule-making power,2 but the rules they adopt must not be in conflict with the
Nevada Rules of Civil Procedure.
rule-making power,
2
but the rules they adopt must not be in conflict with the Nevada Rules
of Civil Procedure. Does local Rule 11 of the Second Judicial District Court necessarily
conflict with NRCP 56(c)? We think not. There is no question but that the responding party
must be given notice of the filing of a motion for summary judgment under either rule. Under
NRCP 56(c) the respondent to the motion might have only 10 days to prepare for the hearing,
including preparation of his points and authorities. Under local Rule 11, the initial motion
must be accompanied by points and authorities (a requirement not contained in NRCP). The
respondent is thereafter given 10 days to file answering points and authorities. The movant
then must serve reply points and authorities within five days. Under Rule 11, where the
granting of the motion would dispose of the action on the merits with prejudice, as here, the
party resisting the motion (appellant here), could demand oral argument. The record discloses
appellant failed to file answering points and authorities or to seek oral argument on the
motion. Its first attack upon respondent's effort to obtain summary judgment came, after it
was granted, in a motion to vacate it. We see no conflict between the local rule and the
general rule, especially where equal or greater opportunity exists to be notified of the motion
and to oppose it.
____________________

2
NRCP 83. Each district court by action of a majority of the judges thereof may from time to time make
and amend rules governing its practice not inconsistent with these rules. Copies of rules and amendments so
made by any district court shall upon their promulgation be furnished to the Supreme Court, but shall not
become effective until sixty days after approval by the Supreme Court and publication. In all cases not provided
for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.
____________
84 Nev. 224, 224 (1968) Barker v. State
ROBERT ROGER BARKER, Appellant, v. THE
No. 5425
March 22, 1968 433 P.2d 793
Appeal from conviction for robbery. Second Judicial District Court, Washoe County; John
W. Barrett, Judge.
Defendant was convicted before the lower court of robbery, and he appealed. The Supreme
Court, Zenoff, J., held that where all five persons in lineup, including defendant, wore
jailhouse garb and were of approximate same size and age, lineup was not so unnecessarily
suggestive as to endanger mistaken identification so as to amount to denial of due process to
defendant identified by motel manager as robber.
Affirmed.
James F. Sloan, of Reno, for Appellant.
1. Criminal Law.
Whether or not defendant has been denied his right to speedy trial depends on circumstances of each
case.
2. Criminal Law.
Defendant who; when arrested and charged with burglary of motel, was in custody awaiting trial for
another offense, whose conviction for such other offense, including customary pretrial proceedings at trial,
intervened prior to trial for robbery of motel, and who was granted continuance to obtain psychiatric
examination, was not denied speedy trial.
3. Courts.
Defendant could not claim to have right to counsel during confrontation for identification purposes
conducted prior to June 12, 1967.
Where all five persons in lineup, including defendant, wore jailhouse garb and were of approximate same
size and age was not so unnecessarily suggestive as to endanger mistaken identification so as to amount to
denial of due process to defendant identified by motel manager as robber.
5. Criminal Law.
There was no violation of defendant's constitutional rights in obtaining handwriting exemplar in
absence of counsel or in admission of expert testimony establishing that handwriting
on note found at scene of crime and exemplar were by same person.
obtaining handwriting exemplar in absence of counsel or in admission of expert testimony establishing that
handwriting on note found at scene of crime and exemplar were by same person.
OPINION
On January 15, 1967 the Gold Key Motel, in Reno, was held up and robbed of over
$150.00.
On January 20, 1967 Robert Roger Barker was arrested and charged with the robbery of
the Heart O' Town Motel, in Reno, which had taken place on January 12th. While in custody
pending trial for that matter Barker asked a police officer to pick up his personal belongings
from a motel where he had been living prior to his incarceration in the Reno jail. He wrote a
note to the management of that motel authorizing the manager to turn over the articles to the
officer. When the officer picked up the belongings he noted that the clothing answered the
description of those worn by the person who held up the Gold Key Motel. This clothing,
coupled with the description of the robber given by the motel manager, made Barker a
suspect in the Gold Key Motel robbery. A line-up was conducted in the city jail from which
the manager of the Gold Key Motel, who was the hold-up victim and who saw the robber,
pointed out Barker as the culprit. Barker was thereafter convicted of robbery of the Gold Key
Motel from which he appeals.
As error he claims that he was denied his constitutional right to a speedy trial, his
constitutional right to counsel in the line-up, and his constitutional right to counsel and
privilege against self-incrimination in the taking and use of a handwriting exemplar. A fourth
assignment of error, that the state failed to produce evidence which may have been helpful to
him, was not prosecuted on appeal nor is there any evidence relevant to this contention.
[Headnotes 1, 2]
1. Whether or not a defendant has been denied his right to a speedy trial depends on the
circumstances of each case. Klopfer v. North Carolina, 386 U.S. 213 (1967); Bates v. State,
84 Nev. 43, 436 P.2d 27 (1968); Stabile v. Justice's Court, 83 Nev. 393, 432 P.2d 670 (1967).
When Barker was arrested and charged in this matter he was in custody awaiting trial for
another offense. The customary pretrial proceedings and the trial resulting in Barker's
conviction for that offense intervened prior to his trial for the subsequent offense.
and the trial resulting in Barker's conviction for that offense intervened prior to his trial for
the subsequent offense. Also, on Barker's own motion a continuance was granted to obtain a
psychiatric examination. Under these circumstances he was not denied a speedy trial.
1
See
Bates v. State, supra.
[Headnotes 3, 4]
2. Barker cannot claim to have a right to counsel during a confrontation for identification
purposes conducted prior to June 12, 1967. Stovall v. Denno, 388 U.S. 293 (1967); Burton v.
State, 84 Nev. 191, 437 P.2d 861 (1968); Calbert v. State, 84 Nev. 148, 437 P.2d 628 (1968);
Hummel v. Sheriff, 83 Nev. 370, 432 P.2d 330 (1967). However, we must consider whether
the line-up as conducted was so unnecessarily suggestive as to endanger mistaken
identification thereby amounting to a denial of due process. All five persons in the line-up,
which included Barker, wore jailhouse garb and were of the approximate same sizes and ages.
From it the motel manager identified Barker. No undue influences are observed from the
record that suggest that in the totality of the circumstances there was a denial of due process.
Stovall v. Denno, supra; Burton v. State, supra; Calbert v. State, supra.
[Headnote 5]
3. A hold-up note found at the scene of the crime was compared to Barker's handwriting
exemplar and expert testimony established that the handwriting on the note and the exemplar
were written by the same person. There was no violation of Barker's constitutional rights in
obtaining a handwriting exemplar in the absence of counsel or in the admission of this
evidence. Gilbert v. California, 388 U.S. 263 (1967); Hardison v. State, 84 Nev. 123, 437
P.2d 872 (1968). See also Schmerber v. California, 384 U.S. 757 (1966); United States v.
Wade, 388 U.S. 218 (1967); Scott v. State, 83 Nev. 468, 434 P.2d 435 (1967).
The lower court is directed to give counsel the certificate specified in Subsection 4 of NRS
7.260 in order that he be compensated for services on appeal.
No error appearing the judgment of conviction is affirmed.
____________________

1
The question of waiver to present the speedy trial issue on a postconviction appeal was not raised. See
Peoples v. State, 83 Nev. 115, 423 P.2d 883 (1967); cf. Oberle v. Fogliani, 82 Nev. 428, 420 P.2d 251 (1966).
____________
84 Nev. 227, 227 (1968) Vaughn Materials v. Meadowvale Homes
VAUGHN MATERIALS CO., INC., a Nevada Corporation, Appellant, v. MEADOWVALE
HOMES, a Nevada Corporation, PIONEER TITLE INSURANCE COMPANY, a Nevada
Corporation, RONALD J. ENGEL and ANNE ENGEL, VIRGIL B. NUTTALL and
BARBARA L. NUTTALL, ANSELMO A. ASERCION and BARBARA A. ASERCION,
DONALD W. McHUGH AND MARILYN J. McHUGH, Respondents.
No. 5403
March 26, 1968 438 P.2d 822
Appeal from judgment of the Second Judicial District Court, Washoe County; Peter Breen,
Judge.
Suit to foreclose mechanics' lien. The lower court denied relief and appeal was taken. The
Supreme Court, Thompson, C. J., held that supplier which did not file claim of mechanic's
lien within 90 days after last delivery of materials to contractor for use in construction of
homes was not entitled to foreclose lien for material supplied contractor on ground that
common law agency existed between contractor and owner and that 90-day lien period did
not commence to run until last delivery of materials to owner who paid for subsequent
deliveries.
Judgment affirmed.
Batjer, J., dissented.
Thornton, Guinan and Griswold, of Reno, for Appellant.
Stewart and Horton, of Reno, for Respondents.
1. Mechanics' Liens.
Under statute to effect that every contractor or subcontractor having charge of construction of any
building or other improvement shall be held to be agent of owner, the agency created is for purpose of
securing liens and not personal liabilities, and therefore is quite unlike common law agency charging
principal with personal liability for authorized acts of his agent. NRS 108.020, subd. 3, 108.060,
108.090.
Purpose of statutory agency with respect to mechanics' liens is to subject owner's property to lien for
improvements ordered by one in charge, if that lien is perfected within time and manner specified by law.
NRS 168.020 subd. 3, 108.060, 108.090.
Supplier which did not file claim of mechanic's lien within 90 days after last delivery of materials to
contractor for use in construction of homes was not entitled to foreclose mechanic's lien for material
supplied contractor on ground that common law agency existed between contractor and owner and that
90-day lien period did not commence to run until last delivery of materials to owner who paid for
subsequent deliveries. NRS 108.020, subd. 3, 108.060, 108.090.
Time for filing claim of lien for materials supplied to contractor is not extended when supplier later
contracts with and delivers material directly to landowner. NRS 108.020, subd. 3, 108.060, 108.090.
5. Mechanics Liens.
Separate contract or transactions between owner of property and supplier and contractor and supplier
cannot be tacked together so as to enlarge time in which to file lien for materials supplied under original
contract with contractor. NRS 108.020, subd. 3, 108.060, 108.090.
OPINION
Vaughn Materials brought suit against Meadowvale Homes to foreclose a mechanic's lien.
Vaughn lost because its claim of lien was not timely filed. We are asked to reverse that
determination. For reasons hereafter stated the appeal must fail. We shall relate only those
facts relevant to the issue of timeliness.
From October 21, 1964, to November 19, 1964, Vaughn furnished building materials
worth $8,000 to American Homes Distributing Co. for use in the construction of homes in the
Meadowvale subdivision, Sparks, Nevada. For approximately two months following the last
delivery to American Homes on November 19, Vaughn continued to furnish materials to the
Meadowvale subdivision job on the order of Meadowvale Homes, and was paid by
Meadowvale Homes for these subsequent deliveries. Meadowvale Homes was the beneficial
owner of the subdivision.
On February 23, 1965, Vaughn filed a claim of lien in the sum of $8,000 for the building
materials sold by it to American Homes and used in the Meadowvale subdivision project. The
claim of lien was not filed within the statutory 90-day limitation period [NRS 108.060]
1
after the last delivery of
____________________

1
NRS 108.060 in relevant part reads: Every person claiming the benefit of NRS 108.010 to 108.220,
inclusive, shall, not earlier than 10 days after the completion of his contract, or the delivery of material by him,
or the performance of his labor, as the case may be, and in each case not later than 30 days after the completion
of the contract and the recording of the completion notice by the owner as provided in NRS 108.090, and in all
other cases 90 days after the completion of the contract, or the delivery of material, or materials to
American Homes.the performance of his labor, as the case may be, record with the county recorder of the
county where the property or some part thereof is situated a claim * * *.
Note: So far as we know, a completion notice was not recorded in this case. See NRS 108.090.
materials to American Homes. Notwithstanding this fact, the lienor suggests that foreclosure
is not barred. It argues that a common law agency existed between American Homes
(contractor) and Meadowvale Homes (owner) by reason of NRS 108.020(3), and that the
90-day lien period, therefore, did not commence to run until the last delivery of materials to
Meadowvale Homes. Subordinately, it contends that, in any event, the time for filing a claim
of lien for materials supplied to a contractor is extended when the materialman later delivers
materials directly to the landowner. Neither contention is sound.
[Headnotes 1, 2]
1. NRS 108.020(3) provides: Every contractor, subcontractor * * * having charge * * *
of the construction * * * of any building or other improvement * * * shall be held to be the
agent of the owner, for the purposes of NRS 108.010 to 108.220, inclusive. The statutory
agency thus created is for the purpose of securing liens and not personal liabilities [Milner v.
Shuey, 57 Nev. 174, 180, 69 P.2d 771 (1937)] and, therefore, is quite unlike a common law
agency which charges the principal with personal liability for authorized acts of his agent.
The obvious purpose of the statutory agency is to subject the owner's property to lien for
improvements ordered by one in charge, if that lien is perfected within the time and manner
specified by law. Here, the lienor did not timely file its claim of lien.
[Headnotes 3-5]
2. Case law from other jurisdictions declares that the time for filing a claim of lien for
materials supplied to a contractor is not extended when the supplier later contracts with and
delivers material directly to the landowner. The following cases are illustrative: Frank J.
Trunk & Son, Inc. v. DeHaan, 391 P.2d 353 (Mont. 1964); Anderson v. Taylor, 347 P.2d 536
(Wash. 1959); Edward Edinger Co. v. Hildreth Memorial United Evangelical Church, 201
N.W. 569 (Iowa 1925).
2
In each of the cited cases, as in the case at hand, the materials were
furnished under distinct transactions and under separate contracts, the first with the contractor
and the second with the owner. Accordingly, the lien for each was deemed to be separate, and
was required to be separately enforced. The separate contracts or transactions may not be
tacked together so as to enlarge the time within which to file a lien for the materials supplied
under the original contract. We approve that view.
Since the transactions in this case were between different parties, the rationale of Peccole
v. Luce & Goodfellow, 66 Nev. 360, 212 P.2d 71S {1949); Ferro v. Bargo Min. Co., 37 Nev.
139
____________________

2
The cases are collected at 78 A.L.R.2d 1165.
parties, the rationale of Peccole v. Luce & Goodfellow, 66 Nev. 360, 212 P.2d 718 (1949);
Ferro v. Bargo Min. Co., 37 Nev. 139, 140 P. 527 (1914); Gaston v. Avansino, 39 Nev. 128,
154 P. 85 (1915); and Capron v. Strout, 11 Nev. 304 (1876), upon which the lienor relies, is
inapposite.
Affirmed.
Collins, Zenoff, and Mowbray, JJ., concur.
Batjer, J., dissenting:
I dissent. We cannot single out NRS 108.060 or NRS 108.020(3), in deciding this case, but
we must consider NRS 108.010 to 108.220 inclusive.
Although Peccole v. Luce & Goodfellow, 66 Nev. 360, 212 P.2d 718 (1949), was decided
upon facts involving a single contractor, that case is not sufficiently different to be
distinguished from the case at hand. Here the appellant is entitled to rely on the holding in
that case.
In Peccole v. Luce & Goodfellow, supra, the court said: As to the contention that the last
items were trivia or items omitted or repairing defects or inferior workmanship, we find no
evidence to sustain the latter two contentions. If they were part of or incident to a continuing
contract or a contract as a whole, the contention of appellants cannot prevail. It appears that
work and materials as indicated by Exhibits J,' K,' L,' and M' were furnished from time to
time under a cost plus contract with Christie, as testified to by Allen Sharpe. There seems to
have been no unreasonable, unnecessary or unjustified delay in furnishing work or materials
under the understanding here, that same should continue until the varnishing and painting
were done. It is a continuing contract with a sufficiently continuous compliance therewith.
Under such conditions it would appear that the claimant could not have filed a lien claiming
April 23 as date of completion or substantial compliance, unless the owner had given notice
of completion under 3739, as amended, chap. 94, p. 133, Statutes 1941, providing in part:
The owner may within ten days after the completion of any contract of work of improvement
provided for in this act * * * file * * * notice * * *,' And, in case such notice be not so filed,
then all persons claiming the benefit of this act, shall have ninety days after the completion of
said work of improvement within which to file their claims of lien. The phrase work of
improvement and the word improvement as used in this act are each hereby defined to
mean the entire structure or scheme of improvement as a whole.' Even where done under
separate contracts, if the work is continuous the lien is preserved by giving notice within
ninety days after the work is completed."
is continuous the lien is preserved by giving notice within ninety days after the work is
completed.
If the Peccole case had not been decided and the questions presented in this case were
matters of first impression, we might be justified in reaching the position of the majority
opinion.
I am not prepared to overrule Peccole v. Luce & Goodfellow, supra. The principal of
stare decisis which must be adhered to, is very well stated in 14 Am.Jur. 284, Courts 60:
The rule stare decisis' has for its object the salutary effect of uniformity, certainty, and
stability in the law. Stated in simple form and considered in relation to its effect upon private
affairs, the doctrine is really nothing more than the application of the doctrine of estoppel to
court decisions. It finds its support in the sound principle that when courts have announced,
for the guidance and government of individuals and the public, certain controlling principles
of law or have given a construction to statutes upon which individuals and the public have
relied in making contracts, they ought not, after these principles have been promulgated and
after these constructions have been published, to withdraw or overrule them, thereby
disturbing contract rights that had been entered into and property rights that had been
acquired upon the faith and credit that the principle announced or the construction adopted in
the opinion was the law of the land.
In the case of Jensen v. Labor Council, 68 Nev. 269, 229 P.2d 908 (1951), this court
quoted with approval from In re Burtt's Estate, 353 Pa. 217, 44 A.2d 670, 677, 162 A.L.R.
1053, 1062, Otherwise the law would become the mere football of the successively changing
personnel of the court, and the knowne certaintie of the law,' which Lord Coke so wisely said
is the safetie of all,' would be utterly destroyed.
NRS 108.010 to 108.220 is binding on both owners and lien claimants. If an owner wishes
to claim the advantage of an earlier termination date for the filing of liens because a contract
has been prematurely terminated he must comply with NRS 108.090 and other appropriate
statutes.
If the lien claimant has reason to believe that the entire structure or scheme of
improvement, as a whole, is not completed, or that the material is required to complete the
project and relying thereon continues to furnish material, the owner should be estopped to
claim that the contract was completed or terminated at some prior date. Peccole v. Luce &
Goodfellow, supra; Tonopah Lumber Co. v. Nevada Amusement Co., 30 Nev. 445, 97 P. 636
(1908).
The other points alleged by respondent to defeat appellant's lien are cured by the clear
meaning and intent of NRS 108.100.
1
The judicial policy of this court has been to liberally
construe the effect of the liens, pleadings and notices arising out of NRS 108.010 to NRS
108.220. We must always keep in mind that the purpose and object of these statutes is to
secure payment to those who perform labor or furnish material to improve the property of the
owner. Peccole v. Luce & Goodfellow, supra, Ferro v. Bargo Min. & Mill. Co., 37 Nev. 139,
140 P. 527 (1914).
This court in the case of Lamb v. Goldfield Lucky Boy Min. Co., 37 Nev. 9, 138 P. 902
(1914), said: Hence, while there must be a substantial compliance with the essential
requisites of the statute, such pleadings and notices as the law requires should be liberally
construed in order that justice might be promoted and the desired object might be effected.
The appellant's lien was timely filed and the judgment of the lower court should be
reversed and judgment entered for the appellant.
____________________

1
NRS 108.100. 1. Upon the trial of any action or suit to foreclose such lien no variance between the lien
and the proof shall defeat the lien or be deemed material unless the same shall result from fraud or be made
intentionally, or shall have misled the adverse party to his prejudice, but in all cases of immaterial variance the
claim of lien may be amended, by amendment duly recorded, to conform to the proof.
2. No error or mistake in the name of the owner or reputed owner contained in any claim of lien shall be held
to defeat the lien, unless a correction of the lien in this particular shall prejudice the rights of an innocent bona
fide purchaser or encumbrancer for value.
3. But upon the trial, if it shall appear that an error or mistake has been made in the name of the owner or
reputed owner, or that the wrong person has been named as owner or reputed owner in any such claim of lien,
the court shall order an amended claim of lien to be recorded with the recorder where the original claim was
recorded, and shall issue to the person who is so made to appear to be the original or reputed owner a notice
directing such person or persons to be and appear within the same time as is provided by Nevada Rules of Civil
Procedure for the appearance in other actions after the service of summons, and the notice shall be served in all
respects as a summons is required to be served before the court and to show cause why:
(a) He should not be substituted in the claim of lien and in the suit in lieu of the person so made defendant
and alleged to be owner or reputed owner by mistake.
(b) He should not be bound by the judgment or decree of the court.
Such proceedings shall be had therein as though the party so cited to appear had been an original party
defendant in the action or suit, and originally named in the claim of lien as owner or reputed owner, and the
rights of all parties shall thereupon be fully adjudicated.
____________
84 Nev. 233, 233 (1968) Harper v. State
LEROY HARPER, Appellant, v. STATE OF
NEVADA, Respondent.
No. 5356
March 29, 1968 440 P.2d 893
Appeal from the Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Prosecution for burglary. The trial court entered a judgment of conviction of first-degree
burglary and the defendant appealed. The Supreme Court, Batjer, J., held, inter alia, that
passenger in stolen automobile, which was stopped by police and searched after driver of
automobile claimed ownership thereof and gave permission to search, had no standing to
raise constitutional protection of Fourth Amendment and no right to suppression of evidence
found by police officers when they searched stolen automobile.
Affirmed.
Richard H. Bryan, Public Defender, Leonard I. Gang, Deputy, and Earle W. White,
Deputy, of Las Vegas, for Appellant.
Attorney, James L. Buchanan II, Deputy District Attorney, Clark County, for Respondent.
Search of automobile, while still subject to some restrictions, may be conducted more freely than search
of house, store or other fixed piece of property.
2. Criminal Law; Searches and Seizures.
Passenger in stolen automobile, which was stopped by police and searched after driver of automobile
claimed ownership thereof and gave permission to search had no standing to raise constitutional protection
of Fourth Amendment and no right to suppression of evidence found by police officers.
U.S.C.A.Const.Amend. 4.
3. Receiving Stolen Goods.
Mere possession of automobile, even though stolen, was not a crime and possession standing alone did
not establish guilt.
Police officer need not ignore evidence of crime which comes to his attention.
5. Arrest.
Passenger in motor vehicle is not, as a matter of law, under arrest or legal restraint while driver is being
questioned by police or cited for traffic violation.
6. Arrest; Automobiles.
Arresting officers, whose attention was first attracted to automobile when they noticed a lack of regular
license plates and an unreadable dealer's sticker in rear window and then the careless
operation of automobile had probable cause to stop automobile, and when officers
while writing citation for failure to have a valid driver's license received by radio
reliable information that automobile was stolen, they had probable cause to arrest
driver and defendant, a passenger, for grand larceny and burglary without warrant
and the search and seizure of evidence in automobile and on person of defendant was
incidental to the lawful arrest.
unreadable dealer's sticker in rear window and then the careless operation of automobile had probable
cause to stop automobile, and when officers while writing citation for failure to have a valid driver's license
received by radio reliable information that automobile was stolen, they had probable cause to arrest driver
and defendant, a passenger, for grand larceny and burglary without warrant and the search and seizure of
evidence in automobile and on person of defendant was incidental to the lawful arrest.
OPINION
Harper was convicted of first degree burglary. His appeal asserts a violation of his rights
protected by the Fourth Amendment of the Constitution of the United States. The trial court
received evidence obtained from the search of a stolen automobile in which Harper had been
riding as a passenger. When the original search was made the patrolman did not have a search
warrant or a warrant for the arrest of the appellant. However, the initial search of the stolen
vehicle was with the permission of the driver who claimed ownership, and the subsequent
search and seizure of the evidence was reasonable and incidental to the arrest of the appellant
upon probable cause. It is our opinion that there is no violation of the Fourth Amendment's
proscription against unreasonable searches and seizures. We affirm the judgment of the
district court.
Shortly before midnight on October 11, 1966, patrolman Patrick Charles Stevens, of the
Las Vegas Police Department, observed a 1961 bronze Chevrolet automobile pull out of a gas
station. Two men were in the front seat. The patrolman and his shift partner, reserve police
officer G. H. Body, started to follow in the patrol car, noting that the automobile had no
license plates, but it did have a dealer's sticker on the rear window which could not be read
because of its position. Both driver and passenger kept furtively looking back, and the
automobile then began changing lanes, from left to right and then back to left again; at this
point it signaled for a left-hand turn, but the turn was not made and the car pulled back into
the right lane. At that point officer Stevens stopped the Chevrolet automobile, approached the
driver's side of the car, and asked to see the driver's license. Officer Body went to the
passenger's side where Leroy Harper, the appellant, was sitting. The driver, Homer
Washington, looked though his wallet, could not produce a driver's license, and said he must
have left it at home. In the wallet, officer Stevens noticed a Las Vegas police citation for
failure to have a driver's license.
When asked whose car it was, Washington stated that it was his, and that he had purchased
it three days before from Country Boy Auto Sales. However, there was no dealer's report of
sale affixed to the front window (as required by law if there are no license plates on the car)
and Washington said that he had apparently also left this at home. Officer Stevens informed
him that he was going to issue a citation for driving without a license, returned to the patrol
car to write the citation and to radio the station to check with Country Boy Auto Sales in
regard to the alleged sale. During this interval Harper got out of the passenger side of the car
and was sitting on the ground near the curb.
It took from ten to twenty minutes for the call to come back from police control, at which
time the patrolman learned that the car had not been sold by the auto agency, and that no one
had been given permission to take it from the lot. Officer Stevens then told the driver that he
was under arrest for grand larceny auto, and after a brief talk with Harper, arrested him on the
same charge, since his story was at variance with Washington's. A citation for a moving
traffic violation was never issued, although the citation to Washington for operating a motor
vehicle without a driver's license was delivered to him after he was booked at the jail.
At some point in time prior to the arrest of either Harper or Washington for grand larceny
and burglary, officer Stevens had observed a typewriter case and a receipt book in the back
seat of the car. Washington told the patrolman that he worked as a mechanic and carried tools
in the car, at which time he gave officer Stevens permission to look in the trunk. In addition
to the tools, the trunk also contained a number of dealer's stickers and a pair of coveralls.
Subsequent to the larceny arrest, a second call came from police control relaying
information that one of the owners of the auto agency and a police officer had proceeded to
the auto sales office, found it burglarized of a typewriter receipt book, checkbook, tools and
dealer's stickers. Washington was then placed under arrest for burglary.
A third call came in shortly thereafter from detective Brown who had been sent to Country
Boy Auto Sales, to photograph and process the scene of the crime. He stated that he had
found a piece of gray yarn, or thread, apparently from a sweater caught in one of the doors
that had been broken open, and inquired if either suspect was wearing a sweater of that color.
Harper was wearing a gray sweater, and he was immediately arrested on the burglary charge.
Following the felony arrests, the Chevrolet was again searched and the items found were
taken as evidence.
were taken as evidence. All of the items found in the stolen automobile were received in
evidence and identified by one of the agency owners as being either his or his partner's
personal property. A checkbook recovered from Harper during the booking-in process was
also introduced into evidence as were the piece of yarn found at the scene, and the sweater
Harper was wearing at the time of his arrest. The yarn and the sweater were tied together by
expert testimony. The burglary conviction of Harper resulted.
As one of his assignments of error the appellant contends that the trial court erred when it
found that he was without standing to claim the protection of the Fourth Amendment and
refused to suppress the evidence obtained by the patrolman when he searched the stolen
vehicle.
The appellant further contends that the stopping of the Chevrolet automobile in which
appellant was a passenger, was without probable cause, that all proceedings in the case
thereafter were illegal and invalid, and that the trial court erred in its refusal to dismiss the
case.
We find that the appellant is without standing to claim the protection of the Fourth
Amendment. On two previous occasions this court has ruled on the matter of standing. Dean
v. Fogliani, 81 Nev. 541, 407 P.2d 580 (1965), and Osborne v. State, 82 Nev. 342, 418 P.2d
812 (1966). Osborne involved the search of a stolen automobile. In that case, we held that
since the accused did not own, nor have the right to possess the automobile, he was without
standing to claim the protection of the Fourth Amendment. The rule announced in Osborne is
controlling in this case.
In the case of Carroll v. United States, 267 U.S. 132 (1925), the court considered the
problem of a search of an automobile without a warrant, and it said: The right to search and
the validity of the seizure are not dependent on the right to arrest. They are dependent on the
reasonable cause the seizing officer has for belief that the contents of the automobile offend
against the law. However, in the case of Agnello v. United States, 269 U.S. 20 (1925),
decided a few months after Carroll v. United States, supra, the court said: One's house
cannot be searched without a search warrant, except as an incident to lawful arrest.
[Headnote 1]
The Carroll case indicates that the search of an automobile, while still subject to some
restrictions, may be conducted much more freely than the search of a house, store or other
fixed piece of property. This position is based on the common sense approach that a
speeding automobile would be long gone before a search warrant could be obtained.
approach that a speeding automobile would be long gone before a search warrant could be
obtained. Cooper v. California, 386 U.S. 58 (1967). Preston v. United States, infra.
The Supreme Court's holding in Jones v. United States, 362 U.S. 257 (1960), regarding the
question of standing to claim the protection of the Fourth Amendment was premised on two
separate and distinct grounds. First, it was decided that if a person is legitimately on the
premises when the search was made, the Fourth Amendment protects him, and secondly, that
standing arises in those offenses in which the allegation of ownership or possession usually
required for the motion to suppress the evidence would be an admission of the sole essential
element necessary to establish guilt. In holding that Jones was legitimately on the premises
and was an aggrieved person who had standing to raise the constitutional issue, the court said:
No just interest of the Government in the effective and rigorous enforcement of the criminal
law will be hampered by recognizing that anyone legitimately on premises where a search
occurs may challenge its legality by way of a motion to suppress when its fruits are proposed
to be used against him. This would of course not avail those who, by virtue of their wrongful
presence, cannot invoke the privacy of the premises searched. (Emphasis added.)
[Headnote 2]
The holding in Jones precludes Harper from having any standing to raise the constitutional
protection of the Fourth Amendment and from suppressing the evidence found by the
patrolman when he searched the stolen automobile. Not being legitimately in the automobile,
and not asserting any ownership therein, Harper was not an aggrieved person.
[Headnote 3]
Within the holding of Jones v. United States, supra, Harper was one of that class who by
virtue of their wrongful presence, cannot invoke the privacy of the premises searched. Nor
does Harper have standing by virtue of the offense charged. The mere possession of an
automobile, even though it is stolen, is not a crime, nor does possession standing alone
establish guilt.
In the case of Simmons v. United States, 390 U.S. 377 (1968), the question of standing to
claim the protection of the Fourth Amendment was again decided, and the court citing Jones
v. United States, supra, reaffirmed the principle that one must be legitimately upon the
premises to claim standing when it said: . . . we held alternatively that the defendant need
have no possessory interest in the searched premises in order to have standing; it is
sufficient that he be legitimately on those premises when the search occurs."
have no possessory interest in the searched premises in order to have standing; it is sufficient
that he be legitimately on those premises when the search occurs. (Emphasis added.)
The appellant urges that Henry v. United States, 361 U.S. 98 (1959) is controlling in this
case. In Henry, the defendant was illegally arrested; therefore no search could be justified as
incident to arrest. Furthermore, there was no probable cause that would bring the case within
Carroll v. United States, supra. The Henry case does not support appellant's position. Here the
arrest of the appellant was upon probable cause from information received by the patrolman.
Before his arrest Harper was merely a passenger standing by while the driver of the vehicle
was being cited for a traffic violation. The first search of the stolen vehicle was with the
consent of the driver, and the subsequent search and seizure of evidence was incident to the
appellant's arrest for grand larceny and burglary.
In People v. Howard, 334 P.2d 105 (Cal.App. 1958), the court said: It is of course, the
law that evidence secured in an illegal search is not admissible. People v. Cahan, 44 Cal.2d
434, 282 P.2d 905, 50 A.L.R.2d 513. However, it is also the law that if the defendant or
someone with apparent authority, consents to the entry, and the entry is made in good faith, it
is not unlawful. See Williams v. State, 375 S.W.2d 375 (Ark. 1964); 79 C.J.S. Search and
Seizures 62, at 816, et seq.
At the time, the driver, Washington, gave his consent to an examination of the trunk of the
automobile, he was claiming ownership of the 1961 Chevrolet, and the patrolman had every
reason to believe that Washington had authority to consent to the examination.
In the case of Cooper v. California, supra, the conviction rested in part on the introduction
into evidence of a small piece of brown paper sack seized by the police, without a warrant,
which, upon Cooper's arrest, had been impounded and was being held in a garage. The search
occurred a week after the arrest. The Supreme Court in affirming the conviction, said:
Petitioner appealed his conviction to the California District Court of Appeal which,
considering itself bound by our holding and opinion in Preston v. United States, 376 U.S.
364, held that the search and seizure violated the Fourth Amendment's ban of unreasonable
searches and seizures. That court went on, however, to determine that this was harmless error
. . . [W]e are satisfied that the lower court erroneously decided that our Preston case required
that this search be held a unreasonable one within the meaning of the Fourth Amendment.
We made it clear in Preston that whether a search and seizure is unreasonable within the
meaning of the Fourth Amendment depends upon the facts and circumstances of each case
and pointed out, in particular, that searches of cars that are constantly movable may
make the search of a car without a warrant a reasonable one although the result might be
the opposite in a search of a home, a store, or other fixed piece of property."
Amendment depends upon the facts and circumstances of each case and pointed out, in
particular, that searches of cars that are constantly movable may make the search of a car
without a warrant a reasonable one although the result might be the opposite in a search of a
home, a store, or other fixed piece of property. See Nootenboom v. State, 82 Nev. 329, 418
P.2d 490 (1966).
In support of the proposition that a thief has standing to invoke the protection of the Fourth
Amendment, Cotton v. United States, 371 F.2d 385 (9 Cir. 1967), and Simpson v. United
States, 346 F.2d 291 (10 Cir. 1965), have been brought to our attention.
We do not agree with the court's positions in these two cases regarding standing to invoke
the protection of the Fourth Amendment, and find them inapplicable to this case.
Even if we are willing to ignore Jones v. United States, supra, and Osborne v. State, supra,
and to abandon a common sense approach to the principles of substantial justice in order to
follow the majority opinions in Cotton and Simpson, we are precluded from so doing because
their rationale does not fit the facts of this case. Here, only the driver, Washington, asserted a
proprietory interest in the automobile. Harper asserted no proprietory or possessory interest
whatsoever. In both Cotton and Simpson the majority found that the thief had standing only
because he met the prerequisite of asserting a proprietory or possessory interest in the stolen
vehicle.
[Headnote 4]
We next turn to the appellant's attack on his arrest. We find that in each instance the
arrests were reasonable and made upon probable cause, and are valid. Had the arresting
officers done less they would have been derelict in their duty. It is recognized that an officer
need not and, in fact, should not ignore evidence of a crime which comes to his attention.
State v. Elkins, 422 P.2d 250 (Ore. 1966).
The arresting officers attention was first attracted to the automobile when they noticed that
it was without a regular license plate,
1
and that the dealer's sticker in the rear window was
unreadable. Immediately thereafter careless driving ensued.
2
Lanes were changed without a
signal being given
3
and signals were given that were not followed. All or any of these
violations of the traffic laws would have prompted and authorized the patrolman to stop the
vehicle.
____________________

1
NRS 482.275.

2
NRS 484.060.

3
NRS 484.154.
In the case of People v. Mickelson, 380 P.2d 658 (Cal. 1963), the court said: * * *
circumstances short of probable cause to make an arrest may still justify an officer's stopping
pedestrians or motorists on the streets for questioning * * *. Should the investigation then
reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a
reasonable incidental search.
When the automobile was first stopped, there was nothing to arouse any suspicion towards
the occupants concerning the commission of any other misdemeanors or felonies. Later, the
plot began to thicken. First, Washington was without a proper driver's license,
4
second, he
claimed ownership of the automobile but had no registration or dealer's report of sale.
5
At
this point there was probable cause for an arrest and citation of the driver for careless driving,
changing lanes without proper signals, failure to have a valid driver's license and failure to
display a dealer's report of sale. The patrolman chose to write the citation for failure to have a
valid driver's license, and in the proper performance of his duty he proceeded to further
investigate the failure to display a dealer's report of sale.
[Headnote 5]
Up to this time, the appellant was enjoying the status of a passenger. Reason dictates that a
passenger in a motor vehicle is not, as a matter of law, under arrest or legal restraint while a
driver is being questioned or cited for a traffic violation.
While writing the citation, the patrolman received by radio, reliable information upon
which he had probable cause to arrest the driver, Washington, and the appellant, Harper, for
grand larceny and burglary. The subsequent search and seizure of the fruits of the felonies
found in the automobile and on the person of the appellant were incident to those lawful
arrests.
In Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966), this court said: Reasonable cause
for arrest has been defined as such a state of facts as would lead a man of ordinary care and
prudence to believe or entertain an honest and strong suspicion that the person is guilty.
[Headnote 6]
We find that the traffic violations occurring in the presence of the officers were of
sufficient magnitude to establish probable cause for their stopping the 1961 Chevrolet
automobile and questioning the driver, and that reasonable investigation immediately
thereafter lead to the probable cause for the arrest of the appellant without a warrant.
____________________

4
NRS 483.230.

5
NRS 432.403.
immediately thereafter lead to the probable cause for the arrest of the appellant without a
warrant.
We further find that the searches and seizures made by the officers were reasonable and
lawful within the constitutional limits, and that the appellant had no standing to claim the
protections afforded by the Fourth Amendment.
The judgment of the district court is affirmed.
Collins, Zenoff, and Mowbray, JJ., concur.
Thompson, C. J., concurring:
Harper stands convicted of first degree burglary. His appeal asserts a violation of Fourth
Amendment rights since the trial court received evidence obtained from a warrantless search
of a stolen automobile in which he had been riding as a passenger. I agree with my Brothers
that the proscriptions of the Fourth Amendment were not offended, but am puzzled why they
deem it necessary to discuss this issue in view of their conclusion that Harper lacks standing
to raise it. Accordingly, I prefer to state my views separately.
1. The law is not clear as to whether a thief in possession of a stolen car has standing to
object to a search thereof. The circumstances of each case must be examined. In the case at
hand the search preceded receipt of radioed information that the car was stolen, and occurred
at a time when the police did not have lawful custody. Cf. Cooper v. California, 386 U.S. 58
(1967); Harris v. United States, 390 U.S. 234 (1968). In these circumstances the Court of
Appeals for the Ninth Circuit has ruled that the thief has standing to invoke Fourth
Amendment protections. Cotton v. United States, 371 F.2d 385 (9 Cir. 1967). That court
wrote: It has been repeatedly held, in substance, that an automobile has the status of a house,
so far as the protection of the Fourth Amendment is concerned, subject to certain limitations
arising from its mobility. (Citations.) And the rule that one whose possession is wrongful is
entitled to protection against all who do not have a paramount right to possession is equally
applicable to chattels, such as a car. * * * The question here is as to the standing of a thief
who had possession of it and claimed it as his own to object to a search of the car. We hold
that he has such standing. Id. at 391.
Since the validity of a state conviction is subject to federal review and control when
challenged upon federal constitutional grounds [Judiciary Act of 1789, ch. 20, 25, 1 Stat.
85; Judiciary Act of 1867, ch. 28, 1, 14 Stat. 385; Brown v. Allen, 344 U.S. 443 {1953).
344 U.S. 443 (1953). Walker v. Fogliani 83 Nev. 154, 425, P.2d 794, 796, 797, (1967)], it is
best, I think, that we defer to the federal court of appeals for our circuit when it has clearly
expressed its opinion on the issue, and that expression is consonant with hints flowing from
the United States Supreme Court. I cannot agree with my Brothers that the Cotton case is out
of step with the Supreme Court opinion of Jones v. United States, 362 U.S. 257 (1960). The
matter of standing in Jones was decided with reference to Rule 41(e) of the Federal Rules of
Criminal Procedure, and concerned the search of an apartment which the accused had
occupied with the permission of the tenant. The Court suggested, inter alia, that one enjoys
standing under Rule 41(e) when the victim of the search is the person against whom the
search is directed. Furthermore, the Court stated its view that if the prosecution turned on
illicit possession the accused automatically enjoys standing. Id. at 263. Here, the search of the
car and trunk was directed to the occupants of the car, and it cannot be denied that the
subsequent prosecution of Harper for burglary may well have turned upon proof of possession
of the items stolen. Thus, two hints supporting standing are satisfied.
On March 18, 1968, in the case of Simmons v. United States, the High Court ruled that
when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment
grounds, his testimony may not thereafter be admitted against him at trial on the issue of
guilt, since to allow such to happen would violate his Fifth Amendment privilege against
self-incrimination. Simmons involved robbery, a non-possessory offense, and the Court's
holding, by necessary implication, extended the rationale of Jones to non-possessory crimes
in which conviction might in large part depend upon introduction in evidence of the property
seized. Standing to object to the search was assumed in such circumstance.
In any event, the search took place at a time when the police did not have lawful custody
of the car [cf. Cooper v. California, supra; Harris v. United States, supra] and while
investigating only traffic irregularities. The overwhelming weight of case law holds that a car
may not be searched for an ordinary traffic offense. People v. Blodgett, 293 P.2d 57 (Cal.
1956); People v. Mayo, 166 N.E.2d 440 (Ill. 1960); People v. Zeigler, 100 N.W.2d 456
(Mich. 1960); Barnes v. State, 130 N.W.2d 264 (Wis. 1964). The occupants of the car,
although stolen (which fact the officers did not then know), had a paramount right to
possession and were entitled to object to the search.
My Brothers appear to rely heavily upon the driver's consent to the search.
to the search. The case before us is not the driver's case. The passenger (Harper) did not
consent to anything. His constitutional rights are his alone and may not be obliterated by the
conduct or words of a companion. In my view, the only significant issue in this case is
whether the search may fairly be deemed incident to the felony arrests which soon followed. I
turn to consider that subject.
2. The prohibitions of the Fourth Amendment are enforcible against the States through the
Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643 (1961). Warrants for either searches or
arrests shall not issue except upon probable cause. NRS 171.235 suits the constitutional
standard since it restricts the authority of an officer to make a felony arrest without a warrant
to offenses committed in his presence, or to instances where he has reasonable cause to
believe that the person arrested has committed a felony. The validity of an arrest for a felony
not committed in the officer's presence depends upon whether, at the moment the arrest is
made, he had probable cause to make it. Such cause exists if the facts and circumstances
known to the officer warrant a prudent man in believing that a felony has been committed by
the person arrested. Beck v. Ohio, 379 U.S. 89 (1964); Henry v. United States, 361 U.S. 98
(1959); Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966).
We have related the circumstances leading up to the arrests of appellant. Without question,
the officers had probable cause to arrest for a felony after receiving the first radioed
information from police control. The thrust of appellant's contention, however, is that the
arrest occurred the moment the car was stopped and the occupants detained, at which instant
the police officers did not have reasonable cause to believe that the occupants had committed
a felony, or were then committing one, because the irregular driving, absence of license
plates, and the occupants' glances to the rear did not supply probable cause for a felony arrest.
This contention is wide of the mark, since it fails to recognize the distinction between
probable cause to stop and detain for investigation and probable cause for arrest. Although it
is true that the Supreme Court in Henry v. United States, supra, held that an arrest occurs
when an automobile is stopped during the course of a criminal investigationand if the
officer does not have reasonable cause to arrest the occupant at that time, the arrest is
unlawfulthe Court took care to limit its holding to the purposes of this case. 361 U.S. at
103. The Court did not pretend to establish the moment of arrest for all car stopping cases in
all circumstances, nor may that opinion sensibly be read to outlaw, in appropriate
circumstances, the right of the police to stop a car and make inquiry incident to a
legitimate investigation.
that opinion sensibly be read to outlaw, in appropriate circumstances, the right of the police to
stop a car and make inquiry incident to a legitimate investigation.
The distinction between probable cause to stop and detain for legitimate investigation, and
probable cause for arrest, is clearly expressed in People v. Mickelson, 380 P.2d 658 (Cal.
1963). In noting that the Henry conclusion was neither constitutionally compelled by the
Fourth Amendment nor preventative of reasonable state rules consistent with the Fourth
Amendment, the California court stated: * * * circumstances short of probable cause to
make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for
questioning. * * * Should the investigation then reveal probable cause to make an arrest, the
officer may arrest the suspect and conduct a reasonable incidental search. Id. at 660.
The Court of Appeals for the Ninth Circuit has recognized that the Fourth Amendment
does not forbid brief detention for limited inquiry. Lipton v. United States, 348 F.2d 591 (9
Cir. 1965); Gilbert v. United States, 366 F.2d 923 (9 Cir. 1966); Wilson v. Porter, 361 F.2d
412 (9 Cir. 1966); Cotton v. United States, 371 F.2d 385 (9 Cir. 1967). In Wilson, supra, the
court wrote: Granting that the constitutional prohibition against unreasonable searches and
seizures makes no distinction between informal detention without cause and formal arrest
without cause, there is a difference between that cause' which will justify informal detention
short of arrest and the probable cause standard required to justify that kind of custody
traditionally denominated an arrest. * * * We take it as settled that there is nothing ipso facto
unconstitutional in the brief detention of citizens under circumstances not justifying an arrest,
for purposes of limited inquiry in the course of routine police investigations. * * * [D]ue
regard for the practical necessities of effective law enforcement requires that the validity of
brief, informal detention be recognized whenever it appears from the totality of the
circumstances that the detaining officers could have had reasonable grounds for their action.
A founded suspicion is all that is necessary, some basis from which the court can determine
that the detention was not arbitrary or harassing. 361 F.2d at 415.
Here, the erratic driving, absence of plates, and furtive glances to the rear gave the officers
ample cause to stop the car and inquire further. Cf. People v. Reulman, 396 P.2d 706 (Cal.
1964). Their inquirydid the driver have a license and a dealer's report of saleproduced
neither and prompted the officers to run a check on the ownership of the car. The radioed
information from police control furnished ample cause for the larceny arrests which were
then made.
information from police control furnished ample cause for the larceny arrests which were then
made. Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966); Gordon v. State 83 Nev. 177, 426
P.2d 424 (1967); Foy v. State, 84 Nev. 76, 436 P.2d 811 (1968).
A search and seizure without a warrant and unrelated to the arrest both as to time and place
is unlawful since it is not incident to the arrest. Preston v. United States, 376 U.S. 364 (1964);
Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965); Whitley v. State, 79 Nev. 406, 386 P.2d
93 (1963). On the other hand, if the search is substantially contemporaneous with the arrest
and is confined to the immediate vicinity of the arrest, it is deemed to be incident to the arrest
and constitutionally permissible. Stoner v. California, 376 U.S. 483 (1964); Agnello v. United
States, 269 U.S. 20 (1925).
Here, the search of the car and trunk were substantially contemporaneous with the arrest
made, confined to the immediate vicinity of the arrest, and within constitutional limits.
1
The
items then seized were admissible at trial.
The appellant's status as a passenger does not insulate him from the consequences flowing
from the initial stopping of the car. Although probable cause to stop and detain for the traffic
violation ran only to the driver, the passenger is also subject to arrest if an independent
ground exists therefor. United States v. Di Re, 332 U.S. 581, 591 (1948). That ground was
established upon receipt of the radioed information.
At the time of booking the police took the appellant's sweater and a checkbook found on
his person. These items were properly received in evidence upon the authority of
Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966), and Arabia v. State, 82 Nev. 453,
421 P.2d 952 (1966). In Nootenboom we observed that arresting officers are not obliged to
undress the subject in public in order to secure his clothes and other identifying objects. In
Arabia, we noted that during the period of police custody, an arrested person's personal
effects, like his person, are subject to reasonable inspection, examination, and test. The
purposes of the Fourth Amendment are not offended by the sequestration of property at the
time of booking. It is my opinion that Fourth Amendment protections were not violated.
____________________

1
In Wyatt v. State, 77 Nev. 490, 367 P.2d 104 (1961), we stated: * * * but a search incident to an arrest
made before or after the arrest is reasonable. Id. at 502.
____________
84 Nev. 246, 246 (1968) Genix Supply Co. v. Board of Trustees
GENIX SUPPLY CO., Appellant, v. BOARD OF TRUSTEES OF THE HEALTH AND
INSURANCE FUND FOR CARPENTERS LOCAL UNION NO. 971: ROLAND OAKES,
E. W. MCKENZIE, MEL HANCOCK, GROVE R. HOLCOMB, STANLEY WOODMAN,
JOHN MORMAN, BURKE J. MORRISON and JOHN PRUITT; and BOARD OF
TRUSTEES OF THE PENSION TRUST FUND FOR CARPENTERS LOCAL UNION NO.
971: JOHN O. MORMAN, ROWLAND OAKES, MEL HANCOCK, E. W. McKENZIE,
BURKE MORRISON and JOHN PRUITT, Respondents.
No. 5421
March 29, 1968 438 P.2d 816
Appeal from summary judgment. Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Proceedings on claims against contractor's bond. The trial court granted summary
judgment for trustee of welfare funds, and an appeal was taken. The Supreme Court, Zenoff,
J., held that unpaid fringe benefits were entitled to wage claim priority under statute giving
wage claims preferred status.
Affirmed.
Ellis R. Ferguson, of Reno, for Appellant.
Lorin D. Parraguirre, of Reno, for Respondents.
1. Licenses.
Bonds required of contractors by statute are liable to claims for unpaid material and labor bills if
contractor defaults. NRS 624.270, subds. 1, a.
2. Licenses.
Failure to pay fringe benefit contributions is either an unlawful act or an omission contemplated by
statute giving action on bond to person injured by unlawful acts or omissions of contractor. NRS
613.125, 624.270, subds. 3, 4.
3. Licenses.
Unpaid fringe benefits were entitled to wage claim priority under statute giving wage claims against
contractor's bond preferred status. NRS 613.125, 624.270, subds. 3, 4.
OPINION
R. W. Porter, Inc., a licensed contractor, was obligated under the terms of a master
collective bargaining agreement to pay certain prescribed contributions to the trustees of
the unions' health and insurance and pension plans for the membership.
to pay certain prescribed contributions to the trustees of the unions' health and insurance and
pension plans for the membership. The contractor defaulted in those payments, $3,715.06 in
one instance and $7,352.80 in the other. Porter having gone out of business, the trustees filed
claims for the defaulted sums against the two $5,000 bonds Porter had deposited with the
state when he obtained his contractor's license pursuant to Chapter 624 of the 1963 Nevada
Revised Statutes then in effect.
1

Genix Supply Co. was a supplier owed monies by Porter. In the action of the trustees
against the bonding companies, Genix interpleaded and cross-claimed for its unpaid bills and
other creditors did the same. In all, their claims apart from the trustees' claims exceeded the
face amount of the bonds.
The trial court granted summary judgment for the trustees of the welfare funds on the
ground that the contributions of the employer into the funds are entitled to the priority of
claims for wages under NRS 624.270(4) which provides that, The claim of any employee of
the contractor for wages shall be a preferred claim against any such bond or cash deposit.
The other creditors, through Genix, appeal from that ruling.
[Headnotes 1, 2]
We think it clear that the bonds required of contractors by NRS 624.270 are liable to
claims for unpaid material and labor bills if the contractor defaults. Royal Indemnity v.
Special Service Supply Co., 82 Nev. 148, 413 P.2d 500 (1966), construing a bond identical to
those in the instant case. Furthermore, NRS 613.125 imposes a statutory requirement upon
the contractor to pay fringe benefit contributions previously agreed upon or suffer the
consequences if he does not do so. Failure to pay fringe benefit contributions is either an
unlawful act or an omission contemplated by NRS 624.270(3).
2
[Headnote 3]
[Headnote 3]
____________________

1
NRS 624.270(1)(a). 1. No new license, as distinguished from the renewal of an existing license, shall be
issued hereafter by the board unless the applicant for a new license shall:
(a) File, or have on file, with the board a bond issued by a qualified surety insurer in a sum to be fixed by the
board based upon the magnitude of the operations of the applicant, but which sum shall not be less than $500 nor
more than $5,000, running to the State of Nevada and conditioned upon his compliance with all the provisions of
this chapter * * *.

2
NRS 624.270(3). Every person injured by the unlawful acts or omissions of a contractor who has filed a
bond or posted a cash deposit as required under the provisions of this section may bring an action in a proper
court on the bond or a claim against the cash deposit for the amount of the damage he suffered as a result thereof
to the extent covered by the bond or cash deposit.
[Headnote 3]
Since the claims in this case are properly chargeable against the bonds, the narrowed
question is whether the unpaid fringe benefits are entitled to the wage claim priority as
wages (NRS 624.270(4)), or, because they are paid by the employer to the union trust funds
and commingled like insurance premiums, they lose their preferred status. The amount
available for distribution hangs in the balance.
The United States Supreme Court in United States v. Embassy Restaurant, 359 U.S. 29
(1959), limited the definition of wages to in-pocket monies due the worker. The court
stated that welfare fund contributions do not have the customary attributes of wages, that
notwithstanding the contention that since unions bargain for these contributions as though
they were wages, and industry likewise considers them as an integral part of the wage
package, nevertheless the contributions to the trust funds do not serve the purpose of a
cushion that the bankruptcy act priority intended. (See also In the Matter of A. & S. Electric
Corp., 379 F.2d 211 (2nd Cir. 1967).)
In our view, United States v. Embassy Restaurant, supra, is confined to its own function,
the determination of relative priorities of classes of creditors in a bankruptcy action before a
bankruptcy court. It need not apply to other statutes (United States v. Carter, 353 U.S. 210
(1957), a Miller Act case) or to local problems. True, welfare funds offer no support to the
workman against the economic dislocation caused by an employer's bankruptcy, but in a
federal bankruptcy all of the assets and liabilities are marshalled. There is no other place the
creditors can go. In this case, there may be other avenues of relief available to creditors, for
example, a suit against Porter (see NRS 624.270(4)), or participation in bankruptcy
proceedings. We need concern ourselves only with the relative placement of two types of
claims, one for labor and one for materials and the statute says labor comes first.
Our state has consistently declared a policy of providing balance to the unbalance between
labor and business. For their respective purposes we have the office of labor commissioner,
workmen's compensation, unemployment legislation, laws regulating hours and wages and
others. The preference given in the statute we now are considering is consistent with that
policy and we would be inconsistent if we rule that wages are not wages for this purpose.
Simply because some of the workman's pay goes into a fund for his sickness and old-age
security instead of in a paycheck does not alter the fact that the fringe benefits are a result of
his own efforts the same as the money he puts in his pocket.
fringe benefits are a result of his own efforts the same as the money he puts in his pocket.
When the union bargained on his behalf everything obtained was in return for the services he
was to render.
Reference is made to the method of computation of the contributions to the trust funds, by
monthly flat rates or hourly flat rate. We are not impressed with any special significance of
that fact or that the language in the collective bargaining agreements and trust agreements use
the word, contributions, and even specify that contributions are not to be construed as
wages. Those documents within themselves are drawn for taxation purposes.
Affirmed.
Collins, Batjer, and Mowbray, JJ., concur.
When the bonds were written our law provided that the claim of any employee of the
contractor for wages shall be a preferred claim against any such bond * * *. 63 Stat. ch. 345,
p. 695. The narrow issue presented is whether a contractor's required contributions to the
trustees of the union's health, insurance and pension fund are wages within the statutory
contemplation entitling the trustees to a preferred position in pressing claims against the
bonds.
The only court opinion possessing relevance to the issue is United States v. Embassy
Restaurant, 359 U.S. 29 (1959). In a split decision the United States Supreme Court ruled that
such contributions were not entitled to priority in payment under the Bankruptcy Act as
wages . . . due to workmen. Persuasive arguments on either side of the question are readily
apparent, and are presented by the opposing opinions in Embassy.
I doubt that the legislature intended anything other than in-pocket monies due the worker
when it wrote the priority statute. An assumed case will serve to point up the precise issue.
Suppose that conflicting claims against the bond were to be pressed by laborers for wages
on the one hand, and by trustees for contributions to the welfare fund, on the other. In such
event, I would grant the laborers a preferred position on the ground that wages as used in
the statute means in-pocket monies due the workers, and not the fringe benefits contracted
for. This, because I think the legislative purpose was to prefer the laborers' present right to
compensation for work performed over their right to contingent benefits to later accrue.
to later accrue. The statute should not receive a different construction simply because the
issue is presented in a different context. For this reason I reject the notion that wages and
welfare contributions are the same thing.
Respectfully, I dissent.
____________
84 Nev. 250, 250 (1968) Coronet Homes, Inc. v. McKenzie
CORONET HOMES, INC., Appellant, v. J. C. McKENZIE, HOWARD F. McKISSICK, Sr.,
JACK B. CUNNINGHAM, RICHARD STREETER, and LEO F. SAUER, the Duly Elected
Board of County Commissioners, County of Washoe, State of Nevada, Respondents.
No. 5437
March 29, 1968 439 P.2d 219
Appeal from the Second Judicial District Court, Washoe County; Thomas O. Craven,
Judge.
Proceeding on application for special use permit to vary lot size requirements of zoning
ordinance. The lower court entered judgment affirming ruling of Board of County
Commissioners denying application and applicant appealed. The Supreme Court, Mowbray,
J., held that zoning ordinance establishing land use plan was valid exercise of police power
and therefore constitutional and article of such ordinance placing upon applicant for a special
use permit duty of establishing that special use is necessary to public health, convenience,
safety and welfare and to promotion of general welfare of community was not unreasonable
and was permissible in view of statute providing that governing bodies are empowered to
regulate land improvement and location of structures for general welfare. It was further held
that where plan proposed cluster zoning of approximately 148 homes about a 103-acre golf
course, and such plan contrasted sharply with character of residential homes built on one- and
two-acre lots surrounding applicant's property, action by board of county commissioner in
denying application was neither arbitrary nor capricious, in absence of showing that such use
was necessary to public health, convenience, safety and welfare and to promotion of general
good of community.
Affirmed.
Lohse and Lohse of Reno, for Appellant.
William J. Raggio, District Attorney, and Perry P. Burnett, Deputy District Attorney,
Washoe County, for Respondents.
1. Zoning.
Zoning ordinance providing that applicant seeking special use permit must present evidence that use is
necessary to public health, convenience, safety and welfare and for promotion of general good of
community places burden of proof on applicant. NRS 278.020.
2. Zoning.
Zoning ordinance establishing land use plan was valid exercise of police power and therefore
constitutional, and article of such ordinance placing upon applicant for a special use permit duty of
establishing that special use is necessary to public health, convenience, safety and welfare and to promotion
of general welfare of community is not unreasonable and is permissible, in view of statute providing that
governing bodies are empowered to regulate land improvement and location of structures for general
welfare. NRS 278.020.
3. Zoning.
Zoning ordinance providing that applicant seeking special use permit must present evidence that use is
necessary to public health, convenience, safety and welfare and for promotion of general good of
community is not unconstitutional on theory that it places an unreasonable burden on applicant for special
use permit. NRS 278.020.
4. Zoning.
Application for use permit or variance implies challenge to legality of zoning ordinance as ordinance
applies to specific piece of property.
5. Zoning.
Zoning is tool in hands of governmental bodies which enables such bodies to more effectively meet
demands of evolving and growing communities, but must not be used as an instrument by which they may
shirk their responsibilities.
6. Zoning.
Courts are neither super boards of adjustment nor planning commissions of last resort.
7. Zoning.
In matters pertaining to zoning, court acts as judicial overseer, drawing limits beyond which local
regulation may not go, but is loath to interfere, within those limits, with discretion of local governing
bodies.
8. Zoning.
Presumption of validity attaches to zoning ordinance which imposes burden to prove its invalidity upon
one challenging it.
9. Zoning.
Zoning power is limited by requirement that zoning ordinances be enacted for health, safety, morals or
general welfare of community.
10. Zoning.
Zoning ordinances must bear substantial relationship to purposes of police power.
11. Zoning.
Where zoning ordinance in its applications to specific properties imposes unnecessary hardship, it cannot
be termed a reasonable or constitutional exercise of the police power.
12. Zoning.
In order to preserve validity of zoning ordinance in its application to community in general, use permit
and variance provisions of ordinance function as escape valve so that when regulations which apply to all
are unnecessarily burdensome to a few because of certain unique circumstances, a means of relief from
mandate is provided.
13. Zoning.
Zoning for density is legitimate exercise of police power.
14. Zoning.
Zoning laws are passed in interest of public welfare and benefit accrues not only to municipality but also
to neighboring landowners.
15. Zoning.
Where plan of applicant for special use permit proposed cluster zoning of approximately 143 homes
about a 103-acre golf course, and such plan contrasted sharply with character of residential homes built on
one- and two-acre lots surrounding applicant's property, action by board of county commissioners in
denying application was neither arbitrary nor capricious, in absence of showing that such use was necessary
to public health, convenience, safety and welfare and to promotion of general good of community.
16. Zoning.
It is not per se a sufficient reason for variation that nonconforming use is more profitable for landowner
than use provided by zoning ordinance.
OPINION
This is an appeal from a judgment of the Second Judicial District Court, affirming a ruling
of the Washoe County Board of County Commissioners in denying appellant's application for
a Special Use Permit to vary the lot size requirements of the Density Zoning Provisions of
Washoe County Land Use Ordinance, Article 5(E), Washoe County Ordinance No. 57.
The principal issues presented for our consideration are: {1) Is Article 33{A) of Washoe
County Ordinance No.
(1) Is Article 33(A) of Washoe County Ordinance No. 57
1
permissible under NRS
278.020;
2
and
(2) Was the action of the Washoe County Board of County Commissioners in denying
appellant's application for the Special Use Permit arbitrary and capricious.
Appellant Coronet Homes, Inc. applied to the Regional Planning Commission of Reno,
Sparks and Washoe County for a Special Use Permit, Application No. SP-34-66W, to permit
variation in lot size and yard requirements under the Density Zoning provisions of the
Washoe County Land Use Ordinance, Article 5(E), Washoe County Ordinance No. 57. The
property involved covered approximately 163 acres and is situated west of U.S. Highway 395
and north of Huffaker Lane in Washoe County. On June 9, 1966, applicant was advised that,
at a regular meeting of the Regional Planning Commission, held on June 7, 1966, its request
for a Special Use Permit for density zoning had been considered by the commission and
denied, together with a supporting tentative plat of a proposed golf course within the
subdivision.
On June 13, 1966, appellant gave notice of appeal to the Board of County Commissioners
of Washoe County. The appeal was heard on June 27, 1966. Numerous persons appeared and
spoke for and against appellant's proposal and, by unanimous vote, one commissioner
abstaining, the appeal was denied.
____________________

1
Article 33(a), Special Use Permits,
A. Where the establishment of uses or functions requires issuance of a permit, as provided herein, the
following shall apply:
1. Procedure: Any person seeking issuance of a Permit shall file a request with the Administrator and shall
appear before the Board of Adjustment or the Planning Commission presenting evidence of all the following:
(a) That the use is necessary to the public health, convenience, safety and welfare and to the promotion of the
general good of the community, and
(b) That the use of the property for such purposes will not result in material damage or prejudice to other
property in the vicinity, and
(c) That all owners of real property within 300 feet of the exterior limits of the property involved, as shown
by the latest Assessor's ownership maps, have been notified of the intended use of such property and proposed
construction or alteration of any building.

2
NRS 278.020. Governing bodies empowered to regulate land improvement and location of structures for
general welfare. For the purpose of promoting health, safety, morals, or the general welfare of the community,
the governing bodies of cities and counties are authorized and empowered to regulate and restrict the
improvement of land and to control the location and soundness of structures.
Appellant filed on August 12, 1966, a complaint in the Second Judicial District Court,
seeking approval of its tentative subdivision plat and application for a special use permit.
Issues were joined and, by stipulation of the parties, the transcript and minutes of the hearing
before the Board of County Commissioners, with all documents and exhibits presented to the
board, were submitted to the district court for decision.
The district court on March 7, 1967, rendered its decision against appellant and, on July
17, 1967, findings of fact, conclusions of law and judgment were entered.
[Headnotes 1-3]
Appellant's challenge of Washoe County Ordinance No. 57 centers on the validity of
Article 33 of the ordinance and, in particular, that part which provides that an applicant in
seeking a special use permit must present evidence that the use is necessary to the public
health, convenience, safety and welfare and for the promotion of the general good of the
community. The Board of County Commissioners interpreted this provision, and properly
so, as placing the burden of proof on the appellant. Appellant urges that such a burden, as
stated in Article 33(A) of the ordinance is not permissible under NRS 278.020 and, if so, is
unconstitutional for it places an unreasonable burden on the applicant for the special use
permit. We do not agree. On the contrary, NRS 278.020 is clear and unambiguous in
empowering the counties of the state with the authority to regulate and restrict the
improvement of land and to control the location and soundness of structures built on the land.
The Density Zoning Provision of the Washoe County Land Use Ordinance, Washoe County
Ordinance No. 57,
3
is precisely the sort of ordinance authorized by the Legislature under
NRS 27S.020.
____________________

3
Summary: An Ordinance amending the Land Use Plan, a part of the Master Plan of Washoe County.
Bill No. 76
Ordinance No. 57 (as amended)
AN ORDINANCE AMENDING, REPEALING IN PART AND RE-ESTABLISHING A LAND USE PLAN
WITHIN THE UNINCORPORATED AREA OF WASHOE COUNTY, REGULATING AND RESTRICTING
THE USE OF LAND; THE LOCATION, USE, BULK, HEIGHT, AND NUMBER OF STORIES OF
STRUCTURES; THE DENSITY OF POPULATION; THE PROPORTION OF LAND TO BE COVERED BY
STRUCTURES; ESTABLISHING SETBACK LINES; PROVIDING FOR ADJUSTMENT, ENFORCEMENT
AND AMENDMENT OF SAID LAND USE PLAN AND ITS ORDINANCES; PRESCRIBING PENALTIES
FOR THE VIOLATION THEREOF AND OTHER MATTERS RELATING THERETO.
The Board of County Commissioners of Washoe County do ordain:
Article 1 Purpose
A. To promote the public health, safety, morals, convenience,
precisely the sort of ordinance authorized by the Legislature under NRS 278.020.
[Headnote 4]
In essence an application for a use permit or a variance implies a challenge to the legality
of the zoning ordinance as it applies to a specific piece of property. Forest Hills Borough
Appeal, 187 A.2d 166 (Pa. 1963); Colligan Zoning Case, 162 A.2d 652 (Pa. 1960); Garber
Zoning Case, 122 A.2d 682 (Pa. 1956); Baronoff v. Zoning Bd. of Adjustment, 122 A.2d 65
(Pa. 1956). In other words, a challenge to the validity of a zoning ordinance is a natural and
foreseeable outgrowth of a request for a special use permit or variance.
[Headnote 5]
Zoning is a tool in the hands of governmental bodies which enables them to more
effectively meet the demands of evolving and growing communities. It must not, and cannot,
be used by those officials as an instrument by which they may shirk their responsibilities.
Zoning is a means by which a government body and its citizens can plan and build for the
futureit may not, however, be used as a means to deny the future.
[Headnotes 6, 7]
The days are fast disappearing when the judiciary can look at a zoning ordinance and, with
nearly as much confidence as a professional zoning expert, decide upon the merits of a
zoning plan and its contribution to the health, safety, morals or general welfare of the
community.
____________________
general welfare; to lessen traffic congestion in the streets; to provide light and air for all buildings; to avoid
undesirable concentrations of population; to prevent overcrowding of land and to facilitate adequate provision of
transportation, water, sewage, schools, parks and other public requirements and to provide the economic and
social advantages gained from a comprehensively planned use of land resources, there is hereby established a
Land Use Plan for the County of Washoe.
* * * * *
E. Density Zoning:
1. Subject to issuance of a Special Use Permit following review by the Planning Commission and the filing
of a tentative and final subdivision plat, variations in lot size and yard requirements may be made in A-1, A-2,
A-3, A-4, E-1, E-2, R-1b and R-1a zones in subdivisions tentatively approved by Regional Planning
Commission so long as the total number of dwelling units in the proposed development does not exceed the
number permitted under existing zoning.
2. The person seeking to use the Density Zoning provisions of this Ordinance shall first submit a tentative
subdivision plat showing variations in lot size and yard requirements. After tentative plat approval, such person
shall apply for a Special Use Permit pursuant to the provisions of this Ordinance based on the tentative plat. In
addition to other conditions, the Special Use Permit shall be conditioned upon approval of the final subdivision
plat. (amended by Bill No. 136-12/65)
a professional zoning expert, decide upon the merits of a zoning plan and its contribution to
the health, safety, morals or general welfare of the community. Courts are becoming
increasingly aware that they are neither super boards of adjustment nor planning commissions
of last resort. Di Santo v. Zoning Bd. of Adjustment, 189 A.2d 135 (Pa. 1963); Joseph B.
Simon & Co. v. Zoning Bd. of Adjustment, 168 A.2d 317 (Pa. 1961). Rather, the court acts as
a judicial overseer, drawing the limits beyond which local regulation may not go, but loathing
to interfere, within those limits, with the discretion of local governing bodies. Tidewater Oil
Co. v. Poore, 149 A.2d 636 (Pa. 1959).
[Headnote 8]
The zoning power is one of the tools of government which, in order to be effective, must
not be subjected to judicial interference unless clearly necessary. For this reason, a
presumption of validity attaches to a zoning ordinance which imposes the burden to prove its
invalidity upon the one who challenges it. Cleaver v. Bd. of Adjustment, 200 A.2d 408 (Pa.
1964); Bilbar Constr. Co. v. Easttown Twp. Bd. of Adjustment, 141 A.2d 851 (Pa. 1958).
[Headnotes 9-12]
The oft repeated, although ill defined, limitation upon the exercise of the zoning power,
requires that zoning ordinances be enacted for the health, safety, morals or general welfare of
the community. Cleaver v. Bd. of Adjustment, supra. Such ordinances must bear a substantial
relationship to those police power purposes. Glorioso Appeal, 196 A.2d 668 (Pa. 1964);
Sylvester v. Pittsburgh Zoning Bd. of Adjustment, 157 A.2d 174 (Pa. 1959). And if the
ordinance does, in its application to specific properties, impose an unnecessary hardship, it
cannot be termed a reasonable or constitutional exercise of the police power. To preserve the
validity of the zoning ordinance in its application to the community in general, the use permit
and variance provisions of the ordinance function as an escape valve, so that when
regulations which apply to all are unnecessarily burdensome to a few because of certain
unique circumstances, a means of relief from the mandate is provided. Peirce v. Zoning Bd.
of Adjustment, 189 A.2d 138 (Pa. 1963).
[Headnotes 13, 14]
There is no doubt that zoning for density is a legitimate exercise of the police power.
Bilbar Constr. Co. v. Easttown Twp. Bd. of Adjustment, supra; Volpe Appeal, 121 A.2d 97
{Pa.
(Pa. 1956). The cluster zoning of approximately 148 homes about a 103-acre golf course, as
shown by the applicant's tentative subdivision plat, contrasts sharply with the character of the
residential homes built on 1 and 2-acre lots surrounding applicant's property. The clustering
of the smaller lots about the proposed golf course elicited strong objections of those living in
the neighboring area, as reported in the transcript of the hearing before the Board of County
Commissioners. And understandably so. Zoning laws are passed in the interest of the public
welfare and the benefit accrues not only to the municipality but also to the neighboring land
owners. Rosenberg v. Mehl, 174 N.E. 152 (Ohio 1930); Pritz v. Messer, 149 N.E. 30 (Ohio
1925). Too often a property owner will, after careful consideration, select a site and build in
conformity with, and reliance upon, the zoning ordinance then in effect, only to face time and
again attempts by others to change the zoning plan and character of the neighborhood through
the issuance of use permits and the granting of variances to the zoning ordinance.
Aside from the individual property owner's interest in relying on the zoning regulation of
the area, there is a legitimate public interest involved in density zoning which affects the
health, safety, morals and general welfare of the community. The relative advantages of a
1-acre lot over a one-half-acre lot are easy to comprehend. Similarly, a 2-acre lot has
advantages over a 1-acre lot. The greater the amount of land, the more room for children, the
less congestion and traffic, the easier to handle water supply and sewage, and the fewer
municipal services which must be provided. At some point along the spectrum, however, the
size of lots ceases to be a concern requiring public regulation and becomes simply a matter of
private preference. The point at which legitimate public interest ceases is not a constant one,
but one which varies with the land involved and the circumstances in each case.
We hold that the Density Zoning Provision of Washoe County Land Use Ordinance,
Washoe County Ordinance No. 57, is constitutional and that Article 5(E) of the ordinance
placing upon the applicant for a special use permit the duty of establishing that the special use
is necessary to the public health, convenience, safety and welfare and to the promotion of the
general welfare of the community is not unreasonable and is permissible under NRS 278.020.
[Headnotes 15, 16]
We turn to appellant's second argument that the action of the Board of County
Commissioners in denying appellant's application for a special use permit was arbitrary
and capricious.
application for a special use permit was arbitrary and capricious. We find this argument to be
without merit. A full hearing was conducted by the Board of County Commissioners. There
were many and strong objections to appellant's application for the special use permit.
Appellant failed to make any showing that the use is necessary to the public health,
convenience, safety and welfare and to the promotion of the general good of the community,
as required in subparagraph (A) of Article 33 of the ordinance. It would appear that the
principal basis for the application was to gain permission to construct a subdivision for the
sale of houses on smaller lots than permitted by the present zoning ordinance. This alone is
insufficient for, as the court said in Brandon v. Board of Comm'rs of Montclair, 11 A.2d 304,
312 (N.J. 1940): It is not per se a sufficient reason for a variation that the nonconforming use
is more profitable to the landowner. People ex rel. Fordham Manor Reformed Church v.
Walsh, supra; Grady v. Katz, supra; Levy v. Board of Standards & Appeals, supra. The
converse of this would emasculate the principle of zoning, for invidious distinctions are
inadmissible.
The Board of County Commissioners in denying appellant's application for a special use
permit did not act arbitrarily nor capriciously; and the judgment of the district court must be
sustained.
Affirmed.
____________
84 Nev. 258, 258 (1968) Root v. City of Las Vegas
RICHARD LEE ROOT, Appellant, v. CITY OF LAS
VEGAS, NEVADA, Respondent.
No. 5288
April 3, 1968 439 P.2d 219
Appeal from order of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Appeal from order of the lower court. The Supreme Court held that, inasmuch as appeal
was not filed within statutory time limit, Supreme Court would decline to consider issue of
whether defendant who had pleaded guilty in municipal court had right to appeal to district
court for trial de novo.
Order affirmed.
84 Nev. 258, 259 (1968) Root v. City of Las Vegas
Sidney R. Whitmore, Las Vegas City Attorney, Joseph C. Crawford, Deputy City Attorney
and Heber Hardy, Deputy City Attorney, of Las Vegas, for Respondent.
Municipal Corporations.
Inasmuch as appeal was not filed within statutory time limit, Supreme Court would decline to consider
issue of whether defendant who had pleaded guilty in municipal court had right to appeal to district court
for trial de novo. NRS 189.010, 266.595.
OPINION
Per Curiam:
Appellant would have this court decide the issue of whether a defendant who has pled
guilty in the municipal court has a right to appeal to the district court for a trial de novo.
Inasmuch as appeal in this case was not filed within the statutory time limit (NRS 189.010;
NRS 266.595), the court declines to consider that issue.
1
Even were the appeal to be treated
in the nature of a petition for habeas corpus on the ground that the ordinance under which
appellant was convicted has now been declared unconstitutional (as appellant urges in
argument), the petition would also fail. Appellant pled guilty to a violation of Title VI, ch. 1,
2 of the Las Vegas Municipal Code. This section has since been repealed and re-enacted in
a different form, but it has never been declared unconstitutional. Cf. Parker v. Municipal
Judge of the City of Las Vegas, 83 Nev. 214, 427 P.2d 642 (1967); City of Reno v. District
Court, 83 Nev. 201, 427 P.2d 4 (1967).
The order of the Eighth Judicial District Court dismissing the appeal is affirmed.
____________________

1
Appellant's counsel, after oral argument, moved to supplement the Record on Appeal by filing the record of
a subsequent conviction in the municipal court, from which, he maintained, this appeal was taken. Taking the
matter under advisement, the court denied the motion for the reason that neither the subsequent conviction nor
any argument relating thereto had been presented in the written briefs.
____________
84 Nev. 260, 260 (1968) Dawson v. State
ELLA MAE DAWSON, Appellant, v. THE
No. 5429
April 8, 1968 439 P.2d 472
Appeal from conviction of first-degree murder and denial of motion for new trial. Eighth
Judicial District Court, Clark County; Clarence Sundean, Judge.
Prosecution for murder. The trial court rendered judgment of guilty of first-degree murder
and denied a motion for new trial, and defendant appealed. The Supreme Court, Zenoff, J.,
held that psychiatrist was properly prevented from testifying as to whether defendant had
requisite malice, intent, deliberation and premeditation to commit murder, since this was
subjective conclusion to be found by jury.
Affirmed.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and
Addeliar D. Guy, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Expert witness may state conclusion on matters within his expert knowledge provided conclusion is one
laymen would not be capable of drawing for themselves.
2. Criminal Law.
Sometimes laymen may state conclusional impressions from collective facts, but doctrine of collective
facts does not necessarily permit evaluation of another's state of mind (absent issue of insanity), and
conduct of person and other circumstances are factors which may be detailed to jury so as to equip them
with necessary inferences.
3. Criminal Law.
Psychiatrist was properly prevented from testifying as to whether defendant had requisite malice, intent,
deliberation and premeditation to commit murder, since this was subjective conclusion to be found by jury.
4. Homicide.
Evidence sustained conviction for murder in first degree.
OPINION
Ella Mae Dawson was convicted and sentenced to life imprisonment without possibility of
parole for the shooting and killing of her former husband, Sam Dawson.
and killing of her former husband, Sam Dawson. One ground upon which she seeks to reverse
her conviction is the refusal of the trial court to allow a psychiatrist appearing as an expert
witness to testify whether or not Ella Mae had the requisite malice, intent, deliberation and
premeditation to commit murder.
The question put to Dr. O'Gorman contained all of the facts in evidence before the jury. In
short, it related to the turbulent marriage relationship and the divorce. They continued to live
together afterwards. All the while Sam had promised to remarry her, but then she learned that
he was about to marry another woman. When confronted by Ella Mae he not only admitted it,
but added that if Ella Mae didn't stay away from him he would tell the world about her
extremely embarrassing vaginal disorder. Thereupon, while he stood next to her car window
threatening her, she shot him and as he lay on the ground fired several more shots into his
body.
Her counsel contends that although insanity as a defense was not in issue the psychiatrist
should have been permitted to testify whether or not Ella Mae had the capacity to form the
intent to kill or premeditate, or if not, that she was guilty of a lesser degree, such as
manslaughter.
[Headnotes 1, 2]
1. We held in Jackson v. State, 84 Nev. 203, 438 P.2d 795 (1968), that expert opinion
relative to an ultimate fact in issue may properly be received. But no simple problem of
handwriting identification or blood test analysis or the like are presented here. The ultimate
fact needed for a determination of the degree of the crime was the state of mind of the
accused at the time of the shooting. Such a subjective conclusion must be found by the jury.
The doctor could give them no help that they didn't already have from the facts. An expert
witness may state conclusions on matters within his expert knowledge provided the
conclusion is one laymen would not be capable of drawing for themselves. Lightenburger v.
Gordon, 81 Nev. 553, 407 P.2d 728 (1965); 7 Wigmore 1918, 1923 (3rd ed. 1940).
Sometimes laymen may state conclusial impressions from collective facts such as, He
seemed to be frightened, He was greatly excited, He was pleased, He was angry, but
the doctrine of collective facts does not necessarily permit an evaluation of another's state of
mind (absent the issue of insanity) regardless if the witness giving the opinion is an expert or
layman. The conduct of a person and other circumstances are factors which may be detailed
to the jury so as to equip them with the necessary inferences. Wigmore, supra, 1962, et
seq.;
supra, 1962, et seq.; Commonwealth v. Phelan, 234 A.2d 540, 548 (Pa. 1967). No so-called
expert conclusions can serve the jury's function. See also 41 Denver Law Journal 226 (1964).
[Headnote 3]
The question did not call for an expert's assistance in an area foreign to the jury's
knowledge for it really amounted to no more than summation of the evidence and asking
whether or not Ella Mae had malice aforethought or intent to kill. Nothing would have been
added by the doctor's answer beyond what the jury could have decided for itself. 7 Wigmore,
supra, 1920, et seq.; McLeod v. Miller & Lux, 40 Nev. 447, 472-73, 167 P. 27 (1917). The
question was properly rejected.
[Headnote 4]
2. The appellant contends that the evidence does not support a verdict of murder in the
first degree and that therefore the trial court should have modified the judgment to a lesser
offense or granted a new trial. Proper instructions were given by the court to the jury in
accordance with the evidence and theories of defense. Barger v. State, 81 Nev. 549, 407 P.2d
584 (1965). Every essential element for first degree murder is in the record, although there is
also evidence which if believed by the jury could have resulted in a verdict for a lesser
offense. Nevertheless, it is apparent that the jury's verdict is supported by the evidence which
requires us to affirm the conviction and the trial court's denial of the motion for new trial and
modification of judgment.
Affirmed.
____________
84 Nev. 262, 262 (1968) Graves v. State
KENNETH RONALD GRAVES, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 5312
April 11, 1968 439 P.2d 476
Appeal from judgment of the Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Defendant was convicted in the trial court of attempted first-degree murder and he
appealed. The Supreme Court, 82 Nev. 137, 413 P.2d 503 {1966), reversed and remanded.
On remand the trial court entered judgment of conviction of attempted first-degree
murder and defendant appealed. The Supreme Court, Batjer, J., held that doctrine of the
law of the case required Supreme Court on appeal from conviction entered after remand
for new trial to follow its holding on appeal from denial of same defendant's discharge on
habeas corpus, and that evidence that defendant had been actuated by malice in shooting
precluded instruction on attempted manslaughter.
Nev. 137, 413 P.2d 503 (1966), reversed and remanded. On remand the trial court entered
judgment of conviction of attempted first-degree murder and defendant appealed. The
Supreme Court, Batjer, J., held that doctrine of the law of the case required Supreme Court on
appeal from conviction entered after remand for new trial to follow its holding on appeal
from denial of same defendant's discharge on habeas corpus, and that evidence that defendant
had been actuated by malice in shooting precluded instruction on attempted manslaughter.
Affirmed.
Harry E. Claiborne, Annette R. Quintana, of Las Vegas, Mack Fry, of Reno, for
Appellant.
1. Criminal Law.
Doctrine of the law of the case required Supreme Court on appeal from conviction entered after remand
for new trial to follow its holding as to included offenses on appeal from denial of same defendant's
discharge on habeas corpus.
2. Homicide.
Trial court is justified in refusing to give instruction on crime of manslaughter if there is no evidence to
support such instruction.
3. Homicide.
Presence of malice precludes instruction on crime of manslaughter. NRS 200.040, 200.050.
4. Homicide.
Evidence that defendant had been actuated by malice in shooting precluded instruction on attempted
manslaughter. NRS 200.020 and subd. 2, 200.040, 200.050.
5. Homicide.
In prosecution for attempt to commit murder in first degree, complete testimony as to nature and extent of
injury to victim was admissible to enable jury to arrive at fair and just verdict, unless it was of such
inflammatory nature as to outweigh its probative value.
6. Criminal Law.
Whether evidence of nature and extent of injury to victim of attempted murder is of such an inflammatory
nature as to outweigh its probative value and preclude its admission is within sound discretion of trial
court.
7. Homicide.
In prosecution for attempt to commit murder in first degree, permitting introduction of testimony of
physician as to nature and extent of victim's injury was not an abuse of discretion.
8. Homicide.
To support charge of attempt to commit murder in first degree, there must be evidence of wounds and
resulting injury to such a vital part of human body that it could lead to death and it is permissible to fully
inform jury, not only of location of wound, but of entire nature and extent of resulting injury.
9. Criminal Law.
Determination of Supreme Court on appeal from denial of habeas corpus that physician's testimony
describing nature and extent of victim's injury was not inflammatory or prejudicial was law of the case on
that point in subsequent appeal from conviction.
10. Depositions.
Defendant's deposition taken shortly after shooting at request and insistence of defendant, in presence of
his attorney, and before defendant was ever accused or charged was not inadmissible on ground that certain
objectionable material, inextricably interspersed with matter which was otherwise admissible, was highly
prejudicial to defendant and not material or relevant to crime charged.
11. Criminal Law.
Prosecutor's reference in his opening statement to favorable reputation in community of victim of
attempted murder and that victim was a young boy about 18 years of age, well liked, a young high school
graduate was not irrelevant or prejudicial to rights of defendant to a fair trial.
12. Criminal Law.
Background testimony of prosecution's witness that he was in military service, a former university student
and high school friend of victim of attempted murder was not irrelevant or prejudicial to rights of
defendants to fair trial.
13. Criminal Law.
Testimony of defendant's female companion on night of shooting that she had a house of prostitution was
not prejudicial to rights of defendant to fair trial in prosecution for attempted murder.
OPINION
After a remand, by this court, for a new trial, (Graves v. State, 82 Nev. 137, 413 P.2d 503
(1966)), a jury convicted the appellant, Kenneth Ronald Graves of attempted first degree
murder. The trial court entered a judgment finding the appellant guilty of attempted murder in
the first degree and sentenced him to a prison term of not less than five years and not more
than twenty years. From this judgment Graves appeals.
As his first two assignments of error, appellant contends that the indictment charging him
with the crime of attempted murder of the first degree does not charge a public offense
against the laws of this state and that the indictment is duplicitous because it also
charges facts constituting the separate crime of assault with intent to kill.
against the laws of this state and that the indictment is duplicitous because it also charges
facts constituting the separate crime of assault with intent to kill.
These are the very same contentions raised by the appellant on appeal from a denial of his
discharge on habeas corpus by the lower court, Graves v. Young, 82 Nev. 433, 420 P.2d 618
(1966). In that case we held that a person may be charged with attempted murder, and that
assault with intent to kill may be a lesser included offense of attempted murder if there is
evidence of assault.
[Headnote 1]
The doctrine of the law of the case requires us to follow Graves v. Young, supra.
In the case of State v. Loveless, 62 Nev. 312, 150 P.2d 1015 (1944), this court said: * * *
it is a firmly established general rule that an adjudication on the first appeal is the law of the
case on all subsequent appeals in which the facts are substantially the same.'
Next we turn to appellant's claim that the trial court erred when it refused to instruct the
jury on the crime of attempted manslaughter.
[Headnote 2]
The record is devoid of evidence to support an instruction on attempted manslaughter. The
trial court properly refused such an instruction. From 1867 when this court affirmed the
conviction of John Millain for the murder of Julia Bulette, (State v. Millain, 3 Nev. 409), to
the recent case of Jackson v. State, 84 Nev. 203, 438 P.2d 795 (1968), this court has held that
a trial court is justified in refusing to give an instruction on the crime of manslaughter
1
if
there is no evidence to support such an instruction. Accord, State v. Donovan, 10 Nev. 36
(1875); State v. Johnny, 29 Nev. 203, 87 P. 3 (1906); State v. Fisco, 58 Nev. 65, 70 P.2d
1113 (1937); State v. Loveless, 62 Nev. 312, 150 P.2d 1015 {1944); State v. Varga, 66
Nev. 102, 205 P.2d S03 {1949); Holland v. State, S2 Nev. 191, 414 P.2d 590 {1966);
Rogers v. State, S3 Nev. 376
____________________

1
NRS 200.040. Manslaughter is the unlawful killing of a human being, without malice express or implied,
and without any mixture of deliberation. It must be voluntary, upon a sudden heat of passion, caused by a
provocation apparently sufficient to make the passion irresistible; or, involuntary, in the commission of an
unlawful act, or a lawful act without due caution or circumspection.
NRS 200.050. In cases of voluntary manslaughter, there must be a serious and highly provoking injury
inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt
by the person killed to commit a serious personal injury on the person killing.
State v. Loveless, 62 Nev. 312, 150 P.2d 1015 (1944); State v. Varga, 66 Nev. 102, 205 P.2d
803 (1949); Holland v. State, 82 Nev. 191, 414 P.2d 590 (1966); Rogers v. State, 83 Nev.
376, 432 P.2d 331 (1967).
[Headnotes 3, 4]
The presence of malice precludes an instruction on the crime of manslaughter. In this case
there is a good deal of evidence that the appellant was actuated by malice in shooting Joseph
Fuetsch. The circumstances of the shooting are sufficient to bring into operation the rule of
NRS 200.020(2).
2

Finally, in appellant's multi-pointed assignment of error, he contends that he was denied
the right to a fair and impartial trial for the following reasons: (a) That the testimony of Dr.
Ernest W. Mack, as to the nature and extent of the victim's injury, was inflammatory and
prejudicial.
[Headnotes 5-7]
We first turn to this point in the assignment of error. The appellant is charged with attempt
to commit murder in the first degree. Complete testimony as to the nature and extent of the
injury to the victim, Joseph Fuetsch, was permissible in order to enable the jury to arrive at a
fair and just verdict. Whether the evidence was of such an inflammatory nature as to
outweigh its probative value and preclude its admission is a question within the sound
discretion of the trial court. See Commonwealth v. D'Agostino, 182 N.E.2d 133 (Mass.
1962). Here the trial court did not abuse its discretion.
[Headnote 8]
There must be evidence that the wounds and resulting injury to the victim is to such a vital
part of the human body, that it could lead to death, in order to support the charge of attempt to
commit murder in the first degree. It is permissible to fully inform the jury, not only of the
location of the wound, but of the entire nature and extent of the resulting injury.
Discussing the admissibility of medical testimony concerning the extent and degree of
permanency of the injuries sustained by the victim, the court in the case of People v.
Manning, 50 N.E.2d 118 (Ill. 1943), said: The theory is that such evidence is admissible to
show that the weapon used was dangerous and to show also the character of the assault.
____________________

2
NRS 200.020. 1. Express malice is that deliberate intention unlawfully to take away the life of a fellow
creature, which is manifested by external circumstances capable of proof.
2. Malice shall be implied when no considerable provocation appears, or when all the circumstances of the
killing show an abandoned and malignant heart.
dangerous and to show also the character of the assault. The reason for the rule would appear
to be that the jury cannot know the force of the blow without knowing the effect, and the
effect here was not alone knocking (victim) to the ground. Likewise, with the jury looking
back from the injuries, it can better determine the character of the act * * *.
[Headnote 9]
Dr. Mack's testimony was material and relevant. It was elicited and given in a professional
manner, and in no reasonable way could it be deemed unduly prejudicial and inflammatory
toward the appellant. The testimony of Dr. Mack at the first trial of the appellant was
substantially the same. In Graves v. State, supra, this court, referring to appellant's contention
that Dr. Mack's testimony describing the nature and extent of the victim's injury was
inflammatory and prejudicial said: We have considered the remaining assignments of error
and find them without merit. That is the law of the case on this point, State v. Loveless,
supra.
[Headnote 10]
(b) In his next claim of error, appellant alleges that a deposition of the appellant taken
shortly after the shooting, at the request and insistence of the appellant, in the presence of his
attorney, and before the appellant was ever accused or charged, should not have been
admitted into evidence because certain objectionable material, inextricably interspersed with
matter which was otherwise admissible, was highly prejudicial to defendant and not material
or relevant to the crime charged.
We find this contention to be without merit.
(c) The appellant's allegation that his constitutional rights to a fair trial were infringed
upon when the prosecutor commented on appellant's failure to take the witness stand and
testify on his behalf is simply not supported by the record. No fair reading of that particular
part of the prosecutor's final argument singled out by the appellant, could, by any stretch of
the imagination, be construed as a comment on appellant's failure to testify.
We find this claim of error to be without merit.
[Headnotes 11-13]
(d) Finally, appellant contends that the prosecutor's reference in his opening statement to
the victim's favorable reputation in the community, and that he was a young boy about 18
years of age, well liked, a young high school graduate, the background testimony of the
prosecution's witness, Ralph Albright, that he was in the military service, a former
university student and a high school friend of Joseph Fuetsch, and the testimony of Hazel
Landers, appellant's female companion on the night of the shooting, that she "had a
house of prostitution," were irrelevant and highly prejudicial to the rights of the appellant
to a fair trial.
Albright, that he was in the military service, a former university student and a high school
friend of Joseph Fuetsch, and the testimony of Hazel Landers, appellant's female companion
on the night of the shooting, that she had a house of prostitution, were irrelevant and highly
prejudicial to the rights of the appellant to a fair trial. We disagree with the appellant's
contentions. We have considered all assignments of error and find them to be without merit.
Judgment of the trial court is affirmed.
____________
84 Nev. 268, 268 (1968) Mizner v. Mizner
WILLIS O. MIZNER, Appellant, v.
RUTH E. MIZNER, Respondent.
No. 5396
April 15, 1968 439 P.2d 679
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Divorce action initiated by husband in which the wife appeared and moved for partial
summary judgment. The lower court entered a partial summary judgment and the husband
appealed. The Supreme Court, Thompson, C. J., held that California court in which divorce
action was brought by wife, a California resident, acquired in personam jurisdiction over
husband who was personally served in Nevada in accordance with California statute, and
provision of interlocutory decree providing for alimony was entitled to full faith and credit in
Nevada court where husband had been a resident of California up to the time of his separation
from his wife.
Judgment affirmed.
Collins and Batjer, JJ., dissented.
[Rehearing denied April 30, 1968]
Richard C. Minor, of Reno, for Appellant.
Belford and Anglim, of Reno, for Respondent.
1. Divorce.
In personam jurisdiction may be acquired over nonresident defendant in divorce action by extraterritorial
personal service of process if statute of support ordering state has authorized acquisition
of such jurisdiction in that manner and there exists sufficient contacts between
defendant and forum relevant to cause of action to satisfy traditional notions of fair
play and substantial justice.
of process if statute of support ordering state has authorized acquisition of such jurisdiction in that manner
and there exists sufficient contacts between defendant and forum relevant to cause of action to satisfy
traditional notions of fair play and substantial justice.
2. Divorce.
California court in which divorce action was brought by wife, a California resident, acquired in personam
jurisdiction over husband who was personally served in Nevada in accordance with California statute and
provision of interlocutory decree providing for alimony was entitled to full faith and credit in Nevada court
where husband had been a resident of California up to the time of his separation from his wife. Cal.Code
Civ.Proc. 417.
3. Divorce.
Where interlocutory judgment of divorce was entered by court of general jurisdiction it carried a
presumption of validity.
4. Judgment.
Nevada court in determining whether California judgment was entitled to full faith and credit could not
ignore construction placed by California courts on effect of extraterritorial personal service of process, but
must honor such view. Cal.Code Civ.Proc. 417.
OPINION
We are asked to set aside a partial summary judgment of our district court in so far as it
accords full faith and credit to an alimony award contained in a California interlocutory
divorce decree entered upon extraterritorial personal service of process. It is our opinion that
the district court ruled correctly.
Mr. and Mrs. Mizner maintained their matrimonial domicile at Kings Beach, Lake Tahoe,
California, from April 1947 to March 1965. They separated and the husband moved to
Nevada. In May of the following year, 1966, he commenced an action for divorce here.
Within a month, the wife filed suit for divorce in California and, on December 6, 1966, was
awarded an interlocutory judgment of divorce, certain property located in California, and
$300 a month alimony. In the California case personal service of process was made upon the
defendant husband at his residence in Reno, Nevada. In January 1967 the wife appeared in the
Nevada case asserting that the California interlocutory judgment was entitled to full faith in
Nevada with regard to alimony and property, and thereafter filed a motion for partial
summary judgment with respect to those issues. Her motion was granted and this appeal by
the husband followed. He husband concedes that the California court had jurisdiction to
grant an interlocutory divorce to the wife and to award her property located within that
state.
court had jurisdiction to grant an interlocutory divorce to the wife and to award her property
located within that state. He also concedes, as he must, that the California interlocutory
judgment is a final judgment in all respects except as to marital status, if entered with
jurisdiction. Kraemer v. Kraemer, 79 Nev. 287, 382 P.2d 394 (1963). His attack on appeal is
directed solely to the validity of that part of the interlocutory judgment which awards
alimony, contending that the California court was without jurisdiction to enter an in personam
judgment upon extraterritorial personal service of process. It is his position that the Due
Process Clause precludes jurisdiction, and he reminds us that in 1877 the Supreme Court of
the United States established the rule that a court may take personal jurisdiction over the
defendant only if process was served upon him personally within the state. Pennoyer v. Neff,
95 U.S. 714. Since such did not occur here, the California judgment must fall. We turn to
examine the validity of this position in the light of recent developments in this area of the
law.
1. The rule of Pennoyer has been substantially eroded by the High Court. Gambs v.
Morgenthaler, 83 Nev. 90, 423 P.2d 670 (1967). Nondomiciliaries of the forum state have
been subjected to the personal jurisdiction of that state without offending the demands of
either procedural or substantive due process. International Shoe Co. v. Washington, 326 U.S.
310 (1945); Travelers Health Ass'n v. Virginia, 339 U.S. 643 (1950); Perkins v. Benguet
Consol. Mining Co., 342 U.S. 437 (1952); McGee v. International Life Ins. Co., 355 U.S. 220
(1957); Hanson v. Denckla, 357 U.S. 235 (1958). In International Shoe, supra, the court
wrote: due process requires only that in order to subject a defendant to a judgment in
personam, if he be not present within the territory of the forum, he have certain minimum
contacts with it such that the maintenance of the suit does not offend traditional notions of
fair play and substantial justice.' 326 U.S. at 316.
[Headnotes 1, 2]
None of the cited cases involves a personal judgment for alimony. Still, it seems to us that
the minimum contacts concept of in personam jurisdiction is peculiarly suited to matrimonial
support cases. If such contacts are in fact present in the particular case before the court, then
the extension of in personam jurisdiction beyond the borders of the forum state may prove to
be a sensible step in solving some of the hardships arising from family separation. Courts
must know by this time that strict application of the Pennoyer rule to family support cases has
encouraged migratory divorce by offering a shield to a spouse wishing to avoid financial
responsibility.1 The state of the matrimonial domicile has a deep interest in its citizens
and a legitimate purpose in taking steps to preclude their impoverishment.
shield to a spouse wishing to avoid financial responsibility.
1
The state of the matrimonial
domicile has a deep interest in its citizens and a legitimate purpose in taking steps to preclude
their impoverishment. Accordingly, it is our opinion that in personam jurisdiction may be
acquired over a non-resident defendant in a divorce action by extraterritorial personal service
of process if (1) a statute of the support ordering state has authorized the acquisition of such
jurisdiction in that manner, and (2) there exist sufficient contacts between the defendant and
the forum relevant to the cause of action to satisfy traditional notions of fair play and
substantial justice. The demands of due process are satisfied in these circumstances.
2
The
dissenting opinion suggests that May v. Anderson, 345 U.S. 528 (1953), is contra. Reliance
upon that case is misplaced. In May, there was no statute authorizing service outside the state
on the mother in a child custody case, nor did the court consider whether personal jurisdiction
could be based upon past contacts with the state. Thus, the problem confronting us was not
reached in May.
2. Extraterritorial personal service of process was effected in this case pursuant to
California Code of Civil Procedure 417, which provides: Where jurisdiction is acquired
over a person who is outside of this State by publication of summons in accordance with
Sections 412 and 413, the court shall have the power to render a personal judgment against
such person only if he was personally served with a copy of the summons and complaint, and
was a resident of this State (a) at the time of the commencement of the action, or (b) at the
time that the cause of action arose, or (c) at the time of service.
The California courts have construed 417 to support personal jurisdiction over an absent
defendant personally served outside of the state if he was a domicilliary of California when
suit was commenced (Allen v. Superior Court, 259 P.2d 905 (Cal. 1953); Smith v. Smith, 288
P.2d 497 (Cal. 1955)), or domiciled in that state when the cause of action arose (Owens v.
Superior Court, 345 P.2d 921 {Cal.
____________________

1
The divisible divorce doctrine has nothing to do with the problem at hand since in those cases the support
awarding state clearly had in personam jurisdiction over the defendant within the Pennoyer rule. See: Estin v.
Estin, 334 U.S. 541 (1948); Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957); Summers v. Summers, 69 Nev. 83,
241 P.2d 1097 (1952).

2
Illinois and Kansas have enacted statutes specifically fashioned to acquire in personam jurisdiction over a
non-resident defendant in a divorce action by extraterritorial personal service of process. See for comment upon
these statutes: 16 De Paul L.Rev. 45 (1966-67), Extension of the Illinois Long Arm Statute: Divorce and
Separate Maintenance; 13 U.Kan.L.Rev. 554 (1964-65), Extraterritorial in Personam Jurisdiction: The
Substantive Due Process Requirement.
v. Superior Court, 345 P.2d 921 (Cal. 1959)). Owens was a personal injury suit. The cause of
action arose in California when defendant was a resident there but, before the action was
commenced, defendant became a permanent resident of Arizona. Chief Justice Traynor noted
that the requirements of procedural due process were satisfied, since no more certain
provision for defendant's receipt of actual notice of pending litigation against him could be
made than through the specified personal service of process. The Chief Justice then turned his
attention to substantive due process, noting that the defendant was domiciled in California
when the cause of action arose, and that the cause of action arose directly out of the
defendant's activities there. In such circumstances the court concluded that the purpose of due
process was fulfilled because it is reasonable and fair to require a defendant whose voluntary
acts have given rise to a cause of action in a state to litigate his responsibility for that conduct
at the place where it occurred. Id. at 925. The rationale of Owens has been applied in
California to divorce and alimony. Soule v. Soule, 14 Cal.Rptr. 417 (Cal.App. 1961). In that
case both parties were domiciled in California when the cause of action arose, but before suit
was commenced the husband moved permanently to Montana where he was personally served
with process. He did not appear. The wife was granted an interlocutory judgment of divorce
and alimony. The husband then appeared specially and sought to delete the alimony
provision. He was not successful.
[Headnotes 3, 4]
Soule is squarely on point with the case at hand. Here, the parties were domiciled in
California until their separation. Presumably, the wife's cause of action for cruelty arose out
of the husband's conduct while they were living together. The interlocutory judgment was
entered by a court of general jurisdiction and carries with it the presumption of validity.
Milliken v. Meyer, 311 U.S. 457 (1940). We are not at liberty to ignore the construction
placed upon 417 by the California courts. Rather, we must honor their view. Farnham v.
Farnham, 80 Nev. 180, 183, 391 P.2d 26 (1964); Kraemer v. Kraemer, 79 Nev. 287, 290, 382
P.2d 394 (1963); Choate v. Ransom, 74 Nev. 100, 323 P.2d 700 (1958); Summers v.
Summers, 69 Nev. 83, 241 P.2d 1097 (1952). The California judgment is entitled to full faith
and credit. Biel v. Godwin, 69 Nev. 189, 245 P.2d 997 (1952).
For the reasons expressed the judgment below is affirmed.
Zenoff and Mowbray, JJ., concur.
Collins J., dissenting:
I do not feel we are bound to give full faith and credit to the California judgment under
authority of the Soule case. As pointed out in Mr. Justice Batjer's opinion, the United States
Supreme Court, the final arbiter of the meaning of the full faith and credit clause, has not said
so. In effect then, the California court in Soule pronounces a rule which it hopes the United
States Supreme Court will finally adopt. Whether that rule will prevail remains to be seen.
In analyzing the Soule case, it must be kept in mind that following entry of the decree
granting divorce and the award of alimony to the wife, the husband, then a Montana resident,
appeared specially in California and moved to vacate and delete the award of alimony, court
costs and attorney fees. The California court held against his contention, his appearance then
became a general one and the judgment upheld. So far as we know, the husband never
contested such determination further. There is no question but that the judgment would be
upheld in all California courts; but what might have happened had the wife sued on her
alimony judgment in Montana? The question would then become whether Montana would be
compelled to give the California decree full faith and credit under the federal constitution.
That is what we are asked to do here.
I do not think we are bound by what California says is the extent of its jurisdiction. Should
the United States Supreme Court say so, then the problem is resolved for all the states.
If appellant here, Willis O. Mizner, were to return to California in a special appearance
and contest the decree entered in behalf of his wife for alimony, no doubt the courts of that
state would apply the Soule rule, and unless he carried the question to the United States
Supreme Court he would be bound.
Unless we are satisfied California had jurisdiction to personally bind appellant to the
award of alimony, attorney's fees and costs, and absent a conclusive adjudication of the point
under the federal constitution by the United States Supreme Court, we should not enforce the
judgment in issue here. Respondent does not contend there is a determinative United States
Supreme Court rule on this point, but relies principally upon the California decision in Soule.
I am not sure the rule in Kraemer v. Kraemer, 79 Nev. 287, 382 P.2d 394 (1963), is even
controlling in this case on the question of finality of an alimony award under an interlocutory
decree, when jurisdictionally dependent upon extraterritorial service of process followed here.
In the California Kraemer proceeding both parties were personally present and litigated the
issues which resulted in the interlocutory decree of divorce and the award of alimony.
litigated the issues which resulted in the interlocutory decree of divorce and the award of
alimony. Two months later, the wife sued in Nevada and the husband again appeared
personally. It was upon that state of the record this court said the interlocutory decree
awarding alimony was final. There could not be the slightest doubt the California court had
full personal jurisdiction to award alimony. Its decree was entitled to full faith and credit in
Nevada under the federal constitution. See Williams v. North Carolina, 325 U.S. 226 (1944).
But that is a far cry from what happened here. Appellant, though personally served in
Nevada with substitute process, never appeared in California to defend the action. The
interlocutory decree of divorce and the award of alimony were entered upon his default. It is
in a suit upon that judgment he now challenges for want of jurisdiction of the California
court. See Estin v. Estin, 334 U.S. 541, at 549 (1948).
I think we have already taken a position in Nevada on this very point. In Summers v.
Summers, 69 Nev. 83, 88, 241 P.2d 1097 (1952), Mr. Justice Badt, quoted from Estin v.
Estin, supra, as follows: But the question is whether Nevada could under any circumstances
adjudicate rights of respondent under the New York judgment when she was not personally
served or did not appear in the proceedings. Bassett v. Bassett, 141 F.2d 954, held that
Nevada could not. We agree with that view. 334 U.S. at 547 and 548. And further: The
Nevada decree that is said to wipe out respondent's claim for alimony under the New York
judgment is nothing less than an attempt by Nevada to restrain respondent from asserting her
claim under that judgment. That is an attempt to exercise an in personam jurisdiction over a
person not before the court. That may not be done. * * * A judgment of a court having no
jurisdiction to render it is not entitled to full faith and credit which the constitution and
statutes of the United States demand. [citing cases]. 334 U.S. at 548 and 549.
In the face of that constitutional authority, I do not feel California can extend her
jurisdiction through a statute (Cal. C.C.P. 413) and render an in personam judgment for
alimony without personal service which Nevada is required to enforce.
It seems to me there is a distinction between domestic relations cases and personal injury
actions. In the latter, once a judgment is entered and affirmed on appeal it is ended. There is
no continuing liability for modification and change such as there can be in alimony, child
support and custody cases. That is why I think there is a different substantive due process
jurisdictional requirement.
In the instant case, if California has personal jurisdiction over appellant for an initial award
of alimony, it conceivably will have continuing personal jurisdiction over him to modify the
alimony award for the rest of his life. Any time in the future the wife might desire to increase
the amount she could file a motion or petition, personally serve the husband with notice
wherever he might be, and if he fails to appear, put on her proof ex parte and get an enlarged
award. This would have the effect of a personal judgment which she could then sue on
wherever the husband could be found. Such a rule would tie a person to the courts of one
state with the bonds of personal jurisdiction for his lifetime and even after his death through
his estate.
For the reasons cited above, I doubt the rule in Gambs v. Morgenthaler, 83 Nev. 90, 423
P.2d 670, controls domestic relations cases.
I also fear the court is not making sufficient allowance for the peculiar problems arising
from domestic relations litigation as compared to either tort or contract cases.
I respectfully dissent.
I feel obligated to follow the rulings of the United States Supreme Court in Halvey v.
Halvey, 330 U.S. 610 (1947), and May v. Anderson, 345 U.S. 528 (1953), and I therefore
dissent from the majority opinion.
The question presented in May v. Anderson, supra, was whether, in a habeas corpus
proceeding attacking the right of a mother to retain possession of her minor children, an Ohio
court must give full faith and credit
1
to a Wisconsin decree awarding custody of the children
to their father when that decree is obtained by the father in an ex parte divorce action in a
Wisconsin court having no personal jurisdiction over the mother.
The United States Supreme Court held that the part of the Wisconsin decree awarding
custody of the children to their father was not entitled to full faith and credit.
In the May case the only service of process upon the mother consisted of the delivery to
her personally, in Ohio, of a copy of the Wisconsin summons and petition. The court found
that, Such service is authorized by a Wisconsin statute for use in an action for a divorce but
that statute makes no mention of its availability in a proceeding for custody of children."2
In arriving at its decision the court said: "In the instant case, we recognize that a
mother's right to custody of her children is a personal right entitled to at least as much
protection as her right to alimony.
____________________

1
Art. IV, Sec. 1 of the Constitution of the United States provides: Full faith and Credit shall be given in each
State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by
general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect
thereof.
an action for a divorce but that statute makes no mention of its availability in a proceeding for
custody of children.
2

In arriving at its decision the court said: In the instant case, we recognize that a mother's
right to custody of her children is a personal right entitled to at least as much protection as her
right to alimony.
We find it unnecessary to determine the children's legal domicile because, even if it be
with their father, that does not give Wisconsin, certainly as against Ohio, the personal
jurisdiction that it must have in order to deprive their mother of her personal right to their
immediate possession.
In Estin v. Estin, 334 U.S. 541 (1948), the court said: The fact that the requirements of
full faith and credit, so far as judgments are concerned, are exacting, if not inexorable
(Sherrer v. Sherrer, 334 U.S. 343 (1948)), does not mean, however, that the State of the
domicile of one spouse may, through the use of constructive service, enter a decree that
changes every legal incidence of the marriage relationship.
In Halvey v. Halvey, supra, the court said: If the court of the State which rendered the
judgment had no jurisdiction over the person or the subject matter, the jurisdictional infirmity
is not saved by the Full Faith and Credit Clause. See Thompson v. Whitman, 18 Wall. 457;
Griffin v. Griffin, 327 U.S. 220. And if the amount payable under a decreeas in the case of
a judgment for alimonyis discretionary with the court which rendered it, full faith and
credit does not protect the judgment. Sistare v. Sistare, 218 U.S. 1, 17. Whatever may be the
authority of a State to undermine a judgment of a sister State on grounds not cognizable in
the State where the judgment was rendered {Cf.
____________________

2
Wisconsin Statutes 1949: 262.12. Publication or service outside state, when permitted. When the
summons cannot with due diligence be served within the state, the service of the summons may be made without
the state or by publication upon a defendant when it appears from the verified complaint that he is a necessary or
proper party to an action or special proceeding as provided in Rule 262.13, in any of the following cases:
* * * * *
(5) When the action is for a divorce or for annulment of marriage.
* * * * *
262.13. Publication or service outside state; * * * mode of service.
* * * * *
(4) In the cases specified in Rule 262.12 the plaintiff may, at his option and in lieu of service by publication,
cause to be delivered to any defendant personally without the state a copy of the summons and a verified
complaint or notice of object of action as the case may require, which delivery shall have the same effect as a
completed publication and mailing * * *.
State on grounds not cognizable in the State where the judgment was rendered (Cf. Williams
v. North Carolina, 325 U.S. 226, 230), it is clear that the State of the forum has at least as
much leeway to disregard the judgment, to qualify it, or to depart from it as does the State
where it was rendered.
In May v. Anderson, supra, Mr. Justice Frankfurter in his concurring opinion, observed:
There are, of course, adjudications other than those pertaining to children, as for instance
decrees of alimony, which may not be definitive even in the decreeing State, let alone binding
under the Full Faith and Credit Clause.
Mr. Justice Frankfurter in his concurring opinion in Halvey v. Halvey, supra, wrote:
Conflicts arising out of family relations raise problems and involve considerations very
different from controversies to which debtor-creditor relations give rise. Such cardinal
differences in life are properly reflected in law. And so, the use of the same legal words and
phrases in enforcing full faith and credit for judgments involving the two types of relations
ought not to obliterate the great difference between the interests affected by them, and should
not lead to an irrelevant identity in result.
Mr. Justice Rutledge in his concurring opinion in the Halvey case said: But our function
here is limited to application of the full faith and credit clause. I agree that technical notions
of finality applied generally to other types of judgment for such purposes have no proper strict
application to these decrees. But, even so, full faith and credit is concerned with finality and
only with finality when the question arises in relation to the binding effects of judgment. And
the law is clearly settled that while generally the clause requires other states to give
judgments as much effect as they have where rendered, it does not require them to give more.
Accordingly, if the state rendering the judgment gives it no final effect to prevent its
alteration, I am unable to see how others having jurisdiction of the parties and the subject
matter may be required to give it finality in this respect by virtue of the provision for full faith
and credit.
In the case before us, the trial court has given full faith and credit to a default judgment
entered in the State of California based on personal service of the complaint and summons on
the appellant in Reno, Nevada. The service is alleged to be authorized by a California statute
allowing personal service beyond the boundaries of the State of California when the cause of
action arose, while the appellant was domiciled in that state. The statute makes no mention
of its availability in a proceeding for divorce or annulment of marriage, and much less in
an action where alimony is to be awarded to the plaintiff.
a proceeding for divorce or annulment of marriage, and much less in an action where alimony
is to be awarded to the plaintiff.
Although May v. Anderson, supra, concerns itself with child custody and the question of
the court's jurisdiction to enter an in personam judgment based on personal service of process
outside the state, it is sufficiently clear that the case is controlling in all in personam matters
arising out of the marriage relationship.
May is an extremely strong case. It is not merely a situation where the United States
Supreme Court is ratifying one state court's failure to give full faith and credit to an in
personam judgment of another state, but instead, it precludes Ohio from giving full faith and
credit to the Wisconsin judgment.
Although the Wisconsin judgment was based on personal service in Ohio pursuant to a
Wisconsin statute specifically authorizing such service in divorce and annulment of marriage
actions, the court in May v. Anderson, supra, said that the Wisconsin long arm statute was
insufficient to give Wisconsin jurisdiction to enter an in personam judgment for child custody
against the mother who had moved to Ohio. The case before us presents a weaker position.
A certain line of cases, relied upon by my brothers in the majority opinion, have subjected
defendants, found beyond the territory of the forum, to the personal jurisdiction of that state
on the grounds that they had certain minimum contacts with the forum, and the traditional
notions of fair play and substantial justice were not offended. International Shoe Co. v.
Washington, 326 U.S. 310 (1945); Travelers Health Ass'n v. Virginia, 339 U.S. 643 (1950);
Perkins v. Benguet Mining Co., 342 U.S. 437 (1952); McGee v. International Life Ins. Co.,
355 U.S. 220 (1957); Hanson v. Denckla, 357 U.S. 235 (1958).
While the prerequisite of minimum contact may be found in domestic relations cases to
bridge the gap of extraterritorial service of process, the resulting judgments and decrees are
not in the same category as those in cases arising out of contract, tort, or the other divisions of
the legal field. The minimum contact doctrine cannot be properly applied to confer in
personam jurisdiction to the domestic relations field.
The minimum contact theory of in personam jurisdiction cannot be reasonably applied to
an alimony judgment because that type of judgment contains an element of inherent
uncertainty. A change of circumstances in the status of either party, subsequent to the entry of
judgment is, within the court's discretion, grounds for modification.
In light of May v. Anderson, supra, and Halvey v. Halvey, supra, this court should not
rely on Soule v. Soule, 14 Cal.Rptr.,
supra, this court should not rely on Soule v. Soule, 14 Cal.Rptr., 417, (Cal.App. 1961), and
should refuse to give full faith and credit to the case of Ruth E. Mizner v. Willis 0. Mizner,
No. 101 297, in the Superior Court of the State of California, in and for the County of Contra
Costa.
____________
84 Nev. 279, 279 (1968) Douglas Spencer v. Las Vegas Sun
DOUGLAS SPENCER AND ASSOCIATES, a Nevada Corporation, Appellant, v. LAS
VEGAS SUN, INC., a Nevada Corporation, Respondent.
No. 5423
April 15, 1968 439 P.2d 473
Appeal from the judgment of the Eighth Judicial District Court, Clark County; John F.
Sexton, Judge.
Action for amounts due and unpaid for advertising. The plaintiff prevailed in the trial court
and the defendant appealed. The Supreme Court, Batjer, J., held that where a witness who
was president of the corporate defendant and also president of another corporation of very
similar name and same officers, directors and business location could have produced but did
not produce cancelled checks by which previous advertising bills had been paid, the statutory
presumption that checks would be adverse to defendant could be relied on to sustain the
judgment.
Affirmed.
Stanley W. Pierce, of Las Vegas, for Appellant.
Singleton, DeLanoy & Jemison, of Las Vegas, for Respondent.
1. Evidence.
In action for amounts due and unpaid for advertising, where witness who was president of corporate
defendant and also president of another corporation of very similar name and same officers, directors and
business location could have produced but did not produce cancelled checks by which previous advertising
bills had been paid, statutory presumption that checks would be adverse to defendant could be relied on to
sustain judgment adverse to defendant. NRS 52.070, subd. 5.
2. Trial.
In action for amounts due and unpaid for advertising, trial court as trier of fact had right to consider
credibility of witness, and though plaintiff introduced no direct evidence to refute or discredit
testimony of witness who was president of corporate defendant and also president of
another corporation of very similar name and same officers, directors and business
location that unpaid account was that of other corporation and not that of defendant,
it was prerogative of trial judge to disbelieve such testimony.
discredit testimony of witness who was president of corporate defendant and also president of another
corporation of very similar name and same officers, directors and business location that unpaid account
was that of other corporation and not that of defendant, it was prerogative of trial judge to disbelieve such
testimony.
It is prerogative of trier of facts to evaluate credibility of witnesses and determine weight of their
testimony, and it is not within province of appellate court to instruct trier that certain witnesses or
testimony must be believed.
4. Evidence.
Though plaintiff introduced no direct evidence to refute testimony of defendant's witness, that unpaid
account was that of another corporation and not that of defendant, trial court's disregard of testimony of
such witness was not arbitrary.
OPINION
During the months of December 1965 and January and February, 1966, Douglas Spencer
and Associates placed numerous classified advertisements with respondent newspaper, the
Las Vegas Sun. Douglas Spencer and Associates were billed for the advertisements and the
bills were paid. In subsequent months additional advertisements were placed with the
respondent, bills were mailed, but payment was not received.
On April 21, 1966, the respondent filed suit against the appellant for the balance alleged to
be due for the advertising, together with costs and attorney fees.
In its answer, the appellant admitted being a corporation duly organized and operating
under the laws of the State of Nevada, denied all other allegations in the complaint, and as an
affirmative defense, alleged that the respondent had failed to state a claim upon which relief
could be granted.
The case was tried before the district court without a jury. Evidence was introduced by the
respondent to establish its claim. Through its questions on cross examination, the appellant
intimated that the debt was not owed by the appellant, but was probably an obligation of
Douglas Spencer and Associates, Mortgage Bankers, a California corporation. The appellant
called Lee Potter as a witness, and Potter testified that he was the president of both Douglas
Spencer and Associates, Limited, a Nevada corporation, the appellant, and Douglas Spencer
and Associates, Mortgage Bankers, a California corporation, that both corporations had the
same officers and directors, the same mailing address, and occupied the same building, but
that the appellant was a holding company with no property or employees, and that
appellant had placed no advertising with the respondent.
mailing address, and occupied the same building, but that the appellant was a holding
company with no property or employees, and that appellant had placed no advertising with
the respondent.
No other evidence was offered to support appellant's position.
As its only assignment of error the appellant contends that the respondent failed to prove
its claim against the appellant, and that the judgment was contrary to the laws and the
evidence.
The record reveals that respondent sent bills for advertising to Douglas Spencer and
Associates, and that Douglas Spencer and Associates for a period of time paid those bills
but failed to pay subsequent bills.
[Headnote 1]
At the time of the trial, the question seemed to be, Will the real Douglas Spencer and
Associates please stand up? Nothing more than the oral testimony of the mutual president of
both corporations was offered. The cancelled checks, as evidence of payment to respondent
for previous advertising, were in Potter's control, and available to the appellant, and their
introduction could have helped to establish the identity of the proper defendant. Those
cancelled checks were not produced and, as suggested by respondent, the presumption found
in NRS 52.070(5)
1
can be relied upon to sustain the judgment.
[Headnote 2]
We find there was substantial evidence introduced by the respondent to support the
judgment. The trial court as the trier of fact, had the right to consider the credibility of the
witnesses, and even though the respondent introduced no direct evidence to refute or discredit
the testimony of Potter, it was the prerogative of the trial judge to disbelieve testimony
concerning the intricate relationships between the two corporations with very similar names
and the same officers, directors and business location.
In the case of Polk v. Polk, 39 Cal.Rptr. 824 (1964), the court said: The trier of fact, as
the exclusive judge of the credit and weight to be given the testimony of a witness, may reject
such testimony even though uncontradicted or unimpeached when he does not act arbitrarily
but does so upon sound and relevant consideration, such as the inherent improbability of the
statements, the interest of the witness in the case, his motives, and the manner in which
he testifies."
____________________

1
NRS 52.070(5). That evidence willfully suppressed would be adverse if produced.
improbability of the statements, the interest of the witness in the case, his motives, and the
manner in which he testifies.
In the case of Hinchcliffe v. Pinson, 74 S.E.2d 497 (Ga. 1953), the court said: The fact
finding tribunal has a greater discretion in exercising its judgment as to the credit of a witness
who is a party to the cause, from the facts of his interest, than as to one whose interest is not
involved. (Citing cases.) Had the judge thing the case believed the defendant's testimony, he
must necessarily have rendered a finding for the defendant. But the credibility of the
defendant, and also that of the witness, Barton, who testified for her, were under the
circumstances of this case, matters within the province of the court, sitting as judge and jury,
to determine.
[Headnote 3]
It is the prerogative of the trier of facts to evaluate the credibility of witnesses and
determine the weight of their testimony, and it is not within the province of the appellate
court to instruct the trier of fact that certain witnesses or testimony must be believed.
In the case of Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954), this court said:
However, in such a case as this, the duty of the trier of facts is to assess the credibility of
witnesses and to determine what weight their testimony should have. It is not for this court to
instruct the trier of facts as to which witness, and in what portions of their testimony, are to
be believed. Berto v. Wilson, 74 Nev. 128, 324 P.2d 843 (1958).
[Headnote 4]
It cannot be said that the trier court arbitrarily disregarded the testimony of appellant's
witness, and this being so, judgment for the respondent was supported by the evidence.
Affirmed with costs.
____________
84 Nev. 283, 283 (1968) McClellan v. David
ELIZABETH McCLELLAN Appellant, v. SAM DAVID,
dba DAVID FOOD PRODUCTS, Respondent.
No. 5420
April 17, 1968 439 P.2d 673
Judge.
Action for personal injuries. On failure of defendant to answer complaint, default
judgment was rendered against him and he moved to set aside the default. The trial court
entered an order granting the motion and plaintiff appealed. The Supreme Court, Collins, J.,
held that where defendant did not deny, but simply said he did not recall telephone
conversations wherein, before entry of judgment, he discussed the lawsuit with secretary to
plaintiff's attorney and in one conversation was urged by her to file his answer, his neglect in
failing to file a timely answer was not excusable and it was error to set aside the default.
Reversed.
[Rehearing denied June 19, 1968]
Thompson, C. J., and Zenoff, J., dissented.
Wiener, Goldwater & Galatz and J. Charles Thompson, of Las Vegas, for Respondent.
1. Judgment.
Before a default judgment may be set aside under rule, party moving to set aside judgment must show to
the court that his neglect was excusable. NRCP 60(b)(1).
2. Judgment.
Where defendant did not deny, but simply said he did not recall telephone conversations wherein, before
entry of default judgment, he discussed the lawsuit with secretary to plaintiffs attorney and in one
conversation was urged by her to file his answer, his neglect in failing to file a timely answer was not
excusable and it was error to set aside the default. NRCP 60(b)(1).
3. Evidence.
Testimony of the witness that he does not remember whether a certain event took place does not
contradict positive testimony that such event or conversation took place.
OPINION
Appellant (plaintiff below) sued respondent (defendant below) for $53,000 damages for
personal injuries resulting from use of a cleaning product called "Sparkle," prepared, mixed
and sold by him in Clark County Nevada.
from use of a cleaning product called Sparkle, prepared, mixed and sold by him in Clark
County Nevada. Respondent defaulted in answering the complaint and judgment was
rendered against him by the trial court for $7,800 after hearing plaintiff's proof. Relief from
the judgment was granted to respondent by the lower court in setting aside his default and
allowing him to defend. We reverse that order and reinstate the judgment, for the reason that
no excusable neglect was shown as a matter of law.
The action was commenced May 14, 1965. Summons and complaint were served upon
respondent by leaving a copy at his home with his wife. (NRCP 4(d)(6)).
The complaint alleged that appellant had been injured by the use of the product in 1963.
Respondent, who had sold his business to Interstate Restaurant Supply Co. in 1964,
forwarded the complaint and summons to his purchaser. He did this rather than retaining
counsel or seeking advise upon the matter because he felt it was the purchasers obligation to
defend the action.
No pleadings having been filed by or on behalf of respondent, his default was entered June
25, 1965. The lower court received appellant's ex parte proof December 15, 1966, and entered
judgment in her favor for $7,800 and costs. No explanation appears in the record for the lapse
of 18 months between the entry of default and the prove-up of damages.
Respondent's first motion to set aside the default was made on March 28, 1967 on the
ground that effective service of process was not made resulting in the lack of jurisdiction of
the lower court to enter the judgment. David contended in an affidavit he had no knowledge
or notice of the proceedings until February, 1967. This motion was denied when service of
process on David's wife in May, 1965 was proved and finally admitted.
A second motion (with court approval) was made by respondent to set aside the default on
the ground that defendant's failure to file an answer was the result of his inadvertence,
surprise and excusable neglect. The motion was accompanied by a proposed answer which
alleged a general denial and several affirmative defenses on behalf of David but which did not
seek to interplead Interstate Restaurant Supply Company as the real party defendant. David's
affidavit accompanying the motion was supported by a letter from a Mr. Marvin Rubin, of
Fuld Bros. Inc. to Mr. Sam Horowitz of Interstate Restaurant Supply Company to whom
David had sent the summons and complaint, acknowledging their receipt, and forwarding
them on to the insurance carrier; and another letter from Fuld Bros. to Alexander and
Alexander of Baltimore, Maryland, asking handling of the case through Travelers
Insurance Company.
letter from Fuld Bros. to Alexander and Alexander of Baltimore, Maryland, asking handling
of the case through Travelers Insurance Company. This motion was granted and it is from
such order this appeal is taken.
A transcript of the hearing on the latter motion is a part of the record in this case. That
transcript reveals Sam David was called as an adverse witness by appellant and questioned
upon the subject of telephone calls made by him to the office of appellant's counsel after
commencement of the action in 1965. He testified as follows:
Q. Now, as I understand your testimony then, you don't recall whether you called the
offices of Mendoza, Foley and Garner or not, is that correct?
A. I only recall the one instance that I mentioned.
Q. Is it possible you did call the office after you were served with this complaint?
A. It is possible, but I don't recall it. I don't know what you're referring to, sir.
In opposition to David's testimony, appellant called as her witness Henrietta Troxel, a
secretary in the office of Foley, Garner & Shoemaker, attorneys at law, and counsel for
appellant. On the same subject matter of telephone conversations with David about this
litigation, she testified, after refreshing her memory from notes made by her at the time of the
occurrences, as follows:
Q. Now, since May 18th, 1965, have you had any telephone calls or any conversations
with any persons in regard to this particular complaint?
A. I have had at least three telephone conversations with Mr. David.
Q. With whom, ma'am?
A. Mr. David; Sam David.
Q. Would you tell us when these conversations occurred, if you can recollect?
A. The first one was either the next day or the day following after service had beenthe
complaint had been served on him, he called, and wanted to speak to Mr. Garner and I
informed him that Mr. Garner would probably not speak to him.
Q. Now, just a minute, Mrs. Troxel. Would you tell the court how you knew or how you
were able to determine that this was Mr. David rather than some other person?
A. He told me This is Sam David from David Food Products; you have a complaint
against me; who is Elizabeth McClellan? Why is she suing me? I don't know her.'
Q. What occurred then, in this conversation? A. Mr. David wanted to know why Mrs.
A. Mr. David wanted to know why Mrs. McClellan was suing him. I told him to look at
the complaint. He was reading from the complaint and denying it. I told him he would have to
get his own attorney to call Mr. Garner; that Mr. Garner would probably not speak to him.
Q. Did you ever subsequently have another conversation with him where this person at
least identified himself as Mr. Sam David?
A. He called again and insisted on speaking to Mr. Garner.
Q. When was this, Mrs. Troxel?
A. Oh, this was just a few days after that. I don't know, but I believe I have notations in the
file, I usually date my notes.
Q. Did you subsequently have another conversation at a later date with Mr. David?
A. Mr. David called me up the early part of this year [1967] and told me that he had an
escrow with some title company and he then discovered that there was a judgment against
him. No, previous to that, I called Mr. David up and informed him that default would be
taken against him if he did not answer.
On the same subject, after first examining her note in the file, she testified as follows:
By the Witness: This is a note where I called Mr. Sam David at 735-9041. I believe this is
at his place of business. * * * It's dated 6/9/65. It's in my handwriting and I saidI told him
to get his answer
By the Court: What was the date?
By Mr. Shoemaker: 6/9/65, I believe, isn't that correct?
By Witness: Yes.
By Mr. Shoemaker: Q. What date was that, Mrs. Troxel?
A. The 9th day of June.
Q. 1965?
A. 1965.
Q. All right, what occurred and what is now your recollection after having read this note?
A. Well, Mr. David had still not answered and so I called him to remind him that there was
the twenty-day period of time in which he had to get his answer. He told me that he had
called the manufacturer, that he wanted the manufacturer to answer, that he was not
responsible. So I told him, Well, either call your attorney, your insurance carrier or someone
and get your answer in.' He told me, I called him once and I'm going to get on this
immediately. I'm going to call him just as soon as I talk to you.' Q.
Q. Now, Mrs. Troxel, you had an additional telephone call sometime in early February,
1967 from Mr. Sam David, is that correct?
A. Yes.
Q. And you have also heard him testify up here?
A. Yes.
Q. Would you relate to the Court whether or not you could or would reasonably be able to
recognize his voice.
A. As a matter of fact, I recognized his voice when he called me in February. I remember
voices over the telephone and he told me that he had an escrow and at that time he discovered
the judgment against him. He said, What is this judgment about? I don't know a thing about
it.' And so I said, Mr. David, I have spoken to you at least three times about this matter.' He
said, It's all new to me.' I said Mr. David, I have notes in the file to show that I spoke to
you.' So then he wanted to speak to Mr. Garner again and at that time I told him Mr.
Shoemaker was now handling the matter and I don't believe there is anything to talk about.
Appellant contends the lower court abused its discretion in setting aside the default in that
respondent failed to show excusable neglect. She argues that the showing fails in the
following respects: (1) inaction for 18 months; (2) ignoring of the command in the summons,
and warnings given through appellant's counsel to answer timely; (3) unilateral, subjective
reliance without just or probable cause from appellant or from anyone else that a third party
would defend the action; (4) failure to interplead in his tendered answer the third party whom
respondent felt was obligated to defend the action on his behalf.
Respondent, on the other hand, convinced the lower court of his excusable neglect by
urging: (1) reasonable reliance upon a third party to defend the case; (2) apparent belief by the
lower court of David's testimony over that of Mrs. Troxel as to the fact and substance of
telephone conversations between them about this litigation; (3) affidavit of his counsel that
upon being retained by David after default judgment was entered they worked diligently to
determine the status of the litigation, and took action immediately to set aside the default and
that respondent in their opinion had a meritorious defense to the cause of action.
[Headnote 1]
From the record there was substantial evidence to show neglect on the part of David.
However, before a default judgment may be set aside under NRCP 60(b)(1), the party so
moving must show to the court that his neglect was excusable.
Intermountain Lumber v. Glens Falls Ins., 83 Nev. 126, 424 P.2d 884 (1967); Nevada
Industrial Guaranty Co. v. Sturgeon, 80 Nev. 254, 391 P.2d 862 (1964); Anderson v.
Taylorcraft, Inc., 197 F.Supp. 872 (W.D.Pa. 1961). We hold, as a matter of law, that
respondent did not make such a showing.
Respondent David stated that he felt that Interstate Restaurant Supply Co. was obligated to
defend the action and that he relied heavily upon that subjective feeling. He did not, however,
produce anything to demonstrate his reliance was based upon anything but his own state of
mind. The letters from Fuld Bros. certainly indicate nothing more than an effort to bring the
claim to the attention of the Travelers Insurance Company with the hope it would settle the
case or defend it. Travelers Insurance Company did neither, nor is there the slightest
indication it ever intended to.
If respondent's reliance was predicated upon the contract of sale he had with Interstate,
whereby they agreed to hold him harmless from this type of liability, he failed to produce it.
The conclusive factor in this regard is his failure to interplead Interstate in the answer he did
file with the court. His answer contains only general denials and affirmative defenses with no
mention of any kind of liability of Interstate.
[Headnotes 2, 3]
The factor shown by the record which should have prompted the trial judge to deny the
motion was the telephone conversations between the respondent and Mrs. Troxel. Mrs.
Troxel, as related above, distinctly recalled three telephone conversations with David about
this litigation. Two of the conversations occurred before entry of default; one on June 9,
1965, when he called her employers office, and one later conversation when she called him to
urge him to file his answer.
1
Her recollection of the conversations were refreshed from notes
made by her at the time. Her testimony was not impeached in the slightest. David did not
deny these conversations. He simply said he did not recall them. Accordingly, there is not
fundamental conflict in this testimony requiring us to adhere to the trial court's finding in
favor of respondent on this issue. State v. V.& T. R.R. Co., 23 Nev. 283, 292, 46 P. 723
(1896); Washington National Ins. Co. v. Benz, Inc., 382 P.2d 678, 681 (Ariz. 1963).
Testimony of a witness that he does not remember whether a certain event took place does
not contradict positive testimony that such event or conversation took place. Bender v.
Roundup Mining Co.
____________________

1
The third followed the entry of judgment when David called to inquire why there was a lien upon his
property. This call was admitted by him.
v. Roundup Mining Co. 356 P.2d 469, 471 (Mont. 1960); Tennent v. Leary, 304 P.2d 384,
387 (Ariz. 1956). See also: Comment NoteComparative value of positive and negative
testimony, 98 A.L.R. 161. Therefore, we hold that there was no credible evidence before the
lower court to show that the neglect of respondent David was excusable under the
circumstances.
Very recently we have had occasion to consider this same problem. In Lentz v. Boles, 84
Nev. 197, 438 P.2d 254 (1968), all the Nevada cases on setting aside defaults were reviewed,
those reasons supporting or defeating the exercise of discretion were discussed and a ruling
made that we favored adjudication of cases upon their merits. But we also urged judicious,
explicit and carefully reasoned exercise of that discretionary power when we said, We wish
not to be understood, however, that this judicial tendency to grant relief from a default
judgment implies that the trial court should always grant relief from a default judgment.
Litigants and their counsel may not properly be allowed to disregard process or procedural
rules with impunity. Lack of good faith or diligence, or lack of merit in the proposed defense,
may very well warrant a denial of the motion for relief from the judgment.
We have found it exceedingly difficult to set down generalized rules for guidance of the
lower courts in proper exercise of their discretion in setting aside default judgment. Fact
patterns urged for the exercise of that discretion are so varied that the emergence of a clear
definition of excusable neglect can only come on a case by case basis. Even then our own
pronouncements may be said to stultify rather than clarify the problem.
We cannot forget, however, that for the sake of continuous, regular and predictable flow of
legal business we must give the rules of procedure, including the right to take a default after
proper service of process, reasonable, flexible interpretation. But lines must be drawn
somewhere and litigation brought to an end by final judgment, even though obtained by
default.
Accordingly, we reverse the order of the lower court setting aside the default of respondent
and reinstate the judgment of $7,800 plus costs dated December 23, 1966.
Batjer and Mowbray, JJ., concur.
Zenoff, J., dissenting:
From the very beginning of Nevada's judicial time this court directed that the case would
have to be extreme before the court would reverse an order setting aside a default. Howe v.
Coldren, 4 Nev. 171, 175
Coldren, 4 Nev. 171, 175-176 (1868). The recapitulation in Hotel Last Frontier Corp. v.
Frontier Properties, Inc., 79 Nev. 150, 380 P.2d 293 (1963), confirms steady adherence to that
principle. Whenever the fact pattern included nonattorney neglect, a reasonable explanation
by the layman-litigant of why he did not respond to a complaint, and prompt action plus a
meritorious defense, the exercise of discretion by the trial court to allow the litigant his day in
court was upheld. If, the court said, there is a refusal to set aside a default, a ruinous
judgment may be sustained against a party who, upon hearing might have interposed a
perfectly good defense. By sustaining the default, he would forever be debarred the right of a
hearing. If, then, a nisi prius court refuses to set aside a default when a party shows with
reasonable certainty that he has a good defense, and he has only been guilty of carelessness
and inattention to his business, but no willful or fraudulent delay, it would be highly proper
even for an appellate court to come to his relief if the lower court refused it. But when the
default has been set aside the case is far different. In such case, if the plaintiff has a good
cause of action and clear proof of his demand he could generally try his case in the court
below and obtain another judgment in less time, and with far less expense, than he could
bring his case to this court. In fine, if the plaintiff has a good case there is no necessity of
appealing. If he has a bad one, this court ought not to be very anxious to help him keep an
advantage he has obtained, not through the justice or strength of his cause, but by the
accidental blunder of his opponent.
It appears to us it would have to be an extreme case, when this court would reverse an
order setting aside a default. Howe, supra.
The record shows understandable neglect on the part of David. Having sold his business,
any lawsuits were the concern of the new owners so far as he understood. When the
complaint was served on him David notified the owners and they, in turn, notified the
insurance carrier sending copy of the correspondence to David. Then he heard nothing more
about the matter for over a year. He was not notified of the taking of the default nor the
proceedings to prove the judgment. He was not served with notice that the judgment was
taken. Only when an escrow of the sale of his property was opened 14 months later did he
become aware of the consequences of his misplaced reliance upon the purchasers of his
business. Before that, he could justifiably believe that proper care had been given to the
lawsuit.
The foregoing capsule of the facts is typical of a lay person who has no understanding of
the law's procedural requirements. We hold lawyers to a stricter degree of responsibility
because it is their business to know and respect legal procedures, but it is not to be expected
of a person whose experience is limited to the sale of food products.
I prefer that the discretion of the trial court once exercised under these circumstances in
favor of setting aside a default not be disturbed.
Thompson, C. J., concurs in the dissent.
____________
84 Nev. 291, 291 (1968) City of Reno v. McGowan
CITY OF RENO, NEVADA; CITY OF LAS VEGAS, NEVADA; CITY OF HENDERSON,
NEVADA; CITY OF NORTH LAS VEGAS, NEVADA; CITY OF GABBS, NEVADA;
CITY OF WINNEMUCCA, NEVADA; CITY OF SPARKS, NEVADA; CITY OF ELKO,
NEVADA, Municipal Corporations, Petitioners, v. WILSON McGOWAN, State Controller,
Respondent.
Nos. 5474-5479, 5482, 5517
April 25, 1968 439 P.2d 985
Proceedings by municipalities to compel payment and adjustments of certain monies in
cigarette tax fund. The Supreme Court, Zenoff, J., held that where legislature changed law
and eliminated state from any participation in cigarette tax fund as of July 1, 1967, and the
amendment directed that the money in the fund is hereby appropriated as follows and the
method of participation of the counties and cities followed, the money in fund on July 1, 1967
should have been disbursed to the counties and cities and should not have been paid on the
old basis, notwithstanding that the money had been collected prior to July 1, 1967.
Petition granted.
Clinton E. Wooster, Reno City Attorney; Sidney R. Whitmore, Las Vegas City Attorney;
Monte J. Morris, Henderson City Attorney; John P. Fadgen, North Las Vegas City Attorney;
Roger Newton, Gabbs City Attorney; John M. Doyle, Winnemucca City Attorney; James R.
Winnemucca City Attorney; James R. Brooke, Sparks City Attorney; and Jack E. Hull, Elko
City Attorney, for Petitioners.
Harvey Dickerson, Attorney General, and Peter I. Breen, Deputy Attorney General, for
Respondent.
1. States.
An appropriation is legislative sanction for disbursement of public revenue.
2. States.
The legislature possesses entire control and management of financial affairs of state.
3. Licenses.
Where legislature changed law and eliminated state from any participation in cigarette tax fund as of July
1, 1967 and the amendment directed that the money in the fund is hereby appropriated as follows and the
method of participation of the counties and cities followed, the money in fund on July 1, 1967 should have
been disbursed to the counties and cities and should not have been paid on the old basis, notwithstanding
that the money had been collected prior to July 1, 1967. NRS 370.260.
OPINION
Petitioners are municipal corporations within Nevada which seek to compel by mandamus
payment and adjustments of certain monies in the Cigarette Tax Fund in accordance with
NRS 370.260.
1
Before the legislative session of 1967 the formula for disbursements from
the fund included apportionment to the State General Fund, but the legislature changed
the law and eliminated the state from any participation as of July 1, 1967.
____________________

1
NRS 370.260 (as amended):
1. All taxes and license fees imposed by this chapter, less any refunds granted as provided by law, shall be
paid to the tax commission in the form of remittances payable to the Nevada tax commission.
2. The tax commission shall:
(a) Transmit such payments to the state treasurer to be deposited in the state treasury to the credit of the
cigarette tax fund.
(b) Report to the state controller quarterly the amount of collections.
3. The money in the cigarette tax fund is hereby appropriated to each of the counties in proportion to their
respective populations as determined by the last preceding national census of the Bureau of the Census of the
United States Department of Commerce and apportioned as follows:
(a) If there are no incorporated cities within the county, the entire amount shall go into the county treasury.
(b) If there is one incorporated city within the county the money
Before the legislative session of 1967 the formula for disbursements from the fund
included apportionment to the State General Fund, but the legislature changed the law and
eliminated the state from any participation as of July 1, 1967.
On August 16, 1967, the State Controller distributed the cigarette tax funds in accordance
with the new act. A month later being of the opinion that he had acted erroneously he notified
the cities and counties that the monies on hand as of July 1, 1967 should have been paid on
the old basis since they were collected prior to July 1, 1967, therefore, he would withhold and
adjust from future periodic payments until the accounts were adjusted.
2

[Headnotes 1-3]
The statute as amended directed, that the money in the fund (cigarette tax) is hereby
appropriated as follows * * *, (emphasis supplied) and the method of participation of the
counties and cities follows. An appropriation is the legislative sanction for disbursement of
public revenue. State ex rel. Parker v. Youngquist, 11 N.W.2d 84, 86 (S.D. 1943); Menz v.
Coyle, 117 N.W.2d 290, 302 (N.D. 1962). Recognizing that the legislature possesses the
entire control and management of the financial affairs of the state, Esser v. Spaulding, 17
Nev. 289, 302, 30 P. 896, 898 (1883), whatever rights that came into being from the
amendment were derived from whatever the legislature intended. In our opinion the statute is
clear, unambiguous and not subject to construction, and it is our duty to apply it. Cf. Arizona
Teachers' Retirement System v. Frohmiller, 140 P.2d 614 (Ariz. 1943). The broad and
unambiguous words of the statute (Erie County v. Hoch, 280 N.Y.S.2d 584 (N.Y. 1967)) tell
us that the money in the Cigarette Tax Fund on July 1, 1967 was to be disbursed pursuant to
the law in effect on July 1st, and nothing appears in the enactment to cause us to think
otherwise. If the legislature intended a different meaning it would have written the statute
differently.
____________________
shall be apportioned between the city and the county on the basis of the population of such city and the
population of such county excluding the population of such city, as determined by the last preceding national
census of the Bureau of the Census of the United States Department of Commerce.
(c) If there are two or more incorporated cities within the county, the entire amount shall be apportioned
among such cities in proportion to their respective populations as determined by the last preceding national
census of the Bureau of the Census of the United States Department of Commerce.

2
Because the amounts are capable of computation we do not set them forth specifically.
legislature intended a different meaning it would have written the statute differently.
Petition granted.
____________
84 Nev. 294, 294 (1968) Harris v. Harris
JOAN F. HARRIS, Appellant, v. MAX
HARRIS, Respondent.
No. 5320
April 26, 1968 439 P.2d 673
Appeal from an order of the Eighth Judicial District Court, Clark County, vesting custody
of a minor child; George E. Marshall, Judge.
The trial court entered judgment vesting custody of child in the father and the mother
appealed. The Supreme Court held that since record would be read to affirm express finding
of court that father was fit to have custody of seven-year-old daughter and that the best
interests of child would be served by placing her in his care, trial court's exercise of discretion
was affirmed.
Affirmed.
Harry E. Claiborne and Patrick Finnegan, of Las Vegas, for Appellant.
Galane and Wines, of Las Vegas, for Respondent.
Parent and Child.
Since record would be read to affirm express finding of court that father was fit to have custody of
seven-year-old daughter and that the best interests of child would be served by placing her in his care, trial
court's exercise of discretion was affirmed.
OPINION
Per Curiam:
The mother of a seven-year-old daughter seeks to set aside an order vesting custody of the
daughter in the child's father. We consider it unnecessary and unwise to repeat for posterity
the counteraccusations of the parents respecting the fitness of each to assume the
responsibility of custody.
84 Nev. 294, 295 (1968) Harris v. Harris
each to assume the responsibility of custody. The trial court found the father fit. It made no
finding one way or the other as to the fitness of the mother. We could imply that she was not
fit to assume custody. Cf. Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960). However,
we do not deem this to be either the necessary or proper course. Since the record may be read
to affirm the express finding that the father was fit to have custody, and that the best interests
of the child would be served by placing her in his care, we will affirm the court's exercise of
discretion on this basis.
____________
84 Nev. 295, 295 (1968) Langley v. State
JOHN WILLIAM LANGLEY, Appellant, v. THE
No. 5375
April 29, 1968 439 P.2d 986
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F. Sexton,
Judge.
The trial court found defendant guilty of attempted first-degree murder and he appealed.
The Supreme Court, Thompson, C. J., held that where defendant failed to demonstrate that
miscarriage of justice or prejudice resulted from failure of indictment to alleged
premeditation, omission, if error, was harmless. The Court further held that indictment which
did not use precise word premeditation but did allege that defendant did wilfully, unlawfully,
feloniously and with malice aforethought, attempt to kill and murder was sufficient to charge
offense of attempted first-degree murder.
Judgment affirmed.
Richard H. Bryan, Public Defender, and Robert N. Peccole, Deputy Public Defender,
Clark County, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Earl
P. Gripentrog, Deputy District Attorney, Clark County, for Respondent.
1. Homicide.
Where defendant failed to demonstrate that miscarriage of justice or prejudice to him resulted from
failure of indictment to allege premeditation, omission, if error, was harmless. NRS 169.110, 173.320.
2. Homicide.
Indictment which did not use precise word premeditation but did allege that defendant did wilfully,
unlawfully, feloniously and with malice aforethought, attempt to kill and murder was sufficient to charge
offense of attempted first-degree murder.
3. Mental Health.
Where, at time of request for psychiatric examination, nothing was presented to trial court to raise doubt
as to defendant's sanity or competency to stand trial, trial court's denial of examination was within
permissible limits of its discretion. NRS 178.405.
4. Criminal Law.
Photographs of scene of crime, weapon, and victim which were accurate portrayals were not inadmissible
simply because they were damaging to the defense.
OPINION
[Headnote 1]
We are requested to annul a conviction of attempted first-degree murder for the reason that
the indictment did not allege premeditation. The sufficiency of the evidence to support the
conviction is not challenged. The appellant has not demonstrated, to any degree, that the
omission of the word premeditation resulted in a miscarriage of justice or actually
prejudiced him in respect to a substantial right. NRS 169.110; NRS 173.320.
1
Accordingly,
the omission, if error at all, is harmless, and for this reason we could properly decline to
further discuss the point. However, since this claim of error rests upon language contained in
a recent opinion of ours (Graves v. Young, 82 Nev. 433, 420 P.2d 618 (1966)), we think it
best to decide the matter.
[Headnote 2]
We wrote in Graves, supra: Also there is a distinction in the factual allegations which
must be made and proved in attempted murder and assault with intent to kill.
____________________

1
NRS 169.110 provides: No judgment shall be set aside, or new trial granted, in any case on the ground of
misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter or
pleading or procedure, unless in the opinion of the court to which application is made, after an examination of
the entire case, it shall appear that the error complained of has resulted in a miscarriage of justice, or has actually
prejudiced the defendant, in respect to a substantial right.
NRS 173.320 reads: No indictment or information shall be deemed insufficient, nor shall the trial, judgment
or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not
tend to the prejudice of a substantial right of the defendant upon its merits.
the factual allegations which must be made and proved in attempted murder and assault with
intent to kill. In the former, malice and premeditation must be alleged and proved. In the
latter, there is no such requirement of allegation or proof to convict. Id. at 437. That
language was used to differentiate between two crimes. It was not intended to delineate the
sole method of charging attempted murder. Words conveying the same meaning are
sufficient. Although the indictment in this case did not use the precise word premeditation,
it used other words carrying the same connotation. It alleged that the defendant did willfully,
unlawfully, feloniously and with malice aforethought, attempt to kill and murder * * *. The
dictionary states that wilful means intentional, and deliberate means intentional and
premeditated. Webster's New International Dictionary, 2d Ed. Indeed, common sense
demands that the words wilful and premeditate are not so remote in essential meaning
that the use of one without the other would leave a defendant unapprised of the charge against
him, or render him unable to prepare a defense thereto. The present indictment satisfies the
intendment of the Graves decision.
[Headnote 3]
Other errors are claimed to have occurred before and during trial. The appellant seeks to
fault the trial court for declining his request for a psychiatric examination before taking his
plea to the indictment. The record shows only a request for such examination. Nothing was
presented to the court at that time to raise doubt as to sanity or competency to stand trial.
NRS 178.405. In these circumstances the court acted within the permissible limits of its
discretion. Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966); see also Peoples v. State, 83
Nev. 115, 423 P.2d 883 (1967); cf. Krause v. Fogliani, 82 Nev. 459, 421 P.2d 949 (1966).
[Headnote 4]
During trial photographs of the scene of the crime, the weapon, and the victim were
received into evidence over objection that they would inflame and provoke passion in the
minds and hearts of the jurors. The photos apparently were accurate portrayals. Since the
purpose of trial is to ascertain and disclose the truth we should not declare inadmissible
evidence which is relevant to that purpose and the issues simply because it damages the
defense. The photographs were properly admitted. Guyette v. State, 84 Nev. 160, 438 P.2d
244 (1968); Morford v. State, 80 Nev. 438, 395 P.2d 861 (1964); State v. Gambetta, 66 Nev.
317, 208 P.2d 1059 (1949).
We have considered the assigned errors regarding jury instructions and find them to be
without substance.
Affirmed.
Collins, Zenoff, Batjer, JJ., and Mann, D. J., concur.
____________
84 Nev. 298, 298 (1968) Roberts Roof & Floor v. Ford Wholesale
ROBERTS ROOF & FLOOR, INC., a Nevada Corporation, Appellant, v. FORD
WHOLESALE CO., INC., a California Corporation, Respondent.
No. 5439
April 30, 1968 440 P.2d 124
Action by seller against customer to recover freight charges. The trial court rendered
judgment for plaintiff, and defendant appealed. The Supreme Court held that evidence did not
support findings that customer had ordered shipments of less than carload size, that wholesale
place quoted by seller did not include freight charges, and that it was understood that
customer would pay freight charges on shipments of less than carload size.
Reversed and remanded for new trial.
Hawkins & Walker, of Las Vegas for Appellant.
Jack G. Perry, of Las Vegas for Respondent.
Trial court's findings will be sustained if supported by substantial evidence but will be reversed if they are
not.
2. Sales.
Evidence in seller's action against customer to recover freight charges did not support findings that
customer had ordered shipments of less than carload size, that wholesale price quoted by seller did not
include freight charges, and that it was understood that customer would pay freight charges on shipments of
less than carload size.
3. Judgment.
Summary rendition of judgment on judge's statement to counsel in chambers that case should be settled,
whereupon he rendered judgment for plaintiff without hearing sworn testimony or considering any
evidence, although allowing defendant to introduce exhibits after pronouncement of
judgment, was disapproved.
considering any evidence, although allowing defendant to introduce exhibits after pronouncement of
judgment, was disapproved.
OPINION
Per Curiam:
This is an action by Ford Wholesale Co., Inc., a wholesale supplier of roofing materials,
against a customer, Roberts Roof & Floor, Inc., to recover freight charges on a shipment to
the customer which were paid by supplier Ford. Pursuant to their past dealings,
plaintiff/respondent complained that the shipping costs should have been paid by the
defendant/appellant. The trial court entered judgment for the plaintiff and made the following
findings of fact: (1) defendant ordered three shipments of less-than carload size from the
plaintiff; (2) the wholesale price quoted by plaintiff did not include freight charges; (3) it was
understood between the parties that the defendant would pay freight charges on shipments of
less-than carload size; (4) defendant did not pay the carrier and subsequently the plaintiff was
forced to do so.
Appellant's specification of error is that these findings and the judgment based thereon are
not supported by the evidence before the lower court. We agree and reverse the judgment.
There was no oral testimony before the trial court.
1
The evidence consisted entirely of the
following exhibits: (1) plaintiff's check to the freight carrier; (2) defendant's customer
invoices for three shipments from plaintiff in the aggregate of $2,215.23, two of which had
the freight marked pre-paid; (3) a voucher showing a check from defendant to plaintiff for
an amount in excess of $3,400; (4) a 1961 price list from the plaintiff supplier stating that
freight charges will be paid by the customer on less-than carload size shipments.
[Headnotes 1, 2]
Just as the findings of the trial court will be sustained on the appellate level if they are
supported by substantial evidence, Briggs v. Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967),
they will be reversed if they are not. Peardon v. Peardon, 65 Nev.
____________________

1
Pursuant to NRCP 75(c) as part of the record on appeal, appellant submitted a narrative statement of the
events taking place before the court at trial. That statement reads as follows: When the case was called, the
Honorable John E. (sic) Sexton called counsel to his chambers. He then stated that the case should be settled.
Without hearing sworn testimony or considering any evidence, he entered judgment for the plaintiff. After the
pronouncement of judgment, Defendant requested introduction of exhibits, which was granted.
717, 201 P.2d 309 (1948). We feel that this matter requires the application of the latter rule
rather than the former. There was no evidence before the trial court to support the first three
findings of fact, wherein existed any promise of pre-existing duty on the part of the defendant
to pay plaintiff. There was no showing that the shipments were of less-than carload size nor
that the 1961 price list introduced into evidence was still in effect.
[Headnote 3]
Therefore we reverse the judgment of the district court and order a new trial be granted.
NRCP 72(a). We also disapprove this summary rendering of judgments.
____________
84 Nev. 300, 300 (1968) Nev. Equities v. Willard Pease Drilling
NEVADA EQUITIES, INC., a Nevada Corporation; and THE HOME INDEMNITY
COMPANY, a Corporation, Appellants, v. WILLARD PEASE DRILLING COMPANY, a
Colorado Corporation, Qualified to do Business in the State of Nevada, Respondent.
No. 5442
April 30, 1968 440 P.2d 122
Appeal from judgment of the Eighth Judicial District Court Clark County; Thomas J.
O'Donnell, Judge.
Action by drilling company for balance allegedly due on well drilling contract. The lower
court entered judgment for drilling company, and defendants appealed. The Supreme Court,
Thompson, C. J., held that drilling company which held contractors' license for oil and gas
well drilling and was licensed as water well driller was not barred from bringing suit to
recover balance allegedly due on contract to drill well to explore for hot mineral water of
artesian nature supply because it did not hold specialty license from State Contractors' Board.
Affirmed.
Wiener, Goldwater and Galatz and J. Charles Thompson, of Las Vegas, for Appellants.
Morse and Graves, of Las Vegas, and Dufford, Ruland, Uhrlaub and Williams, of Grand
Junction, Colorado, for Respondent.
1. Licenses.
Drilling company which held contractors' license for oil and gas well drilling and was licensed as water
well driller was not barred from bringing suit to recover balance allegedly due on contract to drill well to
explore for hot mineral water of artesian nature simply because it did not hold specialty license from State
Contractors' Board. NRS 534.010 et seq., 534.140, subds. 1, 7, 534.190, 624.320.
2. Licenses.
When licensing statute provides for sanctions other than forfeiture of right to sue on contract, unlicensed
person is not precluded from maintaining action to recover on contract.
3. Forfeitures.
Court will not condone forfeiture in absence of any ascertainable public policy requiring it to do so.
OPINION
This appeal by Nevada Equities and its indemnitor, The Home Indemnity Company,
1
is
from a judgment for $32,565 in favor of Willard Pease Drilling Co., which sum was found to
be the balance due on a well drilling contract. The main issue is whether the drilling company
is precluded from maintaining suit since, according to the appellants, it did not hold necessary
licenses.
The object of the well drilling contract was to explore for hot mineral water of an artesian
nature. The drilling company was to deepen a 2,000-foot hole at the well site to a depth of
6,500 feet. Drilling operations were commenced and continued to a depth of 6,993 feet, when
a twist-off occurred halting further drilling. The finding of water was not a condition of
payment. Indeed, apart from the licensing issue, it is conceded that substantial evidence
otherwise supports the judgment.
1. Our statutory law governing contractors generally, NRS Chap. 624, provides that one
acting in the capacity of a contractor may not maintain an action to recover compensation in
the courts of Nevada without alleging and proving that he was a duly licensed contractor as
required by this chapter at all times during the performance of the contract. NRS 624.320
(italics supplied). The State Contractors' Board is designated as the licensing authority.
________________________

1
Home Indemnity is a party since it gave bond to discharge a mechanic's lien filed by the drilling company
against the property of Nevada Equities.
[Headnote 1]
Willard Pease Drilling Co. held a contractors' license issued by that Board, classification
A6, for oil and gas well drilling. In addition, it was licensed as a water well driller under NRS
Chap. 534.
2
However, it did not secure the specialty contractors' license described in the
Rules and Regulations promulgated by the State Contractors' Board, classification C23a,
which NRS 534.140(7) seems to require.
3
Thus, the narrow question presented is whether
Willard Pease Drilling Co. is barred from bringing suit by reason of NRS 624.320, simply
because, although licensed as a water well driller, it did not hold a specialty license
(classification C23a) from the State Contractors' Board. We agree with the district court that,
in these circumstances, the drilling company is not barred.
[Headnote 2]
Initially, we note that the bar to the maintenance of an action for compensation (NRS
624.320) precludes contractors who are not licensed under that chapter. The claimant was
licensed under that chapter. A comparable provision does not appear in Chapter 534 relating
to water well drillers. The penalty therein provided is fine, imprisonment, or both. NRS
534.190. When the statute provides for sanctions other than forfeiture of the right to sue on
the contract, an unlicensed person is not precluded from maintaining an action to recover on
the contract. Douglas Lumber Co. v. Chicago, 43 N.E.2d 535 (Ill. 1942); Moglen v. Gasper,
158 N.Y.S.2d 171 (1956); Lusardo v. Harper, 116 N.Y.S.2d 734 (1950). Cf. Magill v. Lewis,
74 Nev. 381, 333 P.2d 717 (1958), where an unlicensed contractor was allowed recovery on a
theory of fraud and unjust enrichment, but not on the contract.
________________________

2
NRS 534.146(1) provides: Every well driller, before engaging in the physical drilling of a well in the State
of Nevada for development of water, shall annually make application to the state engineer for a license to drill.

3
NRS 534.140(7) reads: Before engaging in the physical drilling of a well in this state for the development
of water, every well driller * * * shall obtain a license as a well driller from the state contractors' board.
Classification C23a of the Rules of the Board reads: A well drilling contractor is a specialty contractor
whose principal contracting business is the execution of contracts requiring some practical elementary
knowledge of geology, hydrology, the occurrence of water in the ground, water levels in wells, the prevention of
surface and subsurface contamination and pollution of the ground-water supply; and the art, ability, experience,
knowledge, science, and skill to intelligently bore, drill, excavate, case, cement, clean and repair water-wells; or
to do any, or any combination of any, or all such boring, drilling, excavating, casing, cementing, cleaning and
repairing with hand or powered tools or rigs.
[Headnote 3]
2. Next, the claimant substantially complied with the licensing scheme under both
chapters. It is not suggested that Willard Pease Drilling Co. was wanting in experience,
financial responsibility, or indeed, in any particular detrimental to the safety and protection of
the public. It had passed the scrutiny of the Contractors' Board in these respects and was
issued a license. We shall not condone a forfeiture in the absence of any ascertainable public
policy requiring us to do so. Latipac, Inc. v. Superior Court, 411 P.2d 564 (Cal. 1966).
3. Finally, we mention that the record in this case contains nothing to indicate that the
techniques of drilling for water differ substantially from those employed in drilling for oil and
gas. No contention is made that because the drilling company was licensed to drill for oil and
gas the techniques utilized were incompetent to drill for water. The lower court found that the
drilling company had performed in acceptable fashion, and that finding is not challenged.
We deem other assigned errors to be equally without merit. Affirmed.
____________
84 Nev. 303, 303 (1968) First National Bank v. Dean Witter & Co.
FIRST NATIONAL BANK OF NEVADA and NEVADA BANK OF COMMERCE,
Appellants, v. DEAN WITTER & CO., Respondent.
No. 5433
May 1, 1968 440 P.2d 391
Bowen, Judge.
Action by brokerage firm to recover damages from drawee bank for honoring forged
checks. The drawee bank joined paying bank as third-party defendant. The lower court
granted brokerage firm summary judgment and both banks appealed. The Supreme Court,
Mowbray, J., held that where officers of brokerage firm executed checks on behalf of firm
and intended that payees, who were not fictitious persons but were actual customers of firm,
should receive the payments, such checks were order and not bearer instruments, and drawee
bank which honored such checks, falsely indorsed by firm's employee and cashed by him at
bank other than drawee bank upon his endorsement added below that of forged payee, was
liable to brokerage firm, under Negotiable Instruments Law.
endorsement added below that of forged payee, was liable to brokerage firm, under
Negotiable Instruments Law.
Affirmed.
Gray, Horton and Hill and Goldwater, Taber, Hill and Mortimer, all of Reno, for
Appellants.
Vargas, Bartlett & Dixon and Robert W. Marshall, of Reno, for Respondent.
1. Bills and Notes.
It is only when maker of check knows that payee is fictitious or when maker intends that payee have no
interest in check, that instrument is considered made to fictitious payee, under Negotiable Instruments Law.
NRS 92.016.
2. Banks and Banking.
Where officers of brokerage firm executed checks on behalf of firm and intended that payees, who were
not fictitious persons but were actual customers of firm, should receive the payments, such checks were
order and not bearer instruments, and drawee bank which honored such checks, falsely indorsed by firm's
employee and cashed by him at bank other than drawee bank upon his endorsement added below that of
forged payee, was liable to brokerage firm, under Negotiable Instruments Law. NRS 92.016.
3. Principal and Agent.
A principal will not be charged with knowledge of a fraudulent agent, where knowledge is adverse to the
principal's interest and naturally would not be communicated to it.
It is the absolute duty of a bank honoring a check to pay only to that payee and no amount of care to
avoid error will protect it from liability if it pays to the wrong person, under Negotiable Instruments Law.
NRS 92.030.
When a check is presented by a third person with the alleged indorsement of the payee, the paying bank
must ascertain at its peril whether indorsement is forged, and genuineness of last indorsement on check
does not relieve such bank from duty of looking to genuineness of preceding indorsements, under
Negotiable Instruments Law. NRS 92.030.
As regards claim against drawee bank for honoring forged check, existence of signature of brokerage
firm's account executive below forged signature of payee, a customer of firm, was not such suspicious
circumstance as to put firm on inquiry or give rise to duty of drawee bank to examine indorsement on
canceled check, under Negotiable Instruments Law. NRS 92.030.
As regards claim against drawee bank for honoring forged check, where no suspicious circumstances
existed putting brokerage firm on inquiry as to whether signatures of payee customers on issued checks
were forged, fact that brokerage firm had signatures of customers on file did not give rise to duty
to drawee bank to make such review, nor did failure to do so constitute negligence,
under Negotiable Instruments Law.
of customers on file did not give rise to duty to drawee bank to make such review, nor did failure to do so
constitute negligence, under Negotiable Instruments Law. NRS 92.030.
OPINION
This is an appeal from a summary judgment granted in favor of the respondent, Dean
Witter & Co., against First National Bank of Nevada. First National Bank joined the Nevada
Bank of Commerce as a third-party defendant. Nevada Bank of Commerce also moved for a
summary judgment in its favor against the respondent. This motion was denied. Both banks
appeal from the judgment.
Respondent is a stock brokerage firm doing business in Reno. It maintained a commercial
checking account in First National Bank. First National Bank was permitted to pay on checks
drawn against the account by respondent only as directed by authorized persons of the
respondent. Between August 1962 and July 1964 certain checks were authorized by
respondent to be drawn on this account. These checks were drawn and First National Bank
did pay them. Customers of the respondent were named as payees on the checks.
Respondent's authorized employees who signed the checks at the request of respondent's
account executive, Lee Smith, intended that these customers receive the funds represented by
the checks. Ostensibly, Smith was acting at the request of the customers. The payees' names
were falsely indorsed by Smith and then cashed by him upon his indorsement, which was
added below that of the forged payee.
Smith cashed these checks at the Nevada Bank of Commerce. The checks were stamped
Prior endorsements guaranteed by the Nevada Bank of Commerce and then presented to the
First National Bank for payment. First National Bank relied upon this guarantee and honored
the checks.
The canceled checks were then sent by First National Bank to the office of respondent in
San Francisco, California. At this office there were on file the signatures of the respondent's
customers. Respondent apparently checked the signatures of its customers with indorsements
on its returned checks. After inquiry of one of the above payees, this system was used to
detect the present fraud.
Smith's family has given restitution to the respondent in the sum of $4,644.83. The amount
of $17,355.17 is herein sought to be recovered.
Prior to the hiring of Smith, respondent had thoroughly investigated his background and
found nothing suspicious in it.
The primary issue for our determination is who should bear the loss of the above-described
fraud. A summary judgment can be granted only if there is no genuine issue as to any material
fact remaining to be tried. NRCP 56. The third-party defendant, Nevada Bank of Commerce,
has properly raised certain defenses, NRCP 14(a), which must be considered.
1. Were the checks order or bearer instruments?
2. Is the respondent precluded from recovery?
1. Appellants argue that the checks here in question should be considered either (1) bearer
instruments requiring no indorsement or (2) valid because the indorsements were effective. If
the checks were bearer instruments, no indorsement was required, and the forged instrument
would be of no consequence. Such a holding, it is correctly argued, would conform to the
result preferred by the newly enacted law under the Uniform Commercial Code, NRS
104.3405, which became effective in Nevada on March 1, 1967. It would also conform to the
result preferred by the amended Negotiable Instruments Law provision adopted in many
states. See Brady on Bank Checks 15.24, at 540 (Bailey 3d ed. 1962).
This court, however, is bound to apply the law in effect at the time the transactions took
place. NRS 104.1110. The law then in effect, NRS 92.016, provided in relevant part:
The instrument is payable to bearer:
* * * * *
3. When it is payable to the order of a fictitious or nonexisting person, and such fact was
known to the person making it so payable; * * *.
[Headnote 1]
NRS 92.016 is part of Nevada's Negotiable Instruments Law. The well settled rule under
the Negotiable Instruments Law is that the checks here in question are considered order
instruments. It is only when the maker of the check knows that the payee is fictitious or when
the maker intends that the payee have no interest in the check, that the instrument is
considered made to a fictitious payee. Home Indem. Co. v. State Bank, 8 N.W.2d 757 (Iowa
1943); Los Angeles Inv. Co. v. Home Sav. Bank, 182 P. 293 (Cal. 1919); Shipman v. Bank of
State, 27 N.E. 371 (N.Y. 1891).
[Headnote 2]
In the present case it is clear that the officers who executed the checks on behalf of the
respondent intended that the payees, who were not fictitious persons but were actual
customers of the respondent, receive the payment ordered.
payees, who were not fictitious persons but were actual customers of the respondent, receive
the payment ordered.
[Headnote 3]
It is also clear that a principal will not be charged with the knowledge of an agent under
circumstances such as this, where the knowledge is adverse to the company and naturally
would not be communicated to it. Los Angeles Inv. Co. v. Home Sav. Bank, supra.
Appellants have not cited one case which supports their position that the checks are bearer
instruments. Under Nevada law at the time the transactions took place the checks must be
considered order instruments.
2. NRS 92.030 provided:
When a signature is forged or made without the authority of the person whose signature it
purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a
discharge therefor, or to enforce payment thereof against any party thereto, can be acquired
through or under such signature, unless the party, against whom it is sought to enforce such
right, is precluded from setting up the forgery or want of authority.
[Headnotes 4, 5]
This court has explained the meaning of this provision in Federal Ins. Co. v. Toiyabe
Supply, 82 Nev. 14, at 17-18 (1966):
NRS 92.030 is identical to Sec. 23 of the Uniform Negotiable Instruments Law. Many
cases have been decided under that section. It is well established that it is the absolute duty of
a bank honoring a check to pay only to that payee and no amount of care to avoid error will
protect it from liability if it pays to the wrong person. * * * Because of NIL 23, the
collecting bank never acquired title to the checks nor acquired a right to receive payment
thereon from the drawee. And when a check is presented by a third person with the alleged
indorsement of the payee, the paying bank must ascertain at its peril whether the indorsement
is forged and the genuineness of the last indorsement on a check does not relieve such bank
from the duty of looking to the genuineness of preceding indorsements. Home Indemnity Co.
v. State Bank of Fort Dodge, 8 N.W.2d 757 (Iowa 1943).
* * * One taking a check made payable to a corporation must suffer the consequences if
the agent indorsing it is without authority unless the corporation is negligent or otherwise
precluded by its conduct from setting up such lack of authority. * * * [Headnote 6]
[Headnote 6]
[Headnote 6]
Appellants cite the following general proposition of law from Michie on Banks &
Banking, vol. 5B, ch. 9, 284, at 136-137 (1950): The depositor's duty to examine his
account and canceled checks without unreasonable delay, and report errors, does not extend
to the examination of the payees' indorsements on checks, unless suspicious circumstances
exist putting him on inquiry.
Appellants claim that the appearance of employee Smith's name below that of the payee is
such a suspicious circumstance. That this argument is incorrect is pointed out by the very next
sentence in Michie: And the rule applies although the payee's indorsement was forged by an
employee of the depositor.
The error of appellants' argument is that the claimed circumstance giving rise to the duty to
examine the indorsements can only be discovered by an examination of the indorsements.
Evidence disclosed only by such an examination cannot give rise to a duty to make the
examination.
The contention that the employee's signature below that of the payee constitutes a
suspicious circumstance putting the depositor on inquiry is without merit. Such a sequence of
indorsements is a common occurrence in employee fraud cases and does not alter the general
rule. See Coffin v. Fidelity-Phila. Trust Co., 97 A.2d 857 (Pa. 1953); Los Angeles Inv. Co. v.
Home Sav. Bank, supra; Annot., 99 A.L.R. 439 (1935).
[Headnote 7]
Appellants also contend that the fact that respondent had the signatures of the payees on
file and did not detect the forgeries, constituted negligence or at least raised a jury question.
There is some authority which gives this circumstance a certain amount of weight in allowing
the question of negligence to become a jury question. See cases discussed in Annot., 39
A.L.R.2d 641, 655, 10 (1955). It must be noted that this factor is but one among several
circumstances considered by such cases. A proper statement of the law is found in Brady,
supra, 15.27, at 551:
In a few instances there has been an exception to the general rule, as where the depositor
has the signatures of the payee and where there are other facts indicating possible negligence
on the part of the depositor. See also Michie, supra, 283, at 121.
Standing alone, as it does in this case, the fact that respondent had on file the payees'
signatures does not raise a jury question. The fact that the respondent had a system for
reviewing the indorsements does not give rise to a duty to make such a review. Los Angeles
Inv. Co. v. Home Sav. Bank, supra.
Under the facts of this case, respondent had no duty to examine the indorsements. There were
no suspicious circumstances putting the respondent on inquiry.
____________
84 Nev. 309, 309 (1968) Home Furniture, Inc. v. Brunzell Construction
HOME FURNITURE, INC., a Nevada Corporation, Appellant, v. BRUNZELL
CONSTRUCTION COMPANY, INC., a Nevada Corporation, Respondent.
No. 5404
May 3, 1968 440 P.2d 398
Appeal from judgment of Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Builder of building brought action against owner to recover balance due under contract for
construction of building, and owner contended that it was entitled to withhold $10,000
because of fact that puddles formed during showers on top concrete slab, which served as a
roof. The trial court entered judgment for builder, and owner appealed. The Supreme Court,
Mowbray, J., held that evidence sustained trial judge's finding that contractor performed in
accordance with plans and specifications of owner's contract and was therefore entitled to
recover.
Affirmed.
Guild, Guild & Cunningham and Drennan A. Clark and David W. Hagen, of Reno, for
Appellant.
Streeter, Sala & McAuliffe, of Reno, for Respondent.
1. Principal and Agent.
Architect employed by owner, who has contracted with builder to construct building, is agent of owner in
supervising construction work and in the interpretation of plans and specifications relating thereto.
2. Contracts.
Where contractor has followed plans and specifications furnished by owner and owner's architect,
contractor will not be responsible to owner, at least after work is completed, for any loss or damage which
results solely from defects or insufficient plans or specifications, in absence of negligence on part of
contractor or any express warranty by him as to their being sufficient or free from defects.
3. Contracts.
Where contractor makes absolute and unqualified contract to construct building or perform a given
undertaking, it is general rule that he assumes risks attending performance of contract and must repair and
make good any injury or defect which occurs or develops before completed work has been delivered to
owner, but where contractor makes contract to perform given undertaking in accordance with prescribed
plans and specifications, rule does not apply.
4. Contracts.
Where contract for construction of building provides that it is to be constructed in accordance with
prescribed plans and specifications contractor is not permitted to vary from prescribed plans and
specifications even if he deems them improper and insufficient, and therefore contractor cannot be held to
guarantee that work performed as required by plans and specifications will be free from defects or
withstand action of elements or accomplish purpose intended.
5. Contracts.
Where contract specifies what contractor is to do and manner and method of doing it, and he does the
work in the manner specified, his engagement is fulfilled, and he remains liable to owner only for defects
resulting from improper workmanship or other fault on contractor's part, unless there be a provision in
contract imposing some other or further obligation.
6. Contracts.
In action by builder of building against owner to recover balance due under contract for construction of
building, wherein owner contended that it was entitled to withhold $10,000 because of fact that puddles or
bird baths formed during showers on top concrete slab, which served as roof, evidence sustained finding
of trial judge that contractor performed in accordance with plans and specifications of contract as required
by owner's architect and was therefore entitled to recover.
Where issue was never raised by pleadings and was not made an issue in pretrial conference and entered
trial for first time during counsel's final argument, which was not part of record on appeal, defense was
deemed waived. NRCP 12(h).
8. Interest.
Where builder constructed building in accordance with plans of owner, and owner improperly withheld
balance due of $10,000 after completion of building, and builder sued owner for $10,000, builder was
entitled to recover interest of $10,000 at 7 percent per annum to run from 35 days after notice of
completion of contract was given to owner. NRS 99.040.
OPINION
By the Court, Mowbray J.:
Home Furniture, Inc. appeals from a $10,000 judgment awarded Brunzell Construction
Company, Inc. for the remaining balance due on the construction of the Home Furniture
building in Reno.
On November 17, 1959, the parties entered into a written contract in the total sum of
$845,623.79 for the construction of a 6-story furniture building. The contract provided for
progress payments with the provision that 10 percent of the contract price could be withheld
until 35 days after filing of the notice of completion, which was filed by appellant on March
17, 1961. Appellant made all payments on the contract except $10,000, which appellant
withheld, asserting that respondent had not constructed the building in accordance with
appellant's plans and specifications and that appellant had been damaged as a result of
respondent's faulty performance in the sum of $40,000. The case was pretried, and it was
stipulated at the pretrial conference that $10,000 was due respondent pursuant to the
construction contract and that appellant would have the burden of proving failure of
performance by respondent and the damages that resulted. The faulty performance
complained of is narrowed to the specified tolerance level
1
of the slab finish of the concrete,
prestressed sixth floor, or roof, which, it was found, several months after the building had
been occupied, puddled, or retained bird baths after the summer showers. The learned trial
judge, in his written decision, found this condition was not due to respondent's failure of
performance of the contract and ordered judgment entered for respondent accordingly. We
agree, and affirm the judgment.
The construction contract of October 15, 1959, consisting of 124 single-spaced typewritten
pages, is most complete in its detailed specifications as to the materials to be used and the
manner in which the prestressed concrete slab floors were to be poured and jacked into
position. The plans and specifications were drawn and prepared by the appellant's architect,
Ralph Berger, A.I.A., of San Francisco.
[Headnote 1]
An architect employed by the owner is the agent of such owner in supervising construction
work and in the interpretation of plans and specifications relating thereto. Erskine v. Johnson,
36 N.W. 510 (Neb. 1888); 3 Am.Jur., Architects 5, at 1000. Indeed, Mr. Leo Myer
Ginsburg, President of appellant, testified at the trial, on direct examination by Mr. Hagen:
"Q.
________________________

1
SLAB FINISHES: After placing and leveling, tamp surface with a metal grid tamper to force coarse
aggregate below the surface and wood float to a level surface. When surface water is evaporated, dust with a dry
thin layer of 1 part cement and 2 parts sand and steel trowel to a smooth finish. Tolerance shall be 3/16 out of
level using a 10 ft. straight-edge in any direction.
Q. Did you hire the architect to prepare the plans for the construction?
A. Yes.
Q. Did he prepare drawings for the construction of the building?
A. Yes.
And on cross-examination by Mr. McAuliffe, Mr. Ginsburg testified:
Q. As I understood your direct examination, Mr. Ginsburg, you hired Mr. Berger to
design this building; is that correct?
A. Yes.
Q. Did you specify to Mr. Berger what you wanted in the way of a building?
A. Yes.
The contract set forth the general scope of the work to be performed
2
and provided that
the owner's architect would, at all times, have access to the work and that the contractor
would provide proper facilities for inspection.
3
The contractor was required to keep on the
job site a competent superintendent approved by the architect.4 The architect had the
duty of general supervision of the entire project.5
________________________

2
SCOPE: The work to be performed under this contract consists of furnishing all plant, labor, materials,
tools, equipment, transportation, power, water, permanent and temporary utilities, connections, provisions for
safeguarding of workmen and public required by law, incidentals and work necessary for the completion of the
project in strict accordance with the contract documents. Adjacent property foundations and structure shall be
protected as required. The Contractor, subcontractors, or their successors shall employ 100% Union Labor and
pay the prevailing wage scales on the work in accordance with the agreements and rules of the Unions in the
localities having jurisdiction over the work to be done.
In general the Contractor shall demolish and remove from the site all structures, walls necessary for the
proper preparation of the site; build, maintain and illuminate temporary barricades, covered walks, fences, gates
required by the City of Reno.
A six story and mezzanine building with pent houses shall be constructed of both reinforced concrete walls
and slabs and lift-up prestressed concrete floors using steel columns. Interiors shall in general be exposed
concrete and lath and plaster with floor covering, air conditioning and electrically illuminated as scheduled.
Carpets will be furnished and installed by the Owner. The exterior will have painted exterior walls with masonry
and tile facings, with display windows. The building will be Type I as classified by the Uniform Building Code
and will be in a Fire Zone 1 as classified by the City of Reno.

3
INSPECTION: The Architect and his representatives shall at all times have access to the work wherever it
is in preparation or progress and the Contractor shall provide proper facilities for such access and for inspection.
When the specifications, the Architect's instructions, laws, ordinances or any public authority require any
work to be specially tested or approved, the Contractor shall give the Architect timely notice of its readiness for
inspection, and if the inspection is by another authority
was required to keep on the job site a competent superintendent approved by the architect.
4
The architect had the duty of general supervision of the entire project.
5

[Headnotes 2-5]
The question presented is: Did the contractor follow the plans and specifications furnished
by the owner's architect, or did he vary from them and not perform in accordance with the
contract? The law is well settled in practically every American jurisdiction that, where a
contractor has followed the plans and specifications furnished by the owner and his architect,
he will not be responsible to the owner, at least after the work is completed, for any loss or
damage which results solely from the defects or insufficient plans or specifications, in the
absence of any negligence on the part of the contractor or any express warranty by him as to
their being sufficient or free from defects. This rule was well stated in Friederick v. Redwood
County, 190 N.W. 801, 802 (Minn. 1922):
Where a contractor makes an absolute and unqualified contract to construct a building or
perform a given undertaking, it is the general, and perhaps universal, rule that he assumes the
risks attending the performance of the contract, and must repair and make any injury or defect
which occurs or develops before the completed work has been delivered to the other party.
________________________
than the Architect, of the date fixed for such inspection. Inspections by the Architect shall be promptly made,
and where practicable at the source of supply. Any work covered up without approval or consent of the
Architect, must, if required by the Architect, be uncovered for examination at the Contractor's expense.
Re-examination of questioned work may be ordered by the Architect and such work must be uncovered by
the Contractor. In the event such work is found to be in accordance with the Contract Documents the Owner
shall pay the cost of re-examination and replacement, but if such work is not in accordance with the Contract
Documents the Contractor shall make all necessary corrections and replacements and pay all costs in connection
therewith.

4
SUPERINTENDENCE, SUPERVISION: The Contractor shall keep on the work, during its entire progress,
a competent superintendent and any necessary assistants, all satisfactory to the Architect. The superintendent
shall not be changed without consent of the Architect. The superintendent shall represent the Contractor in his
absence and all directions given to him shall be as binding as if given to the Contractor. Except when of
obviously minor nature such directions shall be confirmed in writing to the Contractor.

5
ARCHITECT'S STATUS: The Architect shall have general supervision and direction of the work. He is the
agent of the Owner to the extent provided in the Contract Documents and when authorized by the Owner so to
act. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution
of the Contract.
the other party. But where he makes a contract to perform a given undertaking in accordance
with prescribed plans and specifications, this rule does not apply. Under such a contract he is
not permitted to vary from the prescribed plans and specifications even if he deems them
improper and insufficient; and therefore cannot be held to guarantee that work performed as
required by them will be free from defects, or withstand the action of the elements, or
accomplish the purpose intended. Where the contract specifies what he is to do and the
manner and method of doing it, and he does the work specified in the manner specified, his
engagement is fulfilled and he remains liable only for defects resulting from improper
workmanship or other fault on his part, unless there be a provision in the contract imposing
some other or further obligation. See Annot., 6 A.L.R.3d 1396 (1966); Fuchs v. Parsons
Constr. Co., 111 N.W.2d 727 (Neb. 1961); Havard v. Bd. of Supervisors, 70 So.2d 875
(Miss. 1954); Puget Sound Nat'l Bank v. C. B. Lauch Constr. Co., 245 P.2d 800 (Idaho
1952); Woods v. Amulco Prods., 235 P.2d 273 (Okla. 1951); Annot., 88 A.L.R. 797 (1934).
The record before the trial court supports the trial judge's decision. Appellant failed to
show any deviation by the contractor from the architect's plans and specifications. On the
contrary, Mr. Berger, the architect, testified that the prestressed concrete slab floor in question
was poured in accordance with the specifications of the contract.
By Mr. McAuliffe:
Q. As far as you know, all the concrete that was poured into this particular slab met the
specifications?
A. Yes.
Q. And it passed all the tests?
A. We never had any controversy or anything over that. Q. Was there engineering
supervision on the job during the lifting of these slabs?
A. During the lifting, I don't believe there would be supervision by superintendents,
although I believe thatand to what extent I don't knowa local engineer by the name of
Webster Brown was employed by Mr. Fitzgerald to observe this.
* * * * *

Q. Well, the way these jobs go, if any problems develop upon the job, the architect is
notified immediately; isn't he?
A. Of anything, yes.
Q. And you were never notified of any difficulties during the lifting of this slab, were
you?
A. No.
Q. So, as far as you know, this particular slab, the form was inspected before the concrete
was poured, the structural members that went into that slab were inspected before the
concrete was poured, the concrete was tested, and it met the specifications, and there were no
problems during the lifting?
A. As far as I know, no.
Later Mr. Berger testified that the floor in question had not been designed as a roof.
By Mr. McAuliffe:
Q. As I understand your testimony, Mr. Berger, the floor that we are talking about, this
slab, it was never intended by you in the design of it to be a roof?
A. No.
Q. Was it ever intended by you, in the design of it, to be a final surface for that roof?
A. No.
Q. Or to set a final level?
A. No.
* * * * *
Q. But the owner never decided whether he wanted a roof or a floor?
A. That's correct. * * *
* * * * *
Q. But did you ever specify anything for the contractor to do [regarding the use of the
sixth floor]?
A. Well, there was two or three considerations of the future development of this roof. In
other words, it was to be used as a sales area. The function of the roof was not firmed up, so
to speak. In other words, it could have been an outdoor sales area. It was also contemplated
sometime, of putting a roofed area, and then it could be an additional floor.
* * * * *

And then there was consideration of a future development of the entire floor.
In the meantime, the time just went on, and no decision was made whether to correct the
roof with the present topping, or putting another topping on it and using it as a roof, and at a
later date
* * * * *
Q. At the time you drew the working drawings for this building, you knew that the roof
was intended to be utilized for a sales area; did you not?
A. Yes.
Q. Was any final design shown on those plans as to this sales area?
A. No. The provision was made for a possible future use. The intention was to put a wear
surface of material, such as tile or concrete, on top of this. Or, as previously stated, they
might sometime even put a roof over the thing and use it for an additional floor.
* * * * *

Q. Is it customary in building a roof, any roof, to build a dead flat roof?
A. I think that we have to go beyond your question. I can't answer that. When we look at
this slab as a roof, it was not intended as the final roof.
Q. You did not consider this slab to be a roof?
A. No, it's a floor.
Q. It's a floor?
A. Right.
Q. Do you build floors the same way you build roofs?
A. No, we don't build floors the same as you build roofs.
Q. You don't build them to serve the same function, do you?
A. No.
The testimony of respondent's superintendent, Dean Kishpaugh, corroborates the
testimony of the architect, Berger.
Questions by Mr. McAuliffe:
Q. And did you work full time on the Home Furniture Building?
A. Yes.
Q. You were on the job, then, every day?
A. Yes.
Q. At the time the slab in question was poured, was that done under your supervision?
A. Yes.
Q. Was there anyone else there that was supervising the construction of that slab?
A. The architect's representative.
Q. Was that an engineer?
A. Mr. Web Brown, the engineer in Reno here, yes; and Thomas Fitzgerald is the
engineer from San Francisco who made periodic visits to the job.
Q. And were the form[s] inspected both by you and the engineer, in your presence, when
you were ready to pour? "A.
A. Yes. He came to the job every time we got ready to pour concrete and inspected all the
reinforcing and the post-tension cables and forms, and he observed the pouring of concrete.
* * * * *

Q. Did you experience any difficulty during the lifting operation?
A. No, it went very smooth.
Q. Did you ever have any objection from the architect or engineer on the job that it was
not being properly lifted?
A. No.
Q. Were you inspected during the lifting operation?
A. Yes, sir. We had the engineers of the lift-slab contractor, the architect's engineers and
then the architect himself was on the job several times during the lifting operation.
* * * * *

Q. Did you ever have any conversation with the owner during the course of construction
about some type of flooring surface which might eventually be applied to the top of the slab?
A. Well, the Ginsburgs' store was just down the street from the building that we were
building, and they were over to the job every day. Every day at lunch time they came by, and
we were very friendly, and we talked. And if they asked me once, they must have asked me
fifty times about the termthey called it a calculated riskof the building being flat on the
top, and there was no paper on the roof.
And my answer was always the same: You have an architect. He designed the building.
We are only building it. You ask him,' because we don't like to put ourselves in the position
where we are telling the owner things to do. We are only builders.
[Headnote 6]
In view of this record, it most certainly was permissible for the trial judge to find that
respondent contractor had performed in accordance with the plans and specifications of the
contract.
[Headnote 7]
Appellant next urges that the architect failed to give his final certificate of payment and
respondent is thereby barred from recovery of the $10,000 payment. This issue was never
raised by the pleadings nor made an issue in the pretrial conference and enters the trial
for the first time during counsel's final argument, which is not part of the record on
appeal.
by the pleadings nor made an issue in the pretrial conference and enters the trial for the first
time during counsel's final argument, which is not part of the record on appeal. Under NRCP
12(h)
6
, the defense is deemed waived.
[Headnote 8]
The trial judge awarded, and properly so, interest on the $10,000 at 7 percent per annum to
run from 35 days after the notice of completion was given on March 17, 1961. The award was
made in accordance with NRS 99.040.
7

The judgment must be affirmed with costs.
Affirmed.
Thompson, C. J., Collins, Zenoff, and Batjer JJ., concur.
________________________

6
NRCP 12(h): A party waives all defenses and objections which he does not present either by motion as
hereinbefore provided or, if he has made no motion, in his answer or reply, except (1) that the defense of failure
to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, and the
objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted,
or by motion for judgment on the pleadings or at the trial on the merits, and except (2) that, whenever it appears
by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall
dismiss the action. The objection or defense, if made at the trial, shall be disposed of as provided in Rule 15(b)
in the light of any evidence that may have been received.

7
NRS 99.040: When there is no express contract in writing fixing a different rate of interest, interest shall be
allowed at the rate of 7 percent per annum upon all money from the time it becomes due, in the following cases:
1. Upon contracts, express or implied, other than book accounts.
____________
84 Nev. 318, 318 (1968) Capriotti, Lemon v. Johnson Service Co.
CAPRIOTTI, LEMON AND ASSOCIATES, INC., a Nevada Corporation, and GENERAL
INSURANCE COMPANY OF AMERICA, a Corporation, Appellants, v. JOHNSON
SERVICE COMPANY, a Corporation, Respondent.
No. 5445
May 3, 1968 440 P.2d 386
Appeal from summary judgment in favor of subcontractor claiming monies due for public
construction. Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Action by sub-subcontractor on public improvement project to recover from surety bond
amounts due for work on project.
The trial court entered a summary judgment in favor of the sub-subcontractor and the surety
and general contractor appealed. The Supreme Court, Zenoff, J., held that where payment
bond given by public works general contract recited that the condition of bond was that the
principal had entered into the next contract which was between contractor and public
authority, bond had been given as required by statute and was a statutory bond so that
sub-subcontractor not having complied with 30-day notice requirement with respect to claim
for unpaid amount could not recover.
Reversed.
Eli Grubic, of Reno, for Appellants.
Gregory & Gregory, of Las Vegas, for Respondent.
1. Schools and School Districts.
Brochure given by sub-subcontractor to subcontractor who forwarded it to contractor was insufficient to
satisfy the 30-day notice requirement of statute relating to claims on performance bond where brochure did
not set forth the amount claimed and was not sent directly to contractor by registered mail as specified by
statute. NRS 339.035, subd. 2.
2. Bonds.
Public contractor's payment bond given as required by statute is deemed to be a statutory bond, and the
statutory provisions must be read into bond and are operative by force of statute without recitation of them
in bond. NRS 339.025, subd. 1(b).
3. Bonds.
A common-law bond is a bond given though not required by any statute and the provisions thereof are
not prescribed by statute.
4. Bonds.
Where payment bond given by public works general contract recited that the condition of bond was that
the principal had entered into the annexed contract which was between contractor and public authority,
bond had been given as required by statute and was a statutory bond, and sub-subcontractor which had not
complied with 30-day notice requirement with respect to claim for unpaid amount could not recover. NRS
339.025, subd. 1(b), 339.035, subd. 2.
OPINION
This is an appeal from summary judgment granted in favor of a subcontractor on a public
improvement project against a surety bond.
Capriotti, Lemon and Associates, building contractor, entered into a contract with the
Washoe County School Board for the construction of additions to Agnes Risley School.
construction of additions to Agnes Risley School. At the time of the execution of the contract,
the contractor and General Insurance Company of America, as surety, executed a payment
bond in the amount of $248,445 to comply with the provisions of NRS 339.025(1)(b) in
connection with the school construction contract.
Thereafter, the contractor subcontracted with Dave's Plumbing and Heating, Inc., for the
school project; in turn, Dave's Plumbing and Heating, Inc., entered into a sub-subcontract
with Johnsons Service Company to furnish and install a temperature control system in
accordance with the construction plans and specifications. Johnson Service Company
performed its contractual obligations with Dave's Plumbing and Heating Inc., but subsequent
to the completion of their portion of the work, Dave's Plumbing and Heating, Inc., went into
bankruptcy owing Johnsons Service $3,580. Prior to the bankruptcy, the contractor had paid
Dave's Plumbing and Heating all monies due under that subcontract. Unless Johnson Service
Company can press its claim against the bonding company it will be unable to recover the
$3,580 which has remained unpaid.
[Headnote 1]
1. Johnson contends that the 30-day notice requirement was satisfied by a brochure which
was given to Dave's Plumbing and Heating who forwarded it to the contractor. Garff v. J. R.
Bradley Co., 84 Nev. 79, 436 P.2d 428 (1968). (It is conceded that the 90-day notice
requirement was satisfied.) The trial court held that the brochure did not constitute a notice
under the statute with which we agree. The brochure does not set forth the amount claimed
nor was it sent directly to the contractor by registered mail, both of which are statutory
requirements.
1
Under ordinary circumstances anyone receiving the brochure could
reasonably understand it to be no more than that and certainly not a notice that work was
being commenced or materials furnished on any particular construction project. Nor would a
contractor receiving such a brochure conclude that the supplier contemplated pursuing his
statutory remedy against the contractor and surety in the event he was not paid in full.
2. The trial court however did not base its decision on the notice requirement but chose
instead to declare the bond a common-law bond instead of a statutory bond.
________________________

1
NRS 339.035(2) reads in part: Each written notice shall state with substantial accuracy the amount
claimed and the name of the person for whom the work was performed or the material supplied, and shall be
served by being sent by registered mail, postage prepaid, in an envelope addressed to such contractor at any
place in which he maintains an office or conducts business, or at his residence.
notice requirement but chose instead to declare the bond a common-law bond instead of a
statutory bond. If the court is correct, the statutory requirements of notice would not apply
and the bonding company would be compelled to indemnify Johnson Service.
[Headnotes 2, 3]
3. A bond given which is required by statute is deemed to be a statutory bond, and as
such, the statutory provisions must be read into the bond and are operative by force of the
statute without recitation of them in the bond. A common-law bond is a bond given though
not required by any statute and the provisions are not prescribed by statute. For example, if a
person builds a home he may require the contractor to provide a bond; that would be a
common-law bond. The law imputes the provisions into the statutory bond whether written
therein or not. If the law has made the instrument necessary, the parties are deemed to have
had the law in contemplation when the contract was executed. Porter v. Eyer, 294 P.2d 661
(Ariz. 1956); Ellsworth v. Hurt, 146 P.2d 365 (Kan. 1944); Camdenton Consol. Sch. Dist.
No. 6 v. New York Cas., 104 S.W.2d 319 (Mo. 1937). The authorities are overwhelming in
favor of the foregoing.
2
Even Clark Plastering Co. v. Seaboard Surety Co., 260 N.Y.S. 468
(N.Y.App. 1932), relied upon by the trial court stands alone, for two subsequent decisions,
Juliano v. Circle Construction Corp., 95 N.Y.S.2d 824 (N.Y. App. 1950), and Triple Cities
Constr. Co. v. Dan-Bar Contracting Co., 136 N.Y.S.2d 459 (N.Y.App. 1954), supersede the
earlier case and state the appropriate law on the subject.
[Headnote 4]
The condition of the bond in the instant case recited in part, The condition of the bond is
such that whereas the principal entered into the contract annexed hereto * * *. The contract
is between a general contractor and a public authority for the construction of a public project
and the bond therefore is given as required by NRS Chapter 339, thus is a statutory bond.
Johnson Service Company not having complied with the 30-day notice requirement its claim
must fail in these proceedings.
Reversed. Judgment will be entered in favor of the defendant.
________________________

2
See cases collected in 77 A.L.R. 21; 118 A.L.R. 57; Decennial Digests, Bonds, Key No. 50.
____________
84 Nev. 322, 322 (1968) City of Reno v. District Court
CITY OF RENO NEVADA, a Municipal Corporation, Petitioner v. SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for
the County of Washoe, Respondent.
No. 5427
May 6, 1968 440 P.2d 395
Original proceeding wherein city sought writ of mandamus requiring district court to
dismiss city's condemnation proceedings. The Supreme Court, Batjer, J., held that city could
unilaterally abandon its condemnation proceedings against landowner, even though it did not
abandon improvement or construction thereof, where landowner had filed compulsory
counterclaim which would remain for independent adjudication.
Writ issued.
Clinton E. Wooster, Reno City Attorney, Roy Lee Torvinen, Special Assistant City
Attorney, for Petitioner.
Belford and Anglim, of Reno, for Respondent.
1. Mandamus.
Mandamus will lie to compel court to dismiss city's condemnation complaint when city's motion to
dismiss is made pursuant to statute. NRS 37.180.
2. Eminent Domain.
City could unilaterally abandon its condemnation proceedings against landowner, even though it did not
abandon improvement or construction thereof, where landowner had filed compulsory counterclaim which
would remain for independent adjudication. NRS 37.180; NRCP 1, 41(a)(2), (e).
3. Courts.
If counterclaim is compulsory, ancillary jurisdiction principle permits court to decide it even though
original action has been dismissed.
OPINION
On December 7, 1966, the petitioner, City of Reno, Nevada, a municipal corporation,
hereinafter referred to as Reno, under its right of eminent domain, commenced an action
against George A. Probasco, hereinafter referred to as Probasco, to condemn a right-of-way
for the new Wells Avenue overpass, between Fourth and Fifth Streets in that city. On
December 13, 1966, the parties stipulated that Reno could occupy the premises pending
judgment on the condemnation action.
December 13, 1966, the parties stipulated that Reno could occupy the premises pending
judgment on the condemnation action. The court subsequently entered an order pursuant to
that stipulation.
On December 17, 1966, Probasco filed an answer to the action which contained a
counterclaim against Reno.
On June 6, 1967, Probasco moved for a partial summary judgment, and at its meeting held
on June 12, 1967, the City Council, on behalf of the petitioner, authorized the withdrawal and
abandonment of the condemnation proceedings. On June 28, 1967, Reno filed a notice of
abandonment and a motion for judgment dismissing the proceedings pursuant to NRS 37.180.
1

The District Court heard the motions of both parties on July 21, 1967, and on August 8,
1967, entered an order granting Probasco's motion for partial summary judgment and denying
Reno's motion for dismissal.
Reno then filed with this court, its petition for a writ of mandamus, requiring the
respondent court to dismiss the condemnation proceedings.
[Headnote 1]
Initially we are called upon to decide whether mandamus will lie to compel the respondent
court to dismiss Reno's complaint when its motion to dismiss is made pursuant to statute.
Unquestionably the language found in NRS 37.180, is mandatory when applicable, and we
find that mandamus is available to the petitioner. Thran v. District Court, 79 Nev. 176, 380
P.2d 297 (1963).
Under the facts in this case it is apparent that the petitioner's motion to dismiss under NRS
37.180 should have been granted by the trial court. Moreover, the provisions of NRS 37.180,
supra, are similar to those of NRCP 41{e), wherein, it is provided that any action shall be
dismissed by the court unless such action is brought to trial within five years after the
filing thereof, unless the parties have stipulated in writing to an extension of time.
________________________

1
NRS 37.130. 1. Plaintiff may abandon the proceedings at any time after filing the complaint and before
the expiration of 30 days after final judgment, by serving on defendants and filing in court a written notice of
such abandonment. Upon such abandonment, on motion of any party, a judgment shall be entered dismissing the
proceedings and awarding the defendants their costs and disbursements, which shall include all necessary
expenses incurred in preparing for trial and reasonable attorney fees. These costs and disbursements, including
necessary expenses and reasonable attorney fees, may be claimed in and by a cost bill, to be prepared, served,
filed and taxed as in civil actions; but upon judgment of dismissal on motion of plaintiff, any or all defendants
may file a cost bill within 30 days after notice of entry of such judgment.
2. If the plaintiff has been placed in possession of the premises under the provisions of NRS 37.100 or
37.170, the defendant is entitled to all damages arising from such occupancy of the abandoned property.
supra, are similar to those of NRCP 41(e), wherein, it is provided that any action shall be
dismissed by the court unless such action is brought to trial within five years after the filing
thereof, unless the parties have stipulated in writing to an extension of time.
NRCP 41(e) in that respect has been held mandatory upon the court. Thran v. District
Court, supra; J. C. Penny Co. v. Superior Court, 343 P.2d 919 (Cal. 1959).
In Ex parte Green, 131 So.2d 705 (Ala. 1961), the court said: We are of the opinion that
the plaintiff in the instant case has a right under the provisions of the foregoing statute to
dismiss his suit * * * either by filing motion to dismiss with the clerk or with the judge, as
was done here. It follows that the peremptory writ of mandamus shall issue * * *.'
Probasco admits that if Reno abandons the physical taking of the condemnee's land it
has the right to abandon the legal proceedings under NRS 37.180, but contends that as a
matter of fact Reno has not abandoned the physical taking because it will take valuable real
property rights of Probasco such as access, light, air, freedom from noise, etc., and thus
opposes such abandonment of the legal proceedings if his counterclaim also would be
dismissed with the petitioner's complaint.
The record clearly discloses that Reno has abandoned the physical taking of Probasco's
real property.
[Headnote 2]
This brings us to the principal question of the case. Can the petitioner unilaterally abandon
its condemnation proceedings against Probasco, even though it does not abandon the
improvement or the construction thereof, when Probasco has counterclaimed upon the
grounds that the improvement will substantially damage his contiguous lands?
NRS 37.200 reads as follows: Except as otherwise provided in this chapter, the
provisions of NRS and Nevada Rules of Civil Procedure relative to civil actions, new trials
and appeals shall be applicable to and constitute the rules of practice in the proceedings in
this chapter. Therefore, NRS 37.180, supra, must be read together with NRCP 41(a)(2)
2
and Reno's complaint can be dismissed only if Probasco's counterclaim can remain
pending for independent adjudication by the trial court.

________________________

2
NRCP 41(a)(2). Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be
dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court
deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's
motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can
remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal
under this paragraph is without prejudice.
and Reno's complaint can be dismissed only if Probasco's counterclaim can remain pending
for independent adjudication by the trial court. Further, the Nevada Rules of Civil Procedure
require that they be construed to secure the just, speedy, and inexpensive determination of
every action, NRCP 1.
3
Thus, while taking no position on the merits, we find that the
counterclaim will remain for independent adjudication.
In the case of Millar v. Millar, 51 Cal.App. 718, 197 P. 811, it was held that the purpose of
allowing a cross-complaint is to avoid a multiplicity of suits and thereby save vexation and
expense, and that such a situation involves merely a consolidation of two independent actions
arising out of or related to the same transaction, and in Solomon v. Lampl, 11 P.2d 1028
(Kan. 1932), the court said: As it turned out, the plaintiff first abandoned part of her action
and eventually the whole of it, which was her privilege, but that did not require the principal
defendant and the administrator to submit to having their cross-petitions stricken and to
commence their cross-actions anew. We are well aware that in some other jurisdictions
procedure and practice still cling more or less to the age when the mechanics of procedure
were regarded as of more concern than the aims and ends of justicewhich procedure was
designed to achieve. In this jurisdiction, we make no fetish of procedure. Under the genius of
our Code, it is only a means to an endto give every litigant a fair chance to present his
cause and make his defense so that justice may speedily and economically be administered.
In United States v. Bero Construction Corporation, 148 F.Supp. 295 (D.C.S.D.N.Y. 1957),
it was held: As long as the Court has jurisdiction of the parties and of the controversy, the
counterclaim may remain pending for independent adjudication by the Court. 3 Moore,
Federal Procedure, para. 1315, p. 41. Such independent adjudication would be made either by
a dismissal, if it should be determined that no claim is stated, or such other adjudication as
may be had during the course of the proceedings. In accord: Deauville Corp. v. Garden
Suburbs Golf & Country Club, 165 F.2d 431 (C.C.A. 1948); Lackner Co. v. Quehl Sign Co.,
145 F.2d 932 (C.C.A. 1944).
[Headnote 3]
Here, the trial court has jurisdiction of the parties and the controversy. When Reno filed its
complaint and process was served on Probasco, he was compelled to counter-plead any
claim arising out of the subject matter of Reno's complaint.
________________________

3
NRCP 1. These rules govern the procedure in the district courts in all suits of a civil nature whether
cognizable as cases at law or in equity, with the exceptions stated in Rule 81. They shall be construed to secure
the just, speedy, and inexpensive determination of every action.
served on Probasco, he was compelled to counter-plead any claim arising out of the subject
matter of Reno's complaint. NRCP 13(a).
4

If the counterclaim is compulsory, the ancillary jurisdiction principle permits the court to
decide it even though the original action has been dismissed. 2B Barron and Holtzoff,
Federal Practice and Procedure, Sec. 913, page 121.
For the foregoing reasons, a writ of mandamus shall issue requiring the respondent court to
enter a judgment dismissing the condemnation proceedings as to the parcel of land in
question, but retaining Probasco's counterclaim for independent adjudication.
____________________

4
NRCP 13(a). A pleading shall state as a counterclaim any claim which at the there of serving the pleading
the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject
matter of the opposing party's claim and does not require for its adjudication the presence of third parties of
whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action
was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon
his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal
judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.
____________
84 Nev. 326, 326 (1968) Summers v. Warden
JACK ELMER SUMMERS, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 5447
May 6, 1968 440 P.2d 388
Appeal from an order of the Second Judicial District Court, Washoe County, Thomas O.
Craven, Judge, denying a petition for habeas corpus.
Appeal from order of the lower court denying a petition for habeas corpus. The Supreme
Court, Thompson, C. J., held that prisoner serving valid sentence was entitled to credit for
time which he had served under a prior void conviction based upon same acts.
Reversed and appellant ordered released from prison.
Collins, J., dissents.
Manoukian and Manoukian, of Zephyr Cove, for Appellant.
1. Criminal Law.
Prisoner serving valid sentence was entitled to credit for time which he had served under a prior void
conviction based upon same acts. Const. art. 1, 8; U.S.C.A.Const. Amend. 14.
Due process forbids action which is fundamentally unfair and shocking to the universal sense of justice.
Const. art. 1, 8; U.S.C.A.Const. Amend. 14.
Due process precludes imprisonment upon a constitutionally infirm conviction, and demands correction
when such occurs. Const. art. 1, 8; U.S.C.A.Const. Amend. 14.
OPINION
[Headnote]
The issue presented by this appeal from a denial of the post-conviction application of Jack
Elmer Summers for a writ of habeas corpus, is whether the sense of justice implicit in the
constitutional demands of equal protection and due process requires that there be credited
against his present sentence for rape the time which he had served under a prior void
conviction based upon the same acts. For reasons hereafter expressed we hold that he is
entitled to such credit, reverse the district court, and order his release from prison.
On May 14, 1957, Summers was charged with the crime of rape accompanied by acts of
extreme violence with great bodily injury to the victim. Without counsel, he executed a
waiver of preliminary examination, pled guilty to the charge, and was sentenced to
imprisonment for not less than 20 years nor more than the term of his natural life. On May 15,
1957, he was delivered to the Nevada State Prison to serve that sentence.
On July 8, 1966, with the assistance of counsel, Summers was granted relief by the United
States District Court on the ground that his constitutional right to the assistance of counsel at
arraignment and plea in the state court had been denied, since the waiver of his right to
counsel was not shown to have been made in a manner consistent with due process.
Thereafter, he was rearraigned in the state court on an amended information charging forcible
rape, but omitting an allegation of extreme violence with great bodily injury.
extreme violence with great bodily injury. He entered a plea of guilty, and was sentenced to
the Nevada State Prison for not less than five nor more than ten years. The second conviction
was based upon the same facts that supported the earlier one. The record shows that at the
time the court below ruled on the instant application Summers had been confined in the
Nevada State Prison for more than ten years since his 1957 conviction, not counting statutory
time credits. Accordingly, he asserts that he has completed the maximum sentence directed by
the second, valid conviction and is entitled to immediate release. Of course, it is apparent that
if he is entitled to credit for time served under the void conviction for rape with violence, he
has more than fulfilled the term of the sentence under the subsequent conviction for rape, and
is being illegally detained in prison.
1. When Summers was brought before the state court in 1966 to plead to the amended
information, the statute authorized a sentence of not less than 5 years and which may extend
to life. NRS 200.360(1).
1
The court imposed a sentence of not less than five nor more than
ten years. The record is silent as to why the court fixed the maximum term of imprisonment at
ten years. Were the record to show that its reason for doing so was to accord Summers credit
for time served under the earlier void conviction, the constitutional issue now before us
would not be reached since, in such case, credit would have been given for time served and
the sentence would be within limits authorized by the statute. This, however, is not the case
before us. Here, the record does not reflect that the court gave credit for time served under the
earlier void conviction. We may not conjecture about the undisclosed thoughts of the
sentencing judge when he pronounced sentence. Thus, it is evident that constitutional
standards are involved.
2. The state contends that it is constitutionally permissible to deny credit in these
circumstances. Newman v. Rodriquez, 375 F.2d 712 (10 Cir. 1967). The contention centers
mainly on the premise that penalty is a legislative matter, and since the Nevada Legislature
has not allowed for credit, none may be given. When the sentences in this case were imposed,
NRS 176.410{3) provided that "the term of imprisonment * * * shall begin on the date of
sentence of the prisoner by the court," which may be read to suggest that the giving of
credit is precluded.
____________________

1
NRS 200.360(1) provided: Rape is the carnal knowledge of a female, forcibly and against her will, and a
person duly convicted thereof shall be punished by imprisonment in the state prison for a term of not less than 5
years and which may extend to life; but if such crime be accompanied with acts of extreme violence and great
bodily injury inflicted, the person guilty thereof shall be punished by imprisonment in the state prison for a term
of not less than 20 years, or he shall suffer death, if the jury by their verdict affix the death penalty.
176.410(3) provided that the term of imprisonment * * * shall begin on the date of sentence
of the prisoner by the court, which may be read to suggest that the giving of credit is
precluded. Meyers v. Hunter, 160 F.2d 344 (10 Cir. 1947).
2
This argument was presented to
the United States District Court for the District of Nevada and rejected. Gray v. Hocker, 268
F.Supp. 1004 (1967). That court held NRS 176.410(3) unconstitutional as applied to the
petitioner in that case, since to apply the statute literally would violate Equal Protection and
Due Process. We agree with the reasoning of Gray v. Hocker, supra, and with the consonant
expressions of Lewis v. Commonwealth, 108 N.E.2d 922 (Mass. 1952); Hill v. Holman, 255
F.Supp. 924 (1966); Patton v. State, 256 F.Supp. 225 (1966).
3. The Fourteenth Amendment commands that: * * * nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws. Each command would be violated were we
to ignore reality and treat the petitioner as though he had never been in prison pursuant to the
first void convictionto say that since he should not have been imprisoned as he was, he was
not imprisoned at all. The Due Process clause of the Nevada Constitution (art. 1, 8) is
equally offended.
[Headnotes 2, 3]
Due process forbids action which is fundamentally unfair and shocking to the universal
sense of justice. In Palko v. Connecticut, 302 U.S. 319 (1937), Justice Cardozo wrote:
Fundamental too in the concept of due process, and so in that of liberty, is the thought that
condemnation shall be rendered only after trial. [Citations.] The hearing, moreover, must be a
real one, not a sham or a pretense. Id. at 327. A necessary corollary of that statement is that
due process precludes imprisonment upon a constitutionally infirm conviction, and demands
correction when such occurs. The conviction is corrected by setting it aside, and adjustment is
made for the illegal imprisonment by allowing credit therefor against a later sentence based
upon the same facts. We believe that any other result would brutalize legitimate social
interests.
The court in Gray v. Hocker, supra, further noted that NRS 176.410(3) applies inflexibly
and without discrimination to all convicted defendants. The statute does not distinguish
between those who successfully invoke post-conviction remedies as opposed to those whose
efforts are unsuccessful or who make no effort.
____________________

2
Cases are collected at 35 A.L.R.2d 1283. The authorities are split.
opposed to those whose efforts are unsuccessful or who make no effort. The failure to so
distinguish denies the equal protection of the laws to him who successfully asserts a
post-conviction remedy while serving the initial sentence and is thereafter resentenced for the
same offense or acts for which sentence was originally imposed. Id. at 1008. We agree, as
well, with that observation.
For the reasons expressed the ruling below is reversed, the petitioner's application for
habeas corpus is granted, and it is ordered that he be released from prison.
This is a case in which some relief may be justified. But I think that relief has already been
accorded by the lower court and should judicially restrain us from establishing another
constitutional precedent.
When petitioner pleaded guilty to the lesser crime of forcible rape, without extreme
violence or great bodily injury, arising out of the same facts which supported the earlier
conviction of rape with extreme violence and great bodily injury he received a substantially
and markedly lesser sentence than the court could have given him. He could have been
sentenced to a term of not less than 5 years nor more than life. True the record does not
reflect the reasons why the trial court exercised its discretion in fixing a maximum of 10 years
instead of life. But the reason, though not stated, leaps out of the record with clarity. The
maximum sentence of less than life reflected a concession made by the trial judge for the time
served by petitioner under the previous void sentence. Such conclusion is a fair one in light of
the entire record before us. To put it another way had the lower court fixed the maximum
sentence of life on the second conviction, instead of 10 years, then perhaps the relief accorded
here could be constitutionally justified.
In such respect this case differs materially from Gray v. Hocker, 268 F.Supp. 1004 (1967)
where the maximum time under the second sentence was previously served under the void
first sentence.
This, like most problems arising under the criminal law, is not a black or white situation.
The problem, with its constitutional overtones, is one for the legislature after we call attention
to it. For example, how much of the previous time served should be credited on the new
sentence? All of it or only a part? Should only straight time he credited or, in addition work
time, blood donation time and good conduct time as well? Suppose the defendant had been
a recalcitrant prisoner and had credits revoked for violation of prison rules, regulations
and discipline.
the defendant had been a recalcitrant prisoner and had credits revoked for violation of prison
rules, regulations and discipline. Should he be allowed or denied that time as credit on the
new sentence? Likewise, should time spent in jail prior to sentence and conviction be
credited? If the theory is that social interests are brutalized by such imprisonment then
imprisonment prior to a void conviction is just as brutal as imprisonment afterwards. We
cannot by court rule establish such a comprehensive plan. The legislature if willing, could.
In declaring unconstitutional NRS 176.410(3), at least as to this petitioner, it narrows the
area within which the legislature might otherwise operate if it undertakes consideration of the
problem. This is not one of those situations where we are obligated to follow a binding
opinion of the United States Supreme Court, but a constitutional decision of our own. I fear
by premising too many decisions of this type upon constitutional authority we are building a
legal wall of protection around the criminal which hinders terribly society's right to protect
itself effectively and adequately against criminals. This court is now telling the legislature its
statutory scheme for punishment of criminals is void and violates due process because it is
fundamentally unfair and shocking to the universal sense of justice. That sense of justice is
not so universal or shocked as the court indicates. Many other federal courts have upheld a
denial of credit for time served on a void judgment. See Newman v. Rodriquez, 375 F.2d 712
(1967); Meyers v. Hunter, 160 P.2d 344 (1947); Watson v. Commonwealth, 260 F.Supp. 474
(B. D. Penn. 1966); Ex parte Ferell, 406 S.W.2d 440 (Tex.App. 1966); Moore v. Buchko, 144
N.W.2d 670 (Mich.App. 1966). They say, as we should, sentencing is a matter of legislative
prerogative. We should be careful in invading that prerogative absent a compelling necessity.
Sadly again, this court seems concerned only with petitioners rights against society and
that unless he is granted full credit for time served under the void judgment legitimate social
interests would be brutalized. I think we should be equally as concerned in protecting society
from petitioners brutality and the young girl he offended by forcibly raping her.
He has offended society, not the reverse. Society has already accorded him valuable relief
in setting aside his first conviction (on a technicalitylack of counsel on the first conviction)
which in no way lessened the fact of his crime against society. He pleaded guilty again to a
lesser degree of the same crime and even then received further consideration from the court
when it reduced the maximum sentence from life to 10 years.
The practical realities of this case do not justify, in my opinion, constitutional relief.
I dissent.
____________
84 Nev. 332, 332 (1968) Kelly v. State
STEPHEN KELLY and LATRICIA ANDERSON, Appellants, v. THE
No. 5418
May 13, 1968 440 P.2d 889
Appeal from conviction of robbery. Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
The trial court rendered judgment, and defendants appealed. The Supreme Court,
Mowbray, J., held that officer's affidavit reciting defendants' commission of robbery with gun
and facts upon which officer based belief that gun was in their automobile supported warrant
to search automobile for gun although it did not specifically set forth with particularity source
of officer's information and reliability of that source.
Affirmed.
Richard H. Bryan, Public Defender, and Robert G. Legakes, Deputy Public Defender, for
Appellants.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Earl
Gripentrog, Chief Criminal Deputy District Attorney, for Respondent.
Officer's affidavit stating that robbery had been committed with gun, that suspects did not have gun when
arrested, and that suspects' automobile, which had been identified as one used to leave scene of crime, had
been impounded while parked at scene of their arrest, and had not been driven to their residence after
robbery, supported warrant to search automobile for gun. U.S.C.A. Const. Amends. 4, 14.
Officer's affidavit reciting defendants' commission of robbery with gun and facts upon which officer
based belief that gun was in their automobile supported warrant to search automobile for gun although it
did not specifically set forth with particularity source of officer's information and reliability of that source.
U.S.C.A. Const. Amends. 4, 14.
3. Criminal Law.
Permitting affidavit in support of search warrant to be taken to jury room was error, but error
was harmless where each juror stated that he had not seen or read affidavit.
84 Nev. 332, 333 (1968) Kelly v. State
to jury room was error, but error was harmless where each juror stated that he had not seen or read
affidavit.
OPINION
Stephen Kelly and Latricia Anderson were charged with the crime of robbery in the Eighth
Judicial District Court in Clark County and tried before a jury. They were found guilty and
they appeal.
They urge as reversible error the introduction during the trial of a .25 caliber automatic
pistol found in the glove compartment of Kelly's car. They challenge the adequacy of the
police officer's affidavit filed in support of the magistrate's search warrant, which they assert
violates their constitutional rights of the Fourth and Fourteenth Amendments of the United
States Constitution. Gordon v. State, 83 Nev. 177, 426 P.2d 424 (1967); Wong Sun v. United
States, 371 U.S. 471 (1962); Mapp v. Ohio, 367 U.S. 643 (1961).
The victim of the robbery, Vernon Heeke, testified that on February 6, 1967, he met the
appellants and Kelly's wife in the bar of the Showboat Hotel in Las Vegas. They engaged in
conversation, and after they partook of the available refreshments, Kelly's wife suggested that
Heeke escort her to Kelly's car, which was parked near the hotel. Heeke agreed. At the same
time, Kelly and Anderson left the bar and intercepted Heeke in an unlighted alley and robbed
him.
Heeke testified during the trial as follows:
Q. What did the defendant Kelly do at that point [at the time of the robbery]?
A. He said, This is a hold-up.'
Q. What was the defendant Anderson doing?
A. She was standing off to one side.
Q. What did you do?
A. I just stood there. He clicked something that sounded like a gun.
Q. He clicked something?
A. That sounded like a gun being loaded, and he says, Empty your pockets.'
Q. Did you see anything in his hand?
A. It looked like there was something in it. It was in a dark area.
Q. And then he said, Empty your pockets'?
A. That's right.
84 Nev. 332, 334 (1968) Kelly v. State
Q. And what did you do?
A. I emptied my two front pockets; then he says, Turn around,' and somebody got my
billfold out of my rear pocket.
Q. Do you know who did this?
A. I don't know. I don't know because I was turning around.
Q. And what happened next?
A. Then they told me to start walking.
Q. And where did you
A. I walked to the end of that block, then turned around and went back to the Showboat
to report the case, to get hold of the police.
Heeke reported the robbery to the Las Vegas police and gave the police a description of the
Kellys and Anderson. Later in the evening of the same day the Kellys were apprehended in
the Silver Nugget Casino in North Las Vegas. A police record check revealed the license
number of Kelly's car, which was located in the Silver Nugget's parking lot and impounded
by the police. Anderson was arrested at her apartment in Las Vegas. Neither the Kellys nor
Anderson had a pistol in his or her possession when taken into custody.
The following morning the police officers secured a search warrant to search Kelly's car
for the pistol, and upon the affidavit supplied, the magistrate issued the search warrant.
Appellants contend that the officer's affidavit is constitutionally defective in that it does not
establish probable cause for the search. The affidavit
1
presented to the magistrate the
following information, which we deem sufficient to establish probable cause for the
issuance of the warrant:
____________________

1
AFFIDAVIT FOR SEARCH WARRANT
STATE OF NEVADA }
}ss.
COUNTY OF CLARK }
JACK D. PHILLIPS, being first duly sworn, deposes and says:
1. That on or about the 6th day of February, 1967, in the City of Las Vegas, County of Clark, State of
Nevada, the crime of Armed Robbery, to wit: on the person of VERNON HEEKE, was committed by STEVEN
KELLY, GEORGEANN KELLY and LATRICIA ANDERSON, in the manner following, to wit: The victim,
VERNON HEEKE, was asked to accompany the three suspects to the vehicle belonging to STEVEN and
GEORGEANN KELLY, and while en route from the SHOWBOAT HOTEL, in an alley, rear of 2400 block of
Clifford Street, City of Las Vegas, County of Clark, State of Nevada, subject STEVEN KELLY did pull a gun
from his pocket and point said gun at the victim, VERNON HEEKE, and ordered the victim to remove his wallet
and other articles from his pocket and drop them on the ground. Victim VERNON HEEKE: did as told.
STEVEN KELLY picked up the wallet containing $103.00 and the other articles and then, accompanied by the
two above-described females, KELLY proceeded to his vehicle and left the scene.
2. That affiant has, and there is, just, probable and reasonable cause
84 Nev. 332, 335 (1968) Kelly v. State
information, which we deem sufficient to establish probable cause for the issuance of the
warrant:
1. A robbery was committed on or about February 6, 1967.
2. Allegedly a gun was used in the commission of the crime.
3. Vernon Heeke was the victim.
4. There were three named suspects arrested and identified by the victim.
5. A certain vehicle was identified as the car used by the suspects to leave the scene of the
crime.
6. Two of the suspectsthe Kellyswere arrested inside the Silver Nugget Casino.
7. The Kellys did not have the gun in their possession when arrested.
____________________
to believe, and he does believe, that there is now contained in a 1956 Chevrolet two-door, blue in color, bearing
New York license #8486QN, certain article which was used as a means of committing a felony, the
above-described vehicle now located in impound at the DOWNTOWN VEGAS GARAGE, located at 145 West
Imperial, City of Las Vegas, County of Clark, State of Nevada.
3. That the said article is described particularly as follows, to wit: One .25 caliber automatic, blue in color,
hand gun.
4. That the following facts establish the existence of grounds for the issuance of a search warrant for the
search of the said described car: a 1956 Chevrolet two-door, blue in color, bearing New York license #8486QN,
and, further, establish probable cause for believing that said grounds exit: The suspects, after being apprehended,
were identified by said victim, VERNON HEEKE, and the said vehicle also being identified which was used as a
means of transporting the suspects from the scene of the crime. Two of the suspects, GEORGEANN KELLY
and STEVEN KELLY, were arrested inside of a casino, the SILVER NUGGET CASINO, located in the City of
North Las Vegas, County of Clark, State of Nevada. Said suspects, upon arrest, did not have said gun in their
possession, and the vehicle, being parked in the parking lot of said SILVER NUGGET CASINO, and the
residence of suspects STEVEN KELLY and GEORGEANN KELLY, located at 2921 Elm, City of Las Vegas,
County of Clark, State of Nevada, had been under observation by police officers after the occurrence of the
robbery for apprehension of the suspects, and the vehicle was never seen to arrive at that location. Therefore it is
believed by the affiant that the above described gun is still located within said vehicle.
Wherefore, affiant prays that a search warrant issue commanding that an immediate search be made of the
above-described vehicle, a 1956 Chevrolet two-door, blue in color, bearing New York license plates #8486QN,
for the article above described, and that the same be brought before a magistrate and disposed of according to
law.
Jack D Phillips
Subscribed and sworn to before me on this 7th day of February, 1967.
William P. Compton
Judge, Eighth Judicial Court
84 Nev. 332, 336 (1968) Kelly v. State
8. Kelly's car was parked in the Silver Nugget parking lot.
9. The Kellys' residence had been put under observation after the robbery.
10. Kelly's car was not driven to their residence after the robbery.
11. The car had been impounded.
[Headnote 1]
Based upon this information, the officer stated that it was his belief that the gun was still
in Kelly's car. Though the affidavit does not give all the evidentiary facts, it does provide a
sufficient basis for this court to sustain the magistrate's decision to issue a search warrant. As
the court said in Aguilar v. Texas, 378 U.S. 108, 111 (1964): * * * when a search is based
upon a magistrate's, rather than a police officer's, determination of probable cause, the
reviewing courts will accept evidence of a less judicially competent or persuasive character
than would have justified an officer in acting on his own without a warrant,' * * * and will
sustain the judicial determination so long as there was substantial basis for [the magistrate]
to conclude that narcotics were probably present. * * *.'
It was perfectly reasonable to conclude from the facts recited that the weapon was in
Kelly's car.
[Headnote 2]
Appellants also contend that the affidavit is constitutionally defective in that it does not
specifically set forth with particularity the source of the affiant's information and the
reliability of that source. This contention is without merit. Appellants place great reliance
upon the following language in Giordenello v. United States, 357 U.S. 480, 486 (1958): The
complaint contains no affirmative allegation that the affiant spoke with personal knowledge
of the matters contained therein; it does not indicate any sources for the complainant's belief;
and it does not set forth any other sufficient basis upon which a finding of probable cause
could be made.
This language is not applicable to the facts in this case, for the following reasons. There is
virtually no comparison between the affidavit in Giordenello and the one in the case at bar.
2
In Giordenello, the affidavit upon which the search warrant was issued merely set forth the
elements of the crime and the officer's belief that the petitioner had committed it. It provided
the magistrate with no information upon which he could make an independent
determination of probable cause.
____________________

2
The same can be said regarding the affidavit in Aguilar v. Texas, supra. It did not set forth any of the
underlying facts comprising the basis for affiant's belief that reasonable cause existed for the issuance of the
search warrant.
84 Nev. 332, 337 (1968) Kelly v. State
magistrate with no information upon which he could make an independent determination of
probable cause.
* * * The purpose of the complaint, then, is to enable the appropriate magistrate, here a
Commissioner, to determine whether the probable cause' required to support a warrant
exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by
a complaining officer to show probable cause. He should not accept without question the
complainant's mere conclusion that the person whose arrest is sought has committed a crime.
When the complaint in this case is judged with these considerations in mind, it is clear
that it does not pass muster because it does not provide any basis for the Commissioner's
determination * * * that probable cause existed. Giordenello v. United States, supra, at 486.
In the present case the magistrate, who was a District Court judge, received the officer's
statement under oath, which recited the underlying facts and circumstances supporting the
officer's belief that there was reasonable cause to believe the weapon sought was in Kelly's
car. The magistrate was not asked to accept the affiant's conclusion. In Giordenello there was
no sufficient basis set forth for the affiant's belief. In the present case, there is ample basis set
forth under oath in the officer's statement to enable the magistrate to perform his function and
make an independent determination. This he did, and properly so.
The Supreme Court of the United States said, in Nathanson v. United States, 290 U.S. 41,
47 (1933):
Under the Fourth Amendment, an officer may not properly issue a warrant to search a
dwelling unless he can find probable cause therefor from facts or circumstances presented to
him under oath or affirmation. Mere affirmance of belief or suspicion is not enough.
(Emphasis supplied.)
Where the affidavit is otherwise sufficient, as it is in the present case, it is not entirely
unreasonable to assume that the affiant spoke either from personal knowledge or from other
reliable sources. This is particularly so where, as here, the affiant has expressed confidence in
his sources by stating his belief in the information supplied. As the court commented in
McCray v. Illinois, 386 U.S. 300, 313 (1967), regarding officers' testimony in a hearing to
determine probable cause:
Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court
judge in every such hearing to assume the arresting officers are committing perjury.
The matters set forth in the affidavit of officer Phillips are the everyday sort of matters
readily available to an interested and alert police officer.
84 Nev. 332, 338 (1968) Kelly v. State
the everyday sort of matters readily available to an interested and alert police officer. There
was a crime, an identification by the victim, an arrest, etc. To require, under these
circumstances, a specific recital that the information was obtained from police records or
another source would exalt form over substance and ritual over purpose.
In United States v. Ventresca 380 U.S. 102, 108 (1965) the court stated:
* * * the Fourth Amendment's commands, like all constitutional requirements, are
practical and not abstract. If the teachings of the Court's cases are to be followed and the
constitutional policy served, affidavits for search warrants, such as the one involved here,
must be tested and interpreted by magistrates and courts in a common sense and realistic
fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal
investigation. Technical requirements of elaborate specificity once exacted under common
law pleading have no proper place in this area. A grudging or negative attitude by reviewing
courts toward warrants will tend to discourage police officers from submitting their evidence
to a judicial officer before acting. (Emphasis added.)
The officer's effort to obtain a search warrant to search a car held in police custody should
not be hampered by this court's unreasoned application of rules enunciated under different
circumstances. Sufficient basis appearing in the affidavit, the magistrate's finding of probable
cause was valid.
[Headnote 3]
Appellants also contend that it was prejudicial error to submit the affidavit to the jury. The
affidavit was included with the exhibits and instructions and taken to the jury room when the
jury retired. Almost immediately thereafter, when the trial judge learned that it was included
with the exhibits, he informed counsel and ordered the bailiff to retrieve it from the jury
room. When the jury returned with their verdict, the trial judge inquired of each juror if he
had seen or read the affidavit, and each replied in the negative. We therefore find that,
although the affidavit should not be submitted to the jury it was clearly harmless error to do
so under the facts in this case.
____________
84 Nev. 339, 339 (1968) Blaine Fashions, Inc. v. Scheri Shop
BLAINE FASHIONS, INC., Appellant, v. SCHERI
SHOP AND GEORGE THOESEN, Respondents.
No. 5456
May 10, 1968 440 P.2d 904
Appeal from judgment of the Second Judicial District Court, Washoe County; Thomas O.
Craven, Judge.
Action for merchandise sold by plaintiff to named shop which allegedly was then owned
and operated by defendant. The trial court entered judgment for defendant, and plaintiff
appealed. The Supreme Court, Thompson, C. J., held that evidence failed to establish that
defendant was the owner and operator of named shop at time when indebtedness was
incurred, that undated application by defendant for business license to operate named shop
and copy of license, unsigned and undated, purportedly issued by city clerk to shop for period
subsequent to time of sale and delivery of merchandise was properly excluded from evidence,
and that an award of $350 attorney's fee was not excessive.
Judgment affirmed.
Stewart & Horton and Richard A. Sheffield, of Reno, for Appellant.
Springer & Newton, of Reno, for Respondents.
1. Names; Sales.
Evidence in action for merchandise which plaintiff sold to named shop failed to establish that defendant
was owner and operator of named shop at time the indebtedness was incurred.
2. Names; Sales.
In action for indebtedness for merchandise which plaintiff sold to named shop allegedly owned and
operated by defendant at time indebtedness was incurred neither undated application by defendant for a
business license to operate named shop nor a copy of business license, unsigned and undated, purportedly
issued by city clerk to shop for period subsequent in point of time to sale and delivery of merchandise to
shop established defendant's ownership of shop at time of sale, and, therefore, such evidence was not
admissible.
3. Evidence.
Statutory presumption that a thing once proved to exist continues as long as usual with things of that
nature did not apply retroactively and, therefore, fact, if true, that a business license had been issued to
defendant doing business as designated shop for period subsequent to that involved in sale of merchandise
to shop would not allow conclusion that defendant had owned shop at prior time when indebtedness for
merchandise sold was incurred. NRS 52.070, subd. 26.
4. Evidence.
In determining whether defendant was conducting business under name of designated shop at time
indebtedness was incurred for merchandise sold by plaintiff to such shop, defendant's application for a
business license to operate named shop was not subject to presumption of continuity for purpose of
establishing defendant's operation at time of incurrence of indebtedness for merchandise sold to shop,
where application was undated and did not indicate that it had ever been granted. NRS 52.070, subd. 26.
5. Costs.
Award of $350 attorney's fee to defendant as prevailing party in action for indebtedness for merchandise
sold was not excessive, even though the recovery sought was only $474.38. NRS 18.010, subd. 2(c).
OPINION
[Headnote 1]
Blaine Fashions commenced suit against Thoesen to collect an alleged indebtedness for
merchandise sold in July and August of 1965 to a business named Scheri Shop in Carson
City. The district court found for the defendant Thoesen since, in its opinion, the plaintiff
filed to prove that Thoesen conducted business under the name of Scheri Shop when the debt
was incurred. We affirm that determination.
[Headnote 2]
1. The appellate complaint is that documentary evidence offered by the plaintiff at trial
and rejected by the court, should have been received since it tended to establish Thoesen's
ownership of the business at the critical time. That evidence was an undated application by
Thoesen for a business license to operate Scheri Shop, and a copy of a business license,
unsigned and undated, purportedly issued by the City Clerk to Scheri Shop for the period
October through December 1965, which quarterly period is subsequent in point of time to the
sale and delivery of the merchandise to Scheri Shop. Thoesen's name does not appear on the
latter document.
1
Neither document would establish Thoesen's ownership of Scheri Shop
during July and August of 1965.
[Headnote 3]
Notwithstanding this fact it is the appellant's contention that the void in proof is filled by
the rebuttable presumption "that a thing once proved to exist continues as long as usual
with things of that nature."
____________________

1
We do not decide whether the documents met foundation requirements of admissibility.
that a thing once proved to exist continues as long as usual with things of that nature. NRS
52.070(32), now NRS 52.070(26).
2
It argues that the rebuttable presumption of continuity
applies retroactively, thereby allowing the court to conclude that Thoesen owned Scheri Shop
in July and August of 1965 since Scheri Shop possessed a business license for the subsequent
quarter of that year. Even had the business license been issued to Thoesen, doing business as
Scheri Shop (it was notThoesen's name does not appear on the license), the statutory
presumption would not benefit the appellant since it does not apply retroactively. In Tonopah
& Goldfield Ry. v. Fellanbaum, 32 Nev. 278, 107 P. 882 (1910), the court wrote: A
condition shown to exist at a particular time is presumed to continue thereafter, but there is
no presumption that it had continued for any length of time previously. Id. at 298.
The cases relied upon by appellant [Watt v. Nevada Cent. Ry., 23 Nev. 154, 44 P. 423
(1896); State v. Enkhouse, 40 Nev. 1, 160 P. 23 (1916); and Studebaker Co. v. Witcher, 44
Nev. 442, 195 P. 334 (1921)] do not suggest otherwise. The Watt case does not discuss the
presumption of continuity, but simply admitted evidence of how a train engine was run to
indicate past habit. In Enkhouse, the presumption was applied prospectively. In Studebaker
the following observation was made: Proof of the existence at a particular time of a fact of a
continuous nature gives rise to the inference, within logical limits, that it exists at a
subsequent time.' (Emphasis added.) Id. at 463.
[Headnote 4]
Neither may the presumption of continuity apply to the other proffered item of
documentary evidenceThoesen's application for a business licensesince it is undated and
does not indicate that it was ever granted. The lower court did not err in rejecting the
documents.
[Headnote 5]
2. The judgment awarded a $350 attorney's fee to the defendant, and the appellant
contends that the award is excessive in view of the recovery sought by the complaint, i.e.,
$474.38. Of course, the court may allow fees to the defendant as prevailing party when the
plaintiff has not sought recovery in excess of $10,000. NRS 18.010(2)(c). The notion that the
amount involved in the litigation has some bearing on the fixing of the fee has received
recognition in Nevada [Milner v. Shuey, 57 Nev. 159
____________________

2
Neither do we decide whether ownership of a business is one of the things to which the presumption of
continuity may properly attach.
57 Nev. 159, 60 P.2d 604 (1936); Peccole v. Luce & Goodfellow, 66 Nev. 360, 212 P.2d 718
(1949)] and is, perhaps, of greater significance when the prevailing litigant is the plaintiff.
However, when one is forced to engage professional services to defend an action that is
finally resolved in his favor, the amount in controversy probably diminishes in significance as
one of the factors to be considered. The award of $350, in this case, is within permissible
limits of the trial court's discretion.
Affirmed.
____________
84 Nev. 342, 342 (1968) Ledford v. State
THOMAS COYEN LEDFORD, Appellant, v. THE
No. 5332
May 14, 1968 440 P.2d 902
Appeal from the Second Judicial District Court, Washoe County; Thomas 0. Craven,
Judge.
Defendant was convicted of armed robbery. The trial court entered judgment, and the
defendant appealed. The Supreme Court, Collins, J., held that use of defendant's contradictory
alibi testimony from a prior trial did not violate his Fifth Amendment privilege against
self-incrimination, and that such was also otherwise admissible.
Affirmed.
Virgil A. Bucchianeri, of Carson City, for Appellant.
1. Criminal Law.
Use of defendant's contradictory alibi testimony from a prior trial did not violate his Fifth Amendment
privilege against self incrimination. U.S.C.A.Const. Amend. 5.
2. Witnesses.
Unless a statute directs otherwise, defendant in a criminal case who takes stand in his own behalf and
testifies without asserting his privilege against self-incrimination thereby waives privilege as to testimony
given so that it may be used against him in a subsequent trial of the same case, even though defendant does
not take stand at second trial, where his testimony would otherwise be admissible.
take stand at second trial, where his testimony would otherwise be admissible. U.S.C.A.Const. Amend. 5.
3. Criminal Law.
Defendant's contradictory alibi testimony from prior trial was admissible in subsequent trial in same case
on issue of alibi, where prior testimony had been voluntarily given at time when defendant was represented
by counsel, even though prior statements introduced by prosecution were inconsistent with prosecution's
theory of case.
OPINION
On September 20, 1966 the Sprouse Reitz variety store in Reno, Nevada, was robbed by a
single gunman. A complaint was filed October 7, 1966 charging the appellant, Thomas Coyen
Ledford, with the armed robbery.
At the preliminary hearing the state introduced testimony of the store manager and an
employee identifying appellant as the robber. Appellant then took the stand in his own behalf
and testified to an alibi that he had spent the evening gambling in several Reno casinos.
During the trial of the matter in the district court, appellant again took the stand in his own
behalf. He testified to an alibi different from the one given by him at the preliminary hearing.
On cross examination, he stated that the events related by him at the preliminary hearing had
actually occurred a few days before the date of the robbery and that this fact had recently been
discovered through defense counsel's investigative efforts. The jury returned a verdict of
guilty on the armed robbery charge.
Appellant then submitted a motion for a new trial on the ground of newly discovered
evidence. Supporting the motion were affidavits of various persons setting forth still a
different alibi that appellant was in Kingvale, California, on the night of the robbery. This
motion was granted and a date was set for the new trial.
At the second trial the state's case consisted of basically the same evidence set forth in the
first two proceedings, the identification testimony of the two robbery victims. Appellant's
defense consisted entirely of witnesses' testimony that he was in the Kingvale area on the day
in question. Appellant did not take the stand at that time. On rebuttal, the state introduced,
over objection, Ledford's testimony at the two prior proceedings setting forth two different
alibis each of which was inconsistent with the one offered by defendant's witnesses. Ledford
then took the stand and attempted to explain the inconsistencies, saying that he made
frequent trips to Reno and that only recent investigation had revealed to him that the
events offered by him at the prior proceedings occurred during other visits to Reno.
then took the stand and attempted to explain the inconsistencies, saying that he made frequent
trips to Reno and that only recent investigation had revealed to him that the events offered by
him at the prior proceedings occurred during other visits to Reno. The jury returned a verdict
of guilty and this appeal followed.
[Headnote 1]
Appellant's main contention of error before us is that the use of his testimony from a prior
trial violates his Fifth Amendment privilege against self-incrimination. We do not agree.
[Headnote 2]
The following statement of the law appears in Edmonds v. United States, 273 F.2d 108
(D.C. Cir. 1959) and is appropriate: It is generally held, unless a statute directs otherwise,
that a defendant in a criminal case who takes the stand in his own behalf and testifies without
asserting his privilege against self-incrimination thereby waives the privilege as to the
testimony given so that it may be used against him in a subsequent trial of the same case. The
fact that the defendant does not take the stand at the second trial does not prevent the use of
his testimony given at the former trial, if it would otherwise be admissible. [citing cases] 273
F.2d at 112-13. Accord, People v. Boyd, 227 P. 783 (Cal.App. 1924); Indian Fred v. State,
282 P. 930 (Ariz. 1929); State v. Tellay, 110 P.2d 342 (Utah 1941); United States v.
Grunewald, 164 F.Supp. 644 (S.D.N.Y. 1958). Although our research has uncovered no
Nevada case directly in point, there is supporting dicta in State v. Bachman, 41 Nev. 197, 168
P. 733 (1917) which we choose to follow.
[Headnote 3]
During oral argument appellant's counsel also attacked the general admissibility of the
evidence in question. We hold that it was proper. It was voluntarily given by the appellant at a
time when he was represented by counsel. Miranda v. Arizona, 384 U.S. 436 (1966). It was
proper rebuttal evidence,
1
being offered to explain, repel, counteract, contradict, or
disprove evidence offered by the defendant. Dickerson v. State, 422 P.2d 213 (Okla.App.
1966). Likewise, the fact that these prior statements introduced by the prosecution were
inconsistent with their theory of the case did not make them improper. This court in State v.
Patchen, 36 Nev. 510, 137 P. 406 (1913) held that the state may introduce statements of the
accused and not necessarily be bound by their content.
____________________

1
We express no opinion whether the evidence could have been offered by the state as part of its case-in-chief.
Appellant's other specifications of error are either unsupported by the record on appeal or
are wholly without merit.
Accordingly, we affirm the appellant's conviction.
Thompson, C. J., Zenoff, Batjer, and Mowbray JJ., concur.
____________
84 Nev. 345, 345 (1968) Azbill v. State
SYLVESTER J. AZBILL, Appellant, v. THE
No. 5541
May 15, 1968 440 P.2d 1014
Appeal from the Eighth Judicial District Court, Clark County; John Mendoza, Judge.
Habeas corpus brought to test legal sufficiency of indictment charging murder. The trial
court denied relief and appeal was taken. The Supreme Court, Collins, J., held that where
pathologists who had examined body of deceased woman found no evidence of death of
natural causes, manual strangulation or suffocation, and they absolutely excluded burning of
body by defendant as cause of death, and state did not rely upon theory of criminal agency,
corpus delicti of murder was not proved.
Reversed and remanded, with directions.
Mowbray, J., dissented.
Wiener, Goldwater & Galatz, and John Manzonie, of Las Vegas, for Appellant.
Raymond D. Jeffers, Deputy District Attorney, Clark County, for Respondent.
Supreme Court as well as trial court is limited to evidence considered by grand jury in testing legal
sufficiency of murder indictment as to either proof of corpus delicti or probable cause.
2. Criminal Law.
Before person can be held for trial for murder it must be proved that crime has been committed and there
must be probable cause to believe that person charged committed it.
3. Homicide.
In proving the corpus delicti of murder, fact of death and criminal agency of another responsible for that
death must be established.
4. Criminal Law.
In determining whether corpus delicti was proved by lawful evidence, courts look at entire record and
without regard to order that it came in or that certain types of evidence may not be considered in proving
corpus delicti and determine whether there was sufficient evidence to establish corpus delicti independent
of confessions and possibly admissions, but latter may then be used to corroborate or strengthen proof of
corpus delicti.
5. Criminal Law.
Once corpus delicti is determined to have been proved by lawful evidence, confessions and admissions
may clearly be considered in establishing probable cause to show that it was the particular defendant
charged who was criminal agency causing the death.
6. Criminal Law.
Proof of corpus delicti may be made by direct evidence, partially by direct and partially by circumstantial
evidence or totally by circumstantial evidence.
7. Criminal Law.
At trial stage, state must prove existence of corpus delicti, along with all other aspects of crime, beyond a
reasonable doubt.
8. Criminal Law.
At trial stage, presence or existence of corpus delicti is question for jury.
9. Habeas Corpus.
On review by habeas corpus of sufficiency of evidence to support indictment, function of district judge is
to determine whether state has fulfilled its burden on that point and its burden is only to show that there is
probable cause to believe that offense has been committed and defendant has committed it. NRS
172.155, subd. 1, 175.191, 175.201.
10. Criminal Law.
In holding to answer proceeding charging murder, state must offer evidence in proving corpus delicti to
establish affirmatively that death was result of criminal agency of another.
11. Criminal Law.
If, in considering all evidence admissible upon element of corpus delicti, it cannot be said that there was
sufficient evidence to make it appear that death resulted from another's criminal agency, state has failed in
its burden and person charged may not be held to stand trial on that charge.
12. Criminal Law.
In a holding to answer proceeding charging murder, state need not eliminate all noncriminal inferences,
but there must be an inference of criminal agency, even if there are also equally plausible noncriminal
explanations, neither grand jury nor reviewing court may speculate that criminal agency caused the death
and there must be sufficient proof of hypothesis of death by criminal means.
Where pathologists who had examined body of deceased woman found no evidence of death of natural
causes, manual strangulation or suffocation, and they absolutely excluded defendant's
burning of body as cause of death, and state did not rely upon theory of criminal
agency, corpus delicti of murder was not proved.
strangulation or suffocation, and they absolutely excluded defendant's burning of body as cause of death,
and state did not rely upon theory of criminal agency, corpus delicti of murder was not proved.
OPINION
This is an appeal from denial by the trial court of habeas corpus brought to test the legal
sufficiency of an indictment charging murder. The lower court found the evidence sufficient
and upheld the indictment. We reverse the order and remand the cause for further action.
Ed and Rose Mapel were married for over 44 years. They experienced marital difficulties
and a divorce action was pending when he died in June 1967. He left a considerable estate,
most of which succeeded to Rose. They had no children.
Rose Mapel married appellant, Sylvester Azbill, shortly after her former husband's death.
She was 61 years and he was considerably younger in age. They continued to reside in the
wife's home until the time of her death on December 27, 1967.
The state sought indictment of appellant from the Clark County Grand Jury for murder and
arson. A true bill was returned on both charges after receipt of evidence. A transcript of that
evidence was made and is before us as it was before the trial court. The count charging
murder was attacked by appellant through habeas corpus contending the state had failed to
prove the corpus delicti of the crime by evidence admissible for that purpose. We agree.
[Headnote 1]
We, as well as the trial court, are limited to the evidence considered by the grand jury in
testing the legal sufficiency of the murder indictment as to either proof of corpus delicti or
probable cause. Shelby v. District Court, 82 Nev. 204, 414 P.2d 942 (1966).
Careful examination of the transcript of the proceeding discloses the following evidence
relating to the murder charge:
Donna Kellogg, a niece of Rose Mapel Azbill, testified she visited her aunt and new
husband in their home in Las Vegas in October 1967, meeting Azbill for the first time; that
previously her aunt had never smoked and drank only slightly or casually, but while she
visited the home over this particular weekend she observed considerable drinking by her
aunt and appellant; that appellant continuously kept Rose's glass filled and gave her a
bottle of liquor on Sunday morning as a present; that her aunt did not appear to be in ill
health but was under the influence of alcohol most of the time she was visiting; that she
twice observed appellant give her aunt pills, which she took without inspecting them; that
appellant in the presence of his wife told the niece he wanted to put Rose on marijuana;
that as her husband he would do anything or give her anything he wanted; that appellant
spoke of knockout drops or chloral hydrate; that his father was a retired doctor and that
appellant had ways of getting things; that when the niece left she told appellant to be
good to and care for her aunt.
weekend she observed considerable drinking by her aunt and appellant; that appellant
continuously kept Rose's glass filled and gave her a bottle of liquor on Sunday morning as a
present; that her aunt did not appear to be in ill health but was under the influence of alcohol
most of the time she was visiting; that she twice observed appellant give her aunt pills, which
she took without inspecting them; that appellant in the presence of his wife told the niece he
wanted to put Rose on marijuana; that as her husband he would do anything or give her
anything he wanted; that appellant spoke of knockout drops or chloral hydrate; that his father
was a retired doctor and that appellant had ways of getting things; that when the niece left she
told appellant to be good to and care for her aunt.
Brad Azbill, 12-year-old son of appellant by a previous marriage, testified he visited
appellant and his wife on December 26, 1967 and stayed there all the next day; that three of
his boyfriends visited him in the Mapel-Azbill home December 27; that both appellant and
Rose were drinking; that he (Brad) had snuck some liquor from his father; that he
accompanied his father on perhaps three different occasions to the store on December 27 to
get liquor and beer; that when he took the beer into Rose who was in bed in her bedroom
about 7:00 p.m., he talked to her at that time but that she looked kind of sick because she had
not eaten for 3 or 4 days; that she refused offers of food; that appellant asked him for the
lighter fluid (or charcoal starting fluid); that he got it for appellant who took it into Rose's
bedroom; that he accompanied appellant into the bedroom, where Rose was lying on her side
in bed not moving or talking and appeared to be dead; that he saw appellant dump the fluid
on the bed and light it; that he saw the fire start and upon expressing objection to appellant's
acts, was told by appellant to Keep your mouth shut; that Brad's friends, Frank, Mark and
John, came into the house and said they smelled smoke.
Frank Luhman, age 15 and a friend of Brad testified that he was at the Mapel-Azbill home
on December 27; that he observed a large, partially-filled can of charcoal starting fluid in the
house; that during the course of the day he saw and talked to Rose who was in the bedroom in
bed; that after watching a television program in the guest house he and the other boys went to
the main house, smelled smoke, saw fire in Rose's bedroom and tried to put it out; that
appellant told him the smoke was from a Christmas tree fire; that he nevertheless opened the
door of Rose's bedroom and saw smoke; that he went outside and broke windows in the
bedroom and tried to spray Rose with water and put the fire out but that he couldn't make
it; that while the fire was in progress he saw Brad hold appellant around the waist and
heard appellant say, "I want to get her, I want to get her."
spray Rose with water and put the fire out but that he couldn't make it; that while the fire was
in progress he saw Brad hold appellant around the waist and heard appellant say, I want to
get her, I want to get her.
Nancy Sue Lynch testified that she had known appellant since June 1967; that on
December 27 she received a telephone call from appellant who stated he wanted to see her at
the Mapel-Azbill residence; that she took a taxi to the home arriving about noon; that she was
greeted by Brad and the other boys and taken to the guest house behind the main house; that
appellant came to the guest house, talked and argued with her; that he was drunk, in a cast
and on crutches; that she had sexual relations with appellant; that appellant told her that Rose
Azbill was sick and she was lying there dying and that they knew in three or four days she
would be dead and then he would have all that money and the house and that she [Nancy Sue
Lynch] would come back to him; that before leaving the house Brad brought her a check for
$50.00 in payment for the sexual relations.
Richard H. Bast, Fire Marshal, testified that the fire in the bedroom was incendiary in
origin and caused by a flammable fluid.
John Wesley Grayson, Jr., M.D., a pathologist, who examined the body of Rose Azbill
testified that there was no specific cause of death which could be identified in the body; that
he found no evidence of disease process in Rose's body sufficient to cause death by natural
means or confinement to bed; that he found no evidence of suffocation, hemorrhage, broken
bones in the neck or structure of the voice box which would indicate manual strangulation,
but neither could he refute suffocation or manual strangulation; that due to a lack of soot
particles in the lungs and carbon monoxide in the blood stream Rose had not taken a single
breath during the fire and was dead without respiration at the time the fire began; that in his
opinion the medical cause of death was most probably due to a combination of barbiturates
(sleeping pill type of tablets) and ethanol (alcohol).
Thorne Butler, M.D., also a pathologist specializing in toxology testified he examined the
organs of Rose Azbill's body and found present ethanol and phenobarbital, neither at a
concentration level which alone would be fatal; that the combination of the two toxic
substances in the level of concentration found is highly dangerous; that in many reported
cases a level of concentration of the two toxic substances found in Rose Azbill resulted in
death; that he found no other factors that could have caused death; that in his opinion the
most probable cause of Rose Azbill's death was the combination of drugs and alcohol.
that could have caused death; that in his opinion the most probable cause of Rose Azbill's
death was the combination of drugs and alcohol.
Appellant attacks the sufficiency of the evidence to sustain the indictment (NRS
172.155(2); Shelby v. District Court, supra) and contends (1) there was no evidence before
the grand jury to establish the second element of the corpus delicti, i.e., the criminal agency of
another person causing the death; (2) the lower court erred when it held the corpus delicti
could be proved by implied admissions (admissions by action) but not express admissions
(extrajudicial admissions).
Respondent, urging that we uphold the order of the lower court, contends (1) that we
should infer that a criminal agency caused the death of Rose Azbill from all the evidence; (2)
that there was no evidence there were any barbiturates or alcohol in the room for her to take
and that someone must have taken them in to her; (3) that one and one-half hours after Rose
was observed in a weakened condition for lack of food, had no alcohol or pills available to
her and while alone in the house with appellant, she was burned [to death].
The trial court ruled (1) that all the evidence taken before the grand jury established
probable cause to believe an offense had been committed and that defendant committed it; (2)
that the corpus delicti must be established by evidence independent of and prior to receipt of
statements, confessions or admissions of the defendant; (3) that the corpus delicti may be
established by circumstantial evidence and reasonable inferences drawn therefrom; (4) that
the determination of the criminal agency factor in proof of the corpus delicti is a question for
the jury and not the court.
The death of a human being may be brought about by any one of four means: (1) natural
causes; (2) accident; (3) suicide; or (4) criminal means.
[Headnote 2]
If a death is thought to be caused by criminal means and a person is charged with a crime
for causing that death, before he can be held for trial two things must be proved by sufficient
legal evidence before a grand jury if an indictment is sought or before a magistrate if a
complaint is filed and a preliminary hearing is held. They are (1) the fact that a crime has
been committed; and (2) probable cause to believe that the person charged committed it.
[Headnote 3]
In proving the crime, which is otherwise known as the corpus delicti two elements must be
established (1) the fact of death; and {2) the criminal agency of another responsible for that
death.
and (2) the criminal agency of another responsible for that death. Beasley v. Lamb, 79 Nev.
78, 80, 378 P.2d 524 (1963).
The fact of death of Rose Azbill is conceded by both parties. That her death was caused or
brought about by the criminal agency of another (without saying whom in proving corpus
delicti), is the point strongly contested here.
Technically, we suppose, if it were possible to conduct the proceedings in such a precise
manner, evidence should be offered first to prove the corpus delicti and only after that was
established by lawful evidence of the proper degree should the state turn to the proof of
probable cause. However, as any prosecutor, defense counsel or judge knows, it is often not
practical to present evidence in such a manner.
Thus evidence and testimony on both points, corpus delicti and probable cause, comes in
often, if not always, intermingled and without specific control as to which of the points it is
offered to prove.
[Headnote 4]
As demonstrated by the cases reviewing whether corpus delicti was proved by evidence
lawful for that purpose, the courts look at the entire record and without regard to the order in
which it came in or that certain types of evidence may not be considered in proving corpus
delicti (confessions for example) and hold that there was sufficient evidence to establish the
corpus delicti independent of confessions and possibly admissions, but that the latter may
then be used to corroborate or strengthen the proof of the corpus delicti. Sefton v. State, 72
Nev. 106, 295 P.2d 385 (1956); In re Kelly, 28 Nev. 491, 83 P. 223 (1905); People v.
Jacobson, 405 P.2d 555 (Cal. 1965).
[Headnote 5]
Once the corpus delicti is determined to have been proved by lawful evidence, confessions
and admissions may clearly be considered in establishing probable cause to show that it was
the particular defendant charged who was the criminal agency causing the death. In re Kelly,
supra.
[Headnote 6]
Proof of the corpus delicti may be made by direct evidence, People v. Watters, 259 P. 442
(Cal. 1927); partially by direct and partially by circumstantial evidence or totally by
circumstantial evidence. State v. Ah Chuey, 14 Nev. 79 (1879); State v. Loveless, 17 Nev.
424, 30 P. 1080 (1883); People v. Clark, 233 P. 980 (Cal.App. 1925); Hartman v. State, 206
S.W.2d 380 (Tenn. 1947); People v. Scott, 1 Cal.Rptr. 600 (Cal.App. 1959).
[Headnotes 7-9]
The trial court erred in assessing its function as to the proof of the corpus delicti. At the
trial stage, the state must prove the existence of the corpus delicti, along with all other aspects
of the crime, beyond a reasonable doubt. Sefton v. State, supra. See NRS 175.191, 175.201.
At that time, the presence or existence of the corpus delicti is a question for the jury.
However, on review by habeas corpus of the sufficiency of the evidence to support an
indictment, the function of the district court judge is to determine whether the state has
fulfilled its burden on that point. Its burden is only to show that there is probable cause to
believe that an offense has been committed and the defendant committed it. NRS
172.155(1).
[Headnote 10]
In a holding to answer proceeding charging murder, as here, the state must offer evidence
in proving the corpus delicti, to establish affirmatively that the death was the result of the
criminal agency of another.
[Headnote 11]
If, in considering all the evidence admissible upon the element of corpus delicti, it cannot
be said there was sufficient evidence to make it appear the death resulted from another's
criminal agency the state has failed in its burden and the person charged may not be held to
stand trial on that charge.
We think that clearly is the situation here. If every bit of evidence in the record before us is
considered on the question of the second element of the corpus delicti, there is not sufficient
proof that the death resulted from the criminal agency of another to uphold the indictment.
We need not therefore consider the question whether the corpus delicti may in part be proved
by implied admissions. Nor do we reach the question of probable cause that appellant
committed the crime.
[Headnote 12]
The evidence presented to the grand jury was more susceptible of belief that Rose Azbill
came to her death by accident, natural causes, suicide or was simply unexplained than by
criminal agency. State v. Kindle, 227 P. 65 (Mont. 1924); People v. Ybarra, 228 P. 868
(Cal.App. 1924). The state need not eliminate all non-criminal inferences, but there must be
an inference of a criminal agency even if there are also the equally plausible non-criminal
explanations. People v. Jacobson, supra. Neither the grand jury nor the reviewing court may
speculate that a criminal agency caused the death. There must be sufficient proof of the
hypothesis of death by criminal means.
[Headnote 13]
Here Rose Azbill may have accidentally or possibly intentionally consumed too many
barbiturates and too much alcohol while in a weakened, debilitated or demoralized condition
causing her death. Doctors Grayson and Butler found no evidence of death by natural causes,
manual strangulation or suffocation. True they suggested death possibly may have occurred
by one of those means. But that opinion is too speculative to warrant holding a person for
trial.
Notwithstanding evidence of the burning of Rose's body by appellant, the two medical
witnesses absolutely exclude that circumstance as a cause of death. They were emphatic that
Rose was dead before the burning; that she took not one breath after the fire started. There
was no evidence before the grand jury to refute those expert opinions nor could the jurors
have reached their own conclusion upon that issue. It required skills and techniques beyond a
laymans knowledge.
Except for the doctors testimony, evidence of appellant's attempt to burn the body may
have been circumstantial evidence admissible toward proof of the corpus delicti and of
probable cause. But the state, who undertook to present evidence seeking the indictment,
closed the door on death by fire in offering the testimony of Dr. Grayson.
From the evidence in the record and the inferences to be drawn from it, one plausible
hypothesis of the death of Rose Azbill attributable to a criminal agency was that someone
made available and encouraged her use of quantities of alcohol and barbiturates, knowing the
lethal danger of the combined use of those two toxic substances. However, counsel for the
state eliminated that hypothesis when in argument before us and stated that theory of criminal
agency was not relied upon by the prosecution.
Accordingly we reverse the order of the lower court, and order that appellant be freed from
custody under the indictment charging murder unless within a reasonable time the state elects
to bring a new charge for that crime. We express no opinion upon the arson charge.
Thompson, C. J., Zenoff and Batjer, JJ., concur.
Mowbray, J., dissenting:
I respectfully dissent. The Clark County Grand Jury indicted the appellant, Sylvester J.
Azbill, for the murder of his wife, Rose. The majority has ruled that the indictment must fall
because the evidence presented to the grand jury is insufficient to show probable cause of
the corpus delicti of the crime.
to show probable cause of the corpus delicti of the crime. I disagree.
The controlling Nevada statute is NRS 172.155,
1
which defines the degree of the
evidence necessary to warrant an indictment. In accordance with paragraph 2 of NRS
172.155, supra, the appellant, by application for a writ of habeas corpus filed in the Eighth
Judicial District Court, objected to the sufficiency of the evidence to sustain the indictment
for murder. The District Judge denied the application for the writ, and appellant appeals. I
would sustain the District Judge and order the appellant, Azbill, to stand trial on the murder
charge.
Rose Mapel had been married to Edward Mapel for over 44 years. Edward died in late July
1967, leaving a most substantial estate. In October 1967, Rose, who was then 61 years of age,
married the appellant, many years her junior. Azbill moved into the palatial Mapel residence
in Las Vegas, where the couple resided until Rose's demise a few weeks later on December
27, 1967.
As the majority opinion states, Rose was and had been a person of moderate habits. She
did not smoke and rarely drank. She was apparently in excellent health. Yet the evidence
indicates that after her marriage to Azbill she started drinking heavily and took drugs which
were supplied by Azbill. This course of conduct dominated the relationship of the newly
married couple.
Although the record shows that Azbill knew that Rose was very ill and dying, he did
nothing to aid his wife in her illness, as he characterized it. Rather, he advised his lady friend,
with whom he had relations the afternoon of Rose's death, that Rose would soon die.
2
Azbill's prediction was correct. In fact, she died on the very same evening, when she and
Azbill were alone in the house.
____________________

1
NRS 172.155. Degree of evidence to warrant indictment; objection.
1. The grand jury ought to find an indictment when all the evidence before them, taken together, establishes
probable cause to believe that an offense has been committed and that the defendant has committed it.
2. The defendant may object to the sufficiency of the evidence to sustain the indictment only by application
for a writ of habeas corpus. If no such application is made before the plea is entered, unless the court permits it
to be made within a reasonable time thereafter, the objection is waived.
(Added to NRS by 1967, 1409)

2
Q [by Mr. Gripentrog] Now, you had indicated that you had had conversation in the guest house. Did any
of the conversation relate to Rose Azbill?
A [by Nancy Sue Lynch] Yes, it did.
Q And would you recite that conversation, as you recall it?
A The whole conversation?
Q As it related to Rose Azbill.
she died on the very same evening, when she and Azbill were alone in the house.
According to the two doctors (a pathologist and a toxicologist) who testified before the
grand jury, Rose's death could have been caused by a combination of excessive alcohol and
barbiturates. The doctors could not confirm or refute that death may have been caused by
suffocation. The pathologist did testify that the autopsy revealed that death in this case was
not due to one of the natural causes such as stroke or heart attack or cancer or one of the
other major diseases, or minor diseases, for that matter. We found no evidence of disease
process which would have caused death by natural means in this person.
The doctors did rule out the possibility of death by burning * * * because of the lack of
soot particles in the lungs and also the determination of carbon monoxide in the blood of the
deceased, * * *. Azbill had set fire to Rose as she lay in her bed later in the evening of
December 27.
3
Before the fire department arrived, Rose was badly burned and charred about
the upper extremities of her body.
____________________
A He said she was sick and she was lying there dying and that they all knew, that in three or four days she
would be dead and then he would have all of that money.
Q And anything else in addition?
A He would have all of that money and the house, and then, I would come back to him.

3
A [by Brad Azbill, the appellant's young son] Well, see, then he [Azbill] asked for the lighter fluid and at
that time I didn't really know what he wanted it for, but I went and got it for him and he had it and then he went
into the room and started dumping it on the bed, or whereverthe lighter fluidand then
* * * * *

A Well, then I had my face covered, and then be lit a match and then there was a little smoke and then there
was a whole mess, and I ran out, and then he came out into the front room and the boys came in to see
Q Did he say anything to you when you got back up in the front room, Brad?
A Yes.
Q What did be say?
A He said just keep my mouth shut.
Q Did he say, Keep your mouth shut'?
A You know, something like that; he just said, you know, be quiet or something like that.
* * * * *

The Juror: She [Rose] did not move at all?
The Witness [Brad Azbill]: No, not that I knew, because when I came in he was in on his crutches and he
leaned onI guess he went down on the bed, you know, and started pouring, and I started saying. No, no, no,
don't.' And he lit a match and it started and I watched and just turned around and just kind of went out and my
face
It is this lack of clear specificity in the record establishing the precise agency of Rose's
death that the majority finds insufficient to establish probable cause to believe an offense has
been committed. It is on this point that I take exception.
The general rule has been well stated in People v. Aday, 38 Cal.Rptr. 199, 203 (Cal.App.
1964), * * * that an indictment will not be set aside if there is some rational ground for
assuming the possibility that the offense charged has been committed and the accused is
guilty of it.
Our function is like that of the trial court, i.e., to determine whether the members of the
grand jury, acting as men of ordinary caution or prudence, could be led to believe and
conscientiously entertain a reasonable suspicion that defendants were guilty of the offense
charged. People v. Aday, supra.
As the majority opinion has pointed out, The state need not eliminate all non-criminal
inferences, but there must be an inference of a criminal agency even if there are also the
equally plausible non-criminal explanations.
It appears to me that this case is properly viewed as follows. The record is clear that Rose
did not die a natural death. There are three possible agencies of death: accidental, suicidal,
and criminal. The majority has said that it was only reasonable for the grand jury to find that
the agency of death was either accidental or suicidal. Assuming, as apparently the majority
does, that the medical cause of death was the combination of barbiturates and alcohol, the
criminal agency of death is possible. Under the facts before the grand jury, I cannot say that
the criminal agency thesis was not at least as reasonable as the others. The majority opinion
itself states that one plausible hypothesis of the death of Rose Azbill attributable to a
criminal agency was that someone made available and encouraged her use of quantities of
alcohol and barbiturates, knowing the lethal danger of the combined use of those two toxic
substances.
The majority contends that, since the District Attorney in oral argument before us did not
specifically rely upon that theory, it has been eliminated from our consideration. I cannot
agree. Our task on review is to determine whether or not the grand jury had before it
sufficient evidence to justify the indictment. If the grand jury's interpretation of the evidence
before it is reasonable, we should not now disturb it. It is not our function to draw
indictments, but only to assure that when they are returned they are within reasonable bounds.
Even by the majority's view of the evidence, it was reasonable for the grand jury to have
concluded that the appellant had intentionally and by design brought about the death of Rose
Azbill.
The majority is correct in not suggesting that one thesis for agency of death need be more
plausible than the others. Indeed, as the court said in People v. Jacobson, 405 P.2d 555, 560
(Cal. 1965), which authority was relied upon by the majority:
With two possible contrary inferences before it, the court did not err in ruling that a prima
facie showing of corpus delicti had been made. To meet the foundational test the prosecution
need not eliminate all inferences tending to show a noncriminal cause of death. Rather, the
foundation may be laid by the introduction of evidence which creates a reasonable inference
that the death could have been caused by a criminal agency * * * even in the presence of an
equally plausible noncriminal explanation of the event.
Appellant argues that the conduct of his burning Rose's body is an implied admission and
therefore may not be considered until after the corpus delicti has been independently
established. Appellant's contention is without merit. I know of no rule which, under a factual
pattern such as we find in this case, requires the grand jurors to blind themselves to one of the
most glaring and relevant circumstances in the case. The burning of Rose's body by Azbill, as
a fact, was a perfectly proper matter for the grand jury's consideration.
The rule is well settled in People v. Spencer, 208 P. 380, 390 (Cal. 1922), that: * * * the
fact that death was produced by a criminal act may be shown by means of circumstantial
evidence, * * * including facts of conduct on the part of the accused, may be taken into
consideration.'
Nor, * * * is it essential that the corpus delicti should be established by evidence
independent of that which tends to connect the accused with its perpetration. The same
evidence which tends to prove one may also tend to prove the other, so that the existence of
the crime and the guilt of the defendant may stand together inseparable on one foundation of
circumstantial evidence.'
The rules above stated are now so generally accepted in all the American states as well as
in England that they have become elementary in the law. See also People v. Mohr, 75 P.2d
616 (Cal.App. 1938).
An implied omission is conduct from which guilt of the accused can be inferred. To
exclude such conduct when it also has independent significance as circumstantial evidence
would appear most unreasonable.
* * * Crimes, and especially those of the worst kinds, are naturally committed at chosen
times, and in darkness and secrecy; and human society must act upon such indications as the
circumstances of the case present or admit, or society must be broken up.'" People v.
Spencer, supra, at 390.
The concealment or attempted destruction of the body of a person can properly be
regarded as an incriminating circumstance and may be given positive force in connection
with other facts. Annot., 2 A.L.R. 1227 {1919).
the circumstances of the case present or admit, or society must be broken up.' People v.
Spencer, supra, at 390.
The concealment or attempted destruction of the body of a person can properly be regarded
as an incriminating circumstance and may be given positive force in connection with other
facts. Annot., 2 A.L.R. 1227 (1919).
Appellant urges that the rule against admitting admissions and confessions prior to a prima
facie showing of corpus delicti be extended to the factual situation before us. However, no
persuasive policy reason has been offered in support of his contention. The circumstantial
evidence here in question is not uncorroborated, fabricated testimony which might wrongfully
establish a crime; rather, it is a factual occurrence from which reasonable inferences can be
drawn. People v. Scott, 1 Cal. Rptr. 600 (Cal.App. 1959), cert. denied, 364 U.S. 471 (1960);
48 Calif.L.Rev. 849 (1960).
We have not been asked to pass on the guilt or innocence of the appellant, Sylvester J.
Azbill. This would be the duty of the court or the jury before whom Azbill would stand trial.
Our sole function at this juncture is to determine whether all the evidence before the grand
jury, taken together, establishes probable cause to believe that an offense has been
committed and that the defendant committed it. NRS 172.155, supra.
It is my opinion that the action taken by the grand jury was not unreasonable and is
supported by the record.
As this court ruled in Kelly v. State, 84 Nev. 332, 440 P.2d 889 (1968), probable cause is a
standard of reasonableness which must be interpreted in a common-sense and realistic
manner.
The order of the District Judge denying appellant's application for a writ of habeas corpus
should be affirmed, and the appellant, Sylvester J. Azbill, should be ordered to stand trial for
the murder of his wife, Rose.
____________
84 Nev. 358, 358 (1968) Crowe v. State
JOHNNY WAYNE CROWE, Appellant, v.
No. 5440
May 17, 1968 441 P.2d 90
Appeal from conviction for sale of narcotics. Eighth Judicial District Court, Clark County;
John F. Sexton, Judge.
84 Nev. 358, 359 (1968) Crowe v. State
Defendant was convicted in the trial court of selling narcotics, and he appealed. The
Supreme Court, Zenoff, J., held that failure of trial judge to permit voir dire examination of
jury after publication of a newspaper article relating to defendant's former narcotics trials and
to give admonitions that they were to avoid such news accounts and to instruct jury prior to
deliberations that such news stories should be disregarded constituted reversible error.
Alfred Becker, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, and George E. Franklin, Jr., District Attorney, Clark
1. Criminal Law.
Subject of narcotics addiction is not a medical matter singularly within province of testimony of expert
medical witnesses.
2. Criminal Law.
It is function of trial judge to first determine, when question is presented, whether or not a witness is
qualified to testify as an expert.
3. Criminal Law.
Lay witnesses, who are sufficiently trained and experienced, may testify at discretion of trial court
relative to use and influence of narcotics or addiction thereto.
4. Criminal Law.
While it was error for court not to rule on whether or not parole and probation officer, who testified that
police informer was not an addict, qualified as an expert on narcotics addiction, the failure was not so
material as to warrant a reversal since he could properly testify as a lay witness in trial court's discretion
and no prejudice resulted.
5. Criminal Law.
The trial judge has large discretion in ruling on issue of possible prejudice resulting from news articles
concerning the defendant on trial and each case must turn on its special facts. NRS 175.401, subd. 2.
6. Criminal Law.
Failure of trial judge to permit voir dire examination of jury after publication of a newspaper article
relating to defendant's former narcotics trials and to give admonitions that they were to avoid such news
accounts and to instruct jury prior to deliberations that such news stories should be disregarded constituted
reversible error. NRS 175.401, subd. 2.
7. Criminal Law.
Determinations as to whether news articles concerning a defendant on trial tend to have a prejudicial
effect in jury's minds should not always be made in chambers with counsel, rather, in instances of doubt the
jury should be examined.
84 Nev. 358, 360 (1968) Crowe v. State
8. Criminal Law.
In order to protect as far as possible essential rights of defendant it is required that trial courts call
attention of jurors specifically to possibility of news accounts and to admonish jurors not to read or listen
to them; formal cautionary instructions are equally essential to provide jury with specific guidelines to
assure requisite balance of impartiality.
9. Criminal Law.
When a news account relating to defendant's former trials is specifically called to the attention of the trial
court and voir dire is not made, it is incumbent upon the trial court to admonish jurors not to read news
account and to give formal cautionary instructions that such news stories should be disregarded. NRS
175.401, subd. 2.
10. Criminal Law.
The test for sufficiency upon appellate review is not whether the Supreme Court is convinced of guilt of
defendant beyond a reasonable doubt, but whether the Supreme Court can conclude the trier of facts could,
acting reasonably, be convinced to degree of certitude by evidence which it had a right to believe and
accept as true.
11. Poisons.
The testimony of but one witness, be it an informer, an accomplice or an undercover policeman, is
sufficient to convict a defendant for sale of narcotics if testimony contains all of essential elements of
crime.
12. Criminal Law; Witnesses.
Defendant is entitled to considerable latitude to probe credibility of police informer by cross-examination
and to have issue submitted to jury with careful instruction cautioning then of care which must be taken in
weighing such testimony.
13. Criminal Law.
Special cautionary instructions are required when police informer's testimony is uncorroborated and no
direct evidence is untainted or when there is only minor corroboration of witness.
14. Criminal Law.
Even when testimony of police informer is corroborated in critical respects, careful instructions in form
and substance should call attention to character of testimony of informer, leaving to jury ultimate question
of value and credibility.
15. Criminal Law.
It is desirable that jury instructions have meaning in particular circumstances of each case rather than be
patterned for all cases.
OPINION
Johnny Wayne Crowe seeks reversal of his conviction for the sale of narcotics on three
grounds: (1) that the opinion testimony of a probation and parole officer as an expert on
narcotics addiction should not have been admitted; (2) that the trial court should have
permitted a voir dire examination of the jury after the publication of a newspaper article
relating to Crowe's former narcotics trials; and {3) that the trial court should not have
allowed the conviction to stand because the only material evidence was the testimony of
a police informer, himself a narcotics user.
84 Nev. 358, 361 (1968) Crowe v. State
the trial court should have permitted a voir dire examination of the jury after the publication
of a newspaper article relating to Crowe's former narcotics trials; and (3) that the trial court
should not have allowed the conviction to stand because the only material evidence was the
testimony of a police informer, himself a narcotics user. We agree that reversal is required.
James Alexander became a police informer and a user of narcotics in the public interest,
in order to serve the community, as he stated, to do something about the narcotics problem.
From marijuana he stepped up to heroin and LSD during the years he acted as an informer.
He became a steady user of heroin although professing that he was not an addict, maybe
emotionally but not physically.
The police set Alexander up to make a score (a purchase) of heroin from Crowe, a
suspected pusher (seller) in the Las Vegas area. They gave Alexander $42 in cash making
careful note of the serial numbers on the bills and that Alexander had no other money on him.
Alexander made the preliminary steps to meet with Crowe, advised the police, and did in fact
meet with him, but the police never did see the two of them together. The only material and
relevant testimony of the transaction was the word of Alexander the informer against Crowe
the defendant. Alexander testified that he and Crowe and two other companions took shots
in a restroom of a service station, using heroin purchased from Crowe, saving some which he
turned over to the police. He said that instead of taking a shot he put the needle entirely
through his skin so that the dope came out from the needle onto his arm instead of into his
vein, a stunt according to him he had learned from the Federal Bureau of Investigation.
Crowe in defense admitted that he, Alexander and two companions each took the shots,
but testified the heroin used had been supplied by Alexander who had purchased it from
someone other than Crowe. No money, particularly the marked bills, was found on Crowe
when he was arrested three weeks after the incident. The companions did not testify nor was
there any explanation of their absence. The only witnesses at the trial for the state were a
chemist, Alexander, one of the two police officers who set up Alexander for the purchase,
and James Gerow, a parole and probation officer, who was used to testify that Alexander was
not an addict.
[Headnote 1]
1. We reject the contention of the appellant that the subject of narcotics addiction be
deemed a medical matter singularly within the province of testimony of expert medical
witnesses. We believe the use of nonmedical testimony is neither erroneous nor prejudicial.
84 Nev. 358, 362 (1968) Crowe v. State
neither erroneous nor prejudicial. People v. Mack, 338 P.2d 25 (Cal.App. 1959); People v.
Smith, 61 Cal.Rptr. 557 (Cal.App. 1967).
[Headnotes 2-4]
However here the trial court did not rule whether Gerow qualified as an expert, but left it
to the jury to determine whether his testimony was to be considered as that of an expert or
layman and the weight to be accorded such testimony. This was error. It is the function of the
trial judge to first determine, when the question is presented, whether or not a witness is
qualified to testify as an expert, Hardison v. State, 84 Nev. 125, 437 P.2d 868 (1968), but in
this instance is much ado about nothing. Lay witnesses, such as Gerow, who are sufficiently
trained and experienced, may testify at the discretion of the trial court relative to the use and
influence of narcotics or the addiction thereto. See People v. Chrisman, 64 Cal.Rptr. 733
(Cal.App. 1967); People v. Mack, supra; People v. Smith, supra; State v. Chavez, 421 P.2d
796 (N.M. 1966). Furthermore, under cross-examination he admitted that he had observed
Alexander (who was on probation) only a few minutes each month and that he partly relied
on statements of other staff members for his conclusion that Alexander was not an addict.
When Alexander testified he freely related his long use of narcotics from which the jurors
could assess their own values. Thus, while it was error for the court not to rule whether or not
Gerow qualified as an expert, the failure was not so material to warrant a reversal since he
could properly testify as a lay witness in the trial court's discretion and no prejudice resulted.
State v. Jiles, 142 N.W.2d 451 (Iowa 1966).
2. We cannot say the same however for the second assignment of error. The refusal of the
trial court to exercise appropriate procedural safeguards that have many times been ruled
essential to a fair trial necessitates a new trial for Crowe.
The jury was selected in the afternoon and permitted to separate until the trial commenced
the following morning. The afternoon newspaper of that day and the morning edition the
following day carried a three-column news story which stated in the headline, IN
NARCOTICS TRIAL DISTRICT ATTORNEY SUFFERS BIG DEFEAT. In the first three
paragraphs Crowe was mentioned by name as the defendant in narcotics proceedings which
ended in three mistrials and then an acquittal. The district attorney, the article read, was
reeling from a stinging not guilty verdict rendered against him," and a deputy district
attorney was quoted, "You might as well forget about presenting sale of narcotics
charges."
84 Nev. 358, 363 (1968) Crowe v. State
him, and a deputy district attorney was quoted, You might as well forget about presenting
sale of narcotics charges.
Immediately when this present trial convened Crowe's counsel moved the court to
interrogate the jurors concerning the news article. Despite the suggestive atmosphere
generated by the news article the trial court refused to conduct a voir dire examination of the
jury to determine if they had read the article and, if so, what effect, if any, it had upon them.
We said in Pacheco v. State, 82 Nev. 172, 414 P.2d 100 (1966), if the issue of guilt or
innocence is close and the jurors have been exposed to a publication about the defendant, a
new trial may be inevitable, so we advised that the trial judge augment his statutory
admonition to the jurors with a caution that they not read news articles or listen to news
accounts of the trial. That suggestion was made statutory by the 1967 legislature.
1

The state and the defendant both agree that the article was prejudicial, the state because it
was critical of the prosecutor, and the defendant because the deputy district attorney's
statement placed, in his view, a feeling upon the jury that it must bring in a guilty verdict as a
command performance. Without a voir dire examination neither had the opportunity to find
out.
[Headnote 5]
However we are not here concerned with the nature or the character of the article, since the
only question we deem important is whether the trial court employed adequate procedural
safeguards to protect the defendant's right to a fair and impartial jury trial against the possible
prejudicial effect of news accounts. The trial judge has large discretion in ruling on the issue
of possible prejudice resulting from news articles concerning a defendant on trial and each
case must turn on its special facts. Marshall v. United States, 360 U.S. 310 (1959). However a
news account, possibly prejudicial, may indeed have a greater effect on a jury when it is not
tempered by protective procedures. Id. at 313. Therefore, procedural safeguards are to be
employed by the trial judge to control the conditions within his province, the courtroom,
rather than to control freedom of the press.
____________________

1
NRS 175.401(2). Jury to be admonished at each adjournment. The jury must also, at each adjournment of
the court, whether they be permitted to separate or be kept in charge of officers, be admonished by the court that
it is their duty not to:
* * * * *
2. Read, watch or listen to any report of or commentary on the trial or any person connected with the trial
by any medium of information, including without limitation newspapers, television and radio * * *.
84 Nev. 358, 364 (1968) Crowe v. State
conditions within his province, the courtroom, rather than to control freedom of the press.
Estes v. Texas, 381 U.S. 532 (1965); Sheppard v. Maxwell, 384 U.S. 333 (1966). It is the trial
court's function to endeavor to prevent even the probability of unfairness in keeping with due
process requirements. In re Murchison, 349 U.S. 133 (1955); Tumey v. Ohio, 273 U.S. 510
(1927).
And while it is true that most claims of due process deprivations require a showing of
identifiable prejudice to the accused, nevertheless at times, a probability that prejudice will
result is deemed inherently lacking in due process. Estes v. Texas, supra; Rideau v.
Louisiana, 373 U.S. 723 (1963); Turner v. Louisiana, 379 U.S. 466 (1965).
[Headnote 6]
In the instant case, no adequate procedural protections were taken to insure a fair trial. The
court did not permit inquiry of the jury, gave no admonitions that they were to avoid news
accounts, and did not instruct them prior to deliberation that news stories should be
disregarded. These are procedures normally utilized by trial courts to reduce the appearance
of possible prejudicial material and to protect the jury from outside influence. Failure to take
these precautions total reversible error.
In certain circumstances when it is brought to the trial court's attention that news accounts
concerning the defendant have appeared during the course of the trial there is an imperious
necessity to ascertain the fact of exposure and whether prejudice was created in the minds of
the jury. Adjmi v. United States, 346 F.2d 654 (5th Cir. 1965); Coppedge v. United States,
272 F.2d 504 (D.C. Cir. 1959); Mares v. United States, 383 F.2d 805 (10th Cir. 1967); People
v. Cain, 224 N.E.2d 786 (Ill. 1967); Trombley v. Langlois, 163 A.2d 25 (R.I. 1960). This rule
has been applied to instances where other extrajudicial matters are concerned. Remmer v.
United States, 347 U.S. 227 (1954); Conforte v. State, 77 Nev. 269, 362 P.2d 274 (1961);
Schnepp v. Fogliani, 83 Nev. 131, 425 P.2d 141 (1967); Tomlin v. State, 81 Nev. 620, 407
P.2d 1020 (1965); Cf. Parker v. Gladden, 385 U.S. 363 (1966). Even if not requested by a
party the court may have the responsibility of conducting an examination on its own
initiative. Mares v. United States, supra. Those cases holding that it is the duty of the trial
court to question the jury arise in context wherein the extrajudicial communications
themselves contain clear or presumed inherent prejudice. In most other instances the courts
recognize that permission to interrogate members of the jury lies within the sound discretion
of the trial court.
84 Nev. 358, 365 (1968) Crowe v. State
lies within the sound discretion of the trial court. Marshall v. United States, supra; State v.
Chambers, 428 P.2d 91 (Ariz. 1967); People v. Lambright, 393 P.2d 409 (Cal. 1964); State v.
Collins, 150 N.W.2d 850 (Minn. 1967); Trombley v. Langlois, supra.
[Headnote 7]
It is difficult for a trial court to gauge prejudice, and the issue is not whether the trial judge
himself views an article as prejudicial as it is to determine whether the article tends to have a
prejudicial effect in the jury's minds. Accordingly, such determinations should not always be
made in chambers with counsel, rather, in instances of doubt the jury should be examined.
Schnepp v. Fogliani, supra (concurring opinion).
2

[Headnote 8]
However, we are not called upon nor is it necessary to determine whether in the case at bar
it was a mandatory or discretionary matter for the trial court to allow voir dire of the jury
concerning the news account. That question we reserve for a later case. For coupled with the
trial judge's refusal to permit examination of the jurors, he failed to properly admonish and
adequately instruct the jury. In order to protect so far as possible the essential rights of the
defendant it is required that trial courts call the attention of the jurors specifically to the
possibility of news accounts and to admonish the jurors not to read or listen to them.
Likewise there is abundant authority recognizing that formal cautionary instructions are
equally essential to provide the jury with specific guidelines to assure the requisite balance of
impartiality. Pacheco v. State, supra (both opinions); Sollars v. State, 73 Nev. 248, 316 P.2d
917 (1957); Coppedge v. United States, supra; Mares v. United States, supra; People v.
Lambright, supra; People v. Cain, supra; State v. Elkins, supra; State v. Collins, supra;
Trombley v. Langlois, supra; State v. Rinkes, 425 P.2d 658 (Wash. 1967).
[Headnote 9]
When a news account such as here is specifically called to the attention of the trial court
and voir dire is not made, we think it is incumbent upon the trial court to see that such
admonitions and instructions are given.
____________________

2
Once interrogation of the jurors is undertaken it is the duty of the trial court then to see that a meaningful
examination is conducted in light of the entire picture of the incident to which the complaint is addressed.
Conforte v. State, supra; Schnepp v. Fogliani, supra (both opinions); Remmer v. United States, 350 U.S. 377
(1956); Coppedge v. United States, supra; Mares v. United States, supra; People v. Lambright, supra; People v.
Cain, supra; State v. Elkins, 432 P.2d 794 (Ore. 1967).
84 Nev. 358, 366 (1968) Crowe v. State
think it is incumbent upon the trial court to see that such admonitions and instructions are
given. The simple fact is that enough must be done to assure a fair trial. Harney v. United
States, 306 F.2d 523 (1st Cir. 1962). In the totality of the circumstances here we cannot say
this was done.
3. We turn now to consider the use of a police informer's testimony as the basis of a
conviction for the sale of narcotics. The appellant contends that the uncorroborated testimony
of an informer, who admittedly is a user of narcotics if not an addict, is insufficient to prove
guilt beyond a reasonable doubt as a matter of law. See NRS 277.025. As authority he urges a
collection of cases from the Illinois jurisdiction, which we note are principally intermediate
appellate court decisions.
It is a common practice of law enforcement officials to enlist the aid of paid informers to
conduct controlled purchases of narcotics in order to obtain evidence for convictions in the
attempt to curb narcotics traffic. To do this it has been found necessary to get down to the
level of those who do the trafficking. As stated by the respondent, pushers do not sell to
choirboys.
On appeal from a conviction, as here, the attack is most often addressed to the fact that the
informer is a person of low moral character. However, we can find no good reason of public
policy why the prosecution should be deprived of the benefit of an informer's information or
to arbitrarily penalize the prosecution for the low morals of informers for the real issue is not
a question of law for the court, but one of credibility for the jury. On Lee v. United States,
343 U.S. 747 (1952); Todd v. United States, 345 F.2d 299 (10th Cir. 1965); People v. Harris,
284 N.Y.S.2d 638 (N.Y.App. 1967). A rule prohibiting the use of informers or belief of their
testimony would severely hamper the state in ferreting out those who traffic in narcotics.
Lewis v. United States, 385 U.S. 206 (1966); United States v. Suarez, 380 F.2d 713 (2nd Cir.
1967). Moreover, such a rule would have the effect of establishing a different standard of
credibility for the dope user-informant against the dope user-defendant. Neither is a paragon
of civic virtue, but the value of their testimony is still to be weighed by the jury.
[Headnotes 10, 11]
The test then for sufficiency upon appellate review is not whether this court is convinced
of the guilt of the defendant beyond a reasonable doubt, but whether this court can conclude
the trier of facts could, acting reasonably, be convinced to the degree of certitude by the
evidence which it had a right to believe and accept as true.
84 Nev. 358, 367 (1968) Crowe v. State
to believe and accept as true. Tobar v. State, 145 N.W.2d 782 (Wis. 1966). We do not
perceive this to be the standard applied by the intermediate appellate courts in Illinois
subsequent to the decision in People v. Bazemore, 182 N.E.2d 649 (Ill. 1962). In this context
we believe that the testimony of but one witness, be it an informer, an accomplice or an
undercover policeman, is sufficient to convict a defendant for the sale of narcotics if the
testimony contains all of the essential elements of the crime. On Lee v. United States, supra;
Bush v. United States, 375 F.2d 602 (D.C. Cir. 1967); Fields v. United States, 370 F.2d 836
(4th Cir. 1967); Fletcher v. United States, 158 F.2d 321 (D.C. Cir. 1946); Morrison v. United
States, 365 F.2d 521 (D.C. Cir. 1966); Orebo v. United States, 293 F.2d 747 (9th Cir. 1961);
United States v. Griffin, 382 F.2d 823 (6th Cir. 1967); United States v. Hernandez, 361 F.2d
446 (2d Cir. 1966); United States v. Masino, 275 F.2d 129 (2d Cir. 1960); United States v.
Suarez, supra; Todd v. United States, supra; State v. Ballesteros, 413 P.2d 739 (Ariz. 1966);
State v. Moraga, 403 P.2d 289 (Ariz. 1965); People v. Harris, supra; State v. Denney, 418
P.2d 468 (Wash. 1966); Tobar v. State, supra; State v. Sebastian, 171 So.2d 893 (Fla. 1965).
[Headnote 12]
However, recognizing that the use of informers is a dirty tactic for a dirty business that
may raise serious questions of credibility, we think the defendant is entitled to considerable
latitude to probe credibility by cross-examination and to have the issue submitted to the jury
with careful instructions cautioning them of the care which must be taken in weighing such
testimony. On Lee v. United States, supra; Bush v. United States, supra; Fletcher v. United
States, supra; Orebo v. United States, supra; Todd v. United States, supra; United States v.
Griffin, supra; United States v. Masino, supra; State v. Denney, supra.
[Headnotes 13, 14]
Special cautionary instructions are surely required when the informer's testimony is
uncorroborated and no direct evidence is untainted or when there is only minor corroboration
of the witness. Orebo v. United States, supra. And even when such testimony is corroborated
in critical respects we would favor careful instructions in form and substance to call attention
to the character of the testimony of the informer, leaving to the jury the ultimate question of
value and credibility. Todd v. United States, supra.
84 Nev. 358, 368 (1968) Crowe v. State
[Headnote 15]
We do not here suggest any particular formula of instruction for there is no ritual of words
to be used and abstract instructions are usually beamed to the appellate courts rather than to
the jury. Suffice it to say that the instruction should be beyond the scope of the ordinary
instruction that the jury is the sole judge of the evidence and the weight to be accorded to the
testimony of the witnesses. It is desirable that jury instructions have meaning in the particular
circumstances of each case rather than be patterned for all cases, therefore, we leave it to the
able trial counsel and trial courts to formulate appropriate instructions.
As in the publicity issue the trial court failed to give adequate guidance for the jury's
consideration of the informer's testimony. We point out that this sometimes can be fatal to a
conviction. United States v. Griffin, supra; Orebo v. United States, supra.
Our forewarning in Pacheco, supra, was clear; there can be no consideration of harmless
error under the circumstances of this case. Accordingly, this case is reversed and remanded
for a new trial.
____________
84 Nev. 368, 368 (1968) Fox v. Fox
ABE FOX, Appellant and Cross-Respondent, v.
ELLENA FOX, Respondent and Cross-Appellant.
No. 5362
May 28, 1968 441 P.2d 678
Appeal from judgment of the Eighth Judicial District Court, Clark County; David Zenoff,
Judge.
Divorce action. On remand, the trial court entered a second amended decree of divorce,
and cross appeals were taken. The Supreme Court, Batjer, J., held that written minutes of
court were not sufficient to satisfy requirements of statute, and even though judge's position
in case was indicated during his term of office, decree filed after expiration of judge's term of
office was invalid.
Galane & Wines, of Las Vegas, for Appellant and Cross-Respondent.
84 Nev. 368, 369 (1968) Fox v. Fox
Foley Brothers, of Las Vegas, for Respondent and Cross-Appellant.
Judges.
Written minutes of court were not sufficient to satisfy requirements of statute, and even though judge's
position in case was indicated during his term of office, decree filed after expiration of judge's term of
office was invalid. NRCP 58(c); NRS 3.180, subd. 2.
OPINION
On April 21, 1965, this court, in the case of Fox v. Fox, 81 Nev. 186, 401 P.2d 53, held:
It follows from what has been said that the judgment must be affirmed in all respects except
for the fixing of the value of Foxy's Restaurant which must include a value of the goodwill as
affected by 1962 business receipts in the sum of $123,706.37. On such issue the judgment is
reversed and the case remanded for a limited new trial for the purpose of taking the said sum
(or such sum as may result from said limited new trial) into account as the receipts of Foxy's
Restaurant for 1962. In remanding for such purpose this court has in mind the discretion
vested in the trial court, both in respect to a division of the community property pursuant to
NRS 125.150, and also with reference to the award of alimony. That the award, as heretofore
made by the court for a division of the community property, may well be effected by the
result of this opinion was recognized in Weeks v. Weeks, 72 Nev. 268, 302 P.2d 750.
On February 21, 1966, the Honorable Clarence Sundean, District Judge, entered an order
for reference, referring the issue involved to K. Jack Rudd, as special master, to reevaluate
the value of Foxy's Restaurant for the year of 1962, by taking into account the gross receipts
which were in his (K. Jack Rudd was special master in the previous case, Fox v. Fox, supra)
report of February 28, 1963, and the additional business receipts of $123,706.37, from Foxy's
Restaurant, redetermine the factor of goodwill, and report his findings in full to the trial court.
This order for reference was filed with the clerk of the court on March 2, 1966. K. Jack Rudd,
as special master, filed his report dated June 24, 1966, and after a number of continuances,
the appellant filed his objection to the master's report on November 1, 1966. The hearing on
the objections was held on December 27, 1966 before the Honorable David Zenoff, District
Judge, and on December 30, 1966, Judge Zenoff signed findings of fact, conclusions of law
and a second amended decree of divorce.
84 Nev. 368, 370 (1968) Fox v. Fox
Judge Zenoff signed findings of fact, conclusions of law and a second amended decree of
divorce.
The Honorable David Zenoff's term as district judge expired on January 1, 1967, and on
January 2, 1967, he took the oath of office as a justice of this court. Not until January 10,
1967 were the findings of fact and conclusions of law, and the second amended decree of
divorce filed with the clerk of the court. In the case before us, Abe Fox, appellant and
cross-respondent, appeals from the judgment of the trial court entered as a second amended
decree of divorce, and Ellena Fox, respondent and cross-appellant, cross appeals from that
part of the second amended decree of divorce which divides the community property and
awards alimony.
The second amended decree of divorce, not having been filed with the clerk of the court
until January 10, 1967, falls squarely within our ruling in Lagrange Constr., Inc. v. Del E.
Webb Corp., 83 Nev. 524, 435 P.2d 515 (1967), and must be set aside.
Respondent and cross-appellant urges that this case can be distinguished from the
Lagrange case inasmuch as Judge Zenoff, during his term of office as a district judge,
indicated in the transcript of the proceedings held on December 27, 1966, his position in the
case, and that the preparation of the second amended decree of divorce and his signing and
filing the same were a mere formalization of the judgment granted on December 27, 1966.
We disagree. NRCP 58(c)
1
provides that filing with the clerk of a judgment signed by the
judge, constitutes the entry of such judgment and the judgment is ineffective for any purpose
until the entry thereof.
NRS 3.180(2) authorizes district judges to perform certain acts in civil cases after the
expiration of their term or the cessation of exercise of duties, and provides in part as follows:
2. All judges about to retire from office by reason of resignation or the expiration of their
term shall, before such retirement, decide all cases and matters submitted to them and
remaining undetermined. The decision or decisions shall be entered in the minutes of the
court, and, if in writing, shall be filed with the clerk of the court before retirement * * *. In
light of NRS 3.180(2) and NRCP 58(c), supra, we conclude that the written decision, filed
with the clerk of the court before a judge's term expires, is essential to jurisdiction.
____________________

1
NRCP 58(c). The filing with the clerk of a judgment, signed by the judge, or by the clerk, as the case may
be, constitutes the entry of such judgment, and no judgment shall be effective for any purpose until the entry of
the same, as hereinbefore provided. The entry of the judgment shall not be delayed for the taxing of costs.
84 Nev. 368, 371 (1968) Fox v. Fox
that the written decision, filed with the clerk of the court before a judge's term expires, is
essential to jurisdiction.
Although Judge Zenoff, on December 27, 1966, entered the written minutes of the court,
these alone were not sufficient to satisfy the requirements of NRS 3.180(2), because the
written decision (second amended decree of divorce) being in writing, must have been filed
with the clerk before the expiration of Judge Zenoff's term.
In Lagrange Constr., Inc. v. Del E. Webb Corp., supra, this court said: The clear weight
of authority is to the effect that the filing of the written decision with the clerk is
jurisdictional, obligatory and an integral part of the judicial act, and that it shall be filed prior
to retirement from office, while its entry by the clerk is ministerial. See Crane v. First Nat'l
Bank of McHenry, 26 N.D. 268, 144 N.W. 96 (1913); Gossman v. Gossman, 52 Cal.App.2d
184, 126 P.2d 178 (1942).
The second amended decree of divorce is reversed because it was not filed with the clerk
of the court before the expiration of the term of office of the district judge who signed it.
Further, we specifically find that this court, in ordering the limited new trial in the case of
Fox v. Fox, supra, did not intend that any new evidence be taken on the trial court's findings,
but intended only that the value of Foxy's Restaurant be fixed to include the value of the
goodwill as affected by the 1962 business receipts in the sum of $123,706.37.
Accordingly, it is necessary that we once more remand, for the limited purpose of
redetermining the value of the goodwill of Foxy's Restaurant by taking into account the sum
of $ 123,706.37 as the receipts of that restaurant for the year 1962, without the taking of any
additional testimony. The record reveals that this redetermination has been made by K. Jack
Rudd, the special master, who has reported his findings in full to the trial court, and that
appellant, Abe Fox, has filed objections to that report.
The lower court shall hear the objections to the special master's report and enter its second
amended decree of divorce, consistent with Fox v. Fox, supra, and with this opinion. In all
other respects the original decree of divorce is affirmed.
Thompson, C. J., Collins, Mowbray, JJ., and Mann, D. J., concur.
Zenoff, J., being disqualified, the governor commissioned the Honorable Kenneth L. Mann
to sit in his place.
____________
84 Nev. 372, 372 (1968) Hogan v. State
JAMES DENIS HOGAN, Appellant, v. THE
No. 5400
May 28, 1968 441 P.2d 620
Appeal from the Eighth Judicial District Court, Clark County; John Mowbray, Judge.
Defendant was convicted in the lower court of the infamous crime against nature, and he
appealed. The Supreme Court, Batjer, J., held that statute relating to infamous crime against
nature is not so vague and indefinite as to not adequately define crime charged and acts
constituting crime are clearly delineated when supplemented by reference to the common law,
and statute is sufficiently broad to include not only common-law crime of sodomy, but also
all unnatural carnal copulations.
Affirmed.
James D. Santini, Public Defender, Anthony M. Earl, Deputy Public Defender, of Las
Vegas, for Appellant.
H. Spizzirri, Deputy District Attorney, Clark County, for Respondent.
1. Common Law.
Common law refers not only to ancient unwritten law of England, but also to that body of law created
and preserved by decisions of courts as distinguished from that created by enactment of statutes by
legislatures.
2. Sodomy.
The phrase infamous crime against nature indicates an offense against nature and the laws of nature.
3. Criminal Law; Sodomy.
Statute relating to infamous crime against nature is not so vague and indefinite as to not adequately define
crime charged, and acts constituting crime are clearly delineated when supplemented by reference to the
common law, and statute is sufficiently broad to include not only common-law crime of sodomy, but also
all unnatural carnal copulations. NRS 201.010 et seq., 201.190, 193.050.
OPINION
On February 18, 1967, the appellant, James Denis Hogan, and a Richard Lee Powell, were
arrested in the men's room in Squires Park in Las Vegas, for having committed the infamous
crime against nature, in violation of NRS 201.190.
84 Nev. 372, 373 (1968) Hogan v. State
crime against nature, in violation of NRS 201.190. Specifically the act was fellation.
Prior to trial, the appellant demurred to the information on the ground that the statute upon
which it was based is unconstitutionally vague and indefinite and does not adequately define
the crime charged. The lower court denied the demurrer, and the case went to trial. At the
conclusion of that trial the appellant was found guilty and sentenced to the Nevada State
Prison for not less than one, nor more than five years.
At the conclusion of the proceedings below, the appellant moved to arrest the judgment.
That motion was also denied.
This appeal is taken from the judgment entered against the appellant by the trial court, and
also from the denial of the motion in arrest of judgment, upon the ground that the appellant's
rights, protected by the Fourteenth Amendment of the U.S. Constitution, had been violated.
We do not agree with this contention.
At the time of the Commission of the offense, NRS 201.190 read as follows: 1. The
infamous crime against nature, either with man or beast, shall subject the offender to be
punished by imprisonment in the state prison for a term not less than 1 year and which may
be extended to life * * *.
NRS 193.050 recites: The provisions of the common law relating to the commission of
crime and the punishment thereof, insofar as not inconsistent with the institutions and statutes
of this state, shall supplement all penal statutes of the state, and all persons offending against
the same shall be tried in the district courts of this state.
Such supplementation by the common law is not peculiar to our state.
Most of the statutes fail to define with any degree of certainty the manner in which the
crime against nature may be committed. Therefore, the rule applies that when a public offense
has been declared by statute in the general terms of the common law, without more particular
definition, and punishment provided therefor, the courts will resort to the common law for the
particular acts constituting the offense, at least in those states in which the common law
originally prevailed or has been adopted by statute. 2 Wharton's Criminal Law and
Procedure 751, p. 573.
[Headnote 1]
The term common law, has reference not only to the ancient unwritten law of England, but
also to that body of law created and preserved by the decisions of courts as distinguished
from that created by the enactment of statutes by legislatures.
84 Nev. 372, 374 (1968) Hogan v. State
In that respect, the common law of Nevada in regard to the infamous crime against nature
is found in In re Benites, 37 Nev. 145, 140 P. 436 (1914), a case involving fellation. There,
this court held: It is sufficient, we believe, to say that the infamous crime against nature as
mentioned by our statute should be no less in its scope that [sic] that which was understood as
designated by Hawkins in his Pleas of the Crown, wherein he states, All unnatural carnal
copulation seems to come under the notion of sodomy * * *.' ln other words, it is our
judgment that Section 6459 of our Revised Laws (NRS 201.190) seeks to define and punish
acts of unnatural copulation in whatsoever form those acts may be perpetrated, and without
regard to the means or manner of perpetration * * *. [I]t is our judgment that it is not
unreasonable to assume that all unnatural acts of carnal copulation between man with man or
man with woman, where a penetration is affected into any opening of the body, other than
those provided by nature for the reproduction of the species, are sufficiently contemplated and
embraced within the term the infamous crime against nature' as set forth by our statute.
The acts constituting the infamous crime against nature are clearly delineated when the
statute is supplemented by reference to the Benites case. In the case of Minnesota ex rel.
Pearson v. Probate Court, 309 U.S. 270 (1940), the appellant there contended that the statute
violated the due process clause of the Fourteenth Amendment of the Federal Constitution.
The Supreme Court of Minnesota had construed the statute in question and the United States
Supreme Court said: This construction is binding upon us. Any contention that the
construction is contrary to the terms of the Act is unavailing here. For the purpose of deciding
the constitutional questions appellant raises we must take the statute as though it read
precisely as the highest court of the State has interpreted it * * *. This construction of the
statute destroys the contention that it is too vague and indefinite to constitute valid legislation
* * *.
Ever since this court decided the Benites case, the meaning and scope of the offense of the
infamous crime against nature has been so clear and unambiguous that every person, in the
State of Nevada, can know with certainty what acts constitute the crime.
[Headnote 2]
It should be noted that this court is not unique in this interpretation of the infamous crime
against nature. At least twenty-one other states define it similarly. See 2 Wharton's Criminal
Law and Procedure 752, p. 575. The phrase infamous crime against nature" indicates an
offense against nature and the laws of nature, and is as inherently understandable as are
such words as "robbery", "larceny", "burglary", and even "murder."
84 Nev. 372, 375 (1968) Hogan v. State
crime against nature indicates an offense against nature and the laws of nature, and is as
inherently understandable as are such words as robbery, larceny, burglary, and even
murder. All are words of art disclosing their full meaning through interpretation, usage
and application.
[Headnote 3]
NRS 201 is sufficiently broad to include not only the common law crime of sodomy, but
also all unnatural carnal copulations. The judgment of the lower court is affirmed.
Thompson, C. J., Collins Zenoff, JJ., and Bowen, D. J., concur.
Mowbray, J., being disqualified, the Governor commissioned Honorable Grant Bowen of
the Second Judicial District to sit in his place.
____________
84 Nev. 375, 375 (1968) Curtis v. George Grifall Co.
WILLIAM H. CURTIS, Appellant, v. GEORGE
GRIFALL CO. and O. H. GRAHAM Respondents.
No. 5457
May 29, 1968 441 P.2d 680
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Action for injuries. The trial court denied plaintiff's motion for new trial based upon jury
misconduct and plaintiff appealed. The Supreme Court, Collins, J., held that, in absence of
showing some reason to suspect that irregularity, alleged intoxication of juror, may have had
an influence on final result, plaintiff was not entitled to new trial based on juror misconduct.
Affirmed.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, and Roger W. Jeppson, of Reno, for
Appellant.
Wait & Shamberger, of Reno, for Respondents.
1. New Trial.
In absence of showing some reason to suspect that irregularity, alleged intoxication of juror, may have
had an influence on final result, plaintiff was not entitled to new trial based on juror misconduct.
2. New Trial.
Trial court's denial of new trial motion based upon juror's misconduct amounted to implied finding that
juror misconduct did not prejudice plaintiff.
Whether juror drank so much as to affect his mental faculties was question of fact to be passed upon by
trial court.
OPINION
This is an action whereby appellant William Curtis sought to recover damages for personal
injuries from respondents George Grifall Co. and O. H. Graham.
The trial of the action commenced Monday, March 6, 1967. On Friday, March 10, 1967
following the noon recess, after 4 1/2 days of trial, the defense was ready to present its
closing argument. At that time, the presiding Judge, Honorable Grant L. Bowen, summoned
counsel into chambers and called their attention to the fact that he believed a juror was
intoxicated or was for some other reason unable to perform his duty as juror. In response to
his statement to counsel that he wished to examine the juror, each told him they desired no
such examination due to the unpredictable effect it might have on the proceedings. The trial
continued and later that day a defense verdict was rendered. Appellant's motion for new trial,
based upon juror misconduct, was denied. This appeal followed.
The general Nevada rule concerning drinking by jurors was set forth in Richardson v.
Jones, 1 Nev. 405 (1865) wherein the court stated that every irregularity which would
subject the juror to censure, whether drinking spirituous liquors, separating from his fellows,
or the like, should not overturn the verdict, unless there is some reason to suspect that
irregularity may have had an influence on the final result. However, a later case modified
that rule somewhat by stating that reversible error per se exists, without a showing of
prejudice, if the juror has drunk to an intoxicating extent. Davis v. Cook, 9 Nev. 134
(1874).
We hold that the appellant is unable to come within either of these rules.
[Headnotes 1, 2]
Appellant does not come under the general rule stated in Richardson v. Jones, supra,
because there is no evidence in the record before us to show some reason to suspect that
irregularity may have had an influence on the final result."
irregularity may have had an influence on the final result. Indeed, the trial court's denial of
the new trial motion amounted to an implied finding that the juror misconduct did not
prejudice the appellant. Sepulveda v. Ishimaru, 308 P.2d 809 (Cal.App. 1957).
[Headnote 3]
Likewise appellant also does not come under the rule of Davis v. Cook, supra. Whether the
juror drank so much as to affect his mental faculties was a question of fact to be passed upon
by the trial court. State v. Jones, 7 Nev. 408 (1872).
Here the affidavit subscribed by the trial judge stated only that he had a belief that the juror
was intoxicated. However, the acts of counsel precluded investigation by the court which
could have been the basis for such a factual finding.
The judgment in favor of the defendant is therefore affirmed.
____________
84 Nev. 377, 377 (1968) Montrose v. Schneider
FRANK MONTROSE, Appellant, v. CAMILLO
SCHNEIDER, Respondent.
No. 5372
June 4, 1968 441 P.2d 684
Action by nephew of testatrix against son of testatrix for damages for breach of contract
and to impose constructive trust upon certain funds held by son. The trial court entered
judgment for nephew and son appealed. The Supreme Court, Collins, J., held that oral
agreement by which nephew of testatrix would forgo payment of his legacy and pursuant to
which estate assets would be assigned to grandsons of testatrix to be sold when advantageous
with division of proceeds among nephew, son and grandsons of testatrix in four parts was not
an agreement creating an interest in land within statute of frauds and was enforceable by
nephew seeking to recover from son portion of proceeds of sale.
Affirmed.
Foley Brothers, of Las Vegas, for Appellant.
Raymond E. Sutton, of Las Vegas, for Respondent.
1. Wills.
Evidence supported finding that plaintiff, nephew of testatrix, agreed to forgo payment from estate of
legacy and that agreement by which nephew and defendant son of testatrix assigned interest in estate to
grandsons of testatrix with provision for sharing in proceeds of contemplated future sale was supported by
consideration.
2. Frauds, Statute of.
Oral agreement by which nephew of testatrix would forgo payment of his legacy and pursuant to which
estate assets would be assigned to grandsons of testatrix to be sold when advantageous with division of
proceeds among nephew, son and grandsons of testatrix in four parts was not an agreement creating an
interest in land within statute of frauds and was enforceable by nephew seeking to recover from son
portion of proceeds of sale.
3. Trusts.
Where nephew of testatrix agreed to forgo payment from estate of legacy and nephew and son of testatrix
assigned interest in estate to grandsons with provision for sharing in proceeds of contemplated future sale
of estate property, and son of testatrix sold and conveyed title to property, constructive trust was properly
imposed upon proceeds of sale in favor of nephew.
4. Wills.
Where nephew of testatrix sought to recover his share of proceeds from sale of property by testatrix' son
who acquired title pursuant to agreement with nephew and grandsons of testatrix, and nephew in no way
tried to cut down or reduce share of grandsons under the agreement and trial court did not decide anything
adversely to grandsons, grandsons were not indispensable parties to suit by nephew against son.
OPINION
This appeal is from a judgment for respondent (plaintiff below) awarding him damages for
breach of contract and directing that appellant hold certain funds in trust for respondent's
benefit. We affirm that judgment.
Sigmund and Barbara Lichtblau, parents of appellant, were residents of Vienna, Austria.
They were acrobats and performed in various parts of the world including the United States.
They were also the uncle and aunt of respondent who was a member of their troupe for many
years.
During their lifetime they acquired property in California as well as in Austria. Sigmund
preceded Barbara in death. Barbara died testate in Austria in 1932 leaving property in both
the United States and Austria.
By the terms of Barbara's will she left a legacy of $1,300, free of fees and without
deductions, payable out of her U.S.
property to respondent, her nephew; limited appellant, her son, to the legal portion of her
estate under Austrian law; and named her two grandsons, children of appellant, her main
heirs to share equally in residual property.
The nature, extent and disposition of her Austrian property is unclear from the record. Her
property in the United States consisted of an interest in a bungalow and 12 1/2 acres of
unimproved real property in California. In the administration proceedings which were not
commenced until 1938, the bungalow was appraised at $3,000 and the acreage at $300.
During probate the bungalow was sold for $3,500 with part of the price paid in cash and
the balance by a promissory note for $2,630.33. During this same period the beneficiaries of
Barbara's estate, by an agreement which will be further discussed in this opinion, assigned the
assets of the estate to the two grandsons. The court approved this arrangement. In 1945 the
two grandsons because they were entering the military service deeded the estate property to
appellant, their father. In May, 1945 the court ordered distribution of the assets of the estate,
consisting of the promissory note and the acreage to him.
While the estate was being administered it became apparent to the interested parties that if
respondent insisted on receiving his legacy of $1,300, little if anything would be left for the
grandsons. That circumstance brought about a loose arrangement that if respondent would
forego payment of his legacy, the estate assets would be assigned to the grandsons; thereafter
the property would be sold when advantageous and the proceeds would be divided among
appellant, respondent and the grandsons in four parts. The payment on the promissory note
from sale of the bungalow, after deducting expenses, was in fact handled in that manner and
each of the four parties received approximately $400.
Appellant, having acquired title to the acreage in the manner described above, managed it
for several years and engaged in a series of correspondence and personal discussions with
respondent, his cousin, as to what development or disposition should be made of the land and
reminded him of the equal liability of the four parties for taxes and improvements necessary
to develop or sell the land.
In July, 1961 appellant sold the acreage for $31,625 and conveyed title to it. In September
he wrote respondent and sent his personal check for $1,300 indicating the money was to
satisfy respondent's legacy under his mother's will and that the money came from the sale of
appellant's own home. He did not inform respondent he had sold the acreage, the price
received nor that he alone conveyed the title.
received nor that he alone conveyed the title. Respondent wrote appellant indicating a
hesitancy and unwillingness to take the money from him personally and that he would be
willing to await sale of the land and his one-fourth share of the proceeds in satisfaction of his
claim. Respondent through an independent inquiry acquired information about appellant's
sale of the land, demanded his share of the proceeds and when refused brought this action.
The trial court ruled in favor of respondent. It found respondent agreed to forego payment
from the estate of the $1,300 legacy; that appellant and respondent assigned their interest in
the estate to the grandsons; that upon sale of the estate properties the proceeds would be
divided equally among the four parties; that otherwise the grandsons would receive only
nominal shares, if anything from their grandmother's estate. The court found the agreement to
be supported in and corroborated by the evidence.
The lower court also found that title to the land in appellant alone when he sold it for
$31,625; that he refused to pay over a one-quarter share to respondent and concluded that
appellant violated the duty owed respondent with respect to his share of the proceeds of the
sale of the California land. Judgment was entered in favor of respondent and against appellant
for $7,918.75 less the sum of $1,300 paid to him, $700.31 taxes paid on the land by appellant,
and imposed a trust upon the sale proceeds in favor of respondent to the extent of the money
judgment.
Appellant assigns principally as error:
(1) The court misinterpreted the dealings of the parties in finding that an oral agreement
had been reached.
(2) That in any event the oral contract involved an interest in land and was barred by the
Statute of Frauds.
(3) That a constructive or resulting trust arose.
(4) Failure to join the grandsons as indispensable parties.
[Headnote 1]
We think there is substantial evidence in the record to support the lower courts findings of
fact. There is ample evidence of the agreement and consideration to support the contract.
Harvey v. Streeter, 81 Nev. 177, 400 P.2d 761 (1965); Briggs v. Zamalloa, 83 Nev. 400, 432
P.2d 672 (1967).
[Headnote 2]
Appellant contends that the agreement conveyed an interest in land and therefore was
unenforceable due to non-compliance with the Statute of Frauds. We do not agree. The trial
court found that the agreement between the parties was "to the effect that both parties
would assign their respective interests in the estate to the defendant's two sons; and
upon the sale of the two estate properties, the proceeds would be divided equally
between plaintiff, defendant, and defendant's two sons."
court found that the agreement between the parties was to the effect that both parties would
assign their respective interests in the estate to the defendant's two sons; and upon the sale of
the two estate properties, the proceeds would be divided equally between plaintiff, defendant,
and defendant's two sons. Such an agreement, to share in the proceeds of a contemplated
future sale, is not one creating an interest in land within the Statute of Frauds. Jones v.
Patrick, 140 F. 403 (D. Nev. 1905); Dutton v. Interstate Inv. Corp., 119 P.2d 138 (Cal. 1941);
Bailey v. Opp, 77 P.2d 826 (Ore. 1938); Davis v. Davis, 205 N.Y.S. 710 (1924); See also 3
Williston, Contracts 493 (3d ed. 1960).
[Headnote 3]
Appellant questions the propriety of the imposition of the constructive trust upon the
proceeds of the sale. Recently this court stated: A constructive trust will arise whenever the
circumstances under which the property was acquired makes it inequitable that it should be
retained by him who holds the legal title, as against another, provided some confidential
relationship exists between the two and provided the raising of the trust is necessary to
prevent a failure of justice. Schmidt v. Merriweather, 82 Nev. 372, 418 P.2d 991 (1966).
Applying this statement of the law to the situation before us, we find that the action of the
trial court was correct under the circumstances.
[Headnote 4]
Finally the grandsons were not indispensable parties. Appellant in no way tried to cut
down or reduce their share of the sales proceeds under the agreement. Nor did the lower court
decide anything adversely to them. Sadler v. Sadler, 167 F.2d 1 (9th Cir. 1948). They may
have been necessary parties but were not indispensable parties. Bank of Calif. Nat'l Ass'n v.
Superior Court, 106 P.2d 879 (Cal. 1940).
We need not consider the rights of the parties under the will or Austrian law. The
agreement concerned the entire rights of all parties in both parcels of property. The evidence
shows and the lower court found their correspondence, conduct and dealings carried out that
interpretation of the contract.
The judgment is affirmed with costs to respondent.
____________
84 Nev. 382, 382 (1968) State ex rel. Herr v. Laxalt
THE STATE OF NEVADA ex rel. HELEN HERR, ALFRED J. ALLEMAN, EMERSON F.
TITLOW and JOHN FRANSWAY, Nevada State Senators, and HELEN HERR, ALFRED J.
ALLEMAN, EMERSON P. TITLOW and JOHN FRANSWAY, Nevada State Senators,
Individually, Petitioners, v. PAUL LAXALT, Governor of the State of Nevada, and the
CLARK COUNTY BOARD OF COUNTY COMMISSIONERS, Clark County, Nevada, and
DARWIN W. LAMB, ROBERT T. BASKIN, WILLIAM H. BRIARE, LOU F. LaPORTA
and JAMES G. RYAN as County Commissioners, Clark County, Nevada, Respondents.
No. 5568
June 5, 1968 441 P.2d 687
Proceedings wherein state senators sought determination of validity of provision of
reapportionment act limiting their terms to two years. The Supreme Court, Mowbray, J., held
that Nevada legislature has power under state constitution to provide for allotment of
two-year terms to state senators when, but only when, such action is necessary to provide for
election of one-half of senators every two years; accordingly, legislation providing for
staggered terms as part of reapportionment act was not beyond legislative power.
Writ denied.
Vargas, Bartlett & Dixon, of Reno, for Petitioners.
Harvey Dickerson, Attorney General, and Frank W. Daykin, Special Deputy Attorney
General, for Respondent Paul Laxalt, Governor of the State of Nevada.
George E. Franklin, Jr., District Attorney, for Respondent Board of County
Commissioners of Clark County, as such board and as individual commissioners.
Schedule of state constitution had continuing vitality as part of constitution insofar as its provisions might
still be made applicable. Const. art. 17, 1 et seq.
Effect must be given to every part of constitution.
3. States.
Nevada legislature has power under state constitution to provide for allotment of two-year terms to state
senators when, but only when, such action is necessary to provide for election of one-half of senators every
two years; accordingly, legislation providing for staggered terms as part of reapportionment act was not
beyond legislative power.
legislative power. NRS 218.030; Const. art. 4, 4; art. 17, 9, 10.
OPINION
This is a proceeding in mandamus brought for the purpose of testing the constitutionality
of the reapportionment statute enacted by the Nevada Legislature in 1965 pursuant to the
order of the United States District Court for the District of Nevada.
1

In compliance with the federal court order, the Nevada Legislature in special session
provided for the election of both houses from districts fashioned according to population.
This especially affected the Senate, which up to that time had consisted of one member from
each county. The reapportionment act
2
therefore provided that the term of every incumbent
Senator should expire on the day following the general election in 1966, provided for the
election of an entire new Senate in that year, and further Provided for the allotment of 2- and
4-year terms as set forth in the margin.
3
This act was approved in toto by the federal court.
4
Petitioners were elected to the Senate in 1966,5 drew 2-year terms, and served through
the 1967 regular session and the 196S special session.

____________________

1
Dungan v. Sawyer, 250 F.Supp. 480 (1965).

2
Stats. Nev. 1965 Special Session, ch. 2.

3
As amended, NRS 218.030 provides, in part:
3. The senators so elected shall, on a day to be fixed by the secretary of state which shall be subsequent to
the canvass of the vote by the supreme court and prior to the convening of the next general or special session of
the legislature, meet in the office of the secretary of state for the purpose of drawing lots to divide their initial
terms into lengths of 2 and 4 years. The secretary of state shall prepare the lots and conduct the drawing in
compliance with the following subsections.
4. The eight senators from Clark County shall draw lots to select four whose term of office shall be 4 years
from the day next after their election and four whose term of office shall be 2 years from such day.
5. The six senators from Washoe County shall draw lots to select three whose term of office shall be 4
years from the day next after their election and three whose term of office shall be 2 years from such day.
6. The six senators from the single-senator districts shall draw lots to select three whose term of office shall
be 4 years from the day next after their election and three whose term of office shall be 2 years from such day.
7. The secretary of state shall then certify the results of the drawing to the officials whose duty it is under
subsection 1 to issue the respective certificates of election, and these officials shall issue such certificates
showing the length of term accordingly.
8. Per diem allowances and travel expenses, as provided by law for senators, for attendance at the meeting
provided in subsection 3 shall be a proper charge against the legislative fund.

4
Dungan v. Sawyer, 253 F.Supp. 352 (1966).
Petitioners were elected to the Senate in 1966,
5
drew 2-year terms, and served through the
1967 regular session and the 1968 special session. At the close of the latter, faced with the
prospect of another campaign, petitioners asked this court to order the respondents to issue
them new certificates of election running from 1966 through the general election of 1970, on
the ground that the true length of their terms is fixed by the Constitution at 4 years.
Counsel have briefed and argued collaterally the complex questions arising from (1)
petitioners' failure to protest earlier the statutory provision for 2-year terms and (2) the tacit
approval of this provision by the federal court; but both sides have invited this court to reach
directly the constitutional question. Because of its importance and possible effect on future
apportionments of the Nevada Legislature, we have chosen to do so. We therefore intimate no
opinion concerning the possible effect of either of the factors mentioned in this paragraph
upon petitioners' rights.
Petitioners have taken as their fundamental premise that article 17 of the Constitution must
be disregarded in ascertaining the proper length of senatorial terms. This is so, they contend,
because it is designated Schedule in the Constitution and because a member of the
Constitutional Convention
6
said that, merely temporary matters, which * * * are not
intended to be permanent features of the instrument, should have their place in the Schedule.
To this effect, they have cited a line of authorities beginning with the Richmond Mayoralty
Case, 19 Gratt. 673, 712 (Va. 1870).
We note, however, (1) that these authorities construe constitutions in which the entire
Schedule is preceded by an introductory clause, That no inconvenience may arise [from the
particular transition] * * * it is hereby declared that
7
or words of like effect, and (2) that the
earliest of these decisions dates from 1870, 6 years after the adoption of the Nevada
Constitution. The usage prior to 1864 was highly variable. The oldest constitutions now in
force, those of Massachusetts (1780) and New Hampshire (1784), have no Schedules. The
Constitution of California, adopted in 1849, had a Schedule (not numbered as an article of the
Constitution), but it contained no such introductory clause as that quoted above. Such a
clause was used in section 3, where it apparently referred only to the carrying-over of
public officers.
____________________

5
Miss Herr and Mr. Alleman had previously served in the Assembly; Messrs. Titlow and Fransway had
previously represented individual counties in the Senate.

6
Mr. Nourse. Marsh, Nevada Constitutional Debates & Proceedings 610, 611 (1866).

7
Constitution of Virginia, as revised in 1870.
a clause was used in section 3, where it apparently referred only to the carrying-over of public
officers. The Constitution of Ohio, as revised in 1851, had a Schedule (likewise not
numbered as an article), but contained no such clause introductory either to the entire
Schedule or to any section.
In the Constitution of Nevada, such a clause is contained in article 17 within section 1,
which otherwise refers to the continuation of law suits. Whether or not we attach controlling
importance to the placement of this clause, it is clear that there was no settled practice, let
alone judicial interpretation, as to the use or effect of a Schedule to be read into its adoption.
Nor do the later decisions predominantly give to a Schedule only temporary effect. In State
v. Esser, 115 N.W.2d 505 (Wis. 1962), the court distinguished in the Schedule between
sections of obviously temporary significance and a section which perpetuated the common
law until changed by the legislature. It is significant that the Wisconsin Constitution (1) was
adopted in 1848, prior to those of California, Ohio (in the revision cited), and Nevada; (2)
numbers the Schedule as an article; and (3) sets forth as the first four sections of the Schedule
language identical to the corresponding Nevada sections.
The court further declared: The general rule is that a provision in the Schedule
inconsistent with one embodied in the Constitution itself must yield to the latter. This is
identical in substance to the familiar rule that in construing irreconcilable statutes the later in
time prevails. This rule carries as a corollary that the statutes must be reconciled if possible in
order to give effect to all the language. Ex parte Smith, 33 Nev. 466, 111 P. 930 (1910).
The Wisconsin Supreme Court quoted its rule from State ex rel. Aquamsi Land Co. v.
Hostetter, 79 S.W.2d 463 (Mo. 1934). There, the court did in effect apply the rule and
corollary of statutory construction which we have noted. It held that a Schedule provision
relating to courts of common pleas was intended * * * to be read in connection with and as a
part of section 1 of article 6 vesting the judicial power of the state. Id. at 467. This
integration was crucial, for only by virtue of it did the common pleas court whose jurisdiction
was in question survive the subsequent repeal of the Schedule provision itself.
[Headnote 1]
We are not called upon in this case to give continuing vitality to a repealed provision, but
we do conclude that the Schedule of the Nevada Constitution, article 17, has continuing
vitality as a part of the Constitution, insofar as its provisions may still be made applicable.
as a part of the Constitution, insofar as its provisions may still be made applicable.
The Constitution of Nevada, therefore, contains three sections which bear directly upon
the length of senatorial terms.
8
Section 4 of article 4 is clearly the general rule. Section 9 of
article 17 applies equally clearly to a single instance, the allotment of the terms of the
Senators first elected under the Constitution. The dispute, therefore, centers on section 10 of
article 17.
[Headnote 2]
The familiar rule already noted, that effect must be given to every part of the instrument,
has often been applied by this court to the Constitution of Nevada. Youngs v. Hall, 9 Nev.
212 (1874); State ex rel. Aude v. Kinkead, 14 Nev. 117 (1879); Marshall v. Warden, 83 Nev.
442, 434 P.2d 437 (1967). Section 9 of article 17 is sufficient in itself to provide for the initial
allotment of senatorial terms. If, therefore, section 10 is to be given effect, it must do
something more. We believe the significant words are and thereafter * * * the terms of
Senators shall be allotted by the Legislature in long and short terms as hereinbefore provided;
so that one half the number as nearly as may be, shall be elected every Two Years.
Section 9 does not require any action by the Legislature, but rather by the Senators as a
group. The words, as hereinbefore provided, therefore, do not logically refer to the single
instance of action by a different entity, but rather explain where the length of the long and
short terms is defined, which is in section 9.
____________________

8
Art. 4, 4: Senators shall be chosen at the same time and places as members of the Assembly by the
qualified electors of their respective districts, and their term of Office shall be four Years from the day next after
their election.
Art. 17, 9: The Senators to be elected at the first election under this Constitution shall draw lots, so that,
the term of one half of the number as nearly as may be, shall expire on the day succeeding the general election in
A.D. Eighteen Hundred and Sixty Six; and the term of the other half shall expire on the day succeeding the
general election in A.D. Eighteen hundred and sixty eight, Provided, the drawing lots for all Senatorial terms, the
Senatorial representation shall be allotted, so that in the Counties having two or more Senators, the terms thereof
shall be divided as nearly as may be between the long and short terms.
Art. 17, 10: At the general election in A.D. Eighteen hundred and Sixty Six; and thereafter, the term of
Senators shall be for Four Years from the day succeeding such general election, and members of Assembly for
Two Years from the day succeeding such general election, and the terms of Senators shall be allotted by the
Legislature long and short terms as hereinbefore provided; so that one half the number as nearly as may be, shall
be elected every Two years.
which is in section 9. We therefore interpret section 10 as conferring a continuing authority
upon the Legislature for the purpose specified.
Historically, the Nevada Legislature has so interpreted it. In 1871,
9
1873,
10
and 1875,
11
the Legislature provided that new counties respectively entitled to two Senators should
initially have one for 4 years and one for 2 years. In 1873, the Legislature further enacted a
general statute
12
which provided that whenever a county became entitled to two Senators and
the terms had not been staggered by the Legislature, the Senate should allot them by a
drawing. The importance of contemporaneous construction of a constitutional provision by
the Legislature has long been recognized by this court. State ex rel. Ash v. Parkinson, 5 Nev.
15 (1869); Hendel v. Weaver, 77 Nev. 16, 359 P.2d 87 (1961).
Support for the action of the 1965 Special Session in prescribing 2-year terms for certain
Senators is also to be found in the contemporary decisions of other state and federal courts
concerning legislative reapportionment. In Utah, the action of the Legislature in this respect
13
was apparently never brought before a court. In California, the reapportionment act, which
without express constitutional authority provided for the election of Senators for 2-year terms
from odd-numbered districts, was approved without discussion of this point.
14
Similar action
was taken in Ohio by the State Reapportionment Board, again without express constitutional
authority, and approved without discussion.
15
Finally, in Schaefer v. Thomson, 251 F.Supp.
450 (1965), a federal court itself ordered that the initial terms of members of the completely
new Senate to be elected in 1966 be allotted into lengths of 2 and 4 years in a manner very
similar to that provided in Nevada by the 1965 act. This decision was affirmed by the
Supreme Court of the United States without opinion, per curiam, as Harrison v. Schaefer, 383
U.S. 269 (1966).
None of the state constitutional provisions involved in these cases or others cited in the
briefs is identical with the Nevada constitutional provisions above citedstate constitutional
provisions seldom are identical. What is important is that each of the bodies responsible for
the reapportionment recognized the importance of staggered terms in the State Senate,
and provided for it.
____________________

9
Stats. Nev. 1872, ch. 62, at 131.

10
Stats. Nev. 1873, ch. 4, at 50.

11
Stats. Nev. 1875, ch. 75, 2.

12
Stats. Nev. 1873, ch. 115, at 190.

13
Laws of Utah 1966 First Special Session, ch. 5.

14
Silver v. Brown, 409 P.2d 689 (Cal. 1966).

15
State ex rel. King v. Rhodes, 228 N.E.2d 653 (Ohio 1967).
the importance of staggered terms in the State Senate, and provided for it. This principle,
which is designed to assure continuity of experience in the upper house, dates from the
inception of the United States Constitution,
16
and has been adopted by most of the States. Its
significance in conferring power upon a Legislature to provide shortened terms in order to
balance the classes of Senators is expressly noted in State ex rel. Williams v. Meyer, 127
N.W. 834 (N.D. 1910); State ex rel. Christensen v. Hinkle, 13 P.2d 42 (Wash. 1932); and
Selzer v. Synhorst, 113 N.W.2d 724 (Iowa 1962).
[Headnote 3]
We hold, therefore, that the Legislature has power to provide for the allotment of 2-year
terms to members of the Senate when, but only when, such action is necessary to provide for
the election of one-half of their number every 2 years. Therefore, these proceedings are
dismissed.
____________________

16
See The Federalist, No. 63 (Madison) and No. 64 (Jay).
____________
84 Nev. 388, 388 (1968) Bates v. Cottonwood Cove Corp.
W. E. BATES, Appellant, v. COTTONWOOD COVE
CORPORATION, a Nevada Corporation, Respondent.
No. 5443
June 6, 1968 441 P.2d 622
Judge.
Action by former employee against former employer for amounts due under employment
contract which required former employee to supervise construction at resort and which was
terminated by former employer because of former employee's failure to possess contractor's
license. The lower court granted former employer's motion for involuntary dismissal at close
of former employee's case, and former employee appealed. The Supreme Court, Collins, J.,
held that former employee's evidence which revealed that he was an employee rather than an
independent contractor, that his false representation as to the contractor's license was not a
material breach of contract, and that officer-principal stockholder of former employer had
knowledge that former employee had no contractor's license was sufficient to establish a
prima facie case.
employer had knowledge that former employee had no contractor's license was sufficient to
establish a prima facie case.
Order of dismissal reversed and remanded for trial.
Denton & Monsey, of Las Vegas, for Appellant.
Bell & Morris, of Las Vegas, for Respondent.
1. Appeal and Error; Trial.
In ruling on motion for involuntary dismissal upon completion of plaintiffs evidence on ground that, upon
facts and law, plaintiff has failed to prove a sufficient case for court, plaintiffs evidence must be accepted
as true, and both trial court and Supreme Court must draw all permissible inferences in his favor and not
pass upon credibility of witnesses or weigh evidence. NRCP 41(b).
2. Master and Servant.
Former employee's evidence which, in his action against former employer for amounts due under
employment contract which required former employee to supervise construction at resort and which was
terminated because of former employee's failure to possess a contractor's license, revealed that former
employee was an employee rather than an independent contractor, that his false representation as to
existence of a contractor's license was not a material breach of contract, and that former employer's
officer-principal stockholder had knowledge of lack of license was sufficient to establish a prima facie
case. NRCP 41 (b); NRS 52.060, subd. 2.
3. Corporations.
Knowledge of corporate employer's officer-principal stockholder that former employee had no
contractor's license would be imputable to corporate former employer.
OPINION
This is an appeal from an involuntary dismissal by the lower court of appellant's action at
the close of his case pursuant to NRCP 41 (b). We conclude that dismissal to be error, reverse
the ruling and remand for further proceedings.
Appellant (plaintiff below) and respondent (defendant below) entered into an agreement
July 14, 1964 wherein Bates, referred to as employee, agreed to supervise all major
construction at Cottonwood Cove Resort, Lake Mojave, Nevada, for respondent, referred to
as employer.
Bates was to be paid $500 per month while supervising construction, $300 per month
when no major project was under construction, and a percentage of the gross rental
revenue from the motel and trailer spaces at the resort.
construction, and a percentage of the gross rental revenue from the motel and trailer spaces at
the resort.
The agreement could be terminated by occurrence of various conditions not material to the
issues before us.
Bates represented in a recital to the agreement that he held a valid Nevada contractors
license. That representation was false.
On September 17, 1964 respondent notified Bates of his termination under the contract
because of his failure to possess a Nevada contractors license. Bates then sent a letter to
respondent stating he would produce a contractors license when necessary. This statement
was also false because he had no license.
At the trial Bates testified (1) his occupation was that of construction supervisor; (2) he
had been engaged in the construction business for approximately forty-two years and had
extensive experience in all phases and types of construction; (3) he had moved to the area of
the proposed resort around the end of June, 1964 and worked there with a Mr. Krametbauer
who was an engineer (as well as a 25 percent stockholder in and an officer and director of the
corporation) until his discharge; (4) his boss was Mr. Krametbauer, the engineer, who had
complete charge of construction and mechanical work; (5) Bates's duties consisted of
organizing the project, hiring and firing workmen, purchasing materials, and over-all
supervision of the job; (6) he (Bates) never used his own money to pay workmen,
materialmen, or any other expenses and never attempted to get contractors discounts when he
purchased the company's materials; (7) the bills and wages were always paid by the defendant
Cottonwood Cove Corporation; (8) certain workmen were hired and fired at the request of the
president of the corporation; (9) he never offered to do the job for a lump sum; (10) Mr.
Krametbauer nor any officers of the corporation ever expressed any dissatisfaction with his
services; (11) he did not, at the time the contract was signed, nor has he ever possessed a
Nevada contractors license; (12) Mr. Krametbauer was aware that he did not have such a
license some months before the contract was signed; (13) when signing the contract, he
noticed the recital but decided not to say anything because he felt it might embarrass Mr.
Krametbauer and that it was immaterial because it was his extensive experience and
knowledge the company was hiring; (14) the letter he wrote to the corporation after his
dismissal was done in desperation so that the corporation would give him additional
consideration.
The trial court in granting involuntary dismissal of Bate's action at the close of his
evidence pursuant to NRCP 41(b) ruled that plaintiff has not shown that defendant's
termination or discharge was wrongful; that plaintiff represented he held a valid contractors
license at the time of entering into the contract; that the court would not impute to the
corporation knowledge by one of its officers that plaintiff was not a licensed contractor; that
plaintiff continued to represent after his termination he had a contractors license; and that
plaintiff has not borne the burden of proving his cause. Appellant contends that, in view of
the evidence presented, such a dismissal was error.
[Headnote 1]
In ruling upon a motion for involuntary dismissal under NRCP 41(b) upon completion of
presentation of plaintiff's evidence on the ground that upon the facts and the law the plaintiff
has failed to prove a sufficient case for the court, plaintiff's evidence must be accepted as true,
both the trial court and this court must draw all permissible inferences in his favor, and not
pass upon the credibility of the witnesses nor weigh the evidence. Corn v. French, 71 Nev.
280, 289 P.2d 173 (1955); Gordon v. Cal-Neva Lodge, Inc., 71 Nev. 336, 291 P.2d 1054
(1955); Quimby v. City of Reno, 73 Nev. 136, 310 P.2d 850 (1957); Tryba v. Fray, 75 Nev.
288, 339 P.2d 753 (1959); Gunlock v. New Frontier Hotel Corp., 78 Nev. 182, 370 P.2d 682
(1962); Schmidt v. Merriweather, 82 Nev. 372, 418 P.2d 991 (1966); Kline v. Robinson, 83
Nev. 244, 428 P.2d 190 (1967).
[Headnotes 2, 3]
Accepting as we must plaintiff's evidence consisting of his testimony and certain exhibits,
as true, and drawing all favorable inferences from that evidence without passing upon his
credibility or weight of his evidence we think the posture of the case, at the close of Bate's
evidence was this:
(1) That he was an employee rather than an independent contractor. NRS 52.060(2);
Briggs v. Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967).
(2) That his false recital and representation of a Nevada contractors license was not a
material breach of the contract. Homelite v. Trywilk Realty Co., 272 F.2d 688 (4th Cir.
1959).
(3) That Mr. Krametbauer, an officer and principal stockholder of respondent, had
knowledge that Bates had no contractors license. This knowledge would be imputable to the
corporation.
corporation. Chartrand v. Barney's Club, Inc., 380 F.2d 97 (9th Cir. 1967). There the court
imputed knowledge of a preincorporation promoter who was presently an officer and director
of the corporation. Other cases have imputed knowledge of a director or officer when the
knowledge was obtained in furtherance of corporate goals and within the scope of his duties.
Knox v. First Security Bank of Utah, 206 F.2d 823 (10th Cir. 1953); Meyer v. Glenmoor
Homes, Inc., 54 Cal. Rptr.786 (1967).
What effect respondent's evidence might have on these points remains for the trial court's
future determination.
Accordingly the dismissal is set aside and the cause remanded for a full trial.
____________
84 Nev. 392, 392 (1968) Aldabe v. Aldabe
ALVERA M. ALDABE, Appellant, v. CHARLES D. ALDABE, ROBERT TAYLOR
ADAMS, JACK STREETER, and DAVID EVANS, Respondents.
No. 5304
ALVERA M. ALDABE, Appellant, v. CHARLES
D. ALDABE, Respondent.
No. 5305
June 7, 1968 441 P.2d 691
Appeal from summary judgment refusing to set aside divorce decree and appeal from
judgment dismissing complaint for damages. Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Suits by wife to set aside divorce decree obtained by husband and for damages. The trial
court granted summary judgment declaring divorce decree to be valid and dismissed
complaint in suit for damages and wife appealed. The Supreme Court, Zenoff, J., held that
where ranch upon which husband and wife resided was located partly in California and partly
in Nevada, and dwelling and outbuildings were on the California side, and parties had
considered themselves residents and domiciliaries of Nevada with mailing address, voting
registration, school attendance and employment all in Nevada and wife had attended
University of Nevada as resident of Nevada and wife had submitted herself to Nevada court
in divorce action, Nevada court had jurisdiction to enter divorce decree.
and wife had submitted herself to Nevada court in divorce action, Nevada court had
jurisdiction to enter divorce decree.
Affirmed.
Martillaro & Bucchianeri, of Carson City, and Albert E. Polonsky, of San Francisco,
California, for Appellant.
Donnell Richards, of Reno, for Charles D. Aldabe.
Goldwater, Taber and Hill, of Reno, for Robert Taylor Adams.
Sidney W. Robinson, of Reno, for Jack Streeter.
Paul A. Richards, of Reno, for David Evans.
1. Divorce.
In determining residence of parties for divorce jurisdiction, where husband and wife resided on ranch
partly in Nevada and partly in California, fact that ranch buildings were located in California was incidental
only in the consideration of all factors going to make up residence.
2. Domicile.
Residence is synonymous with domicile.
3. Divorce.
Fact of presence together with intention comprise bona fide residence for divorce jurisdiction.
4. Divorce.
Where ranch upon which husband and wife resided was located partly in California and partly in Nevada,
and dwelling and outbuildings were on the California side, and parties had considered themselves residents
and domiciliaries of Nevada with mailing address, voting registration, school attendance and employment
all in Nevada and wife had attended University of Nevada as resident of Nevada and wife had submitted
herself to Nevada court in divorce action, Nevada court had jurisdiction to enter divorce decree.
5. Attorney and Client; Divorce.
Record disclosing that subsequent to wife's alleged discharge of her Nevada counsel she verified
pleadings in his office and directed that he file the same, and disclosing no formal withdrawal or
substitution of attorney in the record, did not substantiate wife's contention that Nevada attorney had been
discharged and that wife had been denied opportunity to appear and defend Nevada divorce proceeding as
result of efforts of her Nevada attorney and others.
6. Attorney and Client.
Notice to attorneys is notice to the client.
It is conclusively presumed that attorney's appearance is with authorization of client.
Once attorney has appeared in action he may be changed upon application of attorney or the client with
consequent order of courts or by stipulation. SCR 46.
9. Divorce.
Where wife after initiating divorce action in Nevada voluntarily elected to refrain from further
participation in the proceeding, wife was charged with knowledge of facts which allegedly were
fraudulently withheld in husband's obtaining of divorce decree.
10. Divorce.
Record disclosing that wife after initiating divorce action in Nevada voluntarily elected to refrain from
further participation in proceeding and that wife's Nevada attorney appeared with authorization of wife did
not disclose that wife was denied opportunity to appear and defend divorce proceeding by extrinsic fraud
resulting from alleged concerted efforts of Nevada attorney, her husband and others.
11. Divorce.
Record disclosing that wife seeking to set aside divorce decree and her husband managed little more than
a living from ranch even with assistance of wife's income from working would not sustain wife's allegation
that value of ranch and community property exceeded $250,000.
12. Judgment.
Record on consolidated appeals from summary judgment declaring divorce decree to be valid and
dismissing wife's suit for damages in which wife alleged denial of opportunity to appear and defend divorce
proceeding through extrinsic fraud disclosed no conflict creating material issues of fact necessary to be
resolved by trial court.
OPINION
Alvera Aldabe appeals from judgments entered in two cases below which have been
consolidated for the purposes of this appeal. In her suit to set aside the divorce decree
obtained by Charles Aldabe the trial court granted summary judgment declaring the decree to
be valid in all respects. In a second suit for damages the trial court entered judgment
dismissing her entire complaint. We affirm both decisions of the lower court.
Alvera originally filed the divorce complaint as plaintiff in which she alleged Nevada
residence. Almost immediately she became dissatisfied with her Nevada attorney and started
the same proceeding in California claiming that state as her residence. Her husband, Charles,
answered and counterclaimed in the Nevada action. Certain preliminary proceedings relating
to temporary support and custody thereafter took place.
to temporary support and custody thereafter took place. Through a California attorney Alvera
notified her Nevada attorney that she no longer wanted him to represent her. Nevertheless,
despite this notification, she thereafter personally appeared in his office in Reno to verify her
reply to Charles' counterclaim in the Nevada action indicating thereby that he still represented
her and that she continued to seek affirmative relief as stated in her initial complaint.
A period of time passed wherein she and her Nevada counsel did not contact each other. A
hearing date was set for the Nevada divorce, but Alvera denies knowing of it. However, her
Nevada counsel appeared, informed the court the circumstances of his relationship with his
client, that he had been advised by her California counsel that they were not going to
personally appear and make any effort to contest the counterclaim, that therefore he was not
in a position to cross-examine or present any evidence. The divorce action proceeded with the
court hearing evidence in support of Charles' counterclaim and a decree was entered. There
are clear indications that Alvera knew of the Nevada divorce proceeding and certainly had
actual knowledge of it when it was set up in bar in her California action. Yet, she took no
steps in Nevada to contest it or to set it aside. The California trial court accepted the Nevada
decree in bar, but the California District Court of Appeal, Third District, Aldabe v. Aldabe,
209 Cal.App.2d 453, 26 Cal.Rptr. 208 (1962), reversed on the ground that the trial court in
granting summary judgment in favor of Charles erroneously denied admission of certain
evidence proffered by Alvera seeking to test the jurisdictional facts upon which the Nevada
decree was based. Accordingly, a new trial was ordered. The Court of Appeal, taking the
evidence most favorable to Alvera, stated that it was possible that a material jurisdictional
fact had been kept from the Nevada trial judge and because of this the Nevada court did not
have jurisdiction to hear the divorce. Consequently, they indicated the decree to be invalid.
The key fact that was allegedly withheld from the Nevada trial judge according to the
California court was that the dwelling house of the parties was in California, not Nevada.
The ranch actually lies partly in California and partly in Nevada and in all is only a few
miles from Reno, but the dwelling and outbuildings are on the California side. Since the
parties dwelled in the abode, said the California court, they were California residents, not
Nevadans. Exhaustive statements of facts appear in the California case previously cited and
also Aldabe v. Adams, 81 Nev. 280, 402 P.2d 34 (1965), and need not be repeated here.
and need not be repeated here. Instead, we first direct our attention to the question of the
residential requirements of a divorce litigated in our court, because unquestionably the
California decision encourages Alvera to seek to set aside the Nevada decree. Consistent with
the California ruling her contention is that the Nevada court had no jurisdiction and the
divorce was invalid. Our lower court in proceedings that predicated this appeal ruled
otherwise.
[Headnotes 1-3]
1. The location of the buildings on the ranch property are incidental only in the
consideration of all of the factors going to make up the residence. Residence is synonymous
with domicile and it is consonant with the many decisions of our court that the fact of
presence together with intention comprise bona fide residence for divorce jurisdiction. Whise
v. Whise, 36 Nev. 16, 131 P. 967 (1913); Fleming v. Fleming, 36 Nev. 135, 134 P. 445
(1913); Tiedemann v. Tiedemann, 36 Nev. 494, 137 P. 824 (1913), also concurring opinion
of Talbot, J.; Worthington v. District Court, 37 Nev. 212, 142 P. 230 (1914); State v. Moran,
37 Nev. 404, 142 P. 534 (1914); Presson v. Presson, 38 Nev. 203, 147 P. 1081 (1915);
Aspinwall v. Aspinwall, 40 Nev. 55, 160 P. 253 (1916); Merritt v. Merritt, 40 Nev. 385, 160
P. 22, rehearing 40 Nev. 392, 164 P. 644 (1917); Blakeslee v. Blakeslee, 41 Nev. 235, 168 P.
950 (1917); Walker v. Walker, 45 Nev. 105, 198 P. 433 (1921); Barber v. Barber, 47 Nev.
377, 222 P. 284 (1924); McLaughlin v. McLaughlin, 48 Nev. 155, 238 P. 402 (1925); Confer
v. District Court, 49 Nev. 18, 234 P. 688, rehearing 49 Nev. 26, 236 P. 1097 (1925); Lewis v.
Lewis, 50 Nev. 419, 264 P. 981 (1928); Latterner v. Latterner, 51 Nev. 285, 274 P. 194
(1929); Hunnewell v. Hunnewell, 55 Nev. 150, 27 P.2d 1062 (1934); Prouse v. Prouse, 56
Nev. 467, 56 P.2d 147 (1936); Lamb v. Lamb, 57 Nev. 421, 65 P.2d 872 (1937); Wilson v.
Wilson, 66 Nev. 405, 212 P.2d 1066 (1949); Blouin v. Blouin, 67 Nev. 314, 218 P.2d 937
(1950); Plunkett v. Plunkett, 71 Nev. 159, 283 P.2d 225 (1955); Weinstein v. Weinstein, 74
Nev. 40, 321 P.2d 245 (1958); Moore v. Moore, 75 Nev. 189, 336 P.2d 1073 (1959);
Sutherland v. Sutherland, 75 Nev. 304, 340 P.2d 581 (1959); Baker v. Baker, 76 Nev. 127,
350 P.2d 140 (1960).
The trial courts of this state were satisfied that the Aldabes were Nevada residents. Charles
Aldabe came to Nevada in 1918 as an infant. From that time to the present he has never been
a resident of any state but Nevada. He always either lived in Reno or worked on ranches near
Reno during his boyhood until he and Alvera married in 1941.
boyhood until he and Alvera married in 1941. Together they lived on his father's ranch in
Washoe County until 1942 when he purchased the Flynn ranch which is the property located
in both Nevada and California. In spite of the geographical dividing line they obviously
continued to consider themselves residents and domiciliaries of Nevada. Their mailing
address, voting registration, school attendance, medical care, business and financial affairs,
auto and operators' licenses, taxes, wills, and employment were all in Nevada. In other
manifestations they declared intention of Nevada residence and performed continuous daily
activities in Nevada. Alvera was employed in a gaming establishment in Reno, Nevada. She
also attended the University of Nevada as a resident of this state. There is nothing in any of
the records that speak of any intention to give up their residence as Nevadans to acquire that
of any other state. Indeed this was fundamental to the trial court's decision in the original
divorce proceedings.
1

[Headnote 4]
It appears to us with all deference and respect to the California appellate court that they
were in some measure misinformed by Alvera not only as to her intention that California
instead of Nevada was her residence, but also as to the financial circumstances of the parties
that led that court to believe that unfair advantage had been taken of her. The implied
excoriation of the Nevada attorneys leaves that impression. Yet, while the California court
stated, We have before us the entire record in the Nevada proceedings, no reference was
made in that opinion to the fact that Alvera personally verified her reply in the Nevada
proceeding. Alvera plainly submitted herself to the Nevada court and it then becomes
questionable whether residence was an indispensable prerequisite for jurisdiction. And when
both parties are thus before the court it may not be possible to later attack the decree outside
the forum state. Cook v. Cook, 342 U.S. 126 (1951); Johnson v. Muelberger, 340 U.S. 581
(1951); Coe v. Coe, 334 U.S. 378 (1948); Sherrer v. Sherrer, 334 U.S. 343 (1948); Whealton
v. Whealton, 432 P.2d 979 (Cal. 1967) (dictum).
Nevada has a legitimate interest in the adjudication of the marital status of these parties for
their dominant interests were concentrated in this state. Both parties set up conduct taking
place in Reno, Nevada, as grounds for divorce. The California District Court of Appeal
recognized that Reno was the focal point of this family's interests and activities.
____________________

1
Corroborating evidence of Charles' residence was supplied by two witnesses who were well acquainted with
the Aldabes. NRS 54.010.
point of this family's interests and activities. Thus, from the affiliating circumstances no
compelling reasons appear for this forum to decline jurisdiction for divorce purposes and
application of its domestic law. Currie, Suitcase Divorce in the Conflict of Laws: Simons,
Rosenstiel and Borax, 34 U.Chi.L. Rev. 26 (1966); Leflar, Conflict of Laws and Family Law,
14 Ark.L.Rev. 47 (1959-1960); von Mehren and Trautman, Jurisdiction to Adjudicate: A
Suggested Analysis, 79 Harv.L. Rev. 1121, 1135-1179 (1966); Developments-Jurisdiction, 73
Harv.L.Rev. 909, 966-976 (1960).
2. The record before us shows that the Nevada court had jurisdiction based on residence
of the parties to enter the decree. However, Alvera's action to set aside the decree not only
attacks bona fide residence, but asserts that by conduct amounting to extrinsic fraud she was
denied the opportunity to appear and defend the divorce proceeding. This is the essential
predicate of her suit to invalidate the decree.
The extrinsic fraud was allegedly the result of concerted efforts of her Nevada attorney,
her husband and his attorney, and a witness. These four parties were named as coconspirators
in a second suit seeking $1,000,000 in damages. We turn to consider the question of extrinsic
fraud.
[Headnotes 5-8]
The record does not substantiate Alvera's contention that she discharged her Nevada
counsel, for subsequent to the alleged discharge she verified pleadings in his office and
directed that he file the same, nor is there any formal withdrawal or substitution of attorney in
the record. Both her Nevada counsel and her California counsel had knowledge of the hearing
date. It is elementary that notice to the attorneys is notice to the client. Aldabe v. Adams,
supra, p. 286; Zeig v. Zeig, 65 Nev. 464, 198 P.2d 724 (1948). We cannot accept Alvera's
assertation that her Nevada counsel's appearance was without authorization, for the contrary
is conclusively presumed, Barber v. Barber, supra, as well as established by the record.
Furthermore, the rules governing the legal profession in this state provide that once an
attorney has appeared in an action he may be changed upon the application of the attorney or
the client with the consequent order of the court, or by stipulation but nothing of that sort was
done. SCR 46. Apparently Alvera was aware that some assertive action was necessary if she
desired to remove her Nevada attorney from the case for he told the court at the divorce
hearing, I have endeavored to have her appear here or at least substitute counsel for me to
appear at this hearing and for the purpose of this trial, but I have been advised by her
attorney that they are not going to appear here and make any effort to contest the
counterclaim of the defendant."
counsel for me to appear at this hearing and for the purpose of this trial, but I have been
advised by her attorney that they are not going to appear here and make any effort to contest
the counterclaim of the defendant.
Alvera invoked the jurisdiction of this forum and was subject to it. Apart from the view
that by her conduct she may be estopped from collaterally attacking the decree, Grant v.
Grant, 38 Nev. 185, 147 P. 451 (1915), it is clear from the record that no facts establishing
extrinsic fraud have been shown as a matter of law.
Alvera played an active role in the original divorce proceeding. She knew the important
facts and circumstances upon which she now challenges bona fide residence in Nevada which
is explicit in her reply to Charles' counterclaim. It cannot be seriously urged that Alvera did
not have the opportunity to consult an attorney of her own selection since her allegations
show that she had the advice and assistance of counsel of her choice. Not only did she employ
Nevada counsel, but she repeatedly employed various independent California counsel, thus
making her no stranger to lawyers.
[Headnotes 9, 10]
Through her counsel Alvera had the opportunity to disclose the facts and present her
position for adjudication by the court. There were no false promises of compromise nor any
other acts or omissions which by design sought to prevent Alvera from ascertaining her rights
and defenses or to deny a reasonable opportunity to present them at trial. It is apparent from
the evidence that after initiating the divorce action in Nevada, Alvera voluntarily elected to
refrain from further participation in the proceeding. Under the circumstances she is charged
with the knowledge of the facts which she contends were fraudulently withheld and the
obligation to inform the trial court. Though having had the opportunity to do something,
Alvera did nothing. Procedural due process was accorded her and extrinsic fraud is not
shown. Summary judgment was properly entered declaring the decree valid. Confer v.
District Court, supra; Chamblin v. Chamblin, 55 Nev. 146, 27 P.2d 1061 (1934); Lamb v.
Lamb, supra; Calvert v. Calvert, 61 Nev. 168, 122 P.2d 426 (1942); Mazour v. Mazour, 64
Nev. 245, 180 P.2d 103 (1947); Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850 (1948);
Smith v. Smith, 68 Nev. 10, 226 P.2d 279 (1951); Howard v. Howard, 69 Nev. 12, 239 P.2d
584 (1952); Garteiz v. Garteiz, 70 Nev. 77, 254 P.2d 804 (1953); Villalon v. Bowen, 70 Nev.
456, 273 P.2d 409 (1954); Moore v. Moore, 7S Nev. 1S6, 370 P.2d 690 {1962); Colby v.
Colby, 7S Nev. 150
v. Moore, 78 Nev. 186, 370 P.2d 690 (1962); Colby v. Colby, 78 Nev. 150, 369 P.2d 1019
(1962); cf. Manville v. Manville, 79 Nev. 487, 387 P.2d 661 (1963).
Nor do the facts pleaded show that by reason of a conspiracy Alvera was prevented from
presenting her case. The trial court correctly dismissed the entire complaint for damages.
Wade v. Wade, 41 Nev. 533, 173 P. 553 (1913).
[Headnote 11]
3. Furthermore, from the record it is clear that Alvera's allegation that the value of the
ranch and community property exceeds $250,000 is grossly overstated. Nor was she left
destitute. The Aldabes led a strictly budgeted existence. The ranching operation was always
subject to prior indebtedness to a Nevada livestock association from whom Charles borrowed
money constantly over the years for living expenses and to feed the cattle so that when the
cattle were marketed the money had to be repaid. Little more than a living was realized even
with the assistance of Alvera's income from working. When Alvera refused to continue to live
with Charles she retained more than $4,000 accumulated in a savings account.
The record tells a story of continuing, contentious, vexacious, irritating and costly conduct
by Alvera resulting in financial hardship to Charles, as well as depriving him of visitation
with his daughter who remained with Alvera. Custody of their son had been awarded to
Charles.
[Headnote 12]
From the foregoing recitation we agree that the jurisdictional findings in the divorce
proceeding which were affirmed by the lower court in this case were proper. Alvera's attempt
to set aside the divorce decree contains no issue for further litigation. We reject the
contention that there is any conflict creating material issues of fact that must be resolved by
the trial court. Judgments were properly entered in favor of the respondents in both cases.
Affirmed.
____________
84 Nev. 401, 401 (1968) Adams v. State
CARL ADAMS and JAMES R. REDMANN, Also Known as OAKLEY GRIFFITH,
Appellants, v. THE STATE OF NEVADA, Respondents.
No. 5529
June 7, 1968 441 P.2d 697
Appeal from the Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
Defendants were convicted in the lower court of burglary and they appealed. The Supreme
Court, Zenoff, J., held that where time between first arrest and trial date of defendants was
less than six months, interval from filing of second information to trial date was within
60-day rule, and there was no showing of bad faith on part of state in withholding some
evidentiary material at presentment stage, fact that original indictment was not founded on
sufficient evidence, thereby necessitating commencement of habeas corpus proceeding, did
not deny defendants their right to speedy trial.
Affirmed.
LeRoy Arrascada and Robert N. McGehee, of Reno, for Appellants.
1. Criminal Law.
Where time between first arrest and trial date of defendants was less than six months, interval from filing
of second information to trial date was within 60-day rule, and there was no showing of bad faith on part of
state in withholding some evidentiary material at presentment stage, fact that original indictment was not
founded on sufficient evidence, thereby necessitating commencement of habeas corpus proceeding, did not
deny defendants their right to speedy trial. NRS 178.495.
2. Criminal Law.
In absence of showing to contrary, good faith on part of state is presumed for withholding some
evidentiary material at presentment stage although indictment is subject to dismissal on ground of charge of
insufficiency.
OPINION
Defendants were arrested on July 26, 1967 and accused of burglary. Within a few days
attorneys were appointed to represent each of them and a preliminary hearing was scheduled
for September 1S, 1967.
84 Nev. 401, 402 (1968) Adams v. State
for September 18, 1967. While awaiting the preliminary hearing the prosecutor presented the
matter to the grand jury from which an indictment was returned on September 8th. An
arraignment date was set for September 20th but postponed to October 5th and, again, that
date was vacated. No explanation appears from the record for the delay between the time of
arrest and the preliminary hearing nor that defendants moved to advance the hearing date.
Defendants petitioned for a writ of habeas corpus to test the sufficiency of the evidence
supporting the indictment. They were successful in that effort for by stipulation between the
defendants and the prosecution the writ was granted. That event took place October 18th, but
the defendants were immediately rearrested and bound over to the district court after a
preliminary hearing on November 7th at which six witnesses appeared for the prosecution as
against two in the grand jury proceedings. An information charging the appellants with
burglary was filed December 5th. Upon their not guilty pleas a trial was scheduled January
15, 1968. Again on January 4, 1968 they petitioned for a writ of habeas corpus, this time
complaining that they were denied their right to a speedy trial. From the denial of that petition
they appeal.
[Headnote 1]
The contention of error alleges that because the original indictment was not founded on
sufficient evidence thereby necessitating commencement of the habeas corpus proceedings
the delay caused by those proceedings deprived the appellants of their right to a speedy trial.
[Headnote 2]
The contention is without merit. In all, the time between the first arrest and their trial date
was less than six months and the interval from the filing of the second information to the trial
date was within the 60-day rule of NRS 178.495. In the absence of any showing to the
contrary good faith on the part of the state is presumed for withholding some evidentiary
material at the presentment stage is not unusual, although subject to the risk of a dismissal of
the charges on the ground of insufficiency. From the record here we are satisfied that the
initial grand jury proceeding was not a device to secure a delay as in Oberle v. Fogliani, 82
Nev. 428, 420 P.2d 251 (1966), where the prosecutor's tactic was a studied method to obtain
more time. The proceedings followed by the defendants on this appeal were proper as we
indicated in Oberle v. Fogliani, supra, and Stabile v. Justice Court of Las Vegas, 83 Nev. 393,
84 Nev. 401, 403 (1968) Adams v. State
432 P.2d 670 (1967), but the merits of this case and those are not analogous.
Affirmed.
____________
84 Nev. 403, 403 (1968) Livingston v. State
HARRY J. LIVINGSTON, JR., Appellant, v. THE
No. 5376
June 11, 1968 441 P.2d 681
Appeal from judgment of the Eighth Judicial District Court, Clark County; John Mowbray,
Judge.
Defendant was convicted in the trial court of embezzlement and he appealed. The Supreme
Court held that information alleging that defendant employee of corporation entrusted with
specific check willfully, unlawfully and feloniously appropriated and converted check to his
own use sufficiently described elements of public offense of embezzlement and was not
defective on ground that it failed to specify purpose of the entrustment, and that whether
defendant breached his position of trust and confidence with corporation by converting check
to purpose different from that intended was jury question.
Affirmed.
Harry E. Claiborne, of Las Vegas, for Appellant.
Attorney, and Alan R. Johns, Deputy District Attorney, Clark County, for Respondent.
1. Embezzlement.
If an entrustee uses or appropriates for himself in any manner money held in trust for another he has
committed embezzlement. NRS 205.300.
2. Embezzlement.
Embezzlement is larceny by clerk or servant or agent; act of appropriating to himself that which he
receives in trust for another. NRS 205.360.
3. Embezzlement.
Information alleging that defendant employee of corporation entrusted with specific check willfully,
unlawfully and feloniously appropriated and converted check to his own use sufficiently
described elements of public offense of embezzlement and was not defective on
ground that it failed to specify purpose of the entrustment.
appropriated and converted check to his own use sufficiently described elements of public offense of
embezzlement and was not defective on ground that it failed to specify purpose of the entrustment. NRS
205.300.
4. Embezzlement.
Whether defendant breached his position of trust and confidence with corporation by converting check to
purpose different from that intended was jury question, in prosecution for embezzlement. NRS 205.300.
OPINION
Per Curiam:
The appellant was found guilty by a jury of embezzling a check in the amount of
$3,728.68 and sentenced to not less than two nor more than fourteen years in prison. Appeal
is taken from this conviction.
On January 10, 1964, appellant was an office supervisor for Cashman Equipment
Company of Las Vegas, Nevada. He was in charge of the office and took care of accounts
payable. He frequently handled company checks of the type here involved. Either he or other
employees brought groups of checks to Robert Hartman who was authorized to sign them.
The particular account upon which the check here in question was drawn was for the payment
of obligations other than payroll. Any payments to individual employees on this account
would be in small amounts for minor incidentals only.
When presented for signature, the checks had carbon copies attached. The check in
question was signed by Mr. Hartman. The carbon copy of the check reveals that it was made
out to Bank Nevada. This payment is consistent with the proper use of the account.
Hartman testified that the check could not have had appellant's name on it as payee or have
been in blank when he signed it. A check of this size, $3,728.68, out of this account to an
employee would have been immediately noticed. Hartman testified that he never signed blank
checks.
A photocopy of the original check reveals that it bore appellant's name as payee. It was
cashed by appellant and deposited in his personal account.
An official of the Bank of Nevada testified that the Bank of Nevada did not receive
payment or benefit from the check.
As a result of these events, Cashman Equipment Company lost the $3,728.68 represented
by the check.
The original of the check has not been found. Appellant was in charge of bookkeeping and
reconciling the bank accounts. When confronted with the fact of a money shortage by his
superiors, appellant admitted the taking, "I am sorry that I took the money because you
have treated me too good, Mr.
by his superiors, appellant admitted the taking, I am sorry that I took the money because you
have treated me too good, Mr. Cashman, in the past.
Appellant contends: (1) that the information fails to state the elements of the public
offense of embezzlement; and (2) that the verdict is contrary to the evidence.
NRS 205.300 defines the crime of embezzlement as follows: Any bailee of any money,
goods or property, who shall convert the same to his own use, with intent to steal the same or
to defraud the owner or owners thereof and any agent, manager or clerk of any person,
corporation, association or partnership; or any person with whom any money, property or
effects shall have been deposited or entrusted, who shall use or appropriate such money,
property or effects or any part thereof in any manner or for any other purpose than that for
which the same was deposited or entrusted, shall be guilty of embezzlement. * * * (Emphasis
added.)
Count I of the information filed in the case at bar reads:
That Harry J. Livingston, the Defendant above named, on or about the 10th day of
January, 1964, at and within the County of Clark, State of Nevada, * * * being then and there
the employee and agent for CASHMAN EQUIPMENT CO., a corporation, and having been
entrusted with Check No. 12347 (Numerical No. 15284), dated December 27, 1963, in the
amount of $3,728.68 lawful money of the United States, did wilfully, unlawfully and
feloniously appropriate and convert the same to his own use.
Appellant contends that the information fails to state the elements of embezzlement
because it does not specify the specific purpose of the entrustment. The statute itself does not
specifically require the purpose of the entrustment to be set forth. Appellant argues that it is
logically compelled because embezzlement does require an appropriation for any other
purpose than that for which the same was * * * entrusted. The present information simply
says that while the appellant was an employee he was entrusted with a certain check and
unlawfully appropriated and converted it to his own use.
[Headnotes 1, 2]
If an entrustee uses or appropriates for himself in any manner the money held in trust for
another he has committed embezzlement. Embezzlement has been defined by this court as
Larceny by clerk, or servant, or agent; the act of appropriating to himself that which he
receives in trust for another'. State v. Trolson, 21 Nev. 419, 423 (1893). The statute before
this court in Trolson was essentially the same as the one before the court today.
before the court today. In the case of Wood v. State, 76 Nev. 312, 353 P.2d 270 (1960), the
court held sufficient an information which did not specify the purpose for which the
entrustment was made. It simply alleged that the check was later appropriated for purposes
other than those intended.
[Headnote 3]
The present information does not use the words of the statute with regard to the purpose
for which the money was entrusted to the appellant. However, the only logical reading of the
information is that the check was entrusted to the appellant as an employee and agent of
Cashman Equipment Company, i.e., for company purposes. Once he had the check he
appropriated the funds for a different purpose, i.e., for himself. Obviously he had not been
entrusted with the money in his individual capacity for himself. If he had, the state's
allegation that he unlawfully appropriated it to his own use would have been meaningless.
It would be difficult to find that the defendant was misled in any way by the information.
The information does sufficiently describe and state the elements of the public offense of
embezzlement. A wrongful appropriation of entrusted funds was adequately alleged.
Appellant's first contention is without merit.
[Headnote 4]
Appellant's second contention that the verdict was contrary to the evidence is equally
without merit. It was not unreasonable for the jury to have concluded from the above
evidence that appellant breached his position of trust and confidence with the corporation by
converting the check to a purpose which was shown necessarily to have been different from
that intended.
Affirmed.
____________
84 Nev. 406, 406 (1968) Peri-Gil Corp. v. Sutton
PERI-GIL CORP., WILLIAM C. EPPERSON, WILBUR H. SPRINKEL, and DONA L.
EPPERSON, Appellants, v. GILBERT SUTTON, Respondent.
No. 5460
June 13, 1968 442 P.2d 35
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Action for appointment of a receiver. The lower court entered order from which
defendants appealed. The Supreme Court, Batjer, J., held that in view of fact that
corporation's board of directors in willful violation of corporation's charter and statute
had amended articles of incorporation to issue 100 additional shares of stock which were
sold to defendant stockholder giving him control of corporation, without offering
opportunity to plaintiff stockholder to purchase a pro rata share of new stock,
appointment of receiver did not constitute an abuse of discretion.
Court, Batjer, J., held that in view of fact that corporation's board of directors in willful
violation of corporation's charter and statute had amended articles of incorporation to issue
100 additional shares of stock which were sold to defendant stockholder giving him control
of corporation, without offering opportunity to plaintiff stockholder to purchase a pro rata
share of new stock, appointment of receiver did not constitute an abuse of discretion.
Affirmed.
Stewart & Horton, and Richard A. Sheffield, Wilbur H. Sprinkel, and David R. Hoy, of
Reno, for Appellants.
Cooke & Roberts, of Reno, for Respondent.
1. Corporations.
Where corporation's board of directors in willful violation of statute and corporation's
charter amended articles of incorporation to issue 100 additional shares of stock which
were sold to defendant stockholder giving him control of corporation, without offering
opportunity to plaintiff stockholder to purchase a pro rata share of new stock, fact that
plaintiff was a non-voting stockholder at time directors amended articles did not in any
way diminish his rights under statute and original charter of corporation. NRS 78.265.
2. Corporations.
In view of fact that corporation's board of directors in willful violation of corporation's
charter and statute had amended articles of incorporation to issue 100 additional shares
of stock which were sold to defendant stockholder giving him control of corporation,
without offering opportunity to plaintiff stockholder to purchase a pro rata share of new
stock, appointment of receiver did not constitute an abuse of discretion. NRS 78.265,
78.650, subd. 1.
3. Corporations.
Under statute relating to appointment of a receiver for a corporation, a non-negligent
director is entitled to preferential consideration, however, after having been considered,
such director can be rejected by the court if there appears reason to do so. NRS 78.650,
subd. 1.
4. Corporations.
Refusing to appoint as receiver non-negligent director, who was an attorney-employee
in law firm which had been retained by defendants to contest appointment of a receiver,
was for good reason. NRS 78.650, subd. 1.
OPINION
In 1961, the respondent, Gilbert Sutton, by means of his corporation, Industrial Sites, Inc.,
obtained a lease at the rate of $200 per month from the Southern Pacific Railroad Company,
on a strip of property twenty-five feet wide and one hundred and five feet in length
located on the northwest corner of West Commercial Row and North Virginia Streets in
Reno, Nevada.
of $200 per month from the Southern Pacific Railroad Company, on a strip of property
twenty-five feet wide and one hundred and five feet in length located on the northwest corner
of West Commercial Row and North Virginia Streets in Reno, Nevada.
On June 10, 1963, after Sutton had partially developed the property, he entered into a
written agreement with Peter Jack Perinati in order to finish development of the property for
gambling purposes. In furtherance of the terms of this agreement, on June 21, 1963, certain
nominal parties filed the articles of incorporation for Peri-Gil Corp. Sutton and Perinati each
owned one-half of the 75,000 shares of stock that were issued. A loan of $40,000 was
obtained from the Security National Bank to use in further developing Peri-Gil's property. To
secure the loan, Perinati gave his promissory note to the bank and Sutton guaranteed
repayment while pledging his stock in Peri-Gil as security, and relinquishing his voting rights
in the stock until title note was repaid. Then the lease between Sutton and Southern Pacific
was cancelled and a new one was executed between Peri-Gil and Southern Pacific.
On June 28, 1963, Peri-Gil leased the property to Perinati at the monthly rental of $1,000
for the first 18 months, with an acceleration at that time to $2,000 per month.
The property was zoned by the city of Reno to be included within the red line area
allowing unlimited gambling on the property. Thereafter, Perinati obtained a gambling
license.
On December 24, 1963, Peter Jack Perinati died, and Ronald B. Darney who had been the
accountant for Perinati and Peri-Gil became the administrator of Perinati's estate.
On November 4, 1964, the 37,500 shares of Peri-Gil stock in the Perinati estate were sold
to William C. Epperson pursuant to court order entered in conformity with NRS Chapter 148.
Later that same day, without notice to Sutton, a meeting of the board of directors of Peri-Gil
was held, at which William C. Epperson was elected president; Thomas C. Nolan, an
employee of the law firm of Stewart & Horton, attorneys for Peri-Gil, was elected
vice-president, and Dona L. Epperson, William Epperson's wife, was elected
secretary-treasurer. The lease between Peri-Gil and Perinati was cancelled and a new lease
was executed between Peri-Gil and William C. Epperson. This new lease provided for a
current rental of $1,000 per month, but with no provision for an increase to $2,000 per month,
although the cancelled lease would have accelerated to that level the following month.
On February 1, 1965, again without notice to Sutton, Epperson, as the sole stockholder
with voting rights in Peri-Gil, approved the amendment of the articles of incorporation,
increasing the amount of authorized capital stock from 75,000 to 75,100 shares. On February
8, 1965, without first offering a pro-rata share of the new stock to Sutton, Epperson bought all
of the 100 new shares.
On April 1, 1965, Epperson subleased the property to Whistle Stop, Inc., a corporation
owned and operated by him and his wife, at a monthly rental of $1,400, with the provision
that the rate would be increased if the rental paid by Peri-Gil to Southern Pacific was
increased.
On August 15, 1965, the debt owed to Security National Bank by Peri-Gil became
delinquent and the bank began foreclosure procedures.
On August 19, 1965, a meeting of the board of directors of Peri-Gil was held, without
notice to Sutton, and the amount of the capital stock of the corporation was increased from
75,100 shares to 100,000 shares. Later, 1,000 of these new shares were offered for sale, and
500 shares each were purchased by Epperson and Sutton.
Also on August 19, 1965, Thomas C. Nolan submitted his resignation as a director of
Peri-Gil, and Wilbur H. Sprinkel, who was an attorney in the firm of Stewart & Horton, was
appointed in his place.
Late in 1965, Whistle Stop, Inc., subleased the westerly 70 feet of the property to the Reno
Turf Club at a rental of $1,200 per month. The easterly 35 feet of the property was retained
and used as the location for Dona's (Epperson) Snack Bar, from which the Epperson's drew a
salary of approximately $1,000 per month.
Later, Whistle Stop was dissolved and the rent from the Reno Turf Club, which had by
then increased to $1,300 per month, was paid directly to Epperson.
On April 4, 1966, Joy Perinati, the widow of Peter Perinati, purchased Peri-Gil's $40,000
promissory note from the Security National Bank. At that time the monthly payments on the
note were reduced from $600 to $450 per month.
The respondent, Sutton, filed this action for the appointment of a receiver on April 11,
1967. After a hearing, the Second Judicial District Court entered an order appointing Harry
Lemon as the receiver of Peri-Gil. The appellants appeal from that order.
Two specifications of error are listed in this appeal. First, that it was error to appoint a
receiver, and second, that if a receiver had to be appointed, that receiver should have
been Wilbur H.
that it was error to appoint a receiver, and second, that if a receiver had to be appointed, that
receiver should have been Wilbur H. Sprinkel, who was a non-negligent director of Peri-Gil.
Although most of the facts alleged, and relied upon, by the respondent would not support
the appointing of a receiver, it is inescapable that Peri-Gil wilfully violated its charter and the
provisions of NRS 78.265,
1
when its board of directors amended the articles of incorporation
to issue 100 additional shares of stock which were sold to Epperson giving him control of the
corporation, without offering an opportunity to Sutton to purchase a pro rata share of new
stock. Peri-Gil attempts to justify the action of its board of directors by contending that article
XII
2
of its articles of incorporation negates the requirements of NRS 78.265.
[Headnote 1]
Peri-Gil's interpretation is erroneous. While article XII of Peri-Gil's articles of
incorporation negates the provisions of NRS 78.265, in regards to non-stockholders, it does
not alter the requirement that every stockholder has the right to purchase his pro rata share of
new stock at the price for which it is offered to other stockholders. The fact that Sutton was a
non-voting stockholder at the time the board of directors approved Peri-Gil's amended articles
of incorporation does not in any way diminish his rights under NRS 78.265, and the original
charter of the corporation.
[Headnote 2]
This infraction alone brings Peri-Gil within NRS 78.650(1), and the lower court did not
abuse its discretion when it entered the order appointing a receiver.
Under NRS 78.650(1), a receiver for a corporation may be appointed upon application of a
stockholder, * * * whenever (a) The corporation has willfully violated its charter; or {b) Its
trustees or directors have been guilty of fraud or collusion or gross mismanagement in the
conduct or control of its affairs; or {c) Its trustees or directors have been guilty of
misfeasance, malfeasance or nonfeasance; or {d) The corporation shall be unable to
conduct the business or conserve its assets by reason of the act, neglect or refusal to
function of any of the directors or trustees or {e) The assets of the corporation are in
danger of waste, sacrifice or loss through attachment, foreclosure, litigation or otherwise
* * *."
____________________

1
NRS 78.265. Unless otherwise provided in the certificate of incorporation or an amendment thereof, every
stockholder of a corporation shall, upon the sale for cash of any new stock of such corporation of the same class
as that which he already holds, have the right to purchase his pro rata share of such stock at the price at which it
is offered to others, which price, in the case of stock having par value may be in excess of par if the board of
directors shall so determine.

2
No stockholder in this corporation shall have a preference over anyone not a stockholder to purchase any
new stock in this corporation sold for cash unless the Board of Directors, by a majority vote before the sale of
said stock, shall deem it expedient that the stockholders have such preference.
or (b) Its trustees or directors have been guilty of fraud or collusion or gross mismanagement
in the conduct or control of its affairs; or (c) Its trustees or directors have been guilty of
misfeasance, malfeasance or nonfeasance; or (d) The corporation shall be unable to conduct
the business or conserve its assets by reason of the act, neglect or refusal to function of any of
the directors or trustees or (e) The assets of the corporation are in danger of waste, sacrifice or
loss through attachment, foreclosure, litigation or otherwise * * *.
In the case of Bowler v. Leonard, 70 Nev. 370, 269 P.2d 833 (1954), this court quoting
from High on Receivers held: * * * since the appointment of a receiver is thus a
discretionary measure, the action of the lower court * * * will not be disturbed upon appeal
unless there has been a clear abuse. Accord, Johnston v. Delay, 63 Nev. 1, 158 P.2d 547
(1945); 16 Fletcher Cyclopedia Corporations 7697, at 103.
We now consider the second assignment of error.
NRS 78.650(4) provides: The Court may, if good cause exists therefor, appoint one or
more receivers for such purpose, but in all cases directors or trustees who have been guilty of
no negligence nor active breach of duty shall have the right to be preferred in making the
appointment.
[Headnote 3]
The statute does not categorically provide that a non-negligent director shall have the right
to be appointed, but only that he, shall have the right to be preferred in making the
appointment. The second phase imports a lesser right than does the first. By the terms of the
statute a non-negligent director is entitled to preferential consideration. However, after having
been considered, such director can be rejected by the court if there appears reason to do so.
The appellants rely on Shelton v. Second Judicial District Court, 64 Nev. 487, 185 P.2d
320 (1947), as authority for the appointment of Sprinkel as receiver. That case is readily
distinguishable from the one at hand. First, Sprinkel was an attorney-employee in the law
firm which had been retained by the appellants to contest the appointment of a receiver.
Second, the preferred directors in the Shelton case were majority stockholders in that
corporation, whereas Sprinkel held no stock in Peri-Gil.
Aside from those factual distinctions the court in Shelton did not hold that the petitioners
therein had a vested right to be the receivers of their corporation but only that they had the
right to be heard as to their qualifications.
[Headnote 4]
Returning to the fact that Sprinkel was an attorney in the law firm representing Peri-Gil,
* * * the general rule is that unless all interested parties consent thereto, the attorney of a
party, actively engaged in securing or opposing a receivership for a corporation, should not be
named as receiver in a cause. 16 Fletcher, Cyclopedia Corporations 7734, at 218. There
exists good reason for denying Sprinkel the appointment as receiver for Peri-Gil.
The order of the lower court is, in all respects, affirmed.
____________
84 Nev. 412, 412 (1968) Terral v. State
COY GENE TERRAL, Appellant, v.
No. 5319
June 17, 1968 442 P.2d 465
Appeal from judgment of the Eighth Judicial District Court, Clark County; John Mowbray,
Judge.
The trial court found defendant guilty of larceny from the person, and defendant appealed.
The Supreme Court, Thompson, C. J., held that defendant was unlawfully convicted of the
crime of larceny from the person where property taken, gaming tokens of value of $250, was
near victim who was gambling at casino crap table, but was not actually on victim's person.
Reversed.
Michael L. Hines and C. R. Tice, of Las Vegas, for Appellant.
Attorney, and James L. Buchanan, II, Deputy District Attorney, Clark County, for
Respondent.
1. Larceny.
Defendant was unlawfully convicted of the crime of larceny from the person where property taken,
gaming tokens of value of $250, was near the victim who was gambling at casino crap table, but was not
actually on victim's person. NRS 205.270.
2. Larceny.
Crime of larceny from the person is not committed if property is taken from immediate presence, or
constructive control or possession of the owner. NRS 205.270.
OPINION
[Headnote 1]
The controlling question is whether one may be lawfully convicted of the crime of larceny
from the person when the property taken was near the victim but not on his person. We hold
that the conviction is not authorized and must be set aside.
The record shows that Terral snatched gaming tokens of the value of $250 from a crap
table rack immediately in front of the victim who was gambling at the Dunes Casino. For
such conduct he was charged with grand larceny and also larceny from the person. The jury
acquitted him of grand larceny, but found him guilty of larceny from the person. At a
subsequent court hearing Terral was adjudged an habitual criminal and sentenced
accordingly. In doing so the court used the conviction of larceny from the person as the third
felony conviction. Since that conviction cannot be sustained the finding of habitual
criminality and the sentence therefor is also invalid.
The statutory crime of larceny from the person requires that money, property or thing of
value be taken from the person of another.
1
The state contends that the quoted phrase
should be construed to embrace property taken from the presence of another, citing Banks
v. State, 40 S.E.2d 103 (Ga.App. 1946), and State v. Kobylasz, 47 N.W.2d 167 (Iowa 1951).
We reject this contention and the reasoning of the Banks and Kobylasz cases.
[Headnote 2]
Larceny from the person was first recognized as a crime distinct from simple larceny by
the Statute of 8 Elizabeth in the 16th century. It was meant to cover the common crime of
pickpocketing, and from the beginning required an actual taking from the person; a taking
from his presence was not sufficient as it was in robbery."
____________________

1
NRS 205.270 read: Every person who, under circumstances not amounting to robbery, shall, with intent to
steal or appropriate to his own use, take from the person of another, without his consent, any money, property or
thing of value, shall be punished by imprisonment in the state prison for not more than 14 years. Punishment
amended, 1967.
taking from the person; a taking from his presence was not sufficient as it was in robbery.
State v. Chambers, 46 Am.Rep. 550, 554 (W.Va. 1883). The crime is not committed if the
property is taken from the immediate presence, or constructive control or possession of the
owner. People v. McElroy, 48 P. 718 (Cal. 1897); Wilder v. State, 1 So.2d 317 (Ala.App.
1941); People v. DeVaughn, 218 P. 1020 (Cal.App. 1923). Other crimes may be committed
in those circumstances, but not the crime of larceny from the person. The statutory words
from the person mean precisely that.
It is important to restrict the coverage of NRS 205.270 to pickpockets, purse snatchers,
jewel abstracters and the like, since larceny from the person is a felony, and the value of the
property taken is immaterial so long as it has some value. The gravaman of the offense is that
the person of another has been violated and his privacy directly invaded. Thus, an item of
little value, $100 or less, if snatched from the person of another will subject the offender to
punishment as a felon, whereas the same item, if taken from his presence, and not from his
person, would constitute the misdemeanor of petty larceny. If we were to confuse the
statutory language and rule that from the person of another also means from the presence
of another, an accused in some instances could be charged with either a felony or a
misdemeanora possibility which the legislature did not intend and has carefully precluded
by clear language.
Reversed.
Collins, Zenoff, Batjer, JJ., and Young, D. J., concur.
____________
84 Nev. 414, 414 (1968) Azbill v. Fisher
SYLVESTER JACKSON AZBILL, Petitioner, v. HERMAN B. FISHER, Justice of the
Peace, Las Vegas Township, County of Clark, Respondent, GERALD RALYA, Intervenor.
No. 5633
June 26, 1968 442 P.2d 916
Application by newspaper reporter to intervene in mandamus action seeking to compel
magistrate to comply with NRS 171.204, the exclusionary law for preliminary hearings.
The Supreme Court, Zenoff, J., granted the application to intervene and held that statute
providing for exclusion of public from courtroom during preliminary examination constituted
proper exercise of legislative power and was not repugnant to First Amendment.
proper exercise of legislative power and was not repugnant to First Amendment.
Application for writ of mandamus and application for intervention granted.
Wiener, Goldwater & Galatz, of Las Vegas, for Petitioner.
Raymond D. Jeffers, Deputy District Attorney, Clark County, for Respondent.
Ross, Snyder, Goodman & Bryan, of Las Vegas, for Intervenor.
1. Mandamus.
Intervention is permissible in mandamus proceedings.
2. Mandamus.
Newspaper reporter would be granted leave to intervene in mandamus proceeding brought to compel
magistrate to exclude persons from courtroom in which magistrate was conducting preliminary
examination. NRCP 24(b); U.S.C.A.Const. Amends. 1, 6; NRS 169.160, 171.204; Const. art. 1,
9.
Right conferred on press by constitution does not embrace access to sources for gathering information not
available to general public, and inside courtroom member of press enjoys no greater privilege than any
other individual citizen. NRS 171.204; U.S.C.A.Const. Amend. 1; Const. art. 1, 9.
4. Criminal Law.
There is no constitutional right to preliminary hearing.
5. Criminal Law.
Preliminary hearing is creature of statute, and proceedings are governed by statutory provisions.
6. Criminal Law.
Function of preliminary hearing is to protect one accused of crime from hasty, improvident or groundless
charges, and its purpose is to determine basis for prosecution.
7. Criminal Law.
Issue involved in preliminary hearing is not guilt or innocence but whether there is probable cause to hold
accused over to answer and stand trial.
8. Criminal Law.
Overriding consideration is concern for possible trial bias from public information relating to details of
preliminary hearing, and for this reason one of protections afforded accused at that stage is that upon his
request all unauthorized persons will be excluded from courtroom. NRS 171.204.
Statute providing for exclusion of public from courtroom during preliminary examination constituted
proper exercise of legislative power and was not repugnant to First Amendment. NRS 171.204;
U.S.C.A.Const. Amend. 1; Const. art. 1, 9.
Balancing public's right to know against accused's right to fair and impartial jury was matter for
legislative discretion, and statute providing for exclusion of public from courtroom at preliminary
examination could not be outlawed merely because of disagreement with wisdom of legislation. NRS
171.204; U.S.C.A.Const. Amend. 1; Const. art. 1, 9.
11. Criminal Law.
Absent any waiver by accused, preliminary examination must be held in accord with procedures
established by law, and magistrate may not disregard them. Const. art. 6, 8; NRS 171.204.
12. Criminal Law.
Magistrate does not have discretionary power to obey or disobey statutory mandate pertaining to
exclusion of unauthorized persons from courtroom in which preliminary examination is being held. Const.
art. 6, 8; NRS 171.204.
13. Criminal Law.
In statute requiring magistrate to exclude from courtroom in which preliminary examination is being held
every person except * * * person whose presence is found by magistrate to be necessary for proper
conduct of examination, quoted words do not have reference to members of general public or press. NRS
171.204.
That news reports emanating from courtroom in which preliminary examination was being held be
regulated was unthinkable. NRS 171.204; U.S.C.A.Const. Amend. 1; Const. art. 1 9.
OPINION
Defendant Azbill was charged with murder and scheduled to appear for a preliminary
examination in justice court. At the hearing he invoked the exclusionary rule, NRS 171.204,
but the magistrate refused to exclude a representative of the press.
1
That judicial officer
expressed his opinion that the doctrine of the people have a right to know was paramount to
the statute and that instead of complying with Azbill's request he, the justice of the peace,
would allow the press to be present during the hearing, but subject to restrictions of what the
news reporter could write.
In an original mandamus proceedings before this court the defendant now seeks a writ to
compel the magistrate to comply with the statute and proceed with the preliminary
hearing excluding all persons from the courtroom except as noted in the statute.
____________________

1
NRS 171.204. The magistrate shall, upon the request of the defendant, exclude from the examination
every person except his clerk, the prosecutor and his counsel, the attorney general, the district attorney of the
county, the defendant and his counsel, the witness who is testifying, the officer having the defendant or a witness
in his custody, and any other person whose presence is found by the magistrate to be necessary for the proper
conduct of the examination.
defendant now seeks a writ to compel the magistrate to comply with the statute and proceed
with the preliminary hearing excluding all persons from the courtroom except as noted in the
statute. A newspaper reporter has petitioned for leave to participate as an intervenor in these
proceedings and asserts that the statute permitting a defendant a semi-closed courtroom is an
infringement upon the constitutional doctrine of freedom of the press.
2

[Headnotes 1, 2]
1. Intervention is permissible in mandamus proceedings. See State v. Wright, 10 Nev. 167
(1875); State v. Mack, 26 Nev. 430, 69 P. 862 (1902); NRCP Rule 24(b). And although the
intervenor's position is not to the benefit of the defendant, the principle involved is in the
public interest. Accordingly, we grant the petition to intervene and will entertain the
proceedings. Kirstowsky v. Superior Court, 300 P.2d 163 (Cal.App. 1956); United Press
Associations v. Valente, 123 N.E.2d 777 (N.Y. 1954).
2. Since the instant case does not involve trial proceedings arguments based on the
constitutional rights embodied in the 6th Amendment, the statutory provisions of NRS
169.160, and related cases are inapposite.
3. We turn then to consider the respondent's and intervenor's assertions that the
exclusionary rule of NRS 171.204 abridges the freedom of the press contravening the
guarantees of the First Amendment of the United States Constitution and Art. 1, Sec. 9 of the
Nevada Constitution.
[Headnote 3]
The courts fully appreciate the fundamental principles here involved. However, the
constitutionally protected right conferred on the press does not embrace the right to access to
sources for gathering information not available to the general public. The line is drawn at the
courthouse door; inside the courtroom, the press enjoys no greater privilege than any other
individual citizen. Estes v. Texas, 381 U.S. 532 (1965) (concurring opinion of Harlan, J.);
Seymour v. United States, 373 F.2d 629 (5th Cir. 1967); Tribune Review Publishing
Company v. Thomas, 254 F.2d 883 (3rd Cir. 1958); United Press Associations v. Valente,
supra.
Unquestionably the public does have an interest in criminal justice and its procedures.
____________________

2
U.S. Const., Amend. I. Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press * * *.
Nev. Const., Art. 1, Sec. 9. * * * no law shall be passed to restrain or abridge the liberty of speech or of the
press. * * *
justice and its procedures. Judicial proceedings are considered public events in the sense that
the public has a right to know what transpired.
But reporting the events that transpire during the course of a preliminary hearing for the
public's information is not impaired by exclusion from the courtroom thereby denying a
citizen or a reporter the opportunity to see and hear it first hand. The actual presence of the
public or the press is not the only means of being informed as to what happened.
[Headnotes 4-7]
Moreover, their presence in no way enhances the purpose of a preliminary hearing and is
not necessary to the conduct of the examination. The preliminary hearing takes place in a
different context than a trial. There is no constitutional right to a preliminary hearing. It is a
creature of statute, and as such, the proceedings are governed by statutory provisions. It is the
legislative grant of a substantial right to the accused for his protection. People v. Elliot, 354
P.2d 225 (Cal. 1960). Its function is to protect one accused of a crime from hasty,
improvident or groundless charges. Its purpose is to determine the basis for prosecution and
the issue involved in the proceedings is not the question of guilt or innocence, but whether
there is sufficient evidence for probable cause to hold the accused over to answer and stand
trial. The magistrate is called upon to decide whether a crime has been committed and
whether there is probable cause to believe that the named accused was the perpetrator.
[Headnote 8]
This accusatory process most often involves the presentation of only one side of the case,
the prosecution's version. An overriding consideration is the concern for possible trial bias
from public information relating the details of the preliminary hearings. And for this reason
one of the protections afforded the accused at this stage is that upon his request all
unauthorized persons will be excluded from the courtroom during the hearing. It is a
procedural safeguard of the accused's fundamental right to a fair and impartial jury should the
matter later go to trial.
The policy of our statutes is clear; the rights accorded the accused under these
circumstances are for his own protection. He may invoke them as he sees fit. Indeed, he may
choose to waive the entire preliminary examination proceedings. NRS 171.196(1).
[Headnote 9]
The legislature's determination in balancing the public's interest and that of the accused
has resolved at this point to afford the accused certain measures of protection should he seek
to avail himself of them. We cannot say that judgment was an improper exercise of legislative
power. Nor can we say that because it denies access to a particular source of information that
it violates the First Amendment freedom of the press or the public's right to know. Seymour
v. United States, supra; United Press Associations v. Valente, supra; Tribune Review
Publishing Company v. Thomas, supra.
[Headnote 10]
Although some disagree with its wisdom for this reason alone we cannot outlaw a statute.
These are singularly matters of legislative discretion and direction to secure the impartiality
of jurors in criminal cases. Hayes v. Missouri, 120 U.S. 68 (1887); People v. Elliot, supra;
United Press Associations v. Valente, supra (concurring opinion of Desmond, J.).
[Headnotes 11-13]
4. Absent any waiver by the accused, the preliminary examination must be held in accord
with the procedures established by law and the magistrate may not disregard them. Nev.
Const., Art. 6, Sec. 8;
3
also People v. Elliot, supra. By statute a magistrate at a preliminary
hearing does not have discretionary power to obey or disobey a mandate pertaining to
exclusion of unauthorized persons from the courtroom. People v. Elliot, supra; People v.
Lopez, 384 P.2d 16 (Cal. 1963); People v. Prizant, 9 Cal.Rptr. 282 (Cal.App. 1961). That part
of NRS 171.204 that reads except * * * any other person whose presence is found by the
magistrate to be necessary for the proper conduct of the examination does not mean
members of the general public or the press.
Failure of the magistrate to grant the defendant's motion to exclude persons from the
courtroom during the preliminary examination was error and we grant the requested writ of
mandate to direct the magistrate to comply with the statutory provisions of NRS 171.204.
[Headnote 14]
5. Dispositive of the case is our decision that the magistrate's determination that he would
disregard the accused's statutory right is unlawful.
____________________

3
Nev. Const. Art. 6, Sec. 8. The legislature shall determine * * * and fix by law their (justices of the peace)
powers, duties and responsibilities and * * * shall have such criminal jurisdiction as may be prescribed by law.
statutory right is unlawful. We add that the propriety of his suggestion to regulate the news
reports emanating from the hearing is unthinkable. If in the publishing of news certain
prejudices may or do result provision is made that a fair trial is assured. Sheppard v.
Maxwell, 384 U.S. 333, 358 (1966). See generally Geis, Preliminary Hearings and the Press,
8 U.C.L.A. L.Rev. 397 (1960-1961).
Application for writ of mandamus and application for intervention granted.
Thompson, C. J., Collins, Batjer and Mowbray, JJ., concur.
____________
84 Nev. 420, 420 (1968) Bowman v. Tisnado
MRS. FERN BOWMAN, Appellant, v. CARLOS TISNADO, a Minor By and Through His
Guardian Ad Litem, PAUL V. CARELLI, III, Respondent.
No. 5492
June 27, 1968 442 P.2d 899
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Automobile accident case in which defendant appealed from an adverse decision of the
trial court. The Supreme Court held that where substance of holding by trial judge was clearly
ascertainable, since he found specific acts of defendant that constituted negligence and that
such acts proximately caused injury to plaintiff, there was compliance with rule providing,
inter alia, that in all actions tried upon the facts without a jury the court shall find the facts
specially and state separately conclusions of law thereon, even though a finding of proximate
cause was not contained specifically within judge's findings of fact.
Judgment affirmed.
Cromer and Barker, of Las Vegas, for Appellant.
Michael L. Hines and Henry R. Gordon, of Las Vegas, for Respondent.
1. Automobiles.
Where substance of holding by trial judge was clearly ascertainable in automobile accident case, since he
found specific acts of defendant that constituted negligence and that such acts proximately caused injury to
plaintiff, there was compliance with rule providing, inter alia, that in all actions tried upon the
facts without a jury the court shall find the facts specially and state separately
conclusions of law thereon, even though a finding of proximate cause was not
contained specifically within judge's findings of fact.
providing, inter alia, that in all actions tried upon the facts without a jury the court shall find the facts
specially and state separately conclusions of law thereon, even though a finding of proximate cause was not
contained specifically within judge's findings of fact. NRCP 52(a).
Whether or not refusal to allow introduction of an adverse witness' deposition when that witness was
present to testify was error, such was nonprejudicial in that the witness was subjected to extensive
cross-examination at trial, and on same matter covered in the deposition, so that refusal to admit the
deposition was not so inconsistent with substantial justice as to require reversal. NRCP 61.
OPINION
Per Curiam:
Respondent recovered judgment from the court below for personal injuries suffered while
riding in a vehicle that collided with appellant's vehicle. The primary issue on appeal is
whether there can be liability for negligence when there is no finding of fact that there is a
causal connection between the negligence and the injury.
The trial court made specific findings of two statutory violations, failure to signal intention
to turn during the last 100 feet before the turn (as required by NRS 484.154(2)), and failure to
signal a sudden decrease of speed (as required by NRS 484.154(3)). The statement of causal
connection, however, is contained in Paragraph III of the Conclusions of Law. Appellant
contends that this is reversible error under the requirements of NRCP 52(a), and the language
of Mahan v. Hafen, 76 Nev. 220, 351 P.2d 617 (1960). Rule 52(a) provides: In all actions
tried upon the facts without a jury or with an advisory jury, the court shall find the facts
specially and state separately its conclusions of law thereon and direct the entry of the
appropriate judgment * * *. Mahan distinguishes negligence per se from proximate
causation, holding the latter to be a factual matter that must be proved even though the former
is presumed as a matter of law. From this appellant argues the finding of proximate cause
must necessarily be contained specifically within the findings of fact, and that the so-called
conclusion of law to the same effect is insufficient.
[Headnote 1]
This court is unimpressed by such a technical distinction in form, where the substance of
the trial judge's holding is clearly ascertainable. He found, on the one hand, specific acts of
appellant that constituted negligence and, on the other hand, that these acts proximately
caused injury to the respondent.
appellant that constituted negligence and, on the other hand, that these acts proximately
caused injury to the respondent. Without deciding whether proximate cause is always a
finding of fact that must either be so labeled or interpreted it is held that in this instance there
was compliance with NRCP 52(a).
Appellant would also have the court determine the issue of whether a left-hand turn across
a double yellow line embracing a white broken line is negligence as a matter of law.
Inasmuch as the judgment is supported by sufficient findings of other negligence, we decline
to consider this issue.
[Headnote 2]
Appellant's final contention is that reversal is required because of the trial court's refusal to
allow introduction of an adverse witness' deposition when that witness was present to testify.
Whether this was error or not, it was nonprejudicial in that the witness was subjected to
extensive cross-examination at trial, and on the same matter covered in the deposition. It
cannot therefore be said that the refusal to admit was inconsistent with substantial justice so
as to require reversal. NRCP 61.
____________
84 Nev. 422, 422 (1968) Jenkins v. Goldwater
LELAND B. JENKINS, Appellant, v. DAVID GOLDWATER As Guardian ad Litem for
GEORGETTE JENKINS, AKA GEORGETTE BECKJORD, AKA GEORGETTE MOORE,
an Incompetent, Respondent.
No. 5488
June 28, 1968 442 P.2d 897
Appeal from default judgment of the Eighth Judicial District Court, Clark County; John
Mowbray, Judge.
Action by guardian ad litem for an incompetent against incompetent's husband to annul a
marriage. A default judgment annulling the marriage was entered. The defendant husband
filed motion to vacate. The trial court ruled against the motion and the defendant husband
appealed. The Supreme Court, Thompson, C. J., held that where defendant in action to annul
marriage was not personally served with process, his motion to vacate default judgment was
filed within six months from date of rendition of judgment annulling marriage and motion
was supported by affidavit and proposed answer to the merits denying material averments of
the complaint, trial court committed reversible error by ruling against the motion.
Reversed.
Hawkins & Walker, of Las Vegas, for Appellant.
Lionel & Sawyer, of Las Vegas, for Respondent.
1. Judgment.
Where defendant against whom default judgment had been entered had not been personally served with
process, different standards would govern the exercise of trial court's discretion in ruling upon motion to
vacate default judgment than those which control when personal service has been made. NRCP 60(c).
2. Judgment.
Where defendant against whom a default judgment had been entered had been personally served,
different grounds than lack of notice must be shown to justify a setting aside of the default judgment.
NRCP 60(b)(1)(c).
3. Judgment.
Under rule of civil procedure, a defendant who seeks to vacate a default judgment must show that he was
not personally served; that his motion is timely filed; and, a meritorious defense. NRCP 60(c).
4. Judgment.
The tendering by defendant against whom default judgment had been entered of a responsive pleading
which, if true, would tend to establish a meritorious defense is sufficient to satisfy requirement for vacation
of default judgment that defendant have a meritorious defense. NRCP 60(c).
5. Judgment.
When defendant who seeks to have default judgment vacated makes showing that he was not personally
served, that his motion to vacate is timely filed and that he has meritorious defense, prima facie case is
made in favor of motion to vacate and burden shifts to plaintiff to show circumstances which would make
the granting of the motion inequitable. NRCP 60(c).
6. Marriage.
Where defendant in action to annul marriage was not personally served with process, his motion to vacate
default judgment was filed within six months from date of rendition of judgment annulling marriage and
motion was supported by affidavit and proposed answer to the merits denying material averments of the
complaint, trial court committed reversible error by ruling against the motion. NRCP 60(c).
OPINION
Appeal is taken from the district court's denial of a Rule 60(c)
1
motion to vacate a default
judgment annulling a marriage. The defendant was not personally served with process in
Nevada or elsewhere.
____________________

1
NRCP 60(c) reads: When a default judgment shall have been taken against any party who was not
personally served with summons and complaint, either in the State of Nevada or in any other jurisdiction, and
who has not entered his general appearance in the action, the
in Nevada or elsewhere. Service was by publication. His motion to vacate was timely filed
within six months from date of rendition, and was supported by an affidavit and a proposed
answer to the merits denying material averments of the complaint. The record does not reflect
that the defendant had knowledge of the pendency of the annulment case. He did learn of the
judgment of annulment within one month after its entry, but waited to file his motion to
vacate until the six-month period granted by the rule was about to run. Apparently, it was this
circumstance which led the district court to rule against the motion, although the record does
not suggest that either party had changed position in reliance upon the judgment. As we read
relevant case law, the motion to vacate should have been granted in these circumstances.
Therefore, we reverse.
[Headnotes 1, 2]
When the defendant has not been personally served with process, different standards
govern the exercise of discretion in ruling upon a motion to vacate a default judgment than
those which control when personal service has been made. In the former case a showing of
mistake, inadvertance, surprise or excusable neglect is not a precondition [Bowman v.
Bowman, 47 Nev. 207, 217 P. 1102 (1923); Nahas v. Nahas, 59 Nev. 227, 92 P.2d 718
(1939), on rehearing; Gray v. Lawlor, 90 P. 691 (Cal. 1907)] as it is when the motion is made
pursuant to NRCP 60(b)(1). This, because in the absence of personal service, there is good
reason to believe that the defendant did not appear in the case due to his unawareness of its
pendency. That reason does not exist when he is personally served and, therefore, different
grounds than lack of notice must be shown to justify a setting aside of the default judgment.
When there has not been personal service upon the defendant and he has not entered a
general appearance in the action, Rule 60(c) seems to require only that he file his motion to
vacate within six months after rendition of the default judgment. It is silent as to the need for
any further showing, and provides that in such instance the court "may" vacate the
judgment.
____________________
court, after notice to the adverse party, upon motion made within six months from the date of rendition of such
judgment, may vacate such judgment and allow the party or his legal representatives to answer to the merits of
the original action. When, however, a party has been personally served with summons and complaint, either in
the State of Nevada or in any other jurisdiction, he must make his application to be relieved from a default, a
judgment, an order, or other proceeding taken against him, or for permission to file his answer, in accordance
with the provisions of subdivision (b) of this rule.
provides that in such instance the court may vacate the judgment. Indeed, Bowman v.
Bowman, supra, and Nahas v. Nahas, 59 Nev. 220, 90 P.2d 223 (1939), each may be read to
indicate that if the motion to vacate is timely filed, the defendant secures an absolute right to
have the default judgment set aside, and the court is without discretion to deny him. However,
on the rehearing of Nahas v. Nahas, 59 Nev. 227, 92 P.2d 718 (1939), the court retreated
from that position and acknowledged that there may be circumstances that would allow the
trial court to exercise its discretion and deny the motion. In so ruling, however, the court
placed the duty on the plaintiff to show such circumstances. It wrote: If there are
circumstances which would make the granting of the relief inequitable, such as a showing of
laches or inexcusable neglect, of sufficient strength to create an estoppel, it becomes the duty
of the plaintiff to set them up, in order that they may be taken into consideration by the court
in exercising the discretion given it * * *. Id. at 229.
In the case at hand the plaintiff offered nothing in opposition to the defendant's motion to
vacate and, under the authorities cited, the district court was bound to grant the motion.
[Headnotes 3, 4]
A defendant who seeks to vacate a default judgment under Rule 60(c) must show (a) that
he was not personally served; (b) that his motion is timely filed; and (c) a meritorious
defense. The latter requirement is not expressed in the Rule but is imposed by case law since
good sense demands that a default judgment, entered with jurisdiction, should not be set aside
unless there is alleged to be a meritorious defense upon the merits. This is so whether the
motion is made pursuant to Rule 60(c) or its statutory counterpart [Gray v. Lawlor, supra], or
pursuant to 60(b) [Hotel Last Frontier v. Frontier Prop., 79 Nev. 150, 380 P.2d 293 (1963)].
The tendering of a responsive pleading which, if true, would tend to establish such a defense
is sufficient to satisfy this requirement. Hotel Last Frontier v. Frontier Prop., supra.
[Headnotes 5, 6]
When these factors are shown a prima facie case is made in favor of the motion to vacate.
The burden then shifts to the plaintiff to show circumstances which would make the granting
of the motion inequitable. The trial court is bound to rule in favor of the movant's prima facie
case unless the plaintiff, in opposition, makes the requisite showing, in which event the court
may exercise a judicial discretion.
Other assignments of error need not be considered.
Reversed.
Collins, Zenoff, Batjer JJ., and Young D. J., concur.
____________
84 Nev. 426, 426 (1968) Webster v. Steinberg
GEORGE D. WEBSTER, JOHN HENRY BREBBIA, FIRST WESTERN SAVINGS AND
LOAN ASSOCIATION, a Nevada Corporation, and FIRST WESTERN FINANCIAL
CORPORATION, a Delaware Corporation Qualified to do Business in Nevada, Appellants,
v. FREDERICK T. STEINBERG and M. A. CLEMENS, Respondents.
No. 5513
July, 1, 1968 442 P.2d 894
Judge.
Appeal from order of the lower court preliminarily enjoining pendente lite the convening
of annual stockholders meeting of appellant corporation. The Supreme Court, Collins, J., held
that the District Court orders restraining and preliminarily enjoining pendente lite convening
of annual stockholders meeting of appellant were invalid, as court failed to set forth in the
orders the specific reasons for their issuance.
Reversed, injunction dissolved and remanded for further proceedings.
Milton W. Keefer and Wayne G. Clark, of Las Vegas, and Hahn, Cuzier, Thornton &
Hoegh, of Los Angeles, California, for Appellants.
Bell & Morris, of Las Vegas, and Abraham L. Pomerantz, of New York, New York, for
Respondents.
1. Courts.
Exclusive jurisdiction rests in United States courts under Securities Exchange Act of 1934 to hear claim
involving alleged false proxies. Securities Exchange Act of 1934, 27 as amended 15 U.S.C.A. 78aa.
2. Judgment.
Where United States District Court assumed jurisdiction and issued ruling, not appealed to higher federal
court, striking claim for relief based on alleged false proxy statements, the ruling was final and res
judicata, and the point thus could not be subsequently reargued or collaterally
attacked in state court.
final and res judicata, and the point thus could not be subsequently reargued or collaterally attacked in state
court. Securities Exchange Act of 1934, 27 as amended 15 U.S.C.A. 78aa.
3. Injunction.
Any restraining order or preliminary injunction issued by a state trial court is void, not merely voidable,
unless court issuing same sets forth in the order reasons for its issuance, order is specific in its terms, and
order describes in reasonable detail, not by reference to complaint or other documents, act or acts sought to
be restrained. NRCP 65(d).
4. Corporations.
State district court orders restraining convening of annual stockholders meeting and preliminarily
enjoining such meeting pendente lite were invalid, as court failed to set forth in the orders the specific
reasons for their issuance.
OPINION
This is an appeal from a preliminary injunction pendente lite restraining the convening of
the annual stockholders meeting of appellant First Western Financial Corporation. We
conclude that injunction is void, reverse the order granting it and remand the action for
further proceedings.
Frederick T. Steinberg and M. A. Clemens, stockholders of First Western Financial
Corporation, commenced the above action in July, 1967. The action, a derivative suit on
behalf of the shareholders of Financial and double-derivatively on behalf of its wholly owned
subsidiary, First Western Savings and Loan Association, is against certain named directors of
Financial and Association. Plaintiffs allege many acts of wrongdoing by the directors against
the two corporations. In addition and in connection with the annual meeting of the
shareholders of Financial to have been held on August 18, 1967, plaintiffs allege defendant
directors issued a proxy statement soliciting votes of the shareholders which was false and
fraudulent in several particulars including an allegation that confidential information obtained
by Webster at a time when he was counsel for Financial and Association was being used
contrary to their best interests.
Simultaneously with filing of that action and supporting affidavits of Steinberg and Robert
C. Fielding, a former officer and director of Financial, a temporary restraining order and
preliminary injunction pendente lite were obtained enjoining the convening of the annual
stockholders meeting on August 18, 1967.
Defendants thereupon removed the action to the United States District Court for Nevada
contending that court had original jurisdiction under the Securities Exchange Act of 1934.
1
On August 21, 1967 the United States District Court found that while the complaint consisted
of a single count it contained two distinct and severable claims (1) a derivative claim seeking
an accounting for waste and corporate mismanagement; and (2) a claim to enjoin the
convening of the annual meeting of the shareholders of Financial based upon an allegedly
false and misleading proxy statement. The court concluded that although no reference was
made to federal law in the complaint, the claim for injunctive relief based upon the alleged
false proxy statements was within the exclusive jurisdiction of the United States District
Court and governed by the Securities Exchange Act of 1934, supra; that since the Nevada
Court lacked jurisdiction the United States District Court, on removal had no jurisdiction of
the claim except to dismiss it or remand it to the state court for dismissal; that the derivative
claim should be remanded to the state court for action. That court thereupon dismissed that
part of the claim based upon the alleged false proxy statements and dissolved the preliminary
injunction. The derivation claim was remanded to the state court for its further consideration.
An appeal from such order was taken to the United States Court of Appeals, Ninth Circuit,
but for a reason unknown to us was not perfected or argued and was dismissed on January 26,
1968, thus leaving Judge Bruce R. Thompson's order final on the proxy claim.
Immediately upon the derivative action being remanded to the State District Court,
Steinberg and Clemens, through their counsel, moved again for a temporary restraining order
prohibiting the holding of the annual stockholders meeting of Financial still set for August
18, 1967. That motion relied upon the record of the case as it then existed, including the
removal to and remand by the United States District Court, its order and an additional
affidavit of William W. Morris, one of counsel for Steinberg and Clemens. That affidavit was
substantially a restatement of all that had been previously alleged. Neither Financial nor the
Association filed counter affidavits to it.
On August 17, the State District Court entered its temporary restraining order and order to
show cause why a preliminary injunction should not issue again restraining the annual
stockholders meeting set for the next day, August 18. The court required a $20,000 bond. On
September 13, the court entered an order granting a "temporary injunction pendente lite."
____________________

1
15 U.S.C. 78aa (1964).
an order granting a temporary injunction pendente lite. The injunction restrained
defendant, their agents, servants, employees and all those acting under their orders and in
concert with them, to be * * * enjoined and restrained, during the pendency of the action and
until its further determination from convening the annual stockholders meeting of defendant
First Western Financial Corporation. The order granting the injunction did not set forth the
reasons for its issuance in specific terms nor did it describe in reasonable detail without
reference to the complaint or other documents the act or acts sought to be restrained as
required by NRCP 65(d).
2

It is from such order this appeal was taken.
Appellants urge several assignments of error, but only two need be considered. They are
(1) Was the order of the United States District Court striking the claim for relief based upon
alleged false proxy statements res judicata as to respondents; (2) Was the second restraining
order and preliminary injunction pendente lite valid?
We answer the first point affirmatively and the second negatively.
[Headnotes 1, 2]
There can be no serious question but that exclusive jurisdiction rests in the United States
Courts under the Securities Exchange Act of 1934, as amended, supra, to hear a claim
involving alleged false proxies. On that question we are in complete agreement with the order
of Judge Thompson, United States District Court for Nevada. Where, as here, a United States
Court assumes jurisdiction, issues a ruling, which is not appealed to nor reversed by a higher
federal court the ruling becomes final. It is res judicata and the point litigated by the parties to
the action, may not be reargued nor may it be collaterally attacked in another forum. Retail
Clerks Local No. 1564 v. Your Food Stores, 225 P.2d 659 (10 Cir. 1955).
[Headnote 3]
We next turn to the second restraining order and preliminary injunction and their
compliance with NRCP 65(d). These were filed by the court without a statement of the
reasons for their issuance.
____________________

2
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance;
shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other
document, the act or acts sought to be restrained: and is binding only upon the parties to the action, their officers,
agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them
who receive actual notice of the order by personal service or otherwise.
issuance. Such statement is necessary for proper review on appeal. Mayo v. Lakeland
Highlands Canning Co., 309 U.S. 310 (1940). Thus, we hold any restraining order or
preliminary injunction issued by a trial court of this state is void, not merely voidable, unless
the court or judge issuing the same sets forth in the order the reasons for its issuance, is
specific in its terms and describes in reasonable detail, not by reference to the complaint or
other documents, the act or acts sought to be restrained. State ex rel. Friedman v. Dist. Ct., 81
Nev. 131, 399 P.2d 632 (1965); Brunzell Construction Co. v. Harrah's Club, 81 Nev. 414,
404 P.2d 902 (1965).
[Headnote 4]
We are unable to say from the record before us what reasons were relied upon by the lower
court in imposing the restraint. The court itself did not say, and we will neither speculate,
draw inferences nor search the record ourselves for an answer to that question. Without
committing ourselves as to their validity, issuance of the second restraining order and
preliminary injunction in any event should have been carefully and precisely limited to the
derivative stockholders claim of waste, mismanagement and violation of an attorneys
confidential relationship to a former client. The issuance, however, of the restraining order
and preliminary injunction relying in any manner upon the alleged false proxy statements was
prohibited. That claim was res judicata.
Other issues are urged but we deem it unnecessary to discuss or decide them in view of the
foregoing holding.
Accordingly the orders granting the temporary restraining order and injunction pendente
lite are reversed, the injunction dissolved and the matter remanded for proceedings not
inconsistent with this decision.
Batjer and Mowbray, JJ., Barrett, D. J., and Mann, D. J., concur.
____________
84 Nev. 430, 430 (1968) White v. Demetelin
J. HOWARD WHITE, as Guardian Ad Litem for ALLEN
D. WHITE, Appellant, v. MARY G. DEMETELIN, Respondent.
No. 5480
July 2, 1968 442 P.2d 914
Appeal from the Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Automobile accident case. The lower court entered judgment for defendant and plaintiff
appealed. The Supreme Court, Collins, J., held that whether plaintiff's automobile was
approaching intersection so closely as to constitute an immediate hazard thus requiring
defendant motorist to yield right-of-way, was question for jury, and mere fact that an accident
happened was not conclusive of question.
Affirmed.
Johnson & Steffen of Las Vegas for Appellant.
Morse & Graves of Las Vegas for Respondent.
1. Automobiles.
Whether plaintiff's automobile was approaching intersection so closely as to constitute an immediate
hazard thus requiring defendant motorist to yield right-of-way, was question for jury, and mere fact that an
accident happened was not conclusive of question. NRS 484.163.
2. Automobiles.
Whether negligence involved in automobile accident consists of statutory violation of other misconduct,
issue of proximate cause is for jury's consideration, and it is for jury to determine question of proximate
cause between breach of duty, if any, and damages.
OPINION
This action was brought by J. Howard White as guardian ad litem for his son, Allen White,
against Mary Demetelin for personal injuries suffered by the son in an automobile accident on
December 23, 1961 in Las Vegas, Nevada. A defense verdict was returned by the jury and
this appeal followed.
The facts, taken most favorably to the prevailing party below, Southern Pacific Co. v.
Watkins, 83 Nev. 471, 435 P.2d 498 (1967), show that the defendant Mary Demetelin was
proceeding east on Foremaster Lane at approximately the noon hour on the day in question.
Plaintiff-guardian, the driver, and his son, a passenger, were proceeding in the family car
north on Las Vegas Boulevard. Defendant, after stopping at the stop sign at the Foremaster
Lane-Las Vegas Boulevard intersection, noted at least one car stopped in the left line of the
northbound portion of Las Vegas Boulevard, about to make a left hand turn onto Foremaster
Lane. Defendant testified that she saw no other cars approaching, but with the left-turning
vehicle yielding the right of way to her, she proceeded slowly across the intersection.
slowly across the intersection. The automobiles of the parties then collided at a point in the
southeast quadrant of the intersection. Both testified that they did not see the other's car until
an instant before the crash and that neither of them had an opportunity to apply brakes or
blow the horn. Appellant's minor son suffered facial injuries as a result of the accident and
appellant brought this suit to recover.
Appellant's main contention on appeal is that the verdict, in light of the evidence and the
applicable motor vehicle statute, was incorrect as a matter of law. The contention rests upon
the claim that the jury disregarded the court's instruction on the law of intersection right of
way. NRS 484.163.
1
He contends that if the jury had correctly applied the law stated therein
as well as the law given them on the effect of a statutory violation in finding negligence,
2
they necessarily would have found for him. We do not agree.
Although the effect of a person's statutory violation makes him negligent as a matter of
law, there are other issues of fact to be determined by the jury.
[Headnote 1]
It is a jury question whether the statute was, in fact, violated by the defendant. Since the
defendant under NRS 484.163 was only required to yield the right of way to a vehicle
approaching so closely * * * as to constitute an immediate hazard it is for the jury to decide
if the plaintiff was within the protected area. The mere fact that an accident happened is not
conclusive on that point. The defendant was not forced to cross the intersection absolutely at
her peril. Grasso v. Cunial, 235 P.2d 32 (Cal.App. 1951).
____________________

1
NRS 484.163:
1. Every driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop before
entering the crosswalk on the near side of the intersection or, in the event there is no crosswalk, shall stop at a
clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a
view of approaching traffic on the intersecting roadway before entering the intersection.
2. Such driver after having stopped shall yield the right of way to any vehicle which has entered the
intersection from another highway or which is approaching so closely on such highway as to constitute an
immediate hazard, but the driver having so yielded may proceed and the drivers of all other vehicles approaching
the intersection shall yield the right of way to the vehicle so proceeding.

2
Instruction No. 26:
A violation of the statute of the State of Nevada just read to you constitutes negligence as a matter of law;
however, such a violation is of no consequence in this action unless it was a proximate cause of injury or damage
to the plaintiff.
[Headnote 2]
Likewise it was also for the jury to determine the question of proximate cause between the
breach of duty, if any, and the damages. Whether the negligence involved consists of a
statutory violation or other misconduct, the issue of proximate cause is for the jury's
consideration. Mahan v. Hafen, 76 Nev. 220, 351 P.2d 617 (1960).
Therefore we are unable to say that the defense verdict was incorrect as a matter of law.
There were other specifications of error. We decline to decide them because none would
affect the result announced.
The judgment below is affirmed.
____________
84 Nev. 433, 433 (1968) Robken v. May
ALEX A. ROBKEN, Appellant, v. RAYMOND MAY and
ROBERT MAY, Respondents.
No. 5431
July 2, 1968 442 P.2d 913
Appeal from summary judgment granted for failure to have a license in suit for recovery
for architectural services performed. Second Judicial District Court, Washoe County; John
W. Barrett, Judge.
The trial court gave summary judgment to defendants on grounds that plaintiff failed to
have a architect's license, and appeal was taken. The Supreme Court, Zenoff, J., held that
licensed general contractor, who prepared and submitted to defendants plans and
specifications for a proposed automobile service center, could sue for balance allegedly due
on contract even though contractor was not a licensed architect, since prohibition against
suing in courts was not a part of statute dealing with architects.
Reversed.
Hibbs, Roth & Bullis, of Reno, for Appellant.
Winne and Sheehan, of Carson City, for Respondents.
Streeter, Sala & McAuliffe, of Reno, Amicus Curiae, for Nevada State Board of
Architecture.
84 Nev. 433, 434 (1968) Robken v. May
1. Licenses.
When licensing statute provides for sanctions other than forfeiture of right to sue on contract, unlicensed
person is not precluded from maintaining action to recover on contract.
2. Licenses.
Licensed general contractor, who prepared and submitted to defendants plans and specifications for a
proposed automobile service center, could sue for balance allegedly due on contract even though contractor
was not a licensed architect, since prohibition against suing in courts was not a part of statute dealing with
architects. NRS 623.010 et seq.
OPINION
Robken, a licensed general contractor, orally agreed with Raymond and Robert May to
prepare and submit plans and specifications for a proposed auto service center to be
constructed in Carson City. He would receive three percent of the cost of construction as
compensation for preparing the plans and specifications and would have the opportunity to
bid for the construction job. After preparing the blueprints he was paid $1,686 but the May
brothers refused further payment of the balance of $1,760 and demanded return of the monies
already paid because they said they learned that Robken was not a licensed architect under
NRS Chapter 623 nor was he exempt thereunder and that the plans were of no value to them
anyway for various reasons.
The trial court granted summary judgment in favor of the Mays when Robken sued for the
balance he claimed due under their agreement. Since the judgment was founded solely on
Robken's failure to have an architect's license our discussion is confined to that issue.
[Headnote 1]
In Nevada Equities, Inc. v. Willard Pease Drilling Co., 84 Nev. 300, 440 P.2d 122 (1968),
we recently ruled that when a statute provides for sanctions other than a forfeiture of the right
to sue on the contract, an uncertified or unlicensed person is not precluded from maintaining
an action to recover on the contract. Cf. Magill v. Lewis, 74 Nev. 381, 333 P.2d 717 (1958).
Chapter 623 of the Nevada Revised Statutes relating to architects recites that failure to
comply with the provisions of that chapter shall constitute a misdemeanor. Injunctive relief is
also made available to restrain anyone from engaging in any acts or practices which
constitute an offense under that chapter.
84 Nev. 433, 435 (1968) Robken v. May
acts or practices which constitute an offense under that chapter. Pease is controlling.
[Headnote 2]
The penalty provisions in regulatory laws are essentially expressions of legislative will and
the prohibition against suing in the courts is not present in NRS Chapter 623. Had the
legislature intended a violation of this chapter to cause a forfeiture of the right to sue on a
contract for architectural services it would have expressly so provided as it did in NRS
624.320 in dealing with unlicensed contractors.
We reverse and remand for further proceedings.
____________
84 Nev. 435, 435 (1968) Coronet Homes, Inc. v. Mylan
CORONET HOMES, INC., a Nevada Corporation,
Appellant, v. LESTER V. MYLAN, Respondent.
No. 5493
July 2, 1968 442 P.2d 901
Appeal from judgment dissolving temporary restraining order and refusing to grant a
preliminary injunction. Second Judicial District Court, Washoe County; Emile J. Gezelin,
Judge.
The Supreme Court held that evidence introduced by developer, who sought an injunction
against neighboring property owner who had erected sign on his own property which read
for sale, colored acceptable, no discrimination, was insufficient to sustain material
allegations against defendant where the sign did not contain false statement, it was not in any
substantial way similar to that erected by developer, there was no indication as to in what
manner the sign interfered with developer's business, and erection of the sign did not violate
any statute or ordinance.
Affirmed.
[Rehearing denied July 26, 1968]
Lohse and Lohse, of Reno, for Appellant.
J. Rayner Kjeldsen and Daniel J. Olguin, of Reno, for Respondent.
1. Injunction.
Court need not state a reason for its denial of a preliminary injunction. NRCP 65(d).
2. Injunction.
The granting, refusing or dissolving of injunctions or restraining orders is a matter of discretion.
3. Injunction.
Refusal to grant a preliminary injunction or to dissolve a temporary restraining order does not necessarily
affect the ultimate disposition on the merits of the case prior to trial.
4. Injunction.
Evidence introduced by plaintiff developer, who sought an injunction against neighboring property owner
who had erected sign on his own property which read for sale, colored acceptable, no discrimination, was
insufficient to sustain material allegations against defendant where the sign did not contain false statements,
it was not in any substantial way similar to that erected by developer, there was no indication as to in what
manner the sign interfered with developer's business, and erection of the sign did not violate any statute or
ordinance.
OPINION
Per Curiam:
The appellant is a corporation engaged in property development and home construction in
the Reno area. The respondent's home and property are adjacent to a parcel of land being
developed and subdivided by the appellant. Apparently as a result of certain disagreements,
the respondent offered his property for sale. He erected a sign which read, FOR SALE,
COLORED ACCEPTABLE, NO DISCRIMINATION.
The appellant filed an action against the respondent seeking money damages and a
permanent injunction restraining the continued display of the for sale sign erected by the
respondent. In his complaint, the appellant alleged in essence that the sign constitutes an
intentional, malicious and injurious falsehood appearing to have been made by the appellant
as an advertisement of his property and interfering with the appellant's business to his
detriment and damage.
A temporary restraining order was issued based upon the appellant's application and
verified complaint. The appellant also obtained an order to show cause why a preliminary
injunction should not be issued. The respondent filed a motion to dissolve the temporary
restraining order.
[Headnote 1]
Upon hearing the evidence presented, the trial court denied the appellant's application for a
preliminary injunction and dissolved the temporary restraining order previously granted. The
appellant now appeals from the lower court's decision contending that he, as plaintiff,
made a proper showing that a preliminary injunction should have been issued.1 Since the
record contains substantial evidence supporting the lower court's ruling, we must affirm.
appellant now appeals from the lower court's decision contending that he, as plaintiff, made a
proper showing that a preliminary injunction should have been issued.
1
Since the record
contains substantial evidence supporting the lower court's ruling, we must affirm.
[Headnotes 2, 3]
The granting, refusing or dissolving of injunctions or restraining orders is a matter of
discretion. Thorn v. Sweeney, 12 Nev. 251 (1877). Furthermore, it is important to note that
the refusal to grant a preliminary injunction and the dissolution of a temporary restraining
order does not necessarily affect the ultimate disposition on the merits of the case prior to
trial. Vegas Franchises, Ltd. v. Culinary Wkrs. U., Loc. No. 226, 83 Nev. 236, 427 P.2d 959
(1967).
[Headnote 4]
At the hearing for the purposes of obtaining a preliminary injunction the evidence
introduced by the appellant failed to sustain the material allegations against the respondent.
The testimony in fact reveals the opposite to be true. The sign did not contain false
statements. Nor was the assertion correct that it was in any substantial way similar to that
erected by the appellant as evidenced by the exhibits. Significant is the fact that the sign is
apparently situated on the respondent's property. Further, the record does not reflect in what
manner interference with the appellant's business has occurred. Moreover, there has been no
violation of any statute or ordinance involved in the erection of the sign. Cf. Alper v. Las
Vegas Motel Association, 74 Nev. 135, 325 P.2d 767 (1958).
Thus in the absence of testimony or exhibits establishing the material allegations of the
complaint, the temporary restraining order should be dissolved and the application for a
preliminary injunction denied. Perley v. Forman, 7 Nev. 309 (1872); Magnet Mining Co. v.
Page and Panaca Silver Mining Co., 9 Nev. 346 (1874). The trial court's determination was
correct.
Affirmed.
____________________

1
The appellant also complains that the trial court's decision did not state reasons for its denial. It need not do
so. NRCP Rule 65(d).
____________
84 Nev. 438, 438 (1968) Tobler and Oliver v. Board of Trustees
TOBLER AND OLIVER CONSTRUCTION COMPANY, Appellant, v. BOARD OF
TRUSTEES OF THE HEALTH AND INSURANCE FUND FOR CARPENTERS LOCAL
UNION NO. 971; ROWLAND OAKES, E. W. McKENZIE, MEL HANCOCK, GROVE R.
HOLCOMB, STANLEY WOODSON, JOHN PRUITT; BOARD OF TRUSTEES OF THE
PENSION TRUST FUND FOR CARPENTERS LOCAL UNION NO. 971; JOHN O.
MORMAN, ROWLAND OAKES, MEL HANCOCK, E. W. McKENZIE, BURKE H.
MORRISON and JOHN PRUITT; BOARD OF TRUSTEES OF THE CARPENTERS'
JOINT APPRENTICESHIP COMMITTEE FUND FOR CARPENTERS LOCAL UNION
NO. 971; MANFORD I. HARDESTY, JAMES W. TEIPNER, Jr., FRED FORSON, Jr.,
JOHN O. MORMAN, PRIMO BERTOLDI, and MARION HANSON; BOARD OF
TRUSTEES OF THE CONSTRUCTION WORKERS HEALTH AND SECURITY TRUST
FUND FOR CONSTRUCTION WORKERS LOCAL UNION NO. 169; EVERETT
BRUNZELL, SAM SAVINI, DUANE RAMSBY, LOUIS PALEY, DONALD GIRD, and
ELMO RECANZONE; and BOARD OF TRUSTEES OF THE CONSTRUCTION
WORKERS VACATION SAVINGS TRUST FUND FOR CONSTRUCTION WORKERS
LOCAL UNION NO. 169; DUANE RAMSEY, SAM SAVINI, EVERETT BRUNZELL,
DONALD GIRD, CHARLES CARTER and ELMO RECANZONE, Respondents.
No. 5473
July 3, 1968 442 P.2d 904
Appeal from summary judgment of Second Judicial District Court, Washoe County; John
W. Barrett, Judge.
Action to require contractor to pay into trust funds for benefit of subcontractor's employees
amounts allegedly due from subcontractor under collective bargaining agreement. The lower
court entered judgment for plaintiffs and contractor appealed. The Supreme Court, Batjer, J.,
held that contributions to trust funds for benefit of subcontractor's employees due under
collective bargaining agreement were indebtedness for labor within statute authorizing suit
against contractor for such sums.
Affirmed.
Theodore H. Stokes, of Carson City, for Appellant.
Lorin D. Parraguirre, of Reno, for Respondents.
1. Judgment.
Party opposing motion for summary judgment may not assume that allegations and assertions in his
pleadings will be taken as true. NRCP 56(e).
2. Pleading.
Complaint under statute relating to contractor's liability for subcontractor's debts was not required to be
verified. NRS 608.150; NRCP 11.
3. Judgment.
When there remains no material issue of fact to be resolved and when it appears that party moving for
summary judgment is entitled to judgment as a matter of law, summary judgment must be granted. NRCP
56(c).
4. Judgment.
Contractor's office manager's affidavit asserting that all indebtedness for labor against subcontractor had
been paid did not preclude entry of summary judgment against contractor for employer contributions due
from subcontractor under collective bargaining agreements on theory that issue of fact was thereby raised,
since affidavit merely stated conclusion of law.
5. Labor Relations.
Contributions to trust funds for benefit of subcontractor's employees due under collective bargaining
agreement were indebtedness for labor within statute authorizing suit against contractor for such sums.
NRS 608.150.
OPINION
During the months of September and October of 1966, the appellant, Tobler and Oliver
Construction Company, was the general contractor for the construction of a micro-wave
station. White Concrete Co., Inc., was the sub-contractor for the appellant.
White had bound itself under the terms of a collective bargaining agreement with the
respondents to pay specified amounts of employer contributions into certain trust funds for
the benefit of the employees covered by the agreement.
White failed to carry out its sub-contract and did not pay all of its labor bills. As required
by NRS 608.150,
1
Tobler paid off the balance of White's labor indebtedness and in
addition paid the insurance premiums owed to the Nevada Industrial Commission.
____________________

1
NRS 608.150 (is hereby amended to read as follows):
1. Every original constructor making or taking any contract in this state for the erection, construction,
alteration or repair of any building or structure, or other work, shall assume and be held liable for the
indebtedness for labor incurred by any subcontractor or any contractors acting under, by or for the original
contractor in performing
off the balance of White's labor indebtedness and in addition paid the insurance premiums
owed to the Nevada Industrial Commission. However, Tobler did not pay the amount owed
by White to the respondents under the terms of the collective bargaining agreement.
The respondents sued both Tobler and White for the sum of $1,064.59 due under the
agreement, plus costs and attorneys fees. Shortly after suit was commenced, White confessed
judgment in the amount prayed for in the complaint. The respondents then moved for
summary judgment as against Tobler.
In opposition to the motion for summary judgment an affidavit was executed by Tobler's
office manager stating that all claims for indebtedness for labor owing by Tobler because of
White's default had been paid.
Upon the pleadings and proceedings on file, the lower court granted the respondents
motion for summary judgment in the sum of $1,064.59, together with costs in the amount of
$38.00, and attorney fees in the amount of $250. This appeal is taken from the order for
summary judgment and judgment.
Both parties agree that the sole question on this appeal is the propriety of the lower court's
order granting summary judgment.
Even though the appellant admits that White was in complete default, it nevertheless
contends that the respondents were obligated to exhaust all possibilities of recovery against
White before they could avail themselves of the benefits under NRS 608.150. The appellant
cites no authority to support its position, nor does the wording of NRS 608.150 lend any
support to its contention.
____________________
any labor, construction or other work included in the subject of the original contract, for labor, and for the
requirements imposed by chapter 616 of NRS.
2. It shall be unlawful for any contractor or any other person to fail to comply with the provisions of
subsection 1, or to attempt to evade the responsibility imposed thereby, or to do any other act or thing tending to
render nugatory the provisions of this section.
3. Every person violating any of the provisions of this section shall be punished by a fine of not more than
$250 for each act. In addition thereto, the district attorney of any county wherein the defendant may reside or be
found shall institute civil proceedings against any such original contractor failing to comply with the provisions
of this section in a civil action for the amount of all wages and damage that may be owing or have occurred as a
result of the failure of any subcontractor acting under the original contractor, not exempt by law, shall be subject
to attachment and execution for the payment of any judgment that may be recovered in any action under the
provisions of this section.
[Headnote 1]
The appellant also argues as a cardinal rule that facts asserted by the party opposing the
motion for summary judgment must be taken as true and as a corollary of that rule that a
motion for summary judgment admits all allegations of fact contained in the opposing party's
pleadings. We find the appellant's reasoning in this regard to be untenable.
NRCP 56(e) reads in pertinent part: When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not rest upon the mere allegations or
denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing there is a genuine issue for trial. Dzack v. Marshall, 80
Nev. 345, 393 P.2d 610 (1964).
The intent of the rule is clear and unambiguous. The party opposing the motion for
summary judgment may not assume that the allegations and assertions in his pleadings will be
taken as true. Here appellant's pleadings and supporting affidavit do not set out any specific
facts that show there is a genuine issue for trial.
[Headnote 2]
The appellant further contends that respondents are not entitled to summary judgment
because their complaint is unverified and no supporting affidavits were filed by respondents
with their motion for summary judgment. This contention is without merit. The appellant has
cited no special rule or statute requiring that a complaint filed pursuant to NRS 608.150 be
verified. Independent research reveals none. NRCP 11 reads in part: Except when otherwise
specifically provided by rule or statute, pleadings need not be verified or accompanied by
affidavit. The signature of an attorney constitutes a certificate by him that he has read the
pleadings; that to the best of his knowledge, information and belief, there is good ground to
support it and that it has not been interposed for delay.
[Headnote 3]
It is well established that under NRCP 56(c),2 when there remains no material issue of
fact to be resolved and when it appears the moving party is entitled to judgment as a
matter of law, that summary judgment must be granted.
____________________

2
NRCP 56(c): The motion shall be served at least 10 days before the time fixed for the hearing. The
adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue
of liability alone although there is a genuine issue as to the amount of damages.
remains no material issue of fact to be resolved and when it appears the moving party is
entitled to judgment as a matter of law, that summary judgment must be granted. McColl v.
Scherer, 73 Nev. 226, 315 P.2d 807 (1957); Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d
979 (1963); 3 Barron and Holtzoff, Federal Practice and Procedure 1234, p. 119; 6 Moore's
Federal Practice & 56.15, P. 2101.
[Headnote 4]
In this case the parties agree that the appellant paid all of the claims against White except
for the employer contributions due under the collective bargaining agreements. The appellant
contends that there remains an issue of fact to be tried based on its office manager's affidavit
asserting that all indebtedness for labor against White had been paid. This contention is
completely without merit because the affidavit does not raise an issue of fact, but rather,
states a conclusion of law.
[Headnote 5]
After Tobler's answer was filed the only question of fact remaining was the mathematical
computation of the amount due the respondents under the terms and conditions of the
collective bargaining agreements. The statement and confession of judgment filed by White
supplied the amount due. The question of law was whether the employer contributions
provided for under collective bargaining agreements fall within the phrase indebtedness for
labor in NRS 608.150.
The trial court was correct when it found the employer contributions to be indebtedness for
labor and entered its order for summary judgment on behalf of the respondents.
In Genix Supply Co. v. Board of Trustees, 84 Nev. 246, 438 P.2d 816 (1968), a case
involving the same respondents as here, this court held that employer contributions due under
a collective bargaining agreement to the respondent constituted wages and were given
priority under NRS 624.270(4), which provides, A claim of any employee of the contractor
for labor shall be preferred claim against such bond or cash deposit.
In United States v. Carter, 353 U.S. 210 (1957), the Supreme Court interpreting the Miller
Act, 40 U.S.C.A. sec. 270a, et seq., said: * * * The unpaid contributions were a part of the
compensation for the work to be done by Carter's employees. The relation of the contributions
to the work done is emphasized by the fact that their amount was measured by the exact
number of hours each employee performed services for Carter. Not until the required
contributions have been made will Carter's employees have been 'paid in full' for their
labor in accordance with the collective-bargaining agreements."
made will Carter's employees have been paid in full' for their labor in accordance with the
collective-bargaining agreements.
In Bernard v. Indemnity Insurance Co., of North America, (Cal.App.) 329 P.2d 57 (1958),
the court held that the surety on bonds required to be furnished by a contractor under
California statutes (See: WestAnn.Gov.Code. Secs. 4200-4208, 4204), and guaranteeing
payment for any work or labor, was liable for payments required to be made by public
contractor into union health and welfare fund under the terms of a collective bargaining
agreement. At page 64, the court stated: It is our conclusion that the contributions sought to
be recovered are directly related to the work performed in the construction of the school
project by the contractor. The amounts became due solely because the work was performed,
and the sum is measured by the number of hours or work performed. The legislature intended
to protect the laborer as to every element of his compensation, whether that compensation be
an hourly wage, or whether it be an hourly wage plus other benefits, and the novelty of the
health and welfare provisions of the contract does not in any way prevent the contributions
therefore from being considered as payment for any work or labor' on the bonded project.
If employer contributions to a trust fund constitute wages for labor under NRS 624.270(4),
by the same rationale employer contributions constitute an indebtedness for labor under
NRS 608.150. The appellant relies on Nolop v. Spettel, 64 N.W.2d 859 (Wis. 1954), for the
proposition that an indebtedness for labor includes only wages. In Genix, this court held that
employer contributions under collective bargaining agreements are wages. NRS 608.150 is
explicit and mandatory and needs no further interpretation. The trial court's order for
summary judgment is sustained and the judgment below is in all respects, affirmed.
____________
84 Nev. 443, 443 (1968) Maiden v. State
CHARLES MAIDEN and WILBURT LEE STREET,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 5489
July 3, 1968 442 P.2d 902
Appeal from judgment of Second Judicial District Court, Washoe County; Thomas O.
Craven, Judge.
Petition for habeas corpus. The lower court denied the petition, and defendants appealed.
The Supreme Court, Mowbray, J., held that procedure whereby complaining witness
identified defendants as those who had raped her, after grand jury had heard her relate the
facts and defendants were ushered into room for a moment and ushered out again, was not a
denial of defendants' constitutional rights, even though defendants' counsel was not present,
where material needed for a substantial cross-examination of witnesses was preserved by a
transcript of proceedings made by court reporter, and transcript provided defense counsel
with verbatim report of questions, answers, and comments of everyone present.
Affirmed.
A. D. Demetras, of Reno, for Appellants.
1. Grand Jury.
In a grand jury proceeding, neither defendant nor his counsel have right to be present. NRS 172.145,
172.235.
2. Grand Jury.
Procedure whereby complaining witness identified defendants as those who had raped her, after grand
jury had heard her relate the facts and defendants were ushered into room for a moment and ushered out
again, was not a denial of defendants' constitutional rights, even though defendants' counsel was not
present, where material needed for a substantial cross-examination of witnesses was preserved by a
transcript of proceedings made by court reporter, and transcript provided defense counsel with verbatim
report of questions, answers, and comments of everyone present. NRS 172.145, 172.235.
OPINION
At approximately eleven o'clock on the night of July 26, 1967, the complaining witness, a
14-year-old girl, was in the area of the Glen Duncan School, Reno. She was in the company
of four boys. Two carloads of youths stopped nearby. Some of them left the cars and came
toward the girl and her friends, carrying chains, tire irons, and related items. The complaining
witness and her friends fled. She later testified that two of the youths caught her, took her
behind the school, and raped her.
The Washoe County Grand Jury met concerning this matter in August 1967. They heard
the complaining witness relate the facts. Then two men were ushered into the room for a
moment and ushered out again. The witness then identified the two youths as those who had
raped her on the night in question. The grand jury returned an indictment on the rape charge.
The defendants then filed a petition for a writ of habeas corpus to set aside the indictment on
the grounds that their constitutional rights were denied them by the grand jury proceedings.
The denial of that petition is the subject of this appeal.
Petitioners contend that, under United States v. Wade, 388 U.S. 218 (1967), the grand jury
identification was unconstitutional in that their counsel was not notified and therefore not
present. They claim that the identification evidence was therefore illegal and should not be
able to support the indictment.
The court in the Wade case said that one is entitled to the assistance of counsel at any
critical stage of the proceeding against him. It then went on to say that a stage was critical
whenever counsel's assistance was necessary to insure a meaningful defense or a fair trial. On
the other hand, noncritical stages were classified as those where there was a minimal risk that
counsel's absence might derogate from the defendant's right to a fair trial.
In Wade, a line-up was considered to be a critical stage for the following reasons: 1)
Eyewitness identification is recognized as being inherently untrustworthy; 2) there is the
ever-present danger of suggestive influences in the presentment of the subject for
identification; and 3) if the line-up is conducted without presence of counsel, it is nearly
impossible for counsel to reconstruct what happened to determine if such suggestions were
presentthus curtailing quite substantially the witness's right of cross-examination.
This situation differs considerably from that in Wade. Here, the material needed for a
substantial cross-examination of witnesses is preserved by the transcript of the proceedings
made by the court reporter. That transcript provides defense counsel with a verbatim report of
the questions, answers, and comments of everyone present. It also gives counsel the names of
persons who were present, including the grand jurors themselves, so that he might investigate
any possible nonverbal suggestions or prejudices arising against his client.
[Headnotes 1, 2]
Under NRS 172.145 and 172.235, it is clear that in a grand jury proceeding neither the
defendant nor his counsel have the right to be present. See also dictum in Victoria v. Young,
80 Nev. 279, 392 P.2d 509 {1964), overruled on other grounds in Shelby v.
Nev. 279, 392 P.2d 509 (1964), overruled on other grounds in Shelby v. Dist. Court, 82 Nev.
204, 414 P.2d 942 (1966). There being no such right, there could be no violation.
Affirmed.
____________
84 Nev. 446, 446 (1968) Fireman's Fund Insurance v. Shawcross
FIREMAN'S FUND INSURANCE COMPANY, a California Corporation; UNITED
PACIFIC INSURANCE COMPANY, a Washington Corporation; RALPH JAMES LAMB,
as Sheriff of the County of Clark, State of Nevada, and Individually; and LAS VEGAS
NETWORK, INC., a Nevada Corporation, Appellants, v. BLANCHE SHAWCROSS,
Individually, and Doing Business Under the Fictitious Name of NEVADA TAX
COOPERATIVE, Respondent.
No. 5424
July 8, 1968 442 P.2d 907
Appeal from judgment entered upon jury verdict of the Eighth Judicial District Court,
Clark County; Taylor H. Wines, Judge.
Action for damages arising out of allegedly wrongful attachment of plaintiff's property.
The trial court found for plaintiff and appeal was taken. The Supreme Court, Thompson, C.
J., held that defendants who failed to object to plaintiff's verdict directing instruction on
liability were precluded from claiming that they were not liable, and that evidence that
pursuant to amended writs sheriff reattached property after court had ordered original
attachment dissolved created issues of fact as to whether sheriff acted with ordinary care and
precluded grant of verdict-directing instruction in favor of plaintiff and against sheriff who
objected to such instruction.
Affirmed in part and reversed in part.
Singleton, DeLanoy, Jemison and Reid, of Las Vegas, for Appellant Fireman's Fund
Insurance Co.
Keith C. Hayes, of Las Vegas, for Appellant United Pacific Insurance Co.
George E. Franklin, Jr., District Attorney, Clark County, for Appellant Ralph James
Lamb.
Stanley W. Pierce, of Las Vegas, for Appellant Las Vegas Network, Inc.
Morton Galane, of Las Vegas, and Robert F. List, of Carson City, for Respondent.
Indemnitor may enjoy advantage of principal's objection to pre-emptive instruction.
Defendants who failed to object to plaintiff's verdict-directing instruction on liability were precluded
from claiming that they were not liable. NRCP 51.
Failure to object to plaintiff's verdict-directing instruction constitutes acknowledgment of liability to
plaintiff. NRCP 51.
4. Attachment.
If attached property is in possession of sheriff when attachment is discharged, sheriff must redeliver
property to defendant. NRS 31.170.
5. Sheriffs and Constables.
Sheriff and his deputies may be held liable for negligence in performance of their official duties.
Sheriff's public official bond covers his tortious misconduct.
As general proposition, issue of sheriff's exercise of ordinary care under circumstances is one of fact for
jury resolution.
Sheriff is supposed to follow directions given by attaching plaintiff when writ and accompanying
instructions are in regular form.
9. Attachment.
Defect or irregularity in attachment papers may be corrected by amendment before discharge of
attachment, but not afterwards. NRS 31.220.
10. Attachment.
Sheriff who was notified of court order discharging original attachment should have taken appropriate
steps to redeliver attached property to defendant and should have disregarded subsequent amended writs
which were served upon him before court discharge order was effectuated.
Sheriffs conduct in dealing with attachment papers and property is not to be judged as though sheriff
were trained in legal niceties and all that is required of sheriff is that he exercise reasonable diligence.
Evidence that pursuant to amended writs sheriff reattached property after court had ordered original
attachment dissolved created issues of fact as to whether sheriff acted with ordinary care and precluded
grant of verdict-directing instruction in favor of plaintiff who brought action based upon wrongful
attachment of her property.
13. Attachment.
Evidence in action arising out of wrongful attachment sustained award of $50,185 in favor of plaintiff
who conducted active bookkeeping, accounting and tax practice and whose records and office equipment
were wrongfully attached. NRCP 59(a)(6).
14. Attachment.
Fact that some degree of uncertainty was present in fixing damages did not destroy right to compensation
for wrongful attachment of records and office equipment of party who conducted active bookkeeping,
accounting and tax practice.
15. Damages.
Rule against recovery of uncertain damages is directed against uncertainty as to existence of damage
rather than as to measure or extent.
16. Attachment.
Value of personal property and loss of prospective income, if a proximate result of defendants' wrongful
attachment, were each elements of plaintiff's damage when shown with reasonable certainty.
OPINION
We are requested to nullify a judgment entered upon a jury verdict assessing damages
against multiple defendants for the loss of plaintiff's attached property. The lost property was
the subject of attachment in a suit commenced by Las Vegas Network, Inc. v. Shawcross, in
which Las Vegas Network sought to recover money claimed to be due under a written
agreement for the sale of a business. That case was dismissed with prejudice and the
dismissal affirmed on appeal. Las Vegas Network v. Shawcross, 80 Nev. 405, 395 P.2d 520
(1964). The attached property was never returned to Shawcross and, apparently, was lost,
destroyed or misappropriated.
[Headnote 1]
This action for damages was then commenced by Shawcross against Las Vegas Network
who, through its counsel, had precipitated the attachment; United Pacific Insurance Company,
who had supplied the undertaking on attachment in the amount of $6,250; Sheriff Lamb,
whose deputies attached the property; Fireman's Fund Insurance Company, who had issued its
surety bond for the sheriff in the sum of $50,000 conditioned upon faithful performance
by the sheriff of the duties of his office; and others with whom we are not now concerned.
bond for the sheriff in the sum of $50,000 conditioned upon faithful performance by the
sheriff of the duties of his office; and others with whom we are not now concerned. After a
protracted trial, the court instructed the jury to find for the plaintiff Shawcross, and against
the mentioned defendants, and advised the jury that the sole issue for its determination was
damages. Las Vegas Network and United Pacific Insurance Company did not object to the
pre-emptive instruction on the issue of liability. The sheriff did object, and since the liability,
if any, of his indemnitor, Fireman's Fund, is derivative, the indemnitor may enjoy the
advantage of the sheriff's objection to the pre-emptive instruction. The jury returned two
verdicts, the first a directed verdict to conform with the pre-emptive instruction on liability,
and the second, a verdict on damages. The latter found the plaintiff's damages to be
$50,185 and stated that such sum is attributable to those damages resulting from the
attachment which was levied on April 24, 1963 and discharged on May 2, 1963, and the limit
of liability of the United Pacific Insurance Company. Judgment was thereafter entered as
follows: against Las Vegas Network, Inc. for $50,185 plus interest and costs; against United
Pacific Insurance Company for $6,250, the limit of liability on its undertaking for attachment,
plus interest and costs; against Sheriff Lamb for $50,185 with interest plus costs; and against
Fireman's Fund Insurance Company for $50,000, the limit of liability on the sheriff's surety
bond, plus interest and costs. The judgment also specified that the amount of the judgment is
$50,185 and payment of any portion of that sum by any one of the defendants would relieve
the other defendants to that extent. Other language in the judgment we deem unimportant.
[Headnotes 2, 3]
The case in which the ancillary remedy of attachment was utilized reflects a series of
unusual occurrences: The original attachment, the interposition of a third party claim to some
of the attached property, an order discharging the attachment, an amended attachment, an
order releasing the property described in the third party claim, an order discharging the
amended attachment, a second amended attachment, and finally an order discharging all writs
of attachment and discharging all levies. The main contention of each appellant is directed to
these occurrences. Each contends that the judgment cannot stand since the liability, if any, of
each rests upon different occurrences at different times, and the district court did not give
appropriate consideration to this fact. The state of the record on appeal precludes our
consideration of this contention as to the appellants Las Vegas Network and United Pacific
Insurance Company since neither objected to the pre-emptive instruction on liability.
as to the appellants Las Vegas Network and United Pacific Insurance Company since neither
objected to the pre-emptive instruction on liability. This was essential if either wished to
preserve the point for appellate review. NRCP 51, in pertinent part, reads: * * * No party
may assign as error the giving * * * [of] an instruction unless he objects thereto before the
jury retires to consider its verdict, stating distinctly the matter to which he objects and the
grounds of his objection. See also: Lathrop v. Smith, 71 Nev. 274, 288 P.2d 212 (1955);
Wagon Wheel Saloon v. Mavrogan, 78 Nev. 126, 369 P.2d 688 (1962); Duran v. Mueller, 79
Nev. 453, 386 P.2d 733 (1963). A pre-emptive instruction on liability should provoke
objection if a basis exists therefor, since it removes a crucial issue from jury consideration. It
is not the kind of instruction that will be inadvertently overlooked by defense counsel. Thus,
we must assume that Las Vegas Network and United Pacific Insurance Company, by failing
to object, acknowledged liability to the plaintiff. Accordingly, we are concerned with only
two of the many assignments of error. First, with respect to the sheriff and his indemnitor,
Fireman's Fund, whether the lower court erred in ruling, as a matter of law, that they are
liable to the plaintiff. Second, with respect to all appellants, whether the jury award of
damages must be set aside as excessive.
[Headnote 4]
1. The attaching plaintiff directed the sheriff to attach the office furniture and equipment,
the library, files and papers of the defendant located at her place of business. A deputy sheriff
did so. The files and papers of the defendant's tax accounting business were placed into 25
cartons and deposited with one Martin Stern, as directed by the plaintiff. One hundred seven
cartons of other material, including office furniture and equipment, were stored at the Clark
County Storage and Warehouse at plaintiff's direction. This occurred on April 24, 1963. Six
days later the attachment was discharged by order of court, and a deputy sheriff was
immediately notified of the discharge order. That order directed the sheriff to return the
attached property to Shawcross. It was not the custom or practice of the sheriff's office to
redeliver attached personal property which had been placed in possession of third parties at
the direction of the attaching plaintiff. In that circumstance it was the practice to prepare a
release of attachment, and mail it to such depository advising that he may release the
attached property to the defendant upon payment of any charges you may have. NRS
31.065, which requires the sheriff to secure from the plaintiff or his attorney, money for the
expense of taking and keeping the attached property, had not been enacted.1
the plaintiff or his attorney, money for the expense of taking and keeping the attached
property, had not been enacted.
1

One day after receipt of the court order the sheriff's office mailed that release to the
depositories of the attached property.
The following day the sheriff was instructed by the attaching plaintiff to again attach the
property which but two days before had been ordered released from attachment by the court.
Counsel for the attaching plaintiff identify this as an amended attachment. A new
undertaking on attachment was not filed. The sheriff followed the plaintiff's directions and
reattached the property by posting a notice of attachment thereon in the places where the
property had been previously left. This second attachment was dissolved by court order.
The attaching plaintiff followed the same course once more and again the court ordered
dissolution of the second amended attachment. By this time the attached property had
disappeared and this litigation ensued.
These circumstances led the lower court to rule that the sheriff and his indemnitor were
absolutely liable for the loss of the attached property, as a matter of law, and the jury was
precluded from deciding that issue. This was error.
[Headnotes 5-7]
The sheriff and his deputies may be held liable for negligence in the performance of their
official duties [Hill v. Thomas, 70 Nev. 389, 270 P.2d 179 (1954); NRS 248.040(3)], and his
public official bond covers tortious misconduct. Hill v. Thomas, supra. As a general
proposition the issue of his exercise of ordinary care under the circumstances is one of fact
for jury resolution.
[Headnote 8]
There are several principles which possess relevance to the liability, if any, of the sheriff in
this case. He is supposed to follow the directions given by the attaching plaintiff when the
writ and accompanying instructions are in regular form. Hayward Lumber & Investment Co.
v. Biscailuz, 306 P.2d 6 (Cal. 1957). He did so in every instance; that is to say, he performed
as directed by the attaching plaintiff with respect to the original and the two amended
attachments. The difficulty comes about by reason of the intervening court orders dissolving
the attachments, and their effect upon the sheriff's duties.
____________________

1
Our code is silent as to whether the sheriff is obliged to redeliver the attached property, or to simply release
it from attachment, when it has been stored with a third person at the direction of the attaching plaintiff. Of
course, if the attached property is in the possession of the sheriff when the attachment is discharged, he must
redeliver it to the defendant. NRS 31.170.
[Headnotes 9-11]
First, it is noted that the original attachment was not amendable after entry of the court
order dissolving it. A defect or irregularity in the attachment papers may be corrected by
amendment before discharge of the attachment, but not afterwards. NRS 31.220; Peterson v.
Beggs, 148 P. 541 (Cal.App. 1915). Thus, in the strict sense, the sheriff, upon being notified
by the court order discharging the original attachment, should have taken appropriate steps to
redeliver the attached property to the defendant, and should have disregarded the subsequent
amended writs which were served upon him before the court discharge order was
effectuated. But the fact that he did not disregard the directions of the attaching plaintiff does
not impose an absolute liability upon the sheriff. His conduct is not to be judged as though he
were trained in the legal niceties. He need only exercise the judgment of a person of ordinary
care and prudence. Reasonable diligence is all that is required of him. Hayward Lumber &
Investment Co. v. Biscailuz, supra. Indeed, if counsel for the attaching plaintiff did not know
that the amended writs were invalid following discharge of the original attachment, the
sheriff's office should not be held to a higher standard.
[Headnote 12]
In the case at hand, the sheriff attempted to comply with the court orders on the one hand,
and with the directions of the attaching plaintiff on the other. When served with the court
orders he prepared and mailed to the depositories of the property a release of attachment.
When given the amended writs he posted them upon the attached property. It is for the jury to
decide as an issue of fact, whether he acted with ordinary care in the circumstances. Any
other view would place an intolerable burden upon his office [Vallindras v. Massachusetts
Bonding & Ins. Co., 265 P.2d 907 (Cal. 1954)], and demand a technical legal knowledge
possessed only by those specially trained.
[Headnote 13]
2. The award of damages is within permissible limits since it finds support in the evidence
offered by plaintiff which the jury was free to accept. In these circumstances we are not at
liberty to override the jury's view of the matter unless the record suggests that passion or
prejudice influenced that determination. NRCP 59(a)(6); Miller v. Schnitzer, 78 Nev. 301,
371 P.2d 824 (1962).
It is neither useful nor necessary to particularize the evidence of damage. The
plaintiff-respondent had, for many years, conducted an active bookkeeping, accounting and
tax practice.
years, conducted an active bookkeeping, accounting and tax practice. All of her office
equipment, professional library and furniture was attached.
2
She estimated its value to be
$38,899.50. Her estimate of value was not directly refuted. Many California and Nevada
businesses retained her to handle their bookkeeping, accounting and tax work and had left
their records (corporate minutes, books of account, payroll records, tax returns, cancelled
checks, etc.) with her for that purpose. All such records were attached and stored in 25
cartons. By reason of the loss of those records, her retaining clients left her, and her income
was thereby substantially diminished. Her income loss, actual and prospective, if believed by
the jury, was more than enough to run her total damages up to $50.185.
[Headnotes 14-16]
Although a degree of uncertainty is obviously present in fixing damages for her loss, this
does not destroy her right to compensation. The rule against the recovery of uncertain
damages is directed against uncertainty as to the existence of damage rather than as to
measure or extent. Brown v. Lindsay, 68 Nev. 196, 228 P.2d 262 (1951). Her bookkeeping,
accounting and tax practice had been established for years, and was not a new business
enterprise. Cf. Knier v. Azores Constr. Co., 78 Nev. 20, 368 P.2d 673 (1962). Accordingly,
the value of personal property and loss of prospective income, if the proximate result of the
defendants' acts, are each elements of plaintiff's damage when shown with reasonable
certainty. Preble v. Hanna, 244 P. 75 (Ore. 1926); Ellis v. Lindmark, 225 N.W. 395 (Minn.
1929); Randles v. Nickum, 127 P.2d 347 (Ore. 1942); Smith v. Abel, 316 P.2d 793 (Ore.
1957); Colorado Kenworth Corp. v. Whitworth, 357 P.2d 626 (Colo. 1960); United States
Fidelity & Guaranty Co. v. Davis, 413 P.2d 590 (Ariz. 1966).
Other assigned errors have been considered and are without merit.
Therefore, we: (1) affirm the judgment against Las Vegas Network for $50,185 plus
interest and costs; (2) affirm the judgment against United Pacific Insurance Company for
$6,250, the penalty of the attachment bond. Since that bond specifically provided for the
payment of costs and damages not to exceed $6,250 the judgment proviso for the payment of
costs above that amount cannot stand and is stricken. Van Sickle v. Franklin, 162 P.
____________________

2
All appellants contend that the office equipment and furniture belonged to a third party claimant to whom
the storage company made delivery. The evidence on this score is in conflict, and the jury was free to accept the
respondent's evidence.
Sickle v. Franklin, 162 P. 950 (Okla. 1917); Schneider v. Zoeller, 346 P.2d 515 (Cal.App.
1959); (3) reverse the judgment against Sheriff Lamb and his indemnitor, Fireman's Fund,
and remand for a new trial as to them, limited to the issue of liability [cf. Novack v. Hoppin,
77 Nev. 33, 359 P.2d 390 (1961)], since they have had their day in court on the issue of
damages.
Collins, Zenoff, Batjer, JJ., and Young, D. J., concur.
____________
84 Nev. 454, 454 (1968) City of Boulder City v. Kautz
CITY OF BOULDER CITY, NEVADA, Petitioner, v. LORRAINE H. KAUTZ,
City Clerk of Boulder City, Nevada, Respondent.
No. 5632
July 11, 1968 442 P.2d 892
Original proceeding in mandamus by a city seeking to compel city clerk to give notice to
county general obligation bond commission of city's proposal to issue obligation bonds for
improvement of the city water system. The Supreme Court, Thompson, C. J., held that
although at time city was incorporated in 1959 state law limited municipal corporation bond
to a maturity term of not longer than 20 years, and to denominations of not more than $1,000,
such limitation did not become a part of the city's charter which could not be changed by later
legislative amendment, and proposed bond issue calling for bond denominations of $5,000
and a 30-year term was authorized under the municipal charter, and state law as amended in
accordance with constitutional proviso applicable to commission form of municipal
government to the effect that legislature may, by general law amend any existing charter of a
city or town.
A peremptory writ of mandamus granted.
Russell W. McDonald and Frank W. Daykin, of Carson City, for Petitioner.
J. Forest Cahlan, City Attorney of Boulder City, for Respondent.
When a city or town is incorporated under statute providing generally for incorporation of cities and
towns, a separate city charter is not adopted since the legislative act itself sets out the
specifics of city government and, in effect, constitutes the charter, NRS 266.005 et
seq.
charter is not adopted since the legislative act itself sets out the specifics of city government and, in effect,
constitutes the charter, NRS 266.005 et seq.
State law providing for commission form of municipal government allow any city incorporated
thereunder to frame its own charter, and is the legislation contemplated by constitutional proviso to the
effect that the legislature may, by general law amend any existing charter of a city or town. NRS
267.100 et seq.; Const. art. 8, 8.
Although at time city was incorporated in 1959 state law limited municipal corporation bonds to a
maturity term of not longer than 20 years, and to denominations of not more than $1,000, such limitation
did not become a part of the city's charter which could not be changed by later legislative amendment, and
proposed bond issue calling for bond denominations of $5,000 and a 30-year term was authorized under
the municipal charter, and state law as amended in accordance with constitutional proviso applicable to
commission form of municipal government; Owens v. Doxey, 55 Nev. 186, 28 P.2d 122, overruled
insofar as it purports to have application to commission form of municipal corporation. NRS 267.100 et
seq.; Const. art. 8, 8.
OPINION
By mandamus, Boulder City seeks to compel its City Clerk to give notice to the county
general obligation bond commission of the City's proposal to issue general obligation bonds
for the improvement of the city water system. This notice is required by NRS 350.005.
Boulder City was incorporated in 1959. At that time state law limited municipal
corporation bonds to a maturity term of not longer than 20 years, and to denominations of
$100, $500, or $1,000. By 1965 amendment the maximum term was extended to 30 years
(NRS 350.100) and denominations authorized in the sum of $100, or even multiples thereof
(NRS 350.080). The City bond resolution at hand would authorize a bonded indebtedness of
$750,000, each bond to be in the denomination of $5,000, and maturing serially not later then
30 years from the date thereof.
The City Clerk refused to give the required notice on the ground that the limitations of
state law in force when Boulder City was incorporated became a part of its charter by
operation of law and cannot be changed by later legislative amendment. Thus, she contends
that the proposed bond issue calling for bond denominations of $5,000 and a 30-year term
are not authorized.
bond denominations of $5,000 and a 30-year term are not authorized. This contention is not
sound.
[Headnotes 1, 2]
1. Nevada Constitution, art. 8, 8,
1
provides for the organization of cities and towns.
Pursuant to that provision the legislature has enacted certain chapters relating to municipal
incorporation. NRS ch. 266, entitled General Law for Incorporation of Cities and Towns, is
the type of legislation referred to in the first clause of art. 8, 8. When incorporated
thereunder, a separate city charter is not adopted since the legislative act itself sets out the
specifics of city government and, in effect, constitutes the charter. On the other hand, NRS
ch. 267 is the type of legislation contemplated by the proviso clause of art. 8, 8. This
chapter, entitled the Commission Form of Municipal Government, allows any city
incorporated thereunder to frame its own charter.
[Headnote 3]
Boulder City was incorporated under ch. 267 and enjoys the powers granted to such a city
by state law and by its own charter. NRS 267.120
2
specifically grants to cities incorporated
under ch. 267 all powers which are now or may hereafter be conferred by the laws of the
state. The 1965 amendments concerning the maximum term and denominations of municipal
corporation bonds is a power hereafter conferred upon Boulder City.
Two footnoted
3
sections of the Boulder City Charter are relevant.
____________________

1
Art. 8, 8, reads: The legislature shall provide for the organization of cities and towns by general laws and
shall restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit,
except for procuring supplies of water; provided, however, that the legislature may, by general laws, in the
manner and to the extent therein provided, permit and authorize the electors of any city or town to frame, adopt
and amend a charter for its own government, or to amend any existing charter of such city or town.

2
NRS 267.120 reads: Any city, town or unincorporated area adopting a charter under the provisions of this
chapter shall have all of the powers which are now or may hereafter be conferred upon incorporated cities by the
laws of the state, and all such powers as are usually exercised by municipal corporations of like character and
degree, whether the same shall be specifically enumerated in this chapter or not.

3
Sec. 3(1)The city shall have all the powers granted to municipal corporations and to cities by the
constitution and general laws of this state together with all the implied powers necessary to carry into execution
all the powers granted.
Sec. 121(2)Whenever any reference is made to any portion of the Nevada Revised Statutes or of any
other law of the state, or of the United States, such reference shall apply to all amendments thereto now or
hereafter made.
relevant. NRS ch. 350 authorizing the issuance of municipal bonds is a general law of this
state within the contemplation of 3(1), and 121(2) makes it clear that amendments to a
general law confer the powers therein expressed upon the city. Thus, the legislative act under
which Boulder City was incorporated, ch. 267, and that city's charter, each authorizes the
general obligation bonds in the denominations and for the term proposed by the resolution at
hand.
2. This proceeding would not have arisen but for a 1934 opinion of this court in State ex
rel. Owens v. Doxey, 55 Nev. 186, 28 P.2d 122, which may be read to cast doubt upon the
validity of Boulder City's proposed bond issue. We expressly overrule Doxey insofar as it
purports to have application to a ch. 267 municipal corporation. The underpinnings of Doxey
were certain provisions of a 1907 Act [1907 Stats., ch. 125; NCL 1100 et seq.], the forerunner
of our present ch. 266. Those provisions bear no relevance to the commission form of
municipal government, i.e., a ch. 267 municipality.
A peremptory writ of mandamus shall issue forthwith.
____________
84 Nev. 457, 457 (1968) Securities Investment Co. v. Donnelley
SECURITIES INVESTMENT COMPANY OF ST. LOUIS, Appellant, v. J. A.
DONNELLEY and HAROLD V. CLARK, as Co-Executors of the Estate of
WILBUR I. CLARK, Deceased Respondents.
No. 5491
July, 12, 1968 443 P.2d 551
Appeal from lower court decision disallowing executors' guaranty as an expense of
administration. Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
The lower court disallowed executors' guaranty as expense of administration and appeal
was taken. The Supreme Court, Zenoff J., held that, inasmuch as validity of creditor's claim
based on guaranty instrument had never been properly established, question whether amount
due should be treated as expense of administration entitled to priority was not ready for
appeal and appeal was premature.
Remanded for proceedings consistent with this opinion.
Rudiak & Publow, of Las Vegas, for Appellant.
Foley Brothers, of Las Vegas, for Respondents.
84 Nev. 457, 458 (1968) Securities Investment Co. v. Donnelley
Inasmuch as validity of creditor's claim based on guaranty instrument executed by executors of decedent
had never been properly established, question whether amount due should be treated as expense of
administration entitled to priority was not ready for appeal and appeal from decision disallowing executors'
guaranty as expense of administration was premature.
Supreme Court is not empowered to give advisory decisions.
OPINION
Following the death of Wilbur Clark the executors of his estate simultaneously sought and
obtained court authority to continue the decedent's business. Acting on this authority the
executors as representatives of the estate guaranteed a corporate obligation of W. C. Austin,
Inc., a corporation in which the decedent was a stockholder.
The corporation defaulted and the creditor, after foreclosure proceedings on the chattel
mortgage property, seeks recovery of the balance, $119,785.86, from the estate based on the
guaranty instrument. The creditor in this instance directly petitioned the court for an order
instructing the executors to treat the amount due as an expense of administration entitled to
priority and to pay that amount forthwith.
The lower court rejected the creditor's claim and denied the petition. This appeal resulted;
the creditor contends that the obligation is entitled to priority payment.
[Headnotes 1, 2]
Since the validity of the creditor's claim has never been properly established the matter of
priority is not ready for appeal. If the claim is not valid as a charge against the estate no
question of priority can exist. For us to decide that issue now might well make our decision
advisory which we are neither empowered nor desirous to do. The appeal is premature.
Remanded for proceedings consistent with this opinion.
Thompson C. J. Collins, Batjer, JJ., and Gezelin, D. J., concur.
Mowbray, J., being disqualified the Governor commissioned the Honorable Emile J.
Gezelin to sit in his place.
____________
84 Nev. 459, 459 (1968) Criswell v. State
ELMER FINCH CRISWELL Appellant, v. THE
No. 5415
July 15, 1968 443 P.2d 552
Appeal from a judgment finding the appellant guilty of second degree murder. Fourth
Judicial District Court, Elko County; George F. Wright, Judge.
The Supreme Court, Batjer, J., held that where alleged confession was received in
evidence before jury without court first having conducted a hearing with respect to
voluntariness, case would be remanded to district court for an evidentiary hearing as to
whether accused intelligently and competently waived his constitutional rights, and whether
confession was voluntarily given.
Affirmed in part, remanded for further proceedings.
Orville R. Wilson, of Elko, for Appellant.
Harvey Dickerson, Attorney General, Mark C. Scott, Jr., District Attorney, Elko County,
for Respondent.
1. Criminal Law.
Even if accused was not warned of his constitutional rights until approximately two hours after he was
arrested and booked as a material witness, any resulting error was harmless, absent showing that anything
said or done by accused prior to time he was advised of his constitutional rights was used at trial, or led to
discovery of any other evidence.
2. Criminal Law.
While warnings given in District Attorney's office did not specifically advise accused that he was entitled
to have an attorney present at that moment and during all stages of interrogation, no other reasonable
inference could be drawn from warnings as given.
3. Criminal Law.
Accused is presumed to be sane until contrary is shown.
4. Criminal Law.
Insanity is an affirmative proposition, and burden of proving it is upon defense.
5. Criminal Law.
Insanity, as a defense to crime, must be established by a preponderance of evidence.
6. Criminal Law.
If defendant has capacity and reason sufficient to enable him to distinguish right from wrong as to
particular act in question, and has knowledge and consciousness that act he is doing is wrong and will
deserve punishment, he is, in eye of law, of sound mind and memory, and should be held responsible for
his acts.
7. Criminal Law.
A lay witness can give his opinion as to sanity or insanity of a defendant, and weight accorded his
testimony is a question for jury to determine.
8. Criminal Law.
A jury verdict will not be reversed where there is any substantial evidence to support it.
9. Criminal Law.
Rule that a jury verdict will not be reversed where there is any substantial evidence to support it is
applicable to questions of sanity and insanity.
10. Criminal Law.
Where alleged confession was received in evidence before jury without court first having conducted a
hearing with respect to voluntariness, case would be remanded to district court for an evidentiary hearing to
determine whether accused intelligently and competently waived his constitutional rights, and whether
confession was voluntarily given.
OPINION
The appellant, Elmer Finch Criswell, was charged with murder, and after a trial the jury
found the appellant guilty of second degree murder. The trial court entered its judgment
accordingly.
In Elko, Nevada, on July 9, 1966, David Olin Gillaland and George William Comrie were
murdered. On July 10, 1966, at 7:15 a.m., the appellant was arrested and booked at the Elko
County jail as a material witness in connection with the death of Gillaland and Comrie.
Shortly thereafter, appellant spoke to police chief Francis D. Taelour, who accompanied him
to the scene of the crime. At approximately 9:00 a.m., his clothes were removed by a police
officer and held for examination. At approximately 9:25 a.m., of the same day, the appellant,
in the office of the district attorney, was advised of his constitutional right to remain silent,
that anything that he might say could be used against him in court, that he had the right to
counsel, and if he was indigent and could not afford counsel that counsel would be provided.
Immediately thereafter the appellant made an exculpatory statement blaming his companion,
Leonard Logan, for killing both men.
On July 15, 1966, the appellant was present at a preliminary hearing in Elko Township
Justice Court and testified at length as a witness in the case of State of Nevada vs. Leonard
Logan. Thereafter, Logan was bound over to district court and subsequently pled guilty to the
second decree murder of Gillaland.
On July 28, 1966, the appellant consented to go to Reno to take a polygraph test. He was
accompanied by Hubert Borjas, the undersheriff of Elko County, and was introduced to
William Broadhead, an officer of the Reno Police Department, who advised the appellant that
he was entitled to have an attorney present, that he didn't have to talk, but anything he might
say could be used against him in court, and if he couldn't afford an attorney one would be
appointed for him. At that time the appellant stated that he understood his rights and that he
had been advised of them before.
In his conversation with William Broadhead, the appellant confessed that he murdered
Comrie by striking him about the head and upper torso with a blunt instrument.
On July 29, 1966, the appellant, as an indigent, executed a verified petition requesting the
appointment of an attorney to aid in his defense, and on that same day the district court
appointed counsel.
The appellant was sent to the Nevada State Hospital at Sparks, Nevada on October 26,
1966, and on February 22, 1967, he was returned to Elko County where he was arraigned on
the charge of murder, to which he pled not guilty.
After a trial, the jury, on April 1, 1967, returned a verdict of guilty of second degree
murder, and on May 1, 1967, after a motion for a new trial was denied, the trial court entered
a judgment sentencing the appellant to the Nevada State Prison for a term of not less than ten
years and up to and including life. This appeal is taken from that judgment.
As his assignments of error, the appellant contends:
(1) That the trial court violated the appellant's constitutional rights by admitting into
evidence the appellant's confession of July 28, 1966, because the warnings required in the
case of Miranda v. Arizona, 384 U.S. 436 (1966) were not timely and adequately given.
(2) That substantial evidence indicated the appellant to be insane, and the trial court erred
in accepting a jury verdict finding the appellant guilty of second degree murder.
(3) That the trial court failed to rule on the appellant's capacity to waive his constitutional
rights.
(4) That the trial court failed to rule on the voluntariness and competence of the appellant's
confession given July 28, 1966.
One of the appellant's attacks, upon the validity of his confession of July 28, 1966, is that
the Miranda warnings were not timely and properly given to him on July 10, 1966. We do not
agree with this contention.
[Headnote 1]
While the record is silent as to whether or not the appellant was given the Miranda
warnings prior to 9:25 a.m., July 10, 1966, it does, however, indicate that there was no
meaningful interrogation directed towards the appellant before that time, and although some
questions may have been asked of the appellant at the scene of the crime, he was then being
detained only as a material witness. On July 10, 1966, the appellant was not in the accusatory
spotlight and the record is silent as to what the appellant said, if anything, from the moment
of his apprehension until 9:25 a.m., July 10, 1966. Nothing said or done by the appellant prior
to the time he received the Miranda warnings was used at the trial, nor is it alleged to have
lead to the discovery of any other evidence. If the Miranda warnings were not given to the
appellant before 9:25 a.m., July 10, 1966, any resulting error was harmless even under the
rigid standards of harmless error as enunciated in Fahy v. Connecticut, 375 U.S. 85 (1963),
and as clarified in Chapman v. California, 386 U.S. 18 (1967). See Guyette v. State, 84 Nev.
160, 438 P.2d 244 (1968).
[Headnote 2]
We find that the warnings given the appellant at 9:25 a.m., July 10, 1966, in the office of
the district attorney, and also the warnings given the appellate on July 28, 1966, by William
Broadhead, met the requirements of Miranda v. Arizona, supra. While the warnings given in
the district attorney's office did not specifically advise the appellant that he was entitled to
have an attorney present at that moment and during all stages of interrogation, no other
reasonable inference could be drawn from the warnings as given.
In Tucker v. United States, 375 F.2d 363 (1967), it is said: * * * the Supreme Court did
not prescribe an exact format or postulate the precise language that must be used in advising a
suspect of his constitutional right to remain silent * * *. In resolving the question in light of
the Miranda standards, the substance and not the form of the warnings should be of primary
importance.
[Headnotes 3-6]
This court on many occasions in the past has applied the McNaghten test of insanity and
we again subscribe to the doctrine originally announced in State v. Lewis, 20 Nev. 333, 22 P.
241 (1889), when the court said: (1) The accused is presumed to be sane until the contrary is
shown. (2) Insanity is an affirmative proposition, and the burden of proving it is upon the
defense. (3) Insanity, as a defense to crime, must be established by a preponderance of
the evidence."
established by a preponderance of the evidence. (4) If the defendant have capacity and
reason sufficient to enable him to distinguish right from wrong as to the particular act in
question, and has knowledge and consciousness that the act he is doing is wrong and will
deserve punishment, he is, in the eye of the law, of sound mind and memory, and should be
held responsible for his acts. This standard has been followed in State v. Hartley, 22 Nev.
342, 40 P. 372 (1895); Fox v. State, 73 Nev. 241, 316 P.2d 924 (1957); Sollars v. State, 73
Nev. 248, 316 P.2d 917 (1957); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964), and Bean v.
State, 81 Nev. 25, 398 P.2d 251 (1965).
In the case of State v. Hartley, supra, this court said: It is not sufficient that insanity may
exist in the realm of imagination. The rules governing in cases where the defense of insanity
is interposed are well established * * *. It requires pertinent, competent and satisfactory
evidence to establish insanity as in any other alleged fact in the case.
The appellant's father, Mack Criswell, who was called as a witness on the question of the
appellant's sanity, was allowed considerable latitude in his testimony about the conduct of the
appellant. He told a number of rambling stories of the peculiar behavior of his son, including
one story of rather recent vintage, when the appellant, who was then employed as a bus
driver, left his passenger filled bus in the middle of the road, in a remote area, with advice to
the passengers that they could do what they pleased about getting to their destination. The
elder Criswell emphatically stated that he believed his son was insane at the time he killed
Comrie, as well as before and since that unfortunate event.
To rebut the allegation of insanity and the appellant's contention that he did not know right
from wrong on July 9, 1966, the state called Edward F. Lunford, Justice of the Peace of Elko
Township, and recalled William Broadhead and Hubert Borjas. All three related their factual
observations of the appellant and testified that he appeared to be sane.
During the trial, a clinical psychologist and two psychiatrists testified that they had
examined the appellant after October 26, 1966, and before the trial, and found him to be a
paranoid schizophrenic, of considerable duration, or as otherwise stated, suffering from
schizophrenic reaction, paranoid type of long standing, but the two psychiatrists admitted that
they could not say with any absolute degree of certainty whether or not the appellant knew
right from wrong on July 9, 1966, when the murders were committed, nor did they
categorically state that the appellant was unable to knowingly and intelligently waive his
right to counsel, and his right to remain silent on July 2S, 1966, when he made his
confession to William Broadhead.
his right to counsel, and his right to remain silent on July 28, 1966, when he made his
confession to William Broadhead.
The clinical psychologist stated that in his opinion the appellant did not know right from
wrong at the time Comrie was murdered, but on cross examination when asked by the district
attorney, Are there also times then, Doctor, that he would be able to distinguish right from
wrong and know the consequence of his actions. The doctor's answer was, Yes, yes, I
would say that. Yes.
[Headnote 7]
A lay witness can give his opinion as to the sanity or insanity of a defendant, and the
weight accorded his testimony is a question for the jury to determine. State v. Lewis, supra.
In the case of State v. Butner, 67 Nev. 436, 220 P.2d 631, (1950), this court said: In this
state and in virtually every other jurisdiction in the United States a lay witness (1) having had
adequate opportunity for observation, may (2) after stating the facts, (3) give his opinion as to
the sanity or insanity of the person involved, whereupon (4) the weight to be given to his
testimony is a matter for the jury's determination. See also Kimble v. First National Bank of
Nevada, 73 Nev. 25, 307 P.2d 615 (1957); Sollars v. State, 73 Nev. 248, 316 P.2d 917
(1957).
Here the final determination of the appellant's sanity or insanity, at the moment the crime
was committed, rested with the trial jury. They found him to be sane. If the determination of
the guilt or innocence, or the life or death of a defendant is to be entrusted to a jury, then they
most certainly can be entrusted with the determination of a defendant's sanity or insanity. In
furtherance of our scheme of jurisprudence this must be so.
NRS 175.445
1
indicates that the public policy of this state as laid down by the legislature
proclaims that the question of the sanity or insanity of a defendant is within the exclusive
province of the jury.
In the case of State v. Lewis, supra, this court is again quoted as saying: The real question
to be determined by the jury was as to appellant's sanity or insanity at the time of the
homicide. The testimony as to the condition of his mind at times previous and subsequent
thereto is admissible solely upon the ground that it tends to show the mental condition at
the time of the homicide."
____________________

1
NRS 175.521. Where on a trial a defense of insanity is interposed by the defendant and he is acquitted by
reason of that defense, the finding of the jury shall have the same force and effect as if he were regularly
adjudged insane as now provided by law, and the judge thereupon shall forthwith order that the defendant be
confined in the Nevada state hospital until he be regularly discharged therefrom in accordance with law.
the ground that it tends to show the mental condition at the time of the homicide. Lyles v.
United States 254 F.2d 725 (D.C.Cir. 1957).
[Headnotes 8, 9]
Sound legal principles dictate that a jury verdict will not be reversed where there is any
substantial evidence to support it. These principles must not only be applied to the questions
of guilt and innocence but also to the questions of sanity and insanity. State v. Huff, 11 Nev.
17 (1876); State v. Mills, 12 Nev. 403 (1877); State v. Crozier, 12 Nev. 300 (1877); State v.
Ah Kung, 17 Nev. 361 (1883); State v. Wong Fun, 22 Nev. 336 (1895); State v. Scott, 37
Nev. 412, 142 P. 1053 (1914); State v. Watts, 53 Nev. 200, 296 P. 26 (1931); State v.
McKay, 63 Nev. 118, 165 P.2d 389 (1946); State v. Fitch, 65 Nev. 668, 200 P.2d 991 (1948);
Martinez v. State, 77 Nev. 184, 360 P.2d 836 (1961).
The appellant next contends that the trial court erred when it failed to conduct an
evidentiary hearing and specifically rule on the question of the voluntariness of the appellant's
confession given on July 28, 1966, and the question whether the appellant, at that time,
intelligently and competently waived his constitutional rights to counsel and to remain silent.
In this case, it is apparent that the questions of the appellant's intelligent and competent
waiver of his constitutional rights and the voluntariness of his confession are so inextricably
entwined that they must be considered together.
Jackson v. Denno, 378 U.S. 368 (1964), laid down a constitutional rule that a jury is not to
hear a confession unless and until the trial judge has determined that it was freely and
voluntarily given. The judge must first make the primary determination of voluntariness at a
hearing conducted for that purpose, and his conclusion that the confession is voluntary must
appear from the record with unmistakable clarity. Sims v. Georgia, 385 U.S. 538 (1967)
and 389 U.S. 404 (1967). This doctrine rests upon the due process clause of the Fourteenth
Amendment, is basic to a fair trial, and is given retroactive application. McNerlin v. Denno,
378 U.S. 575 (1964); 324 F.2d 46 (1963). Consequently, there is no room at all for the
doctrine of harmless error. [Cf. Guyette v. State, supra; concerning a procedural safeguard
which has not been given retroactive application.]
[Headnote 10]
Such a hearing did not occur in this case, the alleged confession of July 28, 1966, was
received in evidence before the jury without the court first having conducted a hearing with
respect to voluntariness.2 In accordance with the mandate of Jackson v. Denno, supra,
this case must be remanded to the district court for an evidentiary hearing as to whether
the appellant intelligently and competently waived his constitutional rights, and whether
the confession of July 2S, 1966 was voluntarily given.
respect to voluntariness.
2
In accordance with the mandate of Jackson v. Denno, supra, this
case must be remanded to the district court for an evidentiary hearing as to whether the
appellant intelligently and competently waived his constitutional rights, and whether the
confession of July 28, 1966 was voluntarily given.
If the court decides that the appellant's waiver was not intelligently and competently given,
and his confession was involuntary, there must be a new trial on the question of guilt or
innocence without the confession being received in evidence. On the other hand, if the waiver
is found to have been intelligently and competently given, and the confession is found to be
voluntary, the conviction will stand affirmed since the other assigned errors are without
substance. The evidentiary hearing must be held within a reasonable time.
____________________

2
The prosecutor made an offer of proof in the absence of the jury. This is not a hearing within the meaning
of Jackson v. Denno, supra, since the trial judge cannot test credibility and weigh evidence.
____________
84 Nev. 466, 466 (1968) Eagle Thrifty v. Hunter Lake P.T.A.
EAGLE THRIFTY DRUGS & MARKETS, INC., Appellant, v. HUNTER LAKE PARENT
TEACHERS ASSOCIATION, et al., Respondents.
No. 5454
July 17, 1968 443 P.2d 608
Gabrielli, Judge.
Suit to enjoin rezoning applicant from pursuing application before city council. The trial
court granted a preliminary injunction, and applicant appealed. The Supreme Court,
Mowbray, J., held that in view of denial of same rezoning application, presented by
applicants and their predecessors, six times by regional planning commission, injunction
against applicant's pursuing latest application before city council would be granted, to prevent
pursuit of course of vexatious litigation.
Affirmed.
Sidney W. Robinson and Frank Cassas, Jr., of Reno, for Appellant.
Laurance M. Hyde, Jr., and Jerry Carr Whitehead, of Reno, for Respondents.
1. Zoning.
City council cannot, by ordinance, vest in regional planning commission or other planning body any
power of decision from which appeal, in proper legal sense, may be taken. NRS 268.250.
2. Injunction.
In view of denial of same rezoning application, presented by applicants and their predecessors, six times
by regional planning commission, injunction against applicant's pursuing latest application before city
council would be granted, to prevent pursuit of course of vexatious litigation.
OPINION
This is an appeal from the issuance of a preliminary injunction by the district court which
restrains appellant from pursuing its appeal before the city council of the City of Reno from
a recommendation of the regional planning commission recommending that appellant's
request for rezoning of certain property be denied.
[Headnote 1]
The use of the word appeal in this context, though based upon section 16.12.330 of the
Reno Municipal Code, is misleading. Under NRS 268.250
1
the power of a city council to
divide the city into districts and regulate the use of premises therein may be exercised only by
ordinance. Therefore, the city council cannot, by ordinance, vest in the regional planning
commission or other planning body any power of decision from which an appeal, in the
proper legal sense, may be taken.
____________________

1
NRS 268.250. City may be divided into districts.
1. For any and all of the purposes enumerated in NRS 268.240, the city council may, by ordinance, divide
the city into districts of such number, shape and area as may be deemed suitable to carry out the purposes of
NRS 268.230 to 268.360, inclusive; and within districts it may regulate and restrict the erection, construction,
reconstruction, alteration, repair or use of buildings, structures or land.
2. All such regulations shall be reasonable and uniform for each class or kind of buildings throughout each
district and for the kind and class of business or industry carried on in each district, but the regulations in one
district may differ from those in other districts.
taken. On the contrary, the planning commission recommends, and the governing body
decides.
This relationship is correctly set forth in section 16.12.320 (c):
Report to city council: Within forty days following the public hearing, the planning
commission shall file a written report with the city council relative to the proposed change or
amendment. Such written report shall recommend one of the following:
(1) Approval of the proposed change or amendment.
(2) Disapproval of the proposed change or amendment.
* * * * *

Appellant's recourse, therefore, after the adverse action of the regional planning
commission upon its request, is to seek to persuade the city council not to follow that
recommendation. It is this pursuit of the original application which the district court must be
understood to have enjoined.
The underlying facts may be briefly stated as follows. Approximately 20 years ago, the
Reno City Council zoned certain areas of the southwest portion of Reno. The subject property
of this litigation, approximately 3 1/2 acres, was zoned at this time. The property is located on
the northwest corner of the intersection of Hunter Lake and Mayberry Drives. Most of the
property was zoned R-2, limited multiple residential, which allowed single-family residences,
apartments, churches, etc. Approximately 15 percent of the property is zoned C-la, limited
commercial. This portion of the property is adjacent to Mayberry Drive. All of the adjacent
land has been zoned R-2.
Shortly after the adoption of the zoning, the then owners attempted to have the entire
parcel of land rezoned for commercial use. The regional planning commission refused so to
recommend. The application was denied by the Reno City Council. Thereafter, in reliance on
the zoning, the Hunter Lake School was constructed adjacent to the subject property.
In 1961 and 1962, similar applications for a change of zoning were denied by the city
council on recommendation of the regional planning commission.
In August 1964, appellant Eagle Thrifty Drugs & Markets, Inc., purchased the property. It
does not contend that it was unaware of this prior history. In October 1964, it sought identical
zoning. Both the regional planning commission and the city council again acted adversely.
In 1965, the City of Reno again proclaimed its view regarding the zoning of this property
by adopting, in conjunction with the Washoe County Commissioners and upon the
recommendation of the regional planning commission, a general plan of development for
the City of Reno.
with the Washoe County Commissioners and upon the recommendation of the regional
planning commission, a general plan of development for the City of Reno. Here again the
subject property was declared residential.
In October 1966, appellant again filed an application for rezoning. Again it was heard, and
denial was recommended by the regional planning commission. This recommendation was
not brought before the city council.
Shortly after this attempted change of zoning, a group of citizens offered to purchase the
land from the appellant, for the purpose of donating it to the city as a park. The offer was
refused.
In June 1967, appellant again filed an application with the regional planning commission.
This application was a photocopy of the October 1966 application and identical with it in
every respect. It was heard and rejected by the regional planning commission.
The present appeal to the city council was commenced. Respondents, rather than
continue to contest the granting of the application, sought the injunctive relief from the
district court which is the subject of this appeal.
Both parties have extensively discussed whether, under these circumstances, the district
court could enjoin the city council from considering or granting the change of zoning
requested. This question, though germane to respondents' original action for relief, is not
presented by this appeal. We therefore intimate no view upon it.
We consider this case as one in which the respondents (plaintiffs below) have applied to
the district court to enjoin the appellant from pursuing a course of vexatious litigation.
Meredith v. John Deere Plow Co., 261 F.2d 121 (8 Cir. 1958), cert. denied, 359 U.S. 909
(1959); Boyajian v. Hart, 44 N.E.2d 964 (Mass. 1942).
Although counsel have cited us no direct precedent for the application of this doctrine to
requests for rezoning, there are cases which intimate that it would be so applied under proper
circumstances or absent a narrow statutory prescription of remedy. Smith v. Board of Appeals
of Plymouth, 163 N.E.2d 654 (Mass. 1960); Baederwood Center v. Putney, 133 A.2d 836 (Pa.
1957). The record of successive proceedings relating to the subject property amply
demonstrates, if any demonstration were needed, the burden of expense, legal representation,
and personal inconvenience which must be borne by those opposing such an application. If it
is not borne, and if the city council grants the application, valid grounds for opposing it later
may not be available before the courts.
later may not be available before the courts. McKenzie v. Shelly, 77 Nev. 237, 362 P.2d 268
(1961); Urban Renewal Agency v. Iacometti, 79 Nev. 113, 379 P.2d 466 (1963).
[Headnote 2]
We therefore do not hesitate to break new ground. The common law is the rule of decision
in the courts of this State. NRS 1.030. * * * capacity for growth and adaptation is the
peculiar boast and excellence of the common law. Hurtado v. California, 110 U.S. 516, 530
(1884). We hold that relief by injunction may be granted to restrain the making or pursuit of
an application for rezoning where such application has repeatedly been denied on its merits
and no change of circumstances has intervened.
The record in this case amply demonstrates that the same application has been presented
by the appellants and their predecessors six times and denied on its merits (at some stage)
each time.
The order of the trial court, modified as above explained to apply to the further pursuit of
its application by the appellant and limited in duration until there is a showing of changed
circumstances relating to the subject property or until the planning commission or city council
undertakes a general rezoning of the area embracing this property, is affirmed.
Collins and Batjer, JJ., concur.
Thompson, C. J., and Zenoff, J., dissenting:
1. The legislature has authorized the governing body to provide for zoning districts
[NRS 278.250] and to establish the administrative machinery to amend, supplement and
change zoning districts. NRS 278.260. The City of Reno did so and, among other things, has
granted the right to seek a change of land use after six months following denial of an
application for the same or similar change of land use. Reno Municipal Code Sec. 16.12.320.
All the applicant need do is apply and pay the required fee. This is precisely what Eagle
Thrifty did.
The right to pursue the recourse granted by ordinance may not be defeated by court
intervention unless there exists an equitable basis upon which the court may act. We read the
district court's opinion to mean that Eagle Thrifty acted in good faith in pursuing its right to
have the City Council review the Planning Commission's denial of its application for a zoning
change. The district court wrote: In this connection the court does not cast any reflection on
Eagle Thrifty's various applications hereinthey are authorized by the ordinance. The fault,
if any, lies in the ordinance itself.
The good faith pursuit of a legal right does not furnish a basis for a court to grant the
equitable relief of injunction, and none of the cases cited in the majority opinion suggests that
this is so. Indeed, injunctive relief was denied for want of equitable jurisdiction in
Baederwood Center v. Putney, 133 A.2d 836 (Pa. 1957), and Smith v. Board of Appeals of
Plymouth, 163 N.E.2d 654 (Mass. 1960). The analogy between this case and the vexatious
litigation cases which the majority attempts to draw is inapposite, for two solid reasons.
First, the administrative steps pursued by Eagle Thrifty are not litigation. Second, the district
court found that Eagle Thrifty acted in good faith. This finding cannot be squared with
vexatious conduct.
2. The court has rewritten the ordinance to accomplish a result. The holdingrelief by
injunction may be granted to restrain the making or pursuit of an application for rezoning
where such application has repeatedly been denied on its merits and no change of
circumstances has intervenedfinds no support in the language of the ordinance. The
precondition of a change of circumstances cannot be found. Neither is there a limitation upon
the number of applications which may be presented. These are matters for City Council
correction if correction is deemed warranted. It is not our business to write a new city
ordinance.
3. Finally, the court below would be without power to enjoin the City Council from
entertaining Eagle Thrifty's request to review the denial of the Planning Commission. Public
Service Commission v. Court, 61 Nev. 245, 123 P.2d 237 (1942). [E]quity cannot interfere
with, or in advance restrain, the discretion of an administrative body's exercise of legislative
powers. Id. at 250. This established principle may not be avoided by the expedient of
directing the injunction to the applicant instead of the City Council.
Respectfully, we dissent.
____________
84 Nev. 472, 472 (1968) Alper v. Western Motels, Inc.
ARBY W. ALPER and RUTH ALPER, Husband and Wife, Appellants, v. WESTERN
MOTELS, INC., a Nevada Corporation, Respondent.
No. 5346
July 18, 1968 443 P.2d 557
Appeal from judgment of the Eighth Judicial District Court, Clark County; George B.
Marshall and John F. Mendoza, Judges.
Plaintiff brought action to quiet title and for trespass, and defendant counter-claimed. The
trial court found for defendant on all issues, and plaintiffs appealed. The Supreme Court,
Mowbray, J., held that evidence was sufficient for trial court to find that grantor and grantee
intended that grantor's servient estate in highway right of way should pass with the
conveyance of adjoining land, where the deed described the land conveyed as including, but
subject to, the right of way for highway, purposes.
Wiener, Goldwater & Galatz and J. Charles Thompson, of Las Vegas, for Appellants.
Rudiak & Publow, of Las Vegas, for Respondent.
1. Deeds.
When a grantor who owns to the center of a public way conveys his land as bounded by the edge of the
right of way, whether or not he describes the boundary as being such edge, the grant carries with it the
grantor's servient estate in right of way as well, unless a contrary intention is shown.
2. Deeds.
Evidence was sufficient for trial court to find that grantor and grantee intended that grantor's servient
estate in highway right of way should pass with the conveyance of adjoining land, where the deed described
the land conveyed as including, but subject to, the right of way for highway purposes.
The Supreme Court may, in a proper case and in the exercise of its discretion, consider cross assignments
of error made by a respondent.
Where appellants did not object to procedure of considering cross assignment of error made by
respondent and where there was uncontradicted testimony to support an award to respondent of additional
compensatory damages, an award was made to respondent.
Where there is sufficient competent evidence to support a finding, the appellate court will presume that
the trial court disregard any inadmissible evidence which was in fact admitted, and relied upon competent
evidence.
Where there was sufficient competent evidence to support a finding, the Supreme Court assumed that the
trial court acted without passion or prejudice and relied upon competent evidence to find malice sufficient
to sustain its award of punitive damages for trespass.
7. Damages.
Punitive damages are not required to bear any particular proportion to compensatory damages.
8. Trespass.
The court did not abuse its discretion in awarding $1,500 punitive damages to owner of motel appraised
at $422,300, where the attractiveness of and the access to motel were threatened by trespass, and even
though motel owner received only $171 in compensatory damages.
OPINION
This case involves conflicting claims to the ownership of a 30-foot strip of land in Clark
County extending along the east side of U.S. Highway 91 a distance of 220 feet, the entire
width of the property on which is situated the Mirage Motel, and mutual allegations of
trespass upon the disputed strip. Respondent is the owner of the Mirage Motel; appellants are
the owners of an adjoining motel to the north. Appellants brought two actions, the first to
quiet title and the second for trespass; after a consolidated trial, the district court found for
respondent on all issues, declared it to be the owner of the strip, and awarded damages for
appellants' trespass.
The question of ownership must be resolved first, for it is necessarily determinative of the
allegations of trespass.
On January 1, 1952, Roland H. Wiley was the owner of a tract of land embracing both
motel properties and the disputed strip. His patent from the United States extended westward
to the section line which is the center line of U.S. Highway 91 and eastward from the section
line 330 feet, but was subject to the reservation for highway purposes of a right of way
extending 200 feet eastward from the section line. In 1950, the United States had agreed to
relinquish the east 90 feet of this easement, but no document to this effect was recorded until
June 20, 1958.
In January 1952, Wiley sold the south 110 feet of his tract to two brothers named Plewe
for the disclosed purpose of erecting a motel. Wiley's deed to the Plewes described a parcel
(hereinafter called Parcel A) 110 feet wide by 330 feet deep, subject to the right of way for
Highway 91. This deed was recorded.
The Plewes were then joined in their motel by one Dunn, and negotiated with Wiley for
more frontage. Pursuant to these negotiations, Wiley, by deed executed March 28, 1952,
conveyed to Western Motels, Inc., a corporation formed by the Plewes and Dunn, the parcel
(hereinafter called Parcel B) immediately north of Parcel A, likewise described as 110 feet
wide by 330 feet deep, subject to the right of way * * * over * * * the most westerly
portion. This deed was never recorded, nor was a deed by which the Plewes conveyed Parcel
A by its original description to Western Motels, Inc.
It appears from the record that the Plewes and Dunn were also negotiating with a bank for
a construction loan, and the next deeds may have been executed at the instance of the lender.
Whatever the reason may have been, Wiley thereafter executed two deeds, one to the Plewes,
designated as a correction deed covering Parcel A, and one to Western Motels, Inc.,
covering Parcel B, which respectively described each of these parcels as bounded on the west
by a line 110 feet east from the section line. The Plewes then executed a deed conveying
Parcel A by its corrected description to Western Motels, Inc. These three deeds were
recorded on May 5, 1952.
In February 1959, appellant Arby W. Alper paid Wiley $2,000 for a quit-claim deed of the
entire area 110 feet in depth from the section line to the east line of the right of way and 220
feet in width across the entire front of Parcels A and B. At the time of the transaction, Wiley
disavowed any interest in the property.
1
On March 30, 1964, the Department of Highways
of the State of Nevada relinquished the east 30 feet of its right of way along the entire
section to "the property owners abutting" the right of way.
____________________

1
From deposition of Roland H. Wiley taken at Las Vegas Nevada, on February 17, 1966:
Q. [by Mr. Rudiak] And how did he [Alper] contact you?
A. [by Mr. Wiley] I was in the residence of my sister at 909 Taylor Street, North Las Vegas. I had never
met Mr. Alper before this occasion. At that time he offered me a thousand dollars for some land that I owned on
Highway 91. I told him that I didn't think I owned any. He said his attorney said that I did. He said, I will give
you $1,000 for a quitclaim deed.' I said, You speak so quickly maybe you will give me $2,000.' He said, I will.'
So I said, Well, bring it around sometime and I will sign it.' He said, Just happened to have it with me.' Well,' I
said, let's go to lunch. You have to buy my lunch, then I will sign the deed.' We went to lunch. I signed the deed.
He gave me his check and I cashed it and I told him I would give him a quitclaim deed to the White House for
another $2,000.
On March 30, 1964, the Department of Highways of the State of Nevada relinquished the
east 30 feet of its right of way along the entire section to the property owners abutting the
right of way. It is this relinquished strip, in front of the Mirage Motel, which now occupies
Parcels A and B, that is claimed by both parties.
Appellants' claim must fail unless Wiley, after executing the second series of deeds,
recorded on May 5, 1952, retained the servient estate in the 110-foot strip of land subject to
the highway right of way.
In all of those deeds, the land conveyed to Western Motels, Inc. was bounded on the west
by a line which coincided with the eastern edge of the highway right of way as delineated by
the 1950 agreement.
[Headnote 1]
It is the general rule that when a grantor who owns to the center of a public way conveys
his land as bounded by the edge of the right of way, whether or not he describes the boundary
as being such edge, the grant carries with it the grantor's servient estate in the right of way as
well. City Motel, Inc. v. State ex rel. Dep't of Hwys., 75 Nev. 137, 336 P.2d 375 (1959). A
contrary intention will defeat the rule, Dexter v. Riverside & Oswego Mills, 15 N.Y.S. 374
(1891), but this court has said that it will presume an intent on the part of a grantor not to
retain title to such a narrow strip. Peterson v. City of Reno, 84 Nev. 60, 436 P.2d 417 (1968).
None of the exceptional circumstances which have sometimes led to a contrary result are
present here. See, for example, Cities Service Oil Co. v. Dunlap, 100 F.2d 294 (5 Cir. 1938),
rev'd on another ground, 308 U.S. 208 (1939); Huff v. Hastings Exp. Co., 63 N.E. 105 (Ill.
1902).
[Headnote 2]
On the contrary, the record contains ample testimony by the parties to the deeds in
question from which the trial court could and did find their intent to include Wiley's servient
estate in the highway right of way with his conveyance of the adjoining land. We hold,
therefore, that the trial court correctly declared title to the 30-foot strip to be in respondent
Western Motels, Inc. This being so, respondent could not trespass upon the land in question,
but appellants did, and the trial court properly awarded damages to respondent.
[Headnotes 3, 4]
The only question remaining concerns the amount of these damages. Appellants' trespass
consisted of dumping gravel upon the disputed strip.
upon the disputed strip. Appellants have not questioned the $96 award to respondent as
compensatory damages, based on the cost of having this gravel removed. Respondent claims
that, through the error of its counsel, who prepared the findings without access to the trial
transcript, the trial court was misled as to the full extent of compensatory damages. The costs
of replacing the shrubs and repairing the water line and road lights damaged by the dumping
of the gravel were not awarded. The uncontradicted testimony is that the damages in this
regard were $75 to $80. Respondent has asked that $75 be added to the $96 award of
compensatory damages. This request would seem to be in the nature of a cross assignment of
error, and this court may, in a proper case and in the exercise of its discretion, consider cross
assignments of error made by the respondent. Leonard v. Bowler, 72 Nev. 165, 171, 298
P.2d 475, 478 (1956). Appellants have not objected to this procedure. We therefore find that
the respondent is entitled to an additional $75 in compensatory damages.
Appellants strongly object to the amount of $1,500 awarded as punitive damages, on the
ground that it is grossly disproportionate to the amount of compensatory damages, even as
adjusted by this court. We do not agree.
More is latent in the record concerning the relationship of the parties than is revealed by
the title of this case. After the Plewes and Dunn had constructed their motel, they sold it to a
couple named Rosoff. Appellant Arby W. Alper is Mrs. Rosoff's brother. Arby Alper
examined the Mirage Motel property for the Rosoffs, counseled and supervised the erection
of an elevated outdoor swimming pool as a distinguishing landmark, and upon Mrs. Rosoff's
suggestion effectuated his declared intention to move from New York to a warmer climate by
purchasing the adjoining motel. Afterward, relations between the relatives became bitter.
Thereafter, Arby Alper acquired his claimed interest in the disputed strip, and the record
contains testimony to his threat to harass his sister and her husband far beyond the deposit of
gravel.
[Headnotes 5, 6]
The trial court had the parties and other witnesses before it, judged their demeanor, and
made its findings. This case was tried without a jury. In such a case, this court has already
held that if there is sufficient competent evidence to support a finding, the appellate court will
presume that the trial court disregarded any inadmissible evidence which was in fact
admitted, and relied on the competent evidence. Alamo Airways, Inc. v. Benum, 7S Nev. 3S4
Benum, 78 Nev. 384, 374 P.2d 684 (1962). Similarly we may assume here that the trial court
acted without passion or prejudice and relied upon competent evidence to find malice
sufficient to sustain its award.
[Headnote 7]
In this State, punitive damages are not required to bear any particular proportion to
compensatory damages. Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962). Appellant
cites the cases collected at 17 A.L.R.2d 548-549 as standing for a rule of reasonable
proportion, but an examination of these cases shows that what is reasonable in each
instance depends on the circumstances. Porter v. Funkhouser, 79 Nev. 273, 382 P.2d 216
(1963), which respondent prematurely concedes to follow this rule, holds only that where
punitive damages amounted to one-seventh of the compensatory damages, they were
minimal. In Finney v. Lockhart, 217 P.2d 19 (Cal. 1950), punitive damages of $2,000 as
against $1 of compensatory were sustained.
[Headnote 8]
Especially where we consider that respondent's motel, the access to and attractiveness of
which were threatened, had an appraised value of $422,300, we find no reason to hold that
the trial court abused its discretion in assessing punitive damages.
The judgment, as modified in this opinion by the addition of $75 in compensatory
damages, is affirmed.
____________
84 Nev. 477, 477 (1968) Wehrheim v. State
ALAN E. WEHRHEIM, Appellant, v. THE
No. 5472
July 19, 1968 443 P.2d 607
Appeal from denial of writ of habeas corpus by the Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
The lower court denied relief, and petitioner appealed. The Supreme Court, Mowbray, J.,
held, inter alia, that petition for habeas corpus to test probable cause for arrest must be filed
and determined before trial and conviction, and post-conviction petition was untimely.
filed and determined before trial and conviction, and post-conviction petition was untimely.
Affirmed.
Raymond E. Sutton, of Las Vegas for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Alan
R. Johns, Deputy District Attorney, Clark County, for Respondent.
1. Habeas Corpus.
Petition for habeas corpus to test probable cause for arrest must be filed and determined before trial and
conviction, and post-conviction petition was untimely. NRS 34.500, subd. 7.
2. Criminal Law.
Habeas corpus petition, if considered one for post-conviction relief, was premature, where petitioner had
appeal from conviction pending at time of adverse ruling on petition. NRS 177.315 et seq.
Party is bound by acts of his attorney in management of his case. Const. art. 1, 8.
4. Stipulations.
Defendant could not after conviction, by habeas corpus petition, relitigate question of probable cause for
arrest, where competent defense counsel had stipulated to existence of probable cause.
OPINION
Appellant was arrested and charged with possession of narcotics. During the trial his
counsel stipulated to the fact that the arresting officers had probable cause when they made
their arrest. His chosen theory of defense was to cast doubts upon the chain of the evidence
and to raise a reasonable doubt as to the defendant's knowledge that the substance was
narcotic in nature. Defendant was found guilty and sentenced to the state prison.
Present counsel was appointed to take an appeal from the guilty verdict. Notice of appeal
was filed. Thereafter, counsel filed a petition with this court to be relieved on the ground that
he had read and considered the entire record before the trial court and concluded that the
appeal was frivolous and without merit. The motion was granted, and the appeal was
dismissed.
While the previously mentioned appeal was still before this court, the instant petition for a
writ of habeas corpus was filed by the petitioner in proper person in the district court.
by the petitioner in proper person in the district court. This was done in an attempt to obtain
an evidentiary hearing for petitioner on the issue of the existence of the probable cause for his
initial arrest. The district court denied the writ, saying that it was premature, since there was
an appeal pending in this court. This appeal from the denial of the writ followed.
1. Appellant states that his petition for a writ of habeas corpus was filed pursuant to NRS
34.500(7). That statute provides:
If it appears on the return of the writ of habeas corpus that the prisoner is in custody by
virtue of process from any court of this state, or judge or officer thereof, such prisoner may be
discharged, in any one of the following cases:
* * * * *

7. Where a party has been committed or indicted on a criminal charge without reasonable
or probable cause.
In Scott v. State, 83 Nev. 468, 434 P.2d 435 (1967), this court stated:
The appellant contends there was no probable cause for his arrest or his indictment. * * *
since 1912 it has been recognized that the proper procedure for challenging probable cause
for the indictment is by writ of habeas corpus. * * * Failing to make such challenge prior to
trial, a post-conviction appeal comes too late. Skinner v. State, 83 Nev. 380, 432 P.2d 675
(1967), and cases cited therein.
[Headnote 1]
Thus, it is clear that a petition for a writ of habeas corpus to test probable cause for an
arrest must be filed and finally determined prior to trial and conviction. This assignment of
error fails, for the petition in the present case, filed after the conviction, was not timely.
[Headnote 2]
2. If the habeas petition is considered a post-conviction remedy, pursuant to NRS 177.315
et seq., the court properly found that it was premature. The lower court made its adverse
ruling on August 1, 1967. At that time appellant's previously mentioned appeal was still
before this court. It was not dismissed until August 11, 1967. NRS 177.315 expressly
provides that such post-conviction procedure is not a substitute for * * * any remedy of
direct review of the sentence or conviction.
3. The substance of appellant's position is that he was prejudiced by his trial counsel's
failure to raise a defense based upon lack of probable cause for his arrest.
upon lack of probable cause for his arrest. We need not consider whether, upon the record
presented, such a defense could have succeeded.
[Headnote 3]
No allegation is made of facts which would show incompetency of appellant's trial counsel
under the test established by Hall v. Warden, 83 Nev. 446, 434 P.2d 425 (1967). It is inherent
in our form of government that every right carries with it a correlative responsibility. Under
section 8 of article 1 of the Nevada Constitution, an accused may defend in person, and with
counsel, as in civil actions. A party is bound by the acts of his attorney in the management of
his case. Gottwals v. Rencher, 60 Nev. 35, 92 P.2d 1000 (1939).
[Headnote 4]
Moreover, a criminal prosecution must end somewhere. We therefore hold that, where
competent defense counsel has stipulated to a fact, defendant may not after conviction
relitigate his case upon a theory which denies that fact. The denial of the writ of habeas
corpus is affirmed.
____________
84 Nev. 480, 480 (1968) Snow v. Pioneer Title Insurance Co.
W. D. SNOW, Appellant, v. PIONEER TITLE INSURANCE COMPANY and THE
MESA CORPORATION, Nevada Corporations, Respondents.
No. 5428
August 1, 1968 444 P.2d 125
Appeal from a judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Action by owner of servient estate against title insurance company for alleged loss and
value of land by reason of water right. Holder of water right intervened to seek judicial
confirmation of its right and injunction against any interference therewith by owner of
servient estate. The trial court entered judgment for holder of water right, and owner of
servient estate appealed. The Supreme Court, Mowbray, J., held that under agreement giving
purchaser right to drill a well and right of access thereto on and over certain premises,
purchaser had right to drill new wells if well in use failed, although right was to be exercised
with due regard for right of owner of servient estate.
right was to be exercised with due regard for right of owner of servient estate.
[Rehearing denied September 19, 1968]
Guild, Guild & Cunningham, of Reno, for Appellant.
Sidney W. Robinson, of Reno, for Respondent Pioneer Title Insurance Company.
Hawkins, Rhodes & Hawkins, of Reno, for Respondent The Mesa Corporation.
1. Insurance.
Agreement whereby then co-owner of property conveyed partnership interest in business located thereon,
water right and easement, which was not recorded until after co-owner had conveyed his interest in
remaining property to his then wife, was not within chain of title and thus was within exclusion from
subsequent purchaser's title insurance policy of easements, liens or encumbrances which are not shown by
the public record.
2. Insurances.
Where agreement granting water right easement was not within chain of title, title insurance company had
no duty to subsequent purchaser to make good any damages which purchaser might sustain from existence
of agreement or to defend purchaser from easement holder's assertion of its rights under agreement.
3. Waters and Water Courses.
Absence of constructive notice to purchaser or to title insurance company of water right and easement
from public record of agreement granting easement did not relieve purchaser from provisions thereof where
purchaser knew of existence of well serving adjoining property, water pipeline, and road from highway to
well.
Under agreement giving purchaser right to drill a well and right of access thereto on and over certain
premises, purchaser had right to drill new wells if well in use failed, although right was to be exercised with
due regard for right of owner of servient estate.
5. New Trial.
Allegation that testimony of witness would show that judgment was clearly erroneous does not warrant
disregard of requirement that reasonable diligence for failure to produce witness at trial be shown or
authorize granting of new trial. NRCP 59(a).
6. New Trial.
That party did not consider testimony of witness important and thus did not call witness to
testify at trial could not justify granting new trial at which such witness might testify.
and thus did not call witness to testify at trial could not justify granting new trial at which such witness
might testify.
OPINION
This case concerns a right claimed by the owner of certain land to take and use
underground water through a well located on adjacent land of another owner.
The facts are well explained in the decision of the trial court, from which this summary is
adopted.
Both parcels in question originally comprised a single property known as the Anderson
Ranch, in Washoe County. The property is situated north of the Mt. Rose Highway and is in
the general area of The Lancer, or Mesa Night Club, as it was formerly known. The entire
property, prior to 1947, was owned by Thomas R. Anderson and his wife, Mildred. On July
10, 1947, Anderson and one John T. Coffee, Jr., entered into a partnership for the operation
of the Mesa. For reasons best known to themselves, they entered into a dissolution agreement
which was dated December 13, 1948, with Anderson conveying his interest in the Mesa to
Coffee on December 13, 1948. This agreement is known as the Anderson-Coffee Agreement.
Paragraph 8 of the agreement provides as follows:
8. Second party agrees to transfer and set over unto first party in connection with his
conveyance to first party of the real property described in Paragraph 4 hereof, all water rights,
waters, ditch rights and ditches which he may have in connection with or appurtenant to the
said real property; and second party further agrees that he will use his best efforts in every
respect to assist first party in obtaining water rights and waters for use by first party in the
maintenance of the said business known as THE MESA; and second party particularly agrees
in this respect to give, make available to and transfer to first party any priority for water rights
or waters which he has by reason of domestic water use or other water uses in connection
with the aforesaid real property or in connection with those certain premises known as the
ANDERSON RANCH and adjacent to said business known as THE MESA, sufficient,
however, only for the maintenance of said business known as THE MESA.
Below the signatures of the two parties appears paragraph 9, which reads as follows:
9. Second party agrees that first party shall have the right to drill a well and the right of
access thereto on and over the said premises known as the ANDERSON RANCH."
to drill a well and the right of access thereto on and over the said premises known as the
ANDERSON RANCH.
This agreement was not recorded until March 30, 1953.
On July 24, 1950, Thomas R. Anderson, as part of a divorce settlement, conveyed his
interest in the Anderson Ranch to his then wife, Mildred, and this deed was recorded the
following day. She undoubtedly knew of the existence of the Anderson-Coffee Agreement
and its terms and conditions.
By virtue of the Anderson-Coffee conveyance and the Anderson-Anderson conveyance,
the so-called Anderson Ranch was divided into two contiguous parcels, from which various
subsequent conveyances branched off.
So far as the Anderson-Anderson portion of the ranch is concerned, it appears from the
records that Mildred Anderson, on March 23, 1953, entered into an option agreement with
Mrs. Lettye E. Winniman and Mrs. Helen Neal to purchase the Anderson Ranch. This
agreement was recorded on July, 22, 1953. In June of 1956 Mrs. Anderson, then known as
Mildred McMahan, conveyed the Anderson Ranch to Mrs. Winniman and Mrs. Neal. This
deed was recorded on June 14, 1956. At the time the conveyance was made, Mrs. Winniman
has actual knowledge of the Anderson-Coffee Agreement and the terms thereof, and of the
existence of a pipe line across a portion of the Anderson Ranch, through which the Mesa
Corporation was obtaining water.
It appears that early in 1960 a Mr. I. E. Nitschke, on behalf of Mesa, approached Mrs.
Winniman to discuss the location of a well which Mesa proposed to drill on the Anderson
Ranch property, pursuant to the terms of the Anderson-Coffee Agreement. The location of the
well was agreed upon after several meetings, and the well was completed in June of 1960 at
the expense of Mesa. In 1962 the well was deepened because it had gone dry. That well,
known as Well No. 3, is the subject of this litigation.
On August 31, 1960, Mrs. Winniman and Tom and Dick Neal entered into a contract of
sale of real property with Snow. It is undisputed that Snow knew of the existence of the well,
the pipe line, and the road providing access from the Mt. Rose Highway to the well. There is
a question as to whether Snow knew of the existence of the Anderson-Coffee Agreement and
the terms thereof at the time he purchased the property.
Thereafter, on April 29, 1964, Snow demanded of Mesa that it remove its pipe line and
other equipment from said property and that it abandon its claim to the use of the well and the
water. This demand was refused.
With respect to the conveyances emanating from the Anderson-Coffee Agreement, it
appears that on September 30, 1957, Coffee transferred the Mesa to Arthur V. Allen and
assigned all of Coffee's rights and interest created under paragraphs 8 and 9 of the
Anderson-Coffee Agreement. This assignment was recorded on November 22, 1957. On
November 25, 1957, Allen transferred the Mesa property to The Mesa Corporation and
assigned all rights and interest under paragraphs 8 and 9 to The Mesa Corporation. This
assignment was recorded on January 27, 1958.
Pioneer Title Insurance Company issued its policy of title insurance insuring title in Snow
as a contract purchaser of the Anderson Ranch property against loss or damage by reason of
any defect in or lien or encumbrance on the title to the property purchased by Snow. That title
policy did not make reference to the Anderson-Coffee Agreement.
Snow brought this action against the Title Company to recover damages in the
approximate amount of $19,000 for the alleged loss in value of his land by reason of Mesa's
water right. Mesa intervened to seek judicial confirmation of its water right and an injunction
against any interference therewith by Snow. The Title Company defended primarily on the
ground that Snow had knowledge of the water right when he contracted to purchase the
servient property. Snow added to his original demand a claim for recovery from the Title
Company of his litigation expenses against Mesa and a claim against Mesa for breach of an
alleged agreement to supply water to his property.
The three parties, each seeking to uphold its interest regardless of any determination
concerning the others, have advanced a maze of alternative theories and conclusions of law
for our consideration. We have considered them all, but need discuss only four issues, for in
our view the resolution of these is sufficient to sustain the judgment of the trial court.
1. The chain of title. As appellant suggests, the primary issue is whether the
Anderson-Coffee Agreement, first recorded in 1953 after Thomas R. Anderson had conveyed
his interest in the Anderson Ranch to his then wife, was shown by the public records as an
encumbrance against the property purchased by Snow. Certainly it appears, physically, on the
record. The question is, therefore: How far must one go who searches the record for
encumbrances?
Nevada law provides expressly for the maintenance of separate indexes of grantors and
grantees. NRS 247.150. These indexes have a degree of independent effect. For example, the
date of indexing determines the date from which an instrument copied into the wrong record
book but correctly indexed imparts constructive notice {NRS 247.160), and entry in a new
category of the index imparts constructive notice of the contents of the instrument,
though the instrument itself is recorded only under the old category {NRS 247.170).
copied into the wrong record book but correctly indexed imparts constructive notice (NRS
247.160), and entry in a new category of the index imparts constructive notice of the contents
of the instrument, though the instrument itself is recorded only under the old category (NRS
247.170).
The majority rule is that, where such indexes are maintained, the searcher need examine
the grantor index under the name of a previous owner of the property only during the period
such owner is shown by the record as the ownerthat is, from the date of the conveyance to
him until the date of the first conveyance of his entire interest away from him. Any
instrument executed by such an owner which is recorded before his acquisition or after his
relinquishment of title is considered outside the chain of title. 6 Powell, Real Property 293;
8A Thompson, Real Property (1963 Replacement) 4340. In an extensive series of articles
by Francis S. Philbrick, the most relevant of which appears at 93 U.Penn.L.Rev. 391, it is
explained that this restriction affords the only practicable method of modern title search, for
the alternative would require (in Nevada) searching the records of a century under the name
of an owner who might have held title for but a week.
[Headnotes 1, 2]
Applying this rule to the case at bar, the Anderson-Coffee Agreement was not within the
chain of title and so was within the exclusion from Snow's title insurance policy of
easements, liens or encumbrances which are not shown by the public records. The Title
Company therefore had no duty to Snow either (1) to make good any damages which he
might sustain from the existence of the Anderson-Coffee Agreement or (2) to defend him
against Mesa's assertion of its rights under the agreement.
[Headnote 3]
2. Purchase with notice. The absence of constructive notice to Snow or to the Title
Company from the public record of the Anderson-Coffee Agreement does not, however,
relieve Snow, as Anderson's successor in interest, from its provisions.
The record shows that Mrs. Winniman, Snow's immediate grantor, had actual knowledge
both of its existence and of its terms. Whether she imparted any of this knowledge to Snow is
disputed. The record does clearly show that Snow, prior to purchasing the servient property,
did know of the existence of (1) the well serving The Lancer restaurant, (2) the pipe line from
the well to The Lancer, and (3) the road from the highway to the well. This was sufficient,
under the rule established by Lanigir v. Arden, 82 Nev. 28, 409 P.2d 891 (1966), and the
cases there cited, to raise a duty of further inquiry.
cases there cited, to raise a duty of further inquiry. He did not inquire, either of Mrs.
Winniman or of Mesa, the owner of The Lancer. He therefore took with constructive
noticenot from the record, but from this dutyof what inquiry would have revealed,
namely, the Anderson-Coffee Agreement.
[Headnote 4]
3. Effect of easement created. It is therefore necessary to determine (1) what rights were
initially created by this agreement and (2) whether any of these rights were afterwards
relinquished. The record contains facts, specifically pointed out in the written decision of the
trial judge, sufficient to sustain the trial court's finding that paragraph 9 was an integral and
contemporaneously executed part of the agreement.
Construing paragraphs 8 and 9, therefore, together, we concur in the trial court's view that
the intention of the parties was to vest in Coffee the right to sufficient water for the restaurant
operation, taken from wherever on the Anderson Ranch such water might be found. Read in
the light of this interest, the phrase to drill a well points out a specific method of obtaining
water as included in the grant, but does not limit the grant to one particular well.
The record discloses that, at the date of the execution of the Anderson-Coffee Agreement,
the restaurant drew its water from a creek on the ranch. Had the parties expected this source
to remain sufficient, they would not have added the language concerning a well. In fact, the
creek did not suffice. Its use, both directly and through a sort of leaching well, was forbidden
by health authorities. The well, therefore, was a provision against a contingency. Another
contingency, easily to be foreseen by the parties, was that drilling at any given point might
find no water, or that a well instantly brought in might go dry. Again the record shows both
the drilling of several dry holes and the actual deepening of the well now used because it went
dry. In view of this expression, it would be illogical to say that the drilling of one hole, or
even the development of one well now producing, satisfied the intent of the parties and
exhausted the easement for all time.
By the same reasoning, the act of Mesa, through its agent, Nitschke, in consulting with
Mrs. Winnimanthen owner of the servient propertyabout the location of the proposed
well, should not be construed as a waiver of the easement or as the creation of a new
agreement. It is therefore unnecessary to discuss whether such an oral agreement would have
been enforceable despite the Statute of Frauds (NRS 111.220), and Snow's claim that Mesa
breached the agreement must fall.
4. Denial of new trial. Appellant has vigorously contended that, if this court holds he is
bound by the provisions of the Anderson-Coffee Agreement, it should order a new trial to
permit him to call as a witness, Thomas R. Anderson. NRCP 59(a) enumerates the grounds
for a new trial, one of which is: * * * (4) Newly discovered evidence material for the party
making the motion which he could not, with reasonable diligence, have discovered and
produced at the trial; * * *. (Emphasis added.)
[Headnote 5]
Appellant contends that the testimony of Thomas R. Anderson would have conclusively
refuted the interpretation of the Anderson-Coffee Agreement adopted by the trial court and
sustained by us. He then makes the rather novel contention that, because such testimony
would show that the judgment was clearly erroneous, a showing of reasonable diligence is not
necessary. We refuse thus to emasculate the rule.
[Headnote 6]
Alternatively, appellant contends he did use due diligence to locate this witness, but did
not consider the testimony important because, under his theory of the case and Mesa's claim
in intervention, the trial court should not have rendered a judgment authorizing Mesa to drill
new wells if necessary in the future. This contention is sufficiently answered by noting (1)
that NRCP 54(c) expressly requires the granting of all relief to which a party is entitled, not
limited by the pleadings, (2) that this court has expressly affirmed the trial court's broader
interpretation of the original agreement, and (3) that even if the broader relief had not been
granted, the alleged loss to appellant from the single well was the foundation of his entire
original complaint.
In summary, we have held that the trial court correctly decided all the relevant issues, both
between Snow and the Title Company and between Snow and Mesa, and correctly denied
Snow's motion for a new trial.
We must, however, caution against a overbroad interpretation either of this opinion or of
the original judgment of the trial court. We have intimated that the drilling of one or more
wells may be necessary in the future, and the trial court explicitly so framed its order. This
grant of relief not specified in the pleadings must be narrowly construed to accomplish its
purpose of the original grant, an adequate water supply to The Lancer (formerly Mesa)
restaurant, and no more. The right to drill a new well, and if this fails, to continue drilling,
arises only if and when the present or some future water supply fails.
if and when the present or some future water supply fails. If it so arises, it must be exercised
with due regard for the rights of the owner of the servient estate. The location of the well and
pipe line should be so chosen as to cause the least interference with existing or future
development of the premises consistent with the development of an adequate water supply.
As so limited, the judgment of the trial court is affirmed.
Collins, Zenoff, and Batjer, JJ., concur.
I cannot agree with the resolution of the dispute between Snow and the Mesa since the
evidence does not support either the judgment of the district court or the obscure modification
thereof suggested by this court.
The main issues between Snow and the Mesa are the extent of the easement created by the
1948 Anderson-Coffee agreement, and whether that easement is still viable. Neither party to
that agreement testified during the trial about his intention when the agreement was prepared
and executed. The easement to drill a well for water was created by and rests solely upon
paragraph 9 which reads: Second party agrees that first party shall have the right to drill a
well and the right of access thereto on and over the said premises known as the Anderson
Ranch.
1

The extent of an easement created by contract is fixed by the contract, if clear, whereas the
extent of an easement created by prescription is fixed by the use which created it. Cox v.
Glenbrook Co., 78 Nev. 254, 371 P.2d 647 (1962). Paragraph 9 grants the right to drill a well
in and over the Anderson Ranch. The location of that well is not specified by the agreement,
but became fixed by use, when the first producing well was drilled, and that use measured the
extent of the easement granted by paragraph 9.
The Mesa first drew water from Well No. 5, and later from Well No. 4 which was sunk at
about the same spot. Well No. 4 was condemned by Washoe County as unsanitary. This
circumstance extinguished the easement granted by paragraph 9. The Mesa's present source of
water is from Well No. 3 completed in 1960. The then owner of the Mesa requested
permission from a predecessor in interest of Snow to drill that well, and permission was
given. Thus, whatever right the Mesa presently enjoys to receive water from Well No. 3 does
not derive from the old Anderson-Coffee agreement, but rests upon an oral permission the
validity of which is open to serious question.
____________________

1
Paragraph 8 of the agreement referred to by the majority opinion has nothing whatever to do with drilling a
well for water. That paragraph refers to appurtenant water rights in existence when the contract was made, and to
priorities. Neither is involved in this case.
the old Anderson-Coffee agreement, but rests upon an oral permission the validity of which is
open to serious question.
Notwithstanding these facts the district court ruled that the 1948 Anderson-Coffee
agreement gave the Mesa the right to drill multiple wells anywhere upon the Anderson Ranch
property sufficient for the business of the Mesa, together with the right to pipe water
therefrom with full access for inspection and maintenance. This enormously broad judgment
is not supported by the Anderson-Coffee agreement upon which it professes to rest and
unfairly subjects the servient estate to intolerable burdens.
I respectfully dissent.
____________
84 Nev. 489, 489 (1968) Kellar v. Fike
CHARLES L. KELLAR, Appellant, v. M. EDWARD FIKE, LAWYERS TITLE OF LAS
VEGAS AND NEVADA ESCROW SERVICES, INC., Respondents.
No. 5181
August 9, 1968 444 P.2d 130
Appeal from summary judgment of the Eighth Judicial District Court, Clark County;
George E. Marshall, Judge.
Plaintiff's fifth cause of action of his complaint rested on order discharging attachment
entered in another case and directing defendant to pay plaintiff. The Supreme Court held that
where defendant was not party to case wherein order was entered discharging attachment and
directing defendant to pay attached funds which were not in defendant's possession and where
relationship between defendant and holder of funds was not disclosed, the order was
erroneous and unenforceable.
Affirmed.
Dickerson & Miles, of Las Vegas, for Respondents.
Attachment.
Order discharging attachment and directing one not a party to pay attached funds which were not in his
possession was erroneous and unenforceable.
OPINION
Per Curiam:
The district court entered summary judgment for the defendants Fike, Nevada Escrow and
Lawyers Title, and this appeal by the plaintiff, Kellar, followed. We affirm.
84 Nev. 489, 490 (1968) Kellar v. Fike
The summary judgment concerned only the fifth cause of action of the plaintiff's second
amended complaint. That claim rests upon an order discharging an attachment entered in
another case brought by Balaban and Ruggerio, as plaintiffs against Carver House Hotel,
defendant, and directed Lawyers Title to pay Kellar $10,000. The record of that other case is
not before us. From the slim record we do have, however, it appears that (a) none of the
parties to this case was a party to the other case; (b) the attached funds in the other case were
in the possession of Nevada Escrow, not Lawyers Title, and the order therein directing
Lawyers Title to disburse $10,000 was, therefore, clearly erroneous; (c) the attachment in the
other case was discharged because of an agreement in that action between the defendant
herein, Carver House Hotel and Viscount Construction Co., pursuant to which Viscount to
deposit $10,000 with Nevada Escrow and authorized Nevada Escrow to pay that amount into
court should judgment be entered against Carver House in that case. That case has not
proceeded to judgment.
Furthermore, the relationship between Nevada Escrow, Lawyers Title and Fike does not
appear from the fifth cause of action. Neither does the interest of Kellar in the attached funds
in the other case appear from that claim for relief. To the contrary, the record before us
suggests that Kellar is not the real party in interest with respect to the fifth claim for relief.
Nothing has been offered in opposition to the defendant's motion for summary judgment to
create an issue of material fact with regard to the matters we have mentioned.
Affirmed.
____________
84 Nev. 490, 490 (1968) DePasquale v. First Title Insurance Co.
VICTORIA DePASQUALE, Appellant, v. FIRST TITLE INSURANCE COMPANY, a
Nevada Corporation, FIRST WESTERN SAVINGS & LOAN ASSOCIATION, a Nevada
Corporation and ATLAS MORTGAGE & INVESTMENT CORPORATION, a Nevada
Corporation, Respondents.
No. 5485
August 20, 1968 444 P.2d 382
Appeal from summary judgment of the Eighth Judicial District Court, Clark County; John
Mowbray, Judge.
Affirmed.
[Rehearing denied September 13, 1968] John W.
84 Nev. 490, 491 (1968) DePasquale v. First Title Insurance Co.
John W. Bonner, of Las Vegas for Appellant.
John Peter Lee and M. E. Reynolds, of Las Vegas, for Respondents.
OPINION
Per Curiam:
This is an appeal from a district court judgment denying injunctive relief to the plaintiff,
Victoria DePasquale, who sought to bar foreclosure of a trust deed by the beneficiary thereof,
First Western Savings and Loan Association. DePasquale, with advice of counsel, had agreed
to subordinate an existing deed of trust running to her as beneficiary, to the First Western
deed of trust. When default on the First Western obligation occurred, it caused notice of
breach and election to sell to be given, and this litigation ensued. Since every finding of fact
made by the district court is supported by substantial evidence, and there exists no reason to
invalidate the subordination agreement, we affirm.
____________
84 Nev. 491, 491 (1968) McLaney v. Fortune Operating Co.
WILLIAM MCLANEY, J. H. BUCHANAN, MIAMI NATIONAL BANK and S. A. RIZZO,
Appellants, v. FORTUNE OPERATING CO., INC., dba SILVER PALACE, HAROLD
C. SPRINGSTON, MICHAEL BORNSTEIN, DAVID PEARL and ANTHONY
DiMAGGIO, Respondents.
No. 5459
August 21, 1968 444 P.2d 505
Appeal from the Eighth Judicial District Court, Clark County; John P. Sexton, Judge.
Shareholders' actions against corporation for balance due on note and for damages were
consolidated with other shareholders' action against corporation and buyers of corporation's
assets to permanently enjoin transfer of corporation assets and to have sales agreement
declared null and void. The trial court entered judgment in favor of shareholders and
defendants appealed. The Supreme Court, Collins, J., held that where agreement for sale of
stock to corporation provided for seller's relinquishment of voting rights and contained no
requirement of return of stock in event of corporation's default and where former
stockholders, upon corporation's default in payment for purchase of their stock, elected to
declare entire balance of purchase price due and payable immediately rather than to keep
payments received as liquidated damages and demand return of their stock, they were
not stockholders of record entitled to vote and were not entitled to notice of meeting held
for purpose of voting on proposed sale of all the corporation's assets.
former stockholders, upon corporation's default in payment for purchase of their stock,
elected to declare entire balance of purchase price due and payable immediately rather than to
keep payments received as liquidated damages and demand return of their stock, they were
not stockholders of record entitled to vote and were not entitled to notice of meeting held for
purpose of voting on proposed sale of all the corporation's assets.
Denton & Monsey, of Las Vegas, and Bible, McDonald, Carano & Wilson, of Reno, for
Appellants.
Foley, Garner & Shoemaker, of Las Vegas, for Respondent Fortune Operating Co., Inc.
Calvin C. Magleby, of Las Vegas, for Respondents Springston, Bornstein, Pearl and
DiMaggio.
1. Corporations.
Where agreement for sale of stock to corporation provided for seller's relinquishment of voting rights and
contained no requirement of return of the stock in event of corporation's default, seller of stock was not
stockholder of record entitled to vote and was not entitled to notice of meeting held for purpose of voting
on proposed sale of all the corporation's assets. NRS 78.370.
2. Corporations.
Where former stockholders, upon corporation's default in payment for purchase of their stock, elected to
declare entire balance of purchase price due and payable immediately as permitted by contract rather than
to keep payments received as liquidated damages and demand return of their stock, they were not
stockholders of record entitled to vote and were not entitled to notice of meeting held for purpose of voting
on proposed sale of all the corporation's assets. NRS 78.370.
3. Corporations.
Under contract providing that should corporation default, the entire unpaid balance shall then
immediately become due and payable with accrued interest, and upon demand, escrowee shall deliver to
sellers all stock held by it in escrow and all moneys paid to sellers shall be retained by them as liquidated
damages, sellers of stock had alternative remedies of declaring the entire balance of purchase price due
and payable immediately or keeping payments already received as liquidated damages and demanding
return of stock certificates, notwithstanding use of word and between the remedy clauses.
4. Fraudulent Conveyances.
Buyer of corporation's entire assets had right to rely on correctness of list of creditors supplied to him
under oath by the corporation involved in the bulk sale and was not responsible to creditors not on the
list, in absence of bad faith on his part.
creditors not on the list, in absence of bad faith on his part. NRS 98.010-98.050.
Buyer of corporation's entire assets who had notice of former stockholder's claim against corporation,
subordinate to claims of other creditors on list supplied by corporation, and who did not comply with bulk
sales requirements was liable to shareholder in amount not to exceed market value of goods and property
purchased. NRS 98.040.
6. Corporations.
Motion to intervene by lenders of buyers of corporation's entire assets, in action to enjoin transfer of
corporation's assets, made subsequent to trial and after judgment was too late and should have been denied.
Where tacit conduct of real parties in interest in bulk sale of corporation's assets indicated that defendant
participated, if at all, only in preliminary negotiations and was not party to final agreement, such defendant
was not liable to creditor of the corporation. NRS 98.040.
OPINION
This appeal is from a judgment entered by the court below in which three cases were
consolidated for trial. We conclude the judgment to be in error, reverse it and remand the
consolidated action for a new trial in accordance with this decision.
The three cases below are:
Case No. A 15523 a suit by Harold C. Springston against Fortune Operating Co., Inc. for
$35,000, the balance due upon a promissory note;
Case No. A 17657 a suit by Springston in a representative capacity pursuant to NRCP
23(a) on behalf of himself and other creditors seeking a judgment for damages against
Fortune and William McLaney for failing to comply with Nevada's Bulk Sales Act (NRS
98.010-98.050);
Case No. A 22056 an action by Michael Bornstein, David Pearl and Anthony DiMaggio
against Fortune Operating Co., Inc., dba The Carousel Club and Melvin Axler, Sam
Brechner, J. H. Buchanan, and William McLaney seeking to have Fortune and Axler
permanently enjoined from transferring the assets of Fortune to Buchanan and McLaney and
to have the sales agreement between them declared null and void.
The trial judge rendered the findings of fact, conclusions or law and on the major points
entered judgment in favor of respondents. This appeal is from that judgment.
The judgment declared void the sale and transfer McLaney of the business of Fortune
Operating Co. and the furniture and fixtures.
McLaney of the business of Fortune Operating Co. and the furniture and fixtures. It ordered
McLaney to reconvey those assets to Fortune or in the alternative, if reconveyance could not
be had, to pay damages to Springston for $35,000; to Bornstein for $41,000; to Pearl for
$33,801; to DiMaggio for $24,750. It also awarded plaintiffs costs and an attorneys fee of
$25,000.
The court later allowed Miami National Bank, S. A. Rizzo and J. Cason Ives to intervene
as creditors of McLaney. Their claim was rejected. They appeal from that order.
The lower court found the following facts:
Springston, Bornstein, Pearl, and DiMaggio owned respectively 160, 170, 140, and 100
shares of common stock in Fortune Operating Company.
On April 1, 1964 Springston entered into an agreement with Fortune selling his 160 shares
of stock for $55,000 of which $10,000 was paid down with the balance of the purchase price
to be paid in installments; Springston deposited his stock certificates and promissory note in
escrow; Fortune is in default on the note in the sum of $35,000.
On May 27, 1964 Bornstein, Pearl and DiMaggio entered into an agreement for the sale of
their 410 shares of stock to Fortune; each received 10 percent of the purchase price as a down
payment with the balance of the price to be paid in installments; Fortune defaulted in the
payments and failed to cure the default within 10 days as required by the agreement. Each of
these parties elected under the agreement to declare the unpaid balance of the purchase price
payable immediately.
1

The trial court found that Melvin Axler, an officer purporting to act as president of
Fortune, on October 12, 1964 entered into a letter agreement with McLaney and Buchanan for
the sale of Fortune; on November 14, 1964 a formal agreement was entered into with
McLaney to buy the business, furniture and fixtures of Fortune; on November 14, 1964
Fortune supplied McLaney a certificate of passage of a resolution at a stockholders and
directors meeting of Fortune held October 12, 1964 for the purpose of voting on the proposed
sale of all of the assets of Fortune to McLaney; no notice of the stockholders meeting was
given to Bornstein, Pearl, DiMaggio, or Springston, nor did they waive notice of the
meeting.
____________________

1
The evidence shows, though not found as a fact by the lower court, that one Mac Robbins, who owned 500
shares of Fortune stock, entered into an agreement with Melvin Axler, an officer of Fortune, for sale of his stock.
He too received a down payment from Axler with the balance of the purchase price to be paid in installments.
Axler defaulted in performance of this contract. Robbins joined initially as a plaintiff with Bornstein, Pearl and
DiMaggio but later dismissed his action.
of the assets of Fortune to McLaney; no notice of the stockholders meeting was given to
Bornstein, Pearl, DiMaggio, or Springston, nor did they waive notice of the meeting.
The only stockholders present at the meeting were Sam Brechner and Melvin Axler
holding 170 shares and 660 shares respectively of the 1,900 issued and outstanding shares of
Fortune.
Springston, as a creditor of Fortune, received no notice of the bulk sale of Fortune's
business, furniture and fixtures to McLaney.
The court further found that under the escrow agreements Springston's voting rights of the
stock of Fortune were suspended but that the voting rights of stock sold by Bornstein, Pearl
and DiMaggio were not suspended because of Fortune's default in payment of installments
due them.
From these facts the lower court concluded that the meeting of October 12, 1964 was not a
properly constituted stockholders meeting as required by NRS 78.565; that Springston,
Bornstein, Pearl, and DiMaggio were entitled to notice of the stockholders meeting because
the default of Fortune in the stock sales agreement with Springston, Bornstein, Pearl, and
DiMaggio terminated the suspension of their voting rights; and that Springston, Bornstein,
Pearl, and DiMaggio were entitled to a judgment requiring McLaney to reconvey all the
assets of Fortune acquired by the sale back to it or in the alternative, if the reconveyance was
impossible, then to the money judgments detailed above.
After McLaney acquired Fortune's assets, he transferred them to Clanebach, Inc., a Nevada
corporation, in which he held a stock interest. Clanebach borrowed $425,000 from Miami
National Bank. This loan was secured by Fortune's lease on the Silver Palace (Club Carousel)
and a chattel mortgage on its furnishings and equipment. Clanebach borrowed another
$100,000 from S. A. Rizzo and J. Cason Ives which was secured by a second assignment of
the lease and chattel mortgage on the equipment. These lenders were allowed to intervene
after judgment but their claim that rescission of the contract was impossible and that only
Fortune was liable was rejected by the lower court.
While the parties make many contentions and urge many issues,
2
we think the decisive
issues are these: {1) Were Springston, Bornstein, Pearl, and DiMaggio voting shareholders
of record and thus entitled to notice of the October 12, 1964 meeting?3
____________________

2
Respondents also urge the timeliness of filing of notice of appeal by appellants and renew their motion to
dismiss the appeal. We considered that motion and denied it and also denied a further petition for rehearing.
(1) Were Springston, Bornstein, Pearl, and DiMaggio voting shareholders of record and
thus entitled to notice of the October 12, 1964 meeting?
3

(2) What is the effect of Nevada's Bulk Sales Act on the parties?
(3) Were Miami National Bank and Rizzo entitled to intervene as permitted by the lower
court?
(4) Is there any theory upon which Buchanan can be held liable?
(1) If Springston, Bornstein, Pearl, and DiMaggio were stockholders entitled to vote on
October 12, 1964 they were entitled to notice of the meeting which they failed to receive. See
NRS 78.370 and 78.565. The question is whether the agreement for the sale of their stock to
Fortune had relinquished or suspended their voting rights at the time of that meeting. We
conclude their rights were suspended; that they were not entitled to notice; and therefore the
830 shares of stock voted by Axler and Brechner at the meeting satisfied the requirement of
NRS 78.565.
The Springston-Fortune agreement contained the following provision: Upon execution of
this Agreement for Purchase of Stock, Springston does hereby relinquish his voting rights in
connection with the 160 shares of stock that he owns, and does hereby assign those voting
rights and all incidents in connection therewith, to the Corporation.
[Headnote 1]
There was nothing in the Springston agreement requiring a return of the stock in the event
of Fortune's default. The parties specifically agreed that this 160 shares could not be voted.
Respondents urge that Springston was nevertheless entitled to notice of the meeting because
of the requirements of NRS 78.370. That contention is incorrect because he was not a
stockholder of record entitled to vote.
____________________

3
The parties discuss at length the effect of Robbins' sale of his 500 shares of stock of Fortune to Axler (see
note 1, supra). This requires no decision by us. The lower court made no findings on that issue. It apparently
concluded that because the 830 shares voted by Axler and Brechner at the October 12 meeting did not constitute
a majority of the voting shares required at a meeting called for the purpose of selling or leasing all the corporate
assets. NRS 78.565. Therefore there was no necessity for it to decide the Robbins stock question. Furthermore, if
the stock rights owned by either Robbins or the Fornstein-Pearl-DiMaggio group were not entitled to be voted,
the 830 shares voted by Axler-Brechner would satisfy the requirements of NRS 78.565.
[Headnote 2]
We likewise conclude that the Bornstein-Pearl-DiMaggio stockholders rights were
suspended. They were neither entitled to notice of the meeting nor the right to vote their 410
shares.
[Headnote 3]
The sales agreement between them and Fortune provided: (b) Should FORTUNE default
* * * the entire unpaid balance remaining unpaid at such time shall immediately become due
and payable with accrued interest, and upon demand, escrowee be, and it is hereby directed to
deliver to sellers all stock held by it in escrow as hereinabove set forth, and all moneys paid to
sellers shall be retained by them as liquidated damages. After a 10-day period of default,
required by the contract, the sellers had alternative remedies of either (1) declaring the entire
balance of the purchase price due and payable immediately; or (2) the sellers could keep the
payments already received as liquidated damages and demand a return of their stock
certificates. Notwithstanding use of the word and between those remedy clauses we hold
that they are in the alternative and not the conjunctive. Otherwise there would be a forfeiture
of the buyer's rights. Unless such a result is expressed it will not be allowed by the courts of
this state. Clark v. London Assurance Corp., 44 Nev. 359, 195 P. 809 (1921). We are fortified
in this conclusion by the trial court's finding that respondents elected to and did declare the
entire unpaid balance due * * * and payable * * *.
Next respondents contend that a demand by them addressed to the escrow agent for return
of their stock certificates upon Fortune's default was not a condition precedent to restoration
of their suspended shareholders rights. We do not agree. The contract of the parties itself
required such demand. We will not give to the agreement a strained construction. The plain
unambiguous meaning of the parties own words control. Thus the election of remedies by
sellers was made when they communicated their demand to the escrow agent.
Similarly, if the cumulative remedy theory urged by respondents was adopted it would
render meaningless another provision of the parties contract. That provision reads: 5. During
the period in which the Escrowee holds the shares of stock and assignments thereof in
escrow, and as long as Fortune performs the terms and conditions of this Agreement on its
part to be performed, the right to vote the said shares of stock so held in escrow is suspended
and for these purposes and the purpose of voting said shares of stock * * * the said shares of
stock * * * shall be deemed Treasury stock and shall be considered as having been retired
by Fortune."
stock * * * shall be deemed Treasury stock and shall be considered as having been retired by
Fortune. There were two prior conditions necessary before the voting suspension would
terminate. Not only must there have been a default by Fortune but the shares of stock must no
longer be held by the escrow agent.
Respondents concede none of them made any express demand upon the escrow agent for
return of their stock. The only notice of default communicated by any of the respondents was
a letter from Bornstein's counsel to Fortune. It was dated October 9, 1964, called for
acceleration of the payments (not return of the stock) and recognized the buyer had 10 days
within which to correct the default. The critical meeting was held 3 days later on October 12,
while the stock still reposed in custody of the escrow agent as Treasury stock.
Because of the erroneous conclusion of the trial court that Bornstein, Pearl and DiMaggio
were entitled to notice of the October 12 meeting and the right to vote their shares, it ordered
McLaney to reconvey all the assets he acquired back to Fortune, or if reconveyance was not
possible then money damages were adjudged. The court's decree did not spell out what
circumstances made reconveyance of the assets impossible. This invites further dispute and
itself would cause us to remand the action for retrial. The sale was not void ab initio. Rather it
was voidable at best. If properly rescinded by election of a stockholder or creditor entitled to
that remedy, provisions should have been made by the lower court for restoration of the
parties to the same situation in which they were when the contract was made. Any
consideration or advantage secured by either party must be surrendered. Solorza v. Park
Water Co., 195 P.2d 523, 529 (Cal.App. 1948).
[Headnote 4]
(2) While there were no findings of fact or conclusions by the lower court on the effect of
the bulk sales law on the parties (NRS 98.010 to 98.050) we feel the issue demands resolution
by the lower court upon retrial of these causes. The record shows McLaney relied upon a list
of creditors supplied to him under oath by Fortune. There is no evidence in the record of
McLaney's bad faith. Absent bad faith, McLaney had every right to rely upon the correctness
of the list of creditors supplied to him under those conditions and cannot be held liable to
those not listed. Georgia Excelsior Co. v. Hartfelder-Garbutt Co., 78 S.E. 611 (Ga.App.
1913); Highway Signs & Servicing Co. v. Scott, 8 P.2d 391 (Kan. 1932); Brecht Co. v.
Robinowitz, 275 S.W. 213 (Tex.App. 1925). Bornstein, Pearl and DiMaggio were not listed
as creditors, therefore McLaney cannot be held responsible to them absent bad faith on
his part.
and DiMaggio were not listed as creditors, therefore McLaney cannot be held responsible to
them absent bad faith on his part.
Likewise, though there is considerable evidence in the record of waiver of rights under the
bulk sales law by creditors of Fortune, the trial court made no mention of such circumstances
in its findings and conclusions. We think this issue likewise needs resolution upon retrial.
[Headnote 5]
As to Springton, McLaney did have notice of his claim against Fortune. His position,
however, is subordinate to the other creditors listed. Robinson v. Wangemann, 75 F.2d 756 (5
Cir. 1935). Nor can Springston's recovery against McLaney be allowed to exceed the market
value of the goods and property purchased (not the leasehold interest) by McLaney. NRS
98.040. This determination of value requires a finding by the lower court. None appears in the
record before us.
[Headnote 6]
(3) The lower court allowed Miami National Bank and S. A. Rizzo to intervene in the
above action subsequent to the trial and after judgment. The motion to intervene came too
late and should have been denied. NRS 12.130; Ryan v. Landis, 58 Nev. 253, 74 P.2d 1179
(1938).
[Headnote 7]
(4) Finally it appears that the judgment against Buchanan must be reversed. He
participated, if at all, only in the preliminary negotiations. He was not a party to the final
agreement of sale between Fortune and McLaney. He is not named in the trial court's
judgment except in the caption, nor in the notice of entry of judgment. Tacit conduct of the
real parties in interest in these causes indicate he is an innocent man in the street.
Accordingly the judgment in the consolidated causes is reversed and the matters remanded
for a new trial consistent with this opinion.
____________
84 Nev. 500, 500 (1968) Wecht v. Anderson
BERNARD A. WECHT, LEONARD EMERSON, SOUTHERN UNION PRODUCTION
COMPANY, and others, Appellants, v. CHARLES A. ANDERSON, C. G. PERKINS,
W. J. HACHT, and others, Respondents.
No. 5469
August 27, 1968 444 P.2d 501
Appeal from judgment of the Seventh Judicial District Court, Lincoln County; John
Mowbray, Judge.
Consolidation of two cases concerning ownership and right to possession of 21 unpatented
mining claims. The trial court entered judgment, and an appeal was taken. The Supreme
Court, Thompson, C. J., held, inter alia, that as 20 of the claims, which were located and
recorded after grubstake contract was made, were discovered without use of either funds or
equipment supplied by syndicate, as the grubstake funds had long before been exhausted and
the grubstake equipment was not adaptive to the location of mercury, those 20 mercury
mining claims were not acquired by means of the grubstake furnished.
Affirmed.
James L. Wadsworth, of Pioche, and Harry Kozart, of Philadelphia, Pennsylvania, for
Appellant Wecht.
Wilson and Wilson, of Elko, for Appellant Emerson.
Gray, Horton & Hill, of Reno, for Appellant Southern Union Production Company.
Cooke & Roberts, of Reno, for Respondent Anderson.
Earl & Earl, of Las Vegas, and Christy, Kleinman, Hoyt & Fuller, of Phoenix, Arizona,
for Respondents Perkins and Hacht.
1. Mines and Minerals.
As first mining claim was located and certificate of location therefor recorded approximately four months
before grubstake agreement was made and as said agreement did not mention the claim and by its terms
referred to claims to be later discovered during the one-year effective period of the grubstake, contributors
to the grubstake could have no interest in the first claim.
Right in property under a grubstake contract must be acquired by means of the grubstake furnished and
pursuant to the grubstake contract.
As 20 mercury mining claims, which were located and recorded after grubstake contract was made, were
discovered without use of either funds or equipment supplied by syndicate as the grubstake funds had long
before been exhausted and the grubstake equipment was not adaptive to the location of mercury, the 20
claims were not acquired by means of the grubstake furnished.
Full performance by outfitter is condition precedent to prospector's obligation to perform grubstake
contract, and the furnishing of some but not all of the supplies contracted for does not satisfy that
condition.
Prospector who promptly purchased geiger counter as required by grubstake contract and made diligent
search over large uranium potential area, and who exhausted his stake through reasonable use before he
turned his attention to other claims, satisfied his obligations under the grubstake contract.
One year specified in grubstake agreement as its period of duration was not effective to continue
relationship of the parties beyond exhaustion of the stake, which occurred within short time after the
agreement was made.
Deed conveying to lawyer certain unpatented mining claims was a nullity when concomitant lease and
option transaction failed of accomplishment, as the grantors never intended a conveyance of the mining
claims unless the lease and option was effectuated.
1964 lease and option to certain syndicate was forfeited for material breach by the lessees, namely,
breach of lease requirement that lessees construct a 50-ton capacity retort for purpose of refining mercury.
9. Landlord and Tenant.
Material breach of lease by lessees was not excused by fact that lessors had previously attempted to
convey the leasehold property to another, as the lessees' knowledge of said transaction was acquired long
after the lessees' breach.
Lessors' acceptance of rent from lessees, who had been notified that forfeiture for breach was being
declared, but who were permitted to remain on the property to either cure the default or purchase as
provided in the lease, while the lessees were in possession and deciding upon a course of action, was
proper and did not nullify or waive the declaration of forfeiture made two months earlier.
OPINION
Two cases, consolidated for trial in the district court, concern the ownership and right to
possession of the Andies group of 21 unpatented mining claims in Lincoln County.
of 21 unpatented mining claims in Lincoln County. The target of each case is a 78 year old
Nevada prospector, Charles Anderson, and the heirs of his boyhood friend Rubin Robinson.
The certificates of location for all of the Andies claims except one were recorded in the
names of Anderson and Robinson, and the one claim in the name of Anderson alone.
Accordingly, they assert ownership of all claims by reason of having perfected them in
accordance with law.
The appellant Wecht, a Philadelphia lawyer, and eight other persons claim ownership by
virtue of two documents executed by Anderson and Robinson. The first, a 1955 grubstake
agreement which the Wecht group contends embraces the Andies claims; and, the second, a
1960 deed to the claims executed in conjunction with other documents. The Wecht group
commenced an action to quiet title to the Andies claims.
The appellant Emerson and three other persons assert a right to possession of the claims
under a 1964 lease and option from Anderson and Robinson, and commenced suit to secure
their possessory rights. The two cases were consolidated and, following a protracted trial, the
court found that: (1) Anderson and the heirs of Robinson are the owners of and entitled to
possession of the Andies claims, and quieted their title against the other parties asserting title
and the right to possession; (2) the grubstake agreement with the Wecht group did not
embrace the Andies claims, and the 1960 deed to Wecht was void for fraud; (3) the 1964
lease and option to the Emerson group was forfeited for material breach by the lessees. This
appeal by the Wecht group and the Emerson group ensued.
1
Since substantial evidence
supports the judgment below, and no legal error appears, we affirm.
1. Wecht v. Anderson.
(a) The grubstake agreement: On April 11, 1955, Anderson and Robinson entered into a
grubstake agreement with nine Pennsylvania contributors, one of whom was Wecht who also
acted as attorney for the group and drew up the agreement. This agreement provided that
$1,000 would be raised to enable Anderson to purchase a Geiger Counter and/or Scintillator
and such other equipment or instruments as he may require for prospecting for precious
metals in the field, including but not limited to uranium, and of any such deposits found,"
they were to be registered in the names of Anderson and Robinson as co-owners and
trustees for the syndicate.
____________________

1
Southern Union Production Co. is also an appellant. It holds a lease and option from the Wecht group, and
rises or falls with Wecht.
Perkins-Hacht are respondents along with Anderson, et al., and hold a lease and option from Anderson. Their
success depends upon affirmance of the judgment for Anderson, et al.
found, they were to be registered in the names of Anderson and Robinson as co-owners and
trustees for the syndicate. The agreement also specified that the syndicate is organized for a
period of one year from the date hereof.
Shortly after this document was executed Anderson received several checks totaling $800
of the $1,000 agreed upon. This was all of the money ever advanced by the syndicate. He
immediately purchased a Geiger counter ($500), tires for his truck ($95), and other necessary
prospecting equipment and set off in quest of uranium. Within 30 days the remaining
grubstake money had been exhausted, but he continued to explore the Battle Mountain area
and all through Death Valley. Uranium eluded him and the old prospector turned his
attention to the subject property of this case.
In 1919 Anderson had discovered a mineralized deposit in the area of the present Andies
claims. He staked a claim at the site but did nothing further to perfect it. On October 20, 1954
he again located that claim and on December 9, 1954 recorded his location certificate. He
realized that the area around this first claim might also be valuable and, upon abandonment of
the uranium search, returned to Lincoln County to go down and work and get something
done with it. In June and July of 1955, 20 more Andies claims were recorded in the names of
Anderson and Robinson. At the time of these locations he was neither being supported by the
grubstake money nor utilizing the Geiger counter, since that instrument is useless in the
detection of cinnabar. The recited facts are not disputed.
The Wecht group contends that the trial court committed legal error in ruling that the
Andies claims are not within the terms of the grubstake. The contention rests mainly on the
premise that the filing of the location certificates to 20 claims in the names of Anderson and
Robinson during the one year period following the execution of the agreement automatically
brings those claims within the terms of the agreement. The district court rejected this
contention.
[Headnotes 1, 2]
There are sound reasons for the trial court's ruling. First, Andies No. 1 was located and the
certificate of location therefor recorded approximately four months before the grubstake
agreement was made. The agreement did not mention Andies No. 1, and by its terms referred
to claims to be later discovered during the one year effective period of the grubstake. In these
circumstances, the contributors to the grubstake could have no interest in Andies No. 1.
Hollingsworth v. Tufts, 162 P.
P. 155, 159 (Colo. 1917). The right in property under a grubstake contract must be acquired
by means of the grubstake furnished and pursuant to the grubstake contract. Prince v. Lamb,
60 P. 689, 691 (Cal. 1900).
[Headnote 3]
Second, the 20 other Andies claims which were located and recorded in the names of
Anderson and Robinson in June and July of 1955 after the grubstake contract was made, were
discovered without the use of either funds or equipment supplied by the syndicate. The funds
had long before been exhausted, and the equipment was not adaptive to the location of
mercury. Thus, those claims were not acquired by means of the grubstake furnished. Prince v.
Lamb, supra; Cisna v. Mallory, 84 F. 851 (Wash. 1898); Johnstone v. Robinson, 16 P. 903
(Colo. 1881). It is interesting to note that the grubstake agreement of April 1955 was
amended in August of that year to add two more contributors whose contributions were never
received by Anderson. The August amendment did not mention the Andies claims although
20 of them had been located and certificates of location recorded during the two prior months.
[Headnotes 4, 5]
Third, it is undisputed that the Wecht group did not fully perform its obligations since
Anderson never received the total consideration of $1,000 called for by the grubstake
contract. It has been held that full performance by the outfitter is a condition precedent to the
prospector's obligation to perform, or continue performance, and the furnishing of some but
not all of the supplies contracted for does not satisfy this condition. Murley v. Ennis, 2 Colo.
300 (1874). On the other hand, the prospector did perform. He promptly purchased a Geiger
as required by the contract and made a diligent search over a large uranium-potential area.
The stake was exhausted through reasonable use before he turned his attention to the Andies
claims. This satisfied his obligations under the contract. Jennings v. Rickard, 15 P. 677 (Colo.
1887).
[Headnote 6]
Finally, in the circumstances here presented, the one year specified in the grubstake
agreement as its period of duration is not effective to continue the relationship of the parties
beyond the exhaustion of the stake, which occurred within a short time after the agreement
was made. As a general rule the relationship ends when the stake is exhausted. Here, we do
not hesitate to prefer the general rule over the express contractual termination date since the
stake was apparently not adequate for the time period reserved, and was exhausted through
diligent exploration and reasonable use.2
time period reserved, and was exhausted through diligent exploration and reasonable use.
2

(b) The 1960 deed: On May 20, 1960 a meeting was held in Philadelphia to discuss a
possible lease and option agreement that Wecht was negotiating with two individuals named
Swerdfager and Gahagen. Anderson and Robinson were present. The lease was to cover the
Andies claims. A tentative lease was prepared, subject to the cancellation of a current lease
on the property. As Anderson and Robinson were signing this tentative lease, Wecht
presented two additional documents for their signature stating that they are to guarantee to
implement the completion of the Swerdfager transaction. One of the documents was a grant
deed to Wecht of the Andies claims. Anderson and Robinson signed automatically without
reading them. The Swerdfager-Gahagen transaction was never consummated because a
release of the existing lease could not be obtained, and in August of 1960 Wecht returned the
$5,000 advance payment which Swerdfager had deposited. But on September 1, 1960 Wecht
caused the deed to be placed of record in Lincoln County.
[Headnote 7]
The deed was a nullity when the Swerdfager transaction failed of accomplishment. The
grantors never intended a conveyance unless the lease and option to Swerdfager and Gahagen
was effectuated. Lanigir v. Arden, 82 Nev. 28, 33, 409 P.2d 891 (1966). The trial court
properly voided that conveyance.
2. Emerson v. Anderson.
[Headnote 8]
The Emerson group held a May 1964 lease and option from Anderson and Robinson as
lessors. The lease required lessees to construct a 50 ton capacity retort by July 15, 1964 for
the purpose of refining mercury. The retort was not constructed by July 15, and lessees were
given a one month extension. On August 8 a small mill was moved onto the property, but it
was not until January 1965 that it was ever put into operation, and then ineffectively and only
for a period of about five hours. Through expert testimony it was established that the mill had
no more than a ten ton capacity, and could never be made to process any additional
amount.
____________________

2
Circumstances may sometimes exist which would persuade a court to prefer the contract termination date
over the general rule. For example, it might be inequitable to deny relief to an outfitter who has supplied a
substantial stake which the prospector dissipates prior to the termination date established by the contract. Each
case must be decided on its own facts. For a discussion see: 3 American Law of Mining 61 (1967).
no more than a ten ton capacity, and could never be made to process any additional amount.
In December 1964, the lessors notified the lessees of the lessors' intention to terminate the
lease, mainly for failure to construct a 50 ton retort, and returned the December rent check.
The lessees denied their breach, sent back the rent, and asserted the right to either cure the
default or purchase the property within a 60 day grace period allowed by the lease. The
lessees did neither during the grace period and, in March of 1965, removed their working
force from the property and ceased all operations. A material breach by the lessees thus
clearly appears from the record before us.
[Headnote 9]
They seek to excuse their default on two grounds: first, that the lessors' 1960 conveyance
of the property to Wecht (which we have declared void) was an anticipatory breach by the
lessors excusing further performance by the lessees. This cannot be so since the lessees'
breach occurred long before they learned of the deed to Wecht (that knowledge was acquired
by lessees in January 1965) and thus, there can be no connection between the two events.
[Headnote 10]
Next, the lessees seek to avoid forfeiture, asserting a waiver of their breach by the conduct
of the lessors in accepting rent during the 60 day period within which the lessees could elect
to purchase. The lessees had been notified that forfeiture for breach was being declared, but
were permitted to remain on the property to either cure the default or purchase as provided in
the lease. When the lessees did neither, the lessors enforced the forfeiture. The lessors'
acceptance of rent while the lessees were in possession and deciding upon a course of action,
was proper, and did not nullify or waive the declaration of forfeiture made two months
earlier.
Other assignments of error have been considered and are without substance.
Affirmed.
Zenoff and Batjer, JJ., Craven, D. J., and Babcock, D. J., concur.
____________
84 Nev. 507, 507 (1968) Pine v. Leavitt
EDWARD L. PINE, ERNEST H. CLARY, ROBERT W. MILLARD, REX R. LLOYD,
BYRON S. HARDIE, GEORGE E. SUTTON, and REX A. TYNES, as Members of and
Constituting the STATE BOARD OF REGISTERED PROFESSIONAL ENGINEERS, and
the STATE BOARD OF REGISTERED PROFESSIONAL ENGINEERS, Appellants, v.
JACK K. LEAVITT, Respondent.
No. 5417
September 5, 1968 445 P.2d 942
Appeal from an order granting summary judgment in the Eighth Judicial District Court,
Clark County; John F. Sexton, Judge.
Action to have statutes relating to certification of engineers declared invalid and to require
state board of professional engineers to issue to engineering college graduate a registration
card showing him to be entitled to practice professional engineering without limitations as to
any class or branch of the profession. The trial court granted summary judgment to plaintiff
and defendants appealed. The Supreme Court, Batjer, J., held that statutes listing
qualifications for professional engineering, requiring holding of examinations by state board
of registered professional engineers, delineating scope of examinations and directing award of
certificates to those meeting requirements were not invalid as illegally delegating legislative
authority, and that issue as to professional status of plaintiff who had been issued certificate
as land surveyor was presented precluding granting his motion for summary judgment
requiring board to issue to him a registration card showing him to be entitled to practice
profession of professional engineering without limitations as to any class or branch of the
profession.
Mowbray, J., dissented.
Harvey Dickerson, Attorney General, Daniel R. Walsh, Chief Deputy Attorney General,
John G. Spann, Deputy Attorney General, for Appellants.
Boyd and Leavitt, of Las Vegas, for Respondent.
In determining what powers can be lawfully delegated by legislature, true distinction is between
delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and
the conferring of authority or discretion as to its execution to be exercised in
pursuance of the law, and the first cannot be done but to the latter no valid objection
can be made.
be, and the conferring of authority or discretion as to its execution to be exercised in pursuance of the law,
and the first cannot be done but to the latter no valid objection can be made.
2. Constitutional Law; Licenses.
Statutes listing qualifications for professional engineering, requiring holding of examinations by state
board of registered professional engineers, delineating scope of examinations and directing award of
certificates to those meeting requirements were not invalid as illegally delegating legislative authority.
NRS 625.180-625.210, 625.520.
Power to examine applicant, formulate questions to be asked, grade examinations and determine degree
of skill required for specific profession is an administrative rather than a legislative function.
4. Licenses.
Inasmuch as original certificate issued to engineering college graduate qualified his professional
engineering status by words land surveyor, he was a licensed land surveyor and was not entitled to be
certified as a professional engineer. NRS 625.170, 625.180-625.210, 625.520.
5. Judgment.
Summary judgment is drastic remedy. NRCP 56(c).
6. Judgment.
In deciding propriety of summary judgment, all evidence favorable to party against whom such summary
judgment was rendered will be accepted as true. NRCP 56(c).
7. Judgment.
Purpose of summary judgment rule is not to deprive litigants of their right to trial on merits if they really
have issues to try. NRCP 56(c).
8. Evidence.
Lower court could have taken judicial notice of rules and regulations of state board of professional
engineers and of fact that litigant's name was not on list of professional engineers promulgated by the
board.
9. Judgment.
Issue as to professional status of engineering college graduate who had been issued certificate as land
surveyor was presented, precluding granting his motion for summary judgment requiring state board of
registered professional engineers to issue him a registration card showing him to be entitled to practice
profession of professional engineering without limitations as to any class or branch of the profession. NRS
625.180-625.210, 625.520; NRCP 56(c).
OPINION
Upon a motion by the respondent, Jack K. Leavitt, the trial court granted summary
judgment and declared that NRS 625.180 through 625.210 inclusive, and NRS 625.520,
were void and unconstitutional on the grounds that they are an illegal delegation of
legislative authority.
625.180 through 625.210 inclusive, and NRS 625.520, were void and unconstitutional on the
grounds that they are an illegal delegation of legislative authority.
The lower court further ordered that the appellants be forever restrained and enjoined from
classifying the respondent or any others similarly situated into any branch or branches of
engineering, and prohibited the printing, publishing and distributing of a roster of
professional engineers which classified members into branches of engineering. The order for
summary judgment and judgment also required appellants to issue respondent and others
similarly situated, a registration card showing the respondent to be entitled to practice the
profession of professional engineering without limitations as to any class or branch of the
profession.
The respondent was graduated from Heald Engineering College in September of 1949. On
October 5, 1951, he took and passed the Nevada engineer-in-training test. On July 7, 1953, he
took the Nevada land surveyor examination. He passed only part A of that test. On October
19, 1953, he took and passed part B of the land surveyor examination. On November 16,
1953, he was approved as a registered land surveyor and issued a certificate. The respondent's
title on this first certificate was phrased Professional Engineer-Land Surveyor.
In 1961 the legislature amended the statute governing the licensing of land surveyors so as
to expressly exclude land surveying from the profession of engineering.
1
Prior to this
amendment, land surveyors had been a lesser category of engineers and were excluded
from that status only by implication.
2

The record shows that the respondent continued to be certified as a Professional
Engineer-Land Surveyor until 1965. In 1966 he was issued a certificate which bore only the
title Land Surveyor.
On April 14, 1967, the respondent filed suit against the appellants requesting: (1) that the
board be enjoined from classifying him as anything other than a professional engineer; (2)
that the board be enjoined from publishing a roster of professional engineers with listings
according to the different branches of engineering; (3) that NRS 625.180-625.210 and NRS
625.520 be declared unconstitutional; and (4) that the board be required to return him to the
status of professional engineer without limitation as to field of practice.
____________________

1
NRS 625.040(4). The practice of land surveying does not include the design, either in whole or in part, of
any structure of fixed works embraced in the practice of professional engineering as defined in NRS 625.050.

2
NRS A 1961-312.
The appellants answered the respondent's complaint, and on June 16, 1967, the respondent
moved for a judgment on the pleadings, or in the alternative, a summary judgment.
On July 21, 1967, the lower court granted Leavitt's motion for summary judgment. This
appeal is taken from that order and judgment. As assignments of error the appellants claim
that the lower court erred when it:
(1) Declared NRS 625.180 through 625.210 and NRS 625.520, unconstitutional.
(2) Enjoined the appellants from printing, publishing and distributing a roster of
professional engineers that lists any classification into branches of engineering.
(3) Directed the appellants to issue the respondent and all others similarly situated, a
registration showing their entitlement to practice the profession of professional engineer
without limitation.
(4) Entered its order for summary judgment.
The question of the constitutionality of the challenged statutes must be considered first.
The summary judgment ordered by the trial court declared five separate statutory sections
unconstitutionalNRS 625.180 to 625.210 inclusive, and NRS 625.520.
NRS 625.180 lists, in detail, the qualifications necessary for admission to the ranks of
professional engineering. Although the phrase satisfactory to the board is used, the content
of the statute is clear and unambiguous. NRS 625.190 requires that the board hold
examinations twice a year and determine, from the results, in which branch of engineering the
applicant is qualified. NRS 625.200 delineates the scope of the examinations, the manner in
which they are to be given, and what shall constitute a passing grade. NRS 625.210 simply
directs that the board award certificates to all those meeting the requirements of the chapter.
NRS 625.520 provides the penalties to be inflicted upon those who practice engineering
unlawfully.
The respondent argues that the discretion vested in the board, found in phrasing such as
satisfactory to the board, approved by the board and as determined by the board, is so
unfettered as to render the statutes unconstitutional as an undue delegation of legislative
authority.
[Headnote 1]
The basic test used to determine what powers can be lawfully delegated by the legislature,
was first and best enunciated in Field v. Clark, 143 U.S. 649 (1892), wherein it is said, the
true distinction is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring authority or discretion as to its
execution, to be exercised in pursuance of the law.
be, and conferring authority or discretion as to its execution, to be exercised in pursuance of
the law. The first cannot be done; to the latter no valid objection can be made. In the case of
Douglas v. Noble, 261 U.S. 165 (1923), Mr. Justice Brandeis, speaking for the United States
Supreme Court, said:
The statute provides that the examination shall be before a board of practicing dentists,
that the applicant must be a graduate of a reputable dental school, and that he must be of good
moral character. Thus, the general standard of fitness and the character and scope of the
examination are clearly indicated. Whether the applicant possesses the qualifications inherent
in that standard is a question of fact. * * * The decision of that fact involves ordinarily the
determination of two subsidiary questions of fact: The first, what the knowledge and skill is
which fits one to practice the profession: The second, whether the applicant possesses that
knowledge and skill. The latter finding is necessarily an individual one. The former is
ordinarily one of general application. Hence it can be embodied in rules. The legislature itself
may make this finding of the facts of general application, and by embodying it in the statute
make it law. When it does so, the function of the examining board is limited to determining
whether the applicant complies with the requirement so declared. But the Legislature need not
make this general finding. To determine the subjects of which one must have knowledge in
order to be fit to practice dentistry, the extent of knowledge in each subject; the degree of
skill requisite; and the procedure to be followed in conducting the examinationthese are
matters appropriately committed to an administrative board. * * * And a Legislature may,
consistently with the federal Constitution, delegate to such board the function of determining
these things, as well as the functions of determining whether the applicant complies with the
detailed standard of fitness.
[Headnote 2]
Upon a thorough reading of the statutes under question, it becomes apparent that they
enunciated the public policy as set forth by the legislature and established the basic standards
to be required of engineers, vesting only a modicum of discretion in the board to carry out
that policy and meet those standards.
In support of his position the respondent relies heavily upon Prouty v. Heron, 255 P.2d
755 (Colo. 1953), where the court held that the statute under attack was unconstitutional on
the ground that it unlawfully delegated legislative authority to a state board. The wording of
the Colorado statute was very similar to the wording of our statutes which were declared
unconstitutional by the lower court, however, we do not subscribe to the very stringent
construction placed on their statute by the Colorado court.
unconstitutional by the lower court, however, we do not subscribe to the very stringent
construction placed on their statute by the Colorado court.
[Headnote 3]
The power to examine applicants, formulate the questions to be asked, grade the
examinations and determine the degree of skill required for a specific profession has been
consistently held to be an administrative rather than a legislative function. State v. Spears,
259 P.2d 356 (N.M. 1953); Clayton v. Bennett, 298 P.2d 531 (Utah 1956).
We find that the questioned statutes express a valid delegation of authority from the
legislature to the state board of registered professional engineers. The trial court erred when it
declared NRS 625.180 through 625.210 and NRS 625.520, illegal, invalid, void and
unconstitutional.
In its order for summary judgment and judgment, the lower court restrained and enjoined
the printing, publishing and distributing a roster of professional engineers that lists any
classification into branches of engineering. Obviously, the lower court did not have NRS
625.170
3
before it when the order and judgment was entered.
We find that a roster may be printed, published and distributed in accordance with NRS
625.170. However, only the names of the registered professional engineers, land surveyors
and engineers-in-training may be listed. Unless specific legislative authority is granted, the
names of the license holders may not be listed in branch classifications.
[Headnote 4]
The respondent contends that he was originally licensed as a professional engineer and that
the appellants, by issuing him a license as a land surveyor, are attempting to revoke his status
without cause and without a fair and proper hearing. The copy of the respondent's original
certificate, which he attached as an exhibit to his complaint, belies this contention. His
professional engineering status is qualified by the words land surveyor.
The respondent is a licensed land surveyor and asserting that he is a professional engineer
will not change his status.
____________________

3
625.170: The secretary of the board shall prepare once each year, or at intervals as established by the
board, a roster showing the names and last-known addresses of all registered professional engineers, land
surveyors and engineers-in-training. Copies of the roster shall be:
1. Mailed to each person so registered.
2. Placed on file with the secretary of state and county and city clerks.
3. Distributed or sold to the public.
We next turn to the question of whether or not the court erred in granting the respondent's
motion for summary judgment.
[Headnotes 5, 6]
Summary judgment is a drastic remedy. In Short v. Hotel Riviera, Inc., 79 Nev. 94, 378
P.2d 979 (1963), this Court stated: The rule is of course well recognized that in deciding the
propriety of a summary judgment all evidence favorable to the party against whom such
summary judgment was rendered will be accepted as true. Franktown v. Marlette, 77 Nev.
348, 364 P.2d 1069 (1961); Parman v. Petricciani, 70 Nev. 427, 272 P.2d 492 (1954).
[Headnote 7]
NRCP 56(c)
4
authorizes summary judgment only where the moving party is entitled to
judgment as a matter of law, where the truth is clearly evident and no genuine issue remains
for trial. The purpose of the rule is not to deprive litigants of their right to a trial on the merits
if they really have issues to try. Sartor v. Arkansas Gas Corp., 321 U.S. 620 (1944).
In McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957), this court said: In Parman v.
Petricciani, 70 Nev. 427, 272 P.2d 492, we approved the suggestion of the federal court
therein quoted that trial judges should exercise great care in granting motions for summary
judgment, and held that a litigant has a right to a trial where there is the slightest doubt as to
the facts.
In the present case there was ample evidence presented by the appellants to compel the
denial of respondent's motion for summary judgment.
The record contains certain documents showing that Leavitt had never taken the required
second half of the professional engineers examination. The most significant of these
documents is a letter dated February 1, 1967, from Howard L. Pine, chairman of the Board of
Registered Professional Engineers to the respondent, advising him that he had not taken the
required part two of the civil engineer examination. In that letter the board stated that it
would waive the 8-year statute of limitation on the engineer-in-training test (the first half of
the engineering test) that Leavitt had taken and passed on October 5, 1951, and that he
should present himself for the second half of the engineering test in Las Vegas on June
10, 1967.
____________________

4
NRCP 56(c): The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.
and that he should present himself for the second half of the engineering test in Las Vegas on
June 10, 1967.
Furthermore, there was, before the lower court, all of the correspondence between Leavitt
and the board from 1951-1967, in which it is clearly established that Leavitt was always
registered only as a land surveyor, and that he had never taken the examination required of all
professional engineers.
[Headnote 8]
The lower court could have taken judicial notice of the rules and regulations of the Board
of Professional Engineers and of the fact that the respondent's name was not on the list of
professional engineers promulgated by the board. See 6 Moore's Federal Practice 56.11(9),
p. 9, 2085; 3 Barron and Holtzoff 1236, p. 161; Kern v. Tri-State Ins. Co., 260 F.Supp. 378
(D.C.Mo. 1966).
[Headnote 9]
The question of the respondent's professional status was at issue. It was not only a material
fact but the heart of the litigation, and the appellants had a right to present their evidence and
be heard on this important question.
The judgment of the lower court is reversed and the case remanded for further proceedings
consistent with this opinion.
Thompson, C. J., Collins and Zenoff, JJ., concur.
Mowbray, J., dissenting:
The majority has viewed the statutes involved in this controversy and found them
constitutionally adequate. I disagree. As the court in Prouty v. Heron, 255 P.2d 755, 760
(Colo. 1953), stated after considering a very similar set of statutes:
A study of these provisions leads inescapably to the conclusion that upon the whole
question of qualifications for registration of engineers, there has been an illegal delegation of
legislative authority to the board.
NRS 625.180, subsection 3, provides:
3. No applicant for registration as a professional engineer shall be entitled to take the
examination unless:
(a) He is a graduate from an approved course in engineering of 4 years or more in a
school or college approved by the board as of satisfactory standing, and has a specific record
of an additional 4 years or more of active experience in engineering work of a character
satisfactory to the board, and indicating that the applicant is competent to be placed in
responsible charge of such work; or "{b) In view of the requirements contained in
paragraph {a) of this subsection, he has a specific record of S years or more of active
experience in engineering work of a character satisfactory to the board, and indicating
that the applicant is competent to be placed in responsible charge of such work."
(b) In view of the requirements contained in paragraph (a) of this subsection, he has a
specific record of 8 years or more of active experience in engineering work of a character
satisfactory to the board, and indicating that the applicant is competent to be placed in
responsible charge of such work. (Emphasis added.)
I do not find, as the majority did, that the content of the statute is clear and
unambiguous. In fact, it appears to me to give nearly unfettered discretion to the board.
What is an approved course in engineering? What guides the board in determining whether
the applicant's school or college is satisfactory? What type of engineering work is of a
character satisfactory to the board? Only the board could know, and only the board need be
satisfied in these matters. No external standard is enunciated by the statute. There is virtually
no statutory basis upon which an aggrieved applicant could appeal from an adverse decision
by the board on one of these matters. The statutory standard is satisfied simply by the action
of the board.
A glance at NRS 625.210 demonstrates the same infirmity. The statute provides that the
board shall issue a certificate of registration to an applicant who, in the opinion of the board,
has satisfactorily met all the requirements of this chapter. (Emphasis added.)
Subsection 2 of NRS 625.210 provides:
2. The certificate shall authorize the practice of professional engineering, followed by the
branch or branches for which he is qualified.
NRS 625.020 provides that the branches of engineering are the recognized branches as
determined by the board.
Determining both the branches and the qualifications for applicants in the various branches
is left completely within the discretion of the board. Without standards fixed by law, the
discretion to declare what the law is, is delegated to the board. This cannot legally be done.
Prouty v. Heron, supra, at 759; Field v. Clark, 143 U.S. 649 (1892).
The questions as to whom the act will apply, the qualifications for a certificate, and the
means employed to demonstrate those qualifications are to be found only in the opinion of the
committee. No standards are fixed by the act to guide their uncontrolled discretion. The
committee may apply one standard to some applicants and another standard to others. The
committee may base its opinion that the applicant has satisfactorily met the requirements of
the act at one time upon certain standards as to such requirements, and at other times upon
different standards entirely. The opinion of the committee as to the requirements of the act
would be subject to change with each change in the personnel of the committee."
the requirements of the act would be subject to change with each change in the personnel of
the committee. Krebs v. Thompson, 56 N.E.2d 761, 766 (Ill. 1944).
The unlawful delegation discussed above necessarily permeates the statutes providing for
an examination by the board. NRS 625.190 and NRS 625.200. The purpose of the
examination is to determine which branch or branches of professional engineering the
applicant is qualified to practice. The broad discretion given to the board is particularly
apparent in the following sentence in subsection 1(b) of NRS 625.200: The board may
reserve the right to conform the nature and extent of the examination to the particular
qualifications of the applicant. A more flexible standard is hardly imaginable.
If the registration provisions are considered illegal, the penalty provisions of NRS 625.520
must also fall. They are primarily based upon a finding that one has been practicing
engineering without being properly registered.
The lower court properly ruled that NRS 625.180 through 625.210 and NRS 625.520
constituted an unlawful delegation of legislative authority in violation of section 1, article 3,
of the Nevada Constitution.
The judgment should be affirmed.
____________
84 Nev. 516, 516 (1968) State v. Crockett
THE STATE OF NEVADA, Appellant, v.
LOUIS LEE CROCKETT, Respondent.
No. 5466
September 9, 1968 444 P.2d 896
Appeal by state from order granting new trial. Eighth Judicial District Court, Clark
County; Thomas J. O'Donnell, Judge.
Criminal prosecution in which the trial court entered an order granting defendant,
convicted of murder and sentenced to death, a new trial, and the State appealed. The Supreme
Court, Zenoff, J., held that trial court's exercise of right to grant new trial will be presumed
correct by appellate court until contrary is shown by appellant, and there was no abuse of
discretion in granting new trial.
Affirmed.
Harvey Dickerson, Attorney General, and George E. Franklin, Jr., District Attorney, Clark
County, for Appellant.
William S. Barker and Oscar B. Goodman, of Las Vegas, for Respondent.
1. Criminal Law.
Trial court's exercise of right to grant new trial will be presumed correct by appellate court until contrary
is shown by appellant.
2. Criminal Law.
Trial court properly exercised its discretion granting a new trial on basis of newly discovered evidence to
defendant convicted of murder where after trial individual, who could not be found by police during trial,
revealed that he was the person seen leaving murder site with a gun rather than defendant as witnesses had
testified. NRS 175.535, subd. 7.
Where identity is crucial issue in criminal case and the evaluation of testimony by jury relating to such
issue has been prevented, due process has been denied.
4. Criminal Law.
Judgment of trial court in ruling on motion for new trial on ground of newly discovered evidence will not
be disturbed where trial court has exercised discretion following careful examination and analysis of
evidence.
5. Criminal Law.
Credibility is not test of motion for new trial and trial judge must instead review circumstances in their
entire light and then decide whether new evidence will probably change result of trial.
OPINION
Louis Crockett was convicted of murdering Curtis Wheeler and sentenced to death. After
the trial one Floyd Hamlet revealed himself to Crockett's attorneys as the person seen leaving
the murder site with a shotgun, not Crockett, as a witness had testified. On Hamlet's
statements Crockett's motion for a new trial was granted by the trial court from which the
state appeals on the ground that the evidence did not meet the standards of NRS 175.535,
subsection 7, and that thus the trial court's decision was an abuse of discretion.
1
State v.
Bauer, 34 Nev. 305, 122 P.
____________________

1
NRS 175.535(7). When new evidence shall have been discovered material to the defendant and which he
could not, with reasonable diligence, have discovered and procured at the trial. When a motion for a new trial is
made upon the grounds of newly discovered evidence, the defendant must produce at the bearing, in support
thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and, if time is required by
the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of
time as, under all the circumstances of the case, may seem reasonable.
Nev. 305, 122 P. 76 (1912). People v. Robarge, 262 P.2d 14 (Cal. 1953). State v. Huson, 440
P.2d 192, 199 (Wash. 1968).
Prior to Crockett's trial Hamlet was in jail awaiting trial on other felony charges. Hamlet,
Crockett, Wheeler and others who were involved in the Wheeler case were all part of a vast
network of narcotics traffic in the Las Vegas area. Wheeler's death was attributed to his
performances as a police informer. The defense attorneys were aware of Hamlet, but not of
his involvement with the Wheeler shooting although they had some indications that he might
know something about it. They had been denied an interview with him in his cell by his
attorney, and although the district attorney made a taped police interview with Clifford
Epperson available to them, they said it was too unintelligible to be of substantial assistance.
The recording allegedly referred to the Wheeler murder and named some people who were
involved. Hamlet was not listed by the district attorney as a prosecution witness for Crockett's
trial but apparently an assumption was drawn that he would be still in jail and available for
the trial anyway. Instead, the district attorney secured Hamlet's release on his own
recognizance in exchange for his promise to be a narcotics informer. Once out of jail he left
the jurisdiction, and despite efforts of the police and the defense, could not be located for the
trial. Subsequently Hamlet was located by the authorities and he made his evidence known.
Reviewing NRS 175.535(7) and this court's decision in Pacheco v. State, 81 Nev. 639, 408
P.2d 715 (1965), we find that the trial court did not abuse its discretion in granting Crockett a
new trial. Crockett's defense was that he wasn't there when Wheeler was shot. Several
witnesses supported that contention but obviously the jury did not believe them. It was
Hamlet's testimony that it was he, not Crockett, who was at the crime scene. Thus the guilt or
innocence of Crockett might well turn on that evidence.
When Hamlet finally did tell what he knew about the killing he named Cy Lee as the
killer, that he, Hamlet, tried to stop Lee from shooting Wheeler. Such involvement implicates
himself as well as Lee. Identifying the real killer as someone other than the defendant is not
only material to Crockett's defense but establishes a real possibility of a different result on
retrial. Furthermore, when we reviewed the statute's requirement of diligence in obtaining the
newly discovered evidence no more should be expected of Crockett to locate Hamlet than the
police for neither the police nor Crockett were able to find him.
[Headnotes 1, 2]
Scrutinizing the record as we must do, State v. Stanley, 4 Nev. 71 (1868) and State v. Orr,
34 Nev. 297, 122 P. 73 (1912), Hamlet's contradiction of the witness Bingham who said that
he recognized Crockett running from the scene of the crime is not one of mere impeachment,
but goes to the essence of Crockett's guilt or innocence. In his function the trial judge
properly evaluated the record and decided that a new trial was required. People v. Robarge,
supra. We agree. The exercise by the trial court of the right to grant a new trial will be
presumed correct and proper by the appellate court until the contrary is shown by the
appellant. State v. Stanley, supra; State v. Orr, supra, at 301.
1

[Headnotes 3, 4]
Where, as here, identity is a crucial issue and the evaluation of testimony by the jury
relating to it is prevented due process is denied. Lee v. United States, 388 F.2d 737 (9th Cir.
1968). The judgment of the trial court will not be disturbed when the judge has exercised his
discretion following careful examination and analysis as demonstrated in this case.
[Headnote 5]
Credibility is not the test of the motion for new trial, instead the trial judge must review
the circumstances in their entire light, then decide whether the new evidence will probably
change the result of the trial. To allow the semantic distinction between might and probably
to send Crockett into the gas chamber would be as unjustified as the killing of the victim.
Applying Pacheco, supra, is as much our function as that of the trial court. Beyond question if
the jury believes Hamlet, a different result, acquittal of Crockett, must follow. The trial court
properly assessed its function.
Affirmed.
This case involves the willful murder of a narcotics informer. The jury, upon conflicting
and substantial evidence, found respondent guilty of that murder and fixed his penalty at
death. Respondent moved for a new trial on the ground of newly discovered evidence. The
lower court granted that motion, set aside the conviction, and ordered a new trial.
____________________

1
In Harrison v. United States, filed June 10, 1968, No. 976, if Hamlet refused to testify at the retrial his
testimony from this proceeding could be used as evidence.
aside the conviction, and ordered a new trial. The state appeals that order and we are asked to
review the correctness of the lower court's ruling. I am of the opinion that the lower court
erred as a matter of law in granting the new trial; that the error of law does not concern a
review of discretion of the lower court; and that we should set aside the order granting the
new trial and reinstate the jury's verdict.
A review of the record on this appeal shows that Curtis Wheeler was an undercover agent
for the Las Vegas Police Department whose duties were to purchase narcotics from known
sellers and obtain evidence for the police to permit their arrest and conviction. An indictment
had been returned against respondent Louis Crockett for violation of the narcotic laws upon
evidence supplied by Wheeler.
On the morning of May 16, 1967 Crockett was to be arraigned in district court upon that
indictment sometime after 9 a.m. He borrowed an automobile to get there.
On that same morning about 10 a.m., Curtis Wheeler, a driver for Dot's Cleaners received
a call to pick up some cleaning at a given address in an isolated area of North Las Vegas. The
address, unknown to him, was that of a vacant apartment. When he arrived at the door he was
shot in the chest with a shotgun and instantly killed.
The assailant ran from the rear of the apartment and while crossing a parking lot was
observed by David Bingham, a chance witness, for a considerable distance, which for a short
time was as close as six to ten feet. Bingham observed that person to be carrying a shotgun
partially concealed by a covering, saw him get into a parked car and be driven off by a
woman driver with streaked hair. He recorded the license number of that automobile.
Bingham then drove by the apartment from which he had heard the shot, observed the body of
Curtis Wheeler in front and called the police. Some twenty to twenty-five minutes later the
police located the auto in a parking lot with the hood and motor still hot and arrested
respondent and Coretha Davis nearby. She had streaked hair.
Bingham identified Crockett by sight, both at a pretrial line-up and at trial, as the person
he saw running from the apartment carrying the shotgun. He further identified him from a
black shirt and light pants he observed, the same combination and color of clothing Crockett
was wearing when arrested twenty to twenty-five minutes after the killing. Bingham, when
shown a photo of Hamlet denied he was the person who ran past him carrying the shotgun.
The keys to the automobile found by the police through the license number recorded by
Bingham were in Crockett's possession when arrested.
Bingham were in Crockett's possession when arrested. Other testimony showed Crockett had
borrowed that same auto earlier that day. Wheeler was to have been the principal witness
against Crockett in the pending narcotics violation prosecution.
Crockett presented alibi evidence and witnesses that he was in other persons company and
in another area of the city at the time of Wheeler's killing.
On that substantial and conflicting evidence the jury found Crockett guilty and fixed the
penalty at death.
While the case against Crockett was under investigation and awaiting trial Floyd Hamlet
was in jail on a parole violation and also awaiting trial for robbery. One Clifford Epperson
was in jail the day Wheeler was killed, but was released on bail that very day.
Epperson gave a taped statement to the police prior to Crockett's trial in which he flatly
accused Floyd Hamlet as being the paid shotgun killer of Wheeler instead of Crockett. This
tape, claimed by respondent's counsel to be unintelligible, was heard by them prior to
Crockett's trial. A transcription of the tape, some nine pages long, was not made until after
Crockett's trial, but appears in the record before us. While we have not listened to the tape
itself, the transcription is more than adequate to disclose Epperson's accusation against
Hamlet. In fact in all nine pages there are only three places indicated by the transcriber as
being unintelligible. Those three places in no way destroy the statements of Epperson's claim
that Hamlet, not Crockett, killed Wheeler and that Hamlet and Crockett when dressed, looked
much alike.
Also during August 1967, Floyd Hamlet gave a written, sworn statement to police in
which he claimed he attended a meeting of several persons where the killing of Curtis
Wheeler was discussed. Among others attending that meeting were Cy Lee and Louis
Brown Crockett. The need discussed for killing Wheeler was that someone was going to
court and they wanted him out of the way. He testified about a shotgun being produced at the
meeting and that Cy Lee cut the barrel off with a hack saw. Money was produced to pay the
person who would kill Wheeler. The plan of killing was discussed including the plan to lure
Wheeler to the vacant apartment. In that and later discussions various persons were suggested
as the one to do the killing but discarded because they would not have an adequate alibi.
Hamlet then said it was decided that Crockett would do the killing and that his alibi was to be
his attendance at court on that morning. He was to leave for court from the Town Tavern
where everyone would see him, go to court and after killing Crockett, return to the Town
Tavern where everyone would see him again.
killing Crockett, return to the Town Tavern where everyone would see him again. A woman
was to drive the car for Crockett because he couldn't drive.
While this statement was not shown to defense counsel prior to the trial, nevertheless, it
was before the lower court at the time of the hearing of the motion for new trial. Floyd
Hamlet made no suggestion that anyone but Crockett was to kill Wheeler.
About the time of Crockett's trial, Hamlet approached the District Attorney of Clark
County with the contention that if he were released on bail he could make narcotic buys from
any number of narcotics peddlers in the Las Vegas area and provide evidence for their arrest
and conviction. The district attorney having decided to carry on the prosecution of Crockett
for Wheeler's death, agreed with Hamlet's plan and appeared with him in district court and
recommended he be admitted to bail on his own recognizance. The court approved the
recommendation.
In the meantime Crockett's counsel had not seen fit to subpoena Hamlet as a witness
notwithstanding the Epperson tape and a photo of Hamlet supplied by the prosecutor.
Counsel stated they thought Hamlet would be available at trial and thus took no steps to
assure his appearance.
Hamlet, upon being released from jail, immediately departed from Las Vegas and could
not be found during Crockett's trial though sought by the police, the district attorney and
defense counsel.
During Crockett's trial when defense counsel became convinced of the need and usefulness
of Hamlet's testimony, they nevertheless sought no continuance until Hamlet could be located
and returned to Nevada.
Following Crockett's trial and conviction Hamlet was located in Arizona and returned to
the Clark County jail. While there, and upon learning for the first time (at least so he testified)
of Crockett's conviction and sentence, Hamlet summoned defense counsel to his jail cell. On
September 21 and 22, 1967 he gave them (1) a sworn affidavit, (2) a hand written statement,
and (3) a sworn statement to a court reporter.
Upon those documents and the affidavit of one of his counsel setting forth his version of
fact how and when the information from Hamlet became available, motion for the new trial
was made.
A lengthy hearing was held by the lower court on the motion. Testimony was received
from Floyd Hamlet, David Bingham, Oscar B. Goodman and others. At the conclusion the
district judge ruled that the motion was based upon newly discovered evidence consisting
of an individual named Floyd Hamlet maintaining that he was the individual seen by the
state's principal witness David Bingham rather than Louis Crockett at the time of Curtis
Wheeler's murder; that Cy Lee and not Crockett murdered Wheeler; that Hamlet came
forward after he learned of Crockett's conviction and death penalty; that the jury's verdict
was necessarily based upon belief of Bingham's identity of Crockett; that Crockett
presented alibi witnesses who were not believed by the jury; that despite the conflict
there was sufficient evidence adduced for the jury to have arrived at the verdict they did
even though the judge, had he been a member of the jury, would have been of a different
persuasion; that the newly discovered evidence was such that the court felt it should be
presented to a jury for determination as to its credibility; that such evidence, if presented
in conjunction with the evidence adduced at the trial, "might have resulted in a different
verdict."
district judge ruled that the motion was based upon newly discovered evidence consisting of
an individual named Floyd Hamlet maintaining that he was the individual seen by the state's
principal witness David Bingham rather than Louis Crockett at the time of Curtis Wheeler's
murder; that Cy Lee and not Crockett murdered Wheeler; that Hamlet came forward after he
learned of Crockett's conviction and death penalty; that the jury's verdict was necessarily
based upon belief of Bingham's identity of Crockett; that Crockett presented alibi witnesses
who were not believed by the jury; that despite the conflict there was sufficient evidence
adduced for the jury to have arrived at the verdict they did even though the judge, had he been
a member of the jury, would have been of a different persuasion; that the newly discovered
evidence was such that the court felt it should be presented to a jury for determination as to its
credibility; that such evidence, if presented in conjunction with the evidence adduced at the
trial, might have resulted in a different verdict.
The new trial was thereupon granted by the court.
The opinion of this court holds that under Pacheco v. State, 81 Nev. 639, 408 P.2d 715
(1965) the lower court did not abuse its discretion in granting Crockett a new trial; that since
the guilt or innocence of Crockett might well turn on Hamlet's story a real possibility of a
different result on retrial was established.
I do not think that is the issue at all. I am convinced that because the lower court was in
error in the tests and standards it applied in ruling on the new trial we never reach the
necessity of passing upon the exercise of discretion of the district judge at all.
An early California case People v. Sutton, 15 P. 86 (Cal. 1887), cited by Justice Traynor in
People v. Beard, 294 P.2d 29 (Cal. 1956), which was relied upon by this court in Pacheco v.
State, supra, holds, to entitle a party to a new trial, on the ground of newly discovered
evidence, it must appear First, that the evidence, and not merely its materiality, be newly
discovered; second, that the evidence is not cumulative merely; third, that it is such as to
render a different result probable on a retrial of the cause; fourth, that the party could not with
reasonable diligence have discovered and produced it at the trial; and, fifth, that these facts be
shown by the best evidence which the case admits.
In an early Nevada case, Whise v. Whise, 36 Nev. 16, 131 P. 967 (1913), McCarran, J.,
said Newly discovered evidence, to have any weight in the consideration of a trial court,
must be material or important to the moving party.
be material or important to the moving party. Evidence on a matter collateral to the issue is
seldom grounds for a new trial, and it is not sufficient that the new evidence, had it been
offered in the trial might have changed the judgment. It must be sufficiently strong to make it
probable that a different result would be obtained in another trial. The new evidence must be
of such a decisive and conclusive character, or at least such as to render a different result
reasonably certain. In Pacheco v. State, supra, this court again followed that rule and
approved it as a corollary of the rule of harmless error.
Here the trial court's finding did not accord with that standard. The judge said in his ruling,
The evidence if presented in conjunction with the evidence adduced at the trial, might have
resulted in a different verdict. He thus applied a much less stringent standard in testing the
effect of the new evidence than the long time rule of this court requires. His opinion and
finding that the new evidence might have resulted in a different verdict, has been specifically
rejected in Whise v. Whise, supra. The trial judge who heard the witnesses, passed upon their
credibility and assigned weight to the evidence before him on the new trial motion was
convinced in his own mind that the new evidence, together with that introduced at the trial
might result in a different verdict. It is not our function to substitute our judgment for his
upon the record before us. Nor may we take the position that he really meant one thing when
he in fact said another.
Neither is the result an unfair one in light of all the evidence in the record. The judge said
of the trial before the jury which convicted Crockett, there was sufficient evidence for them to
have arrived at the verdict they did. The fact that he would have reached a different verdict
had he been a member of the jury is of no moment, because to the jury alone belonged the
duty of resolving the conflicting evidence.
The conviction in no way depended entirely upon the eyewitness identification of Crockett
by David Bingham. As pointed out in the factual summary above there was much other
circumstantial evidence linking Crockett to the killing.
Moreover, I feel the trial judge's order granting the new trial in this case is legally deficient
in other respects. It appears from the authorities that a trial court when considering a new trial
because of newly discovered evidence must make cumulative findings and reach definite
conclusions upon several factors making up the ground before granting it. As seen in People
v. Sutton, supra, to entitle a party to a new trial on the ground of newly discovered evidence
there are at least five factors which must be found to exist simultaneously by the trial court
before it can grant the new trial.
it can grant the new trial. They are (1) evidence must be newly discovered, (2) is not
cumulative, (3) renders a different result probable, (4) that the party could not with reasonable
diligence have discovered and produced it at trial, and (5) that those facts be shown by the
best evidence the case admits.
There are additional requirements under Nevada case law. They are (6) materiality of the
evidence to the movants cause, Pacheco v. State, supra, (7) that it is competent and relevant,
State v. McNeil, 53 Nev. 428, 4 P.2d 889 (1931), (8) that it does not attempt only to
contradict a former witness or to impeach or discredit him, Whise v. Whise, supra.
The trial court's order in this case fails to find facts or state conclusions on any but one of
those elements. In fact the only one he discussed in his decision at all was the third ground.
We may not supply those findings and conclusions and for such failure the order is not
sustainable as a matter of law.
Granting of new trials should be approved with caution by the lower courts, because they
tend to prolong litigation; give the losing party an opportunity to retry his case with the
additional benefit of hindsight; afford new witnesses opportunity to conjure up testimony of
doubtful veracity tailored to upset an otherwise fairly determined result. See Pinschower v.
Hanks, 18 Nev. 99, 1 P. 454 (1883).
I would reverse the order granting the new trial and reinstate the jury's verdict.
____________
84 Nev. 525, 525 (1968) Welfare Division v. Maynard
WELFARE DIVISION OF THE DEPARTMENT OF HEALTH AND WELFARE OF THE
STATE OF NEVADA, Appellant, v. PATRICIA RUTH MAYNARD on Behalf of
RICHARD SCOTT MAYNARD, a Minor, Respondent.
No. 5516
September 11, 1968 445 P.2d 153
Appeal from order making permanent a writ of habeas corpus in the Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
Mother petitioned for writ of habeas corpus for return of her child and for restraining order
enjoining welfare department from proceeding with adoption of child. The lower court
granted the petitions and made permanent the writ of habeas corpus and the welfare
department appealed. The Supreme Court, Batjer, J., held that mother's relinquishment of
her child for adoption prior to statutory amendment adding provision of irrevocability
having been freely and voluntarily given, was irrevocable.
granted the petitions and made permanent the writ of habeas corpus and the welfare
department appealed. The Supreme Court, Batjer, J., held that mother's relinquishment of her
child for adoption prior to statutory amendment adding provision of irrevocability having
been freely and voluntarily given, was irrevocable.
Reversed.
[Rehearing denied October 25, 1968]
Harvey Dickerson, Attorney General, Norman H. Samuelson, Deputy Attorney General,
for Appellant.
John J. McCune and Paul J. Williams, of Reno, for Respondent.
Bart M. Schouweiler, of Reno, Amicus Curiae.
1. Adoption.
Mother who was intelligent, informed and reasonably well-educated and who had read, before signing,
relinquishment document, which was clear and unambiguous, executed document for relinquishment of her
son for adoption with full understanding.
2. Adoption.
Terms of first document which mother signed and which was unequivocal consent to relinquishment of
her child for adoption were not negated by terms of medical release document which was second document
that mother signed and which contained caveat that the consent to medical release did not constitute
consent for adoption.
3. Adoption.
Mother's relinquishment of her child for adoption prior to statutory amendment adding provision of
irrevocability, having been freely and voluntarily given, was irrevocable. NRS 127.080, subd. 1.
4. Statutes.
Statutory enactment can be simply a legislative pronouncement of already existing law.
OPINION
On January 17, 1966, Patricia Maynard, the respondent, having exclusive authority as the
mother of the child, executed a relinquishment of child for adoption to the Nevada State
Welfare Department.
Richard Scott Maynard, the minor child, who had been born on September 27, 1963, was
placed in a temporary foster home upon the execution of the relinquishment and he
remained there until October 13, 1966, when he was placed in the prospective adopting
home.
on September 27, 1963, was placed in a temporary foster home upon the execution of the
relinquishment and he remained there until October 13, 1966, when he was placed in the
prospective adopting home.
On January 30, 1967, the respondent asked for the return of the child by means of a
petition for a writ of habeas corpus supported by affidavit and also petitioned for a restraining
order enjoining the Welfare Department from proceeding with the adoption. Both requests
were granted later that same day.
On November 22, 1967, the writ of habeas corpus was made permanent by the lower court.
[Headnote 1]
1. Although the court below found that the respondent did not execute the relinquishment
document with full understanding the opposite would appear to be true. The instrument itself
is clear and unambiguous and if read at all, would be nearly impossible to misconstrue.
Additionally, the respondent is intelligent, informed and reasonably well educated. She is a
licensed practical nurse, and the chances of an inadvertent misconstrual on her part seems
remote. The following exchange between counsel for Welfare and Patricia Maynard indicates
her full and complete understanding of the instrument:
Q. And did Mrs. Clayton then again tell you that you should consider very carefully the
question of giving up Scotty and relinquishing him?
A. Yes, she did.
Q. And that was before you signed either of the papers, Petitioner's Exhibit A (the
medical release) or Respondent's Exhibit 1 (the Relinquishment for Adoption); isn't that
correct?
A. It is, yes.
Q. And before you signed either one of those papers you read them over, did you not?
A. Yes, I did.
If an intelligent, educated person actually did read those simple explicit papers, the
chances of misinterpretation were nil.
The respondent also advances the proposition that the two documents she signed on
January 17, 1966 (the Relinquishment for Adoption and the medical release) were
contradictory and therefor mutually self defeating. She bases this argument on the fact that in
the medical release instrument is found the caveat, I understand this consent does not
constitute a consent for adoption.
[Headnote 2]
While agreeing that it would have been preferable to have had that part of the second
agreement deleted for clarity's sake the more realistic view is that the second instrument was
executed to supplement rather than to contradict the first. The second instrument simply
allowed the Welfare Department to obtain medical care for the child and to place it in a foster
home pending adoption. The first document is unmistakably an unequivocal consent to
relinquishment for adoption. The terms of the first are not negated by those of the second.
2. The landmark Nevada adoption case is Ex parte Schultz, 64 Nev. 264, 181 P.2d 585
(1947). There, a factual situation much like the present one existed. An unwed mother
executed a consent to the relinquishment of her child for adoption to the Nevada Catholic
Welfare Bureau. The bureau then delivered the child to the prospective adopting parents, who
thereafter began adoption proceedings. Before this process could be completed the mother
filed a writ of habeas corpus asking that the relinquishment be revoked and that she be
allowed to reclaim the child. In finding the relinquishment irrevocable the court held, A
decision of the principle involved in the instant case, is included in the opinion in the case of
Wyness v. Crowley, 292 Mass. 459, 461, 198 N.E. 758, 759. We quote:
To accede to the contention that such voluntary consent may be withdrawn would be
equivalent to saying that parties may come to a court, deliberately give their assent to actions
by the court in matters affecting their interests, and afterwards, at their will and pleasure,
return to the court and undo what they did because on a future day they did not like it.'
In the case of Stanford v. Gray, 42 Utah 228, 129 P. 423, 426, Ann.Cas. 1916A, 989, the
court stated as follows:
Ordinarily the law presumes that the best interest of the child will be subserved by
allowing it to remain in the custody of the parents, no matter how poor and humble they may
be, though wealth and worldly advancement may be offered in the home of another. Where,
however, a parent, by writing or otherwise, has voluntarily transferred and delivered his
minor child into the custody and under the control of another, as in the case at bar, and then
seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the
exercise of the equitable discretion of the court to disrupt private domestic relations which he
has voluntarily brought about, and the court will not grant the relief, unless upon a hearing of
all the facts it is of the opinion that the best interests of the child would be promoted
thereby.'"
of all the facts it is of the opinion that the best interests of the child would be promoted
thereby.'
Continuing to quote from the Schultz case, at 272:
It is apparent that if in particular cases the unstable whims and fancies of natural
mothers were permitted, first, to put in motion all the flow of parental love and expenditure of
time, energy and money which is involved in adoption, and then, as casually, put the whole
process in reverse, the major purpose of the statute would be largely defeated. * * *' In re
Adoption of a Minor, 144 F.2d 644 (1944).
[Headnote 3]
4. Following the authorities cited above, the court finds that the relinquishment of the
mother, having been freely and voluntarily given, is irrevocable * * * the document must be
accorded the full effect intended under the statute.
5. Public policy demands that the adoption act should not be nullified by a decision that
causes the public to fear the consequences of adopting a child with the full knowledge that
their efforts are at the whim and caprice of a natural parent. The rule of Ex parte Schultz,
supra, controls this case.
3. After the consent to relinquishment occurred in this case the Nevada legislature
amended NRS 127.080 by adding subsection 1, which reads: The execution of a written
consent to a specific adoption or a relinquishment for adoption pursuant to this chapter shall
be irrevocable.
[Headnote 4]
The respondent argues that since the legislature felt compelled to add this provision of
irrevocability to the law, such documents must have been revocable before the amendment.
Such is not necessarily the case. A statutory enactment can be simply a legislative
pronouncement of already existing law. In view of Ex parte Schultz, this appears to be the
circumstance here. Relinquishments for adoption have been irrevocable in Nevada at least
since 1947, and the 1967 legislature merely enunciated that fact.
The lower court was in error and its order is reversed.
Thompson C. J., Collins, Zenoff, and Mowbray, JJ., concur.
____________
84 Nev. 530, 530 (1968) Scott v. State
GREGORY SCOTT, Appellant, v. THE STATE
No. 5514
September 12, 1968 444 P.2d 902
Appeal from denial of habeas corpus. Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
The trial court entered a judgment denying petition and the petitioner appealed. The
Supreme Court, Zenoff, J., held that prosecution carried burden of showing good cause for
the 59-day delay before arresting defendant on charge of robbery on which he was eventually
tried following dismissal of information which charged robbery of another establishment, and
defendant's claim of possible prejudice was insubstantial and speculative and failed to show a
denial of right to speedy trial.
Affirmed.
David R. Hoy, of Reno, for Appellant.
1. Criminal Law.
Whether or not defendant had been denied his right to speedy trial depends on circumstances of each
case. U.S.C.A.Const. Amends. 6, 14.
2. Criminal Law.
In order that a prearrest delay be considered a violation of constitutional right to speedy trial, delay must
be unreasonable, unfounded and endanger fairness of accused's trial. U.S.C.A.Const. Amends. 6, 14.
3. Criminal Law.
Prosecution carried burden of showing good cause for the 59-day delay before arresting defendant on
charge of robbery on which he was eventually tried following dismissal of information which charged
robbery of another establishment, and defendant's claim of possible prejudice was insubstantial and
speculative and failed to show a denial of right to speedy trial. U.S.C.A.Const. Amends. 6, 14.
OPINION
In this case the petitioner, Gregory Scott, contends that he is denied a speedy trial because
the State filed only one felony charge against him when the prosecutor had sufficient
evidence to formally accuse him of four more.
84 Nev. 530, 531 (1968) Scott v. State
to formally accuse him of four more. The question is, when an accused is arrested and
charged with one crime and at the same time the State has information sufficient to charge
him with four more, must the State file all of the charges or may some of them be withheld
subject to the direction of the prosecutor?
Scott was arrested and charged with robbing the Mark Twain Motel. He was also
suspected of robbing four other motels, but the other robbery charges were withheld.
The day before the trial was to commence a material witness for the State could not be
found. The district attorney dismissed that information and charged Scott with robbing the
Zanzibar and the Holiday Inn. Through counsel he objected to further proceedings on the
ground that because he was first arrested on June 27, 1967 and the Zanzibar and the Holiday
Inn complaints were not filed until August 25th his right to a speedy trial was violated. The
time between the alleged robberies of the Zanzibar and Holiday Inn and the filing of the
complaint was 59 days.
He sought release by habeas corpus which was denied. He appeals.
[Headnote 1]
We held in Barker v. State, 84 Nev. 224, 438 P.2d 798, that whether or not a defendant has
been denied his right to a speedy trial depends on the circumstances of each case, citing
Klopfer v. North Carolina, 386 U.S. 213 (1967); Bates v. State, 84 Nev. 55, 436 P.2d 27
(1968); Stabile v. Justice's Court, 83 Nev. 393, 432 P.2d 670 (1967).
[Headnote 2]
The record does not show that Scott's detention or the 59-day delay before his arrest on the
charge of robbery of the Zanzibar and the Holiday Inn are violative of either the Sixth
Amendment's guarantee of a speedy trial or the due process clause of the Fourteenth
Amendment to the United States Constitution. While prearrest delay may be a constitutional
violation, the delay must be unreasonable and unfounded and endanger the fairness of the
accused's trial. Terlikowski v. United States, 379 F.2d 501, 505 (8th Cir. 1967); Fleming v.
United States, 378 F.2d 502 (1st Cir. 1967); United States v. Sanchez, 361 F.2d 824, 825 (2d
Cir. 1966); Lucas v. United States, 363 F.2d 500 (9th Cir. 1966); cf. Ross v. United States,
349 F.2d 210 (D.C. Cir. 1965).
[Headnote 3]
The prosecution carried its burden of showing good cause for the delay. Oberle v. Fogliani,
82 Nev. 428, 420 P.2d 251 {1966); Ex parte Morris 7S Nev. 123
84 Nev. 530, 532 (1968) Scott v. State
(1966); Ex parte Morris 78 Nev. 123 369 P.2d 456 (1962). Scott's claim of possible prejudice
was insubstantial and speculative. United States v. Ewell, 383 U.S. 116, 122-123 (1966).
Other issues were presented but the speedy trial question disposes of the entire appeal.
Affirmed.
Thompson C. J. Collins, Batjer, and Mowbray JJ., concur.
____________
84 Nev. 532, 532 (1968) Wallace v. State
BYRON MAX WALLACE, Appellant, v. THE
No. 5498
September 18, 1968 445 P.2d 29
Appeal from denial of petition for habeas corpus challenging probable cause and the
validity of charging defendant with two crimes arising out of one incident. Eighth Judicial
District Court, Clark County; John F. Mendoza, Judge.
The Supreme Court, Zenoff, J., held that evidence, including fact that when defendant was
arrested, he volunteered, It is about those plants in my backyard, isn't it?, established
existence of reasonable cause to hold defendant for trial on charges of possession of narcotics
and planting or cultivating marijuana.
Affirmed.
H. Spizzirri, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Evidence, including fact that when defendant was arrested, he volunteered, It is about those plants in my
backyard, isn't it? established existence of reasonable cause to hold defendant for trial on charges of
possession of narcotics and planting or cultivating marijuana. NRS 453.030, 453.330.
Seizure without a search warrant of marijuana plants from defendant's backyard was legal since they were
open to public view.
3. Criminal Law.
Charging defendant with two crimes arising out of same incident was not improper, though he could only
be convicted of one of the crimes.
OPINION
Byron Max Wallace was charged with the crimes of possession of narcotics (NRS 453.030
(1965)) and planting or cultivating marijuana (NRS 453.330 (1965)). After preliminary
hearing he was bound over to district court for trial, but he sought release by habeas corpus
alleging that no sufficient cause existed to hold him, and that he could not be charged with
both crimes because they arose out of the same incident. His petition for habeas corpus was
denied and he appeals.
The police were directed by an informant to Wallace's trailer where they observed
marijuana growing in his back yard. When arrested he volunteered, It is about those plants in
my backyard, isn't it? At the preliminary hearing he testified that he had smoked marijuana
and was familiar with it. He admitted planting the seeds but denied knowing that they were
marijuana.
[Headnotes 1, 2]
We are satisfied from the record that reasonable cause exists to hold Wallace for trial. The
seizure of the plants was legal since they were open to public view and no search warrant was
therefore needed. The record also shows sufficiently that he and his wife had consented to the
officers' entry onto the premises.
[Headnote 3]
His contention that he cannot be charged with both crimes has no merit. He can be tried on
both, but convicted of only one. Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967). Thus
the trial may proceed since the violation of that principle has not yet occurred.
Affirmed.
____________
84 Nev. 534, 534 (1968) Carlson v. State
JAMES L. CARLSON, Appellant, v. THE STATE
No. 5501
September 18, 1968 445 P.2d 157
Bowen, Judge.
Defendant was convicted in the trial court of lewdness with a child under the age of 14
years and he appealed. The Supreme Court, Thompson, C. J., held that prosecutor's inquiry of
defendant on cross-examination as to whether he had ever become amorous with certain
female child was harmless error where evidence of guilt was substantial and the prosecutor's
question did not necessarily suggest other criminal conduct.
Affirmed.
Sidney W. Robinson and Frank Cassas, Jr., of Reno, for Appellant.
1. Criminal Law.
Trial court need not give multiple instructions upon same subject.
2. Criminal Law.
Where trial court instructed jury in prosecution for lewdness with a child under the age of 14 that the
child victim's testimony should be received with caution, trial court's refusal to give defendant's requested
instruction upon same subject was not error.
3. Criminal Law.
When claim is made that confession was not voluntary, trial court should first hear the evidence on
voluntariness before allowing the confession into evidence and if found to be voluntary, the jury is to then
be instructed that it must also find that the confession was voluntary before it may be considered.
4. Criminal Law.
Trial court's instruction to jury that fact that court had admitted into evidence alleged confession did not
bind jury to accept the court's conclusion and the jury must for itself find whether or not it was a voluntary
confession and, if found to be involuntary, to disregard it was adequate to guide jury in determining
whether confession was voluntary.
5. Witnesses.
A testifying defendant who denies a previous conviction may be impeached by appropriate proof that a
prior felony conviction occurred. NRS 48.130.
6. Criminal Law.
Evidence of other offenses may be admissible during state's case in chief if relevant to prove motive,
intent, identity, the absence of mistake or accident or a common scheme or plan.
7. Witnesses.
Evidence of other offenses may not be received to impeach defendant, except evidence of prior felony
conviction. NRS 48.130, 178.598.
8. Criminal Law.
Prosecutor's inquiry of defendant on cross-examination as to whether he had ever become amorous with
certain female child was harmless error in prosecution for lewdness with a child under the age of 14 years
where evidence of guilt was substantial and the prosecutor's question did not necessarily suggest other
criminal conduct. NRS 48.130, 178.598, 201.230.
OPINION
Carlson was convicted of lewdness with a child under the age of fourteen years (NRS
201.230). His appeal to this court presses several claims of error.
[Headnotes 1, 2]
1. The district court gave an instruction that the child victim's testimony should be
received with caution. The circumstances of this case suggested the advisability of such a
cautionary instruction (cf. Scott v. State, 72 Nev. 89, 295 P.2d 391 (1956)
1
and it inured to
the defendant's benefit. The appellate complaint is not that the court refused to give a
cautionary instruction with respect to the child's testimony. Cf. Scott v. State, supra. Rather,
the complaint is that the court failed to give the particular instruction offered by the
defendant. A court need not give multiple instructions upon the same subject. Schaumberg v.
State, 83 Nev. 372, 375; 432 P.2d 500 (1967); Tomlin v. State, 81 Nev. 620, 625, 407 P.2d
1020 (1965); Kuk v. State, 80 Nev. 291, 298, 392 P.2d 630 (1964). This claimed error is
without substance.
[Headnote 3]
2. In line with the command of Jackson v. Denno, 378 U.S. 368 (1964), the trial court, in
the absence of the jury, received evidence to determine whether the defendant's
confession was voluntary.
____________________

1
In Scott v. State, supra, the court noted that the testimony of a child may require a cautionary instruction if
the complaining witness' testimony is not corroborated, the charge is easily made and difficult to meet, the case
is one which arouses passion in the minds of decent people, and the charge can be made to satisfy spite,
vengeance, vindictiveness and other base motives. Scott, supra, at 93, 295 P.2d at 394.
received evidence to determine whether the defendant's confession was voluntary. The court
specifically found that the confession was voluntary [cf. Sims v. Georgia, 385 U.S. 538
(1967); Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968)], and it was later received in
evidence before the jury without objection, and the footnoted instruction given.
2
The
instruction adopts the Massachusetts Rule. The court first hears the evidence in
voluntariness before allowing the confession into evidence. If found to be voluntary, the jury
is then instructed that it must also find that the confession was voluntary before it may be
considered. This court has never decided whether the Massachusetts Rule should be followed,
or some other procedure. State v. Fouquette, 67 Nev. 505, 533-34, 221 P.2d 404, 419 (1950).
We now approve that rule as the rule for Nevada.
[Headnote 4]
The defendant argues that the instruction was inadequate in that it does not advise the jury
of the factors to be considered in deciding whether the confession was voluntary. The
instruction was adequate. The term voluntary carries a clear meaning, without need for
further definition or explanation.
3. The defendant elected to testify. On direct examination by his counsel he was asked
whether he had any sexual attraction for any child, to which he answered no. On
cross-examination, over objection, the defendant, who had admitted knowing another female
child, who was a friend of the victim, was asked whether he had tried to kiss such other child
and become amorous with her. He denied having done so. It is contended that such
cross-examination was improper and prejudicial since its purpose was to suggest that the
defendant had committed a separate and distinct criminal act upon another child wholly
unrelated to the charge for which he was on trial.
The cross-examiner's question does not necessarily suggest the commission of a separate
offense, although it could, perhaps, be so construed. In any event, it is the state's position that
the door was opened to such cross-examination by the question which defense counsel had
asked of his client on direct examination. We do not subscribe to the state's position.
____________________

2
The fact that the court has admitted into evidence the alleged confession or admission of a defendant does
not bind the jury to accept the court's conclusion; and the jury, before it may take a confession or admission into
consideration, must for itself find whether or not it was a voluntary confession or admission. If the jury
concludes that a confession or admission was not made voluntarily, it is the duty of the jury to entirely disregard
the same and not consider it for any purpose.
[Headnotes 5, 6]
A testifying defendant shall answer as to the fact of his previous conviction for felony,
[NRS 48.130; cf. Fairman v. State, 83 Nev. 287, 429 P.2d 63 (1967)] and, if he denies such
previous conviction, may be impeached by appropriate proof that a prior felony conviction
occurred. And, of course, evidence of other offenses may be admissible during the state's case
in chief if relevant to prove motive, intent, identity, the absence of mistake or accident, or a
common scheme or plan. Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966), and the cases
therein cited. Neither principle applies to the circumstance before us.
[Headnote 7]
Our concern about evidence of collateral offenses was expressed in Tucker v. State, supra,
in a different context. The intendment of that decision is that no reference shall be made to
such collateral offenses unless, during the state's case in chief, such evidence is relevant to
prove motive, intent, identity, the absence of mistake or accident, or a common scheme or
plan; and, then, only if such offense is established by plain, clear and convincing evidence. A
necessary corollary is that such evidence may not be received to impeach the defendant,
except evidence of a prior felony conviction. The trial court should have sustained the
defendant's objection to the cross-examiner's line of inquiry.
[Headnote 8]
This error, however, was harmless since the evidence of guilt was substantial, and the
cross-examiner's question did not necessarily suggest other criminal conduct. NRS 178.598.
Affirmed.
____________
84 Nev. 537, 537 (1968) Cockrell v. Cockrell
RILEY N. COCKRELL, Appellant, v. BILLIE
BETTLES COCKRELL, Respondent.
No. 5505
September 18, 1968 445 P.2d 30
Appeal from judgment ordering return of certain realty from husband to wife. Fifth
Judicial District Court, Nye County; Peter Breen, Judge.
In a contested divorce action wife sought return of property which she had deeded to
husband day after marriage. The trial court ordered return of the property, and husband
appealed. The Supreme Court, Zenoff, J., held that record supported trial court's finding that
wife's transfer of property to husband one day after marriage was for management purposes
only and was not an outright gift and that wife was entitled to return of the property on
divorce.
Affirmed.
Thomas L. Pursel, of Las Vegas, for Appellant.
Beko & Lemon, of Tonopah, for Respondent.
Gifts.
Record supported trial court's finding that wife's transfer of property to husband one day after marriage
was for management purposes only and was not an outright gift and that wife was entitled to return of the
property on divorce.
OPINION
The husband in a contested divorce action appeals from a decision compelling him to
return to his wife of four months certain real estate holdings which she deeded to him the day
after their marriage.
In the trial court's decision the whimsy of our now departed good friend and jurist, the
Honorable Peter Breen, described the marriage relationship of the parties as one where the
husband at 45 was a vigorous man in his prime, but the wife at 63 had already experienced
the change from the autumn of her life to early winter. Riley Cockrell while examining some
property Billie Bettles was selling noticed a gleam in her eyes and love came quickly. The
wife suggests the gleam may have had a commercial tint. Quick courtship followed. She gave
him $1,100 so that he could pay his debts and marry her, which he did. She testified that one
day after the ceremony she transferred real estate to him so that he could operate the property
without interference from her relatives and would quit his job as a truck driver and stay at
home. He claimed instead that it was an outright gift without reservations. The trial judge was
satisfied that the transfer of real estate was not intended to be a gift, but that the transfer of
$1,100 was. No appeal is taken from the judgment that the transfer of the $1,100 was a gift.
The parties and the trial judge ignored the presumption rule elucidated in Peardon v.
Peardon, 65 Nev. 717
elucidated in Peardon v. Peardon, 65 Nev. 717, 201 P.2d 309 (1948). See also Hopper v.
Hopper, 80 Nev. 302, 392 P.2d 629 (1964); Giorgi v. Giorgi, 77 Nev. 1, 358 P.2d 115,
(1961); Zahringer v. Zahringer, 76 Nev. 21, 348 P.2d 161 (1960); Weeks v. Weeks, 72 Nev.
268, 302 P.2d 750 (1956); Lombardi v. Lombardi, 44 Nev. 314, 195 P. 93 (1921); In re
Bishop's Estate, 209 Cal.App.2d 48, 25 Cal.Rptr. 763 (1962); In re Abdale's Estate, 28 Cal.2d
587, 170 P.2d 918 (1946). They chose instead to try the case on the substantial evidence rule.
Therefore, the only issue is whether there was substantial evidence to support the trial court's
judgment that the transfer of real estate was for management purposes only. Hopper v.
Hopper, supra; Giorgi v. Giorgi, supra; Kraemer v. Kraemer, 76 Nev. 265, 352 P.2d 253
(1960).
Under either theory the record supports the judgment of the trial court.
We affirm.
____________
84 Nev. 539, 539 (1968) Rogers v. Warden
WILLIAM H. ROGERS, Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 5578
September 13, 1968 445 P.2d 28
Appeal from an order of the First Judicial District Court, Ormsby County, denying a
post-conviction application for relief; Frank B. Gregory, Judge.
Petitioner, who had been convicted of robbery, sought postconviction relief. The lower
court dismissed the application, and petitioner appealed. The Supreme Court, Thompson, C.
J., held that neither habeas corpus nor remedies under postconviction remedy act were
available to petitioner who asserted that he was brutally beaten by warden of prison in
violation of federal and state constitutional provisions forbidding cruel and unusual
punishments.
Affirmed.
Gary A. Sheerin, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, and Peter I. Breen, Deputy Attorney General, of
Carson City, for Respondent.
1. Criminal Law; Habeas Corpus.
Habeas corpus and remedies under post-conviction remedy act provide for inquiry into the legality of
imprisonment but not into the supervision of prison administration. NRS 34.360-34.630,
177.315-177.385.
2. Criminal Law; Habeas Corpus.
Neither habeas corpus nor remedies under post-conviction remedy act were available to petitioner who
asserted that he was brutally beaten by warden of prison in violation of federal and state constitutional
provisions forbidding cruel and unusual punishments. Const. art. 1, 6; U.S.C.A.Const. Amends. 8, 14;
NRS 34.360-34.680, 177.315-177.385.
OPINION
[Headnote 1]
This is an appeal from an order of the district court dismissing a post-conviction
application for relief. The petitioner, William Rogers, was convicted of robbery and is
presently serving his sentence at the Nevada State Prison. His postconviction application does
not challenge the validity of his conviction. Instead it asserts that he was brutally beaten by
the Warden of the Nevada State Prison in violation of federal and state constitutional
provisions forbidding cruel and unusual punishments.
1
He therefore seeks release from
prison or other appropriate relief. The district court dismissed the petition on the ground that
neither habeas corpus [NRS 34.360-34.680] nor the 1967 post-conviction remedy act [NRS
177.315-177.385] is available in these circumstances. We agree since those remedies provide
for inquiry into the legality of imprisonment rather than supervision of prison administration.
2

[Headnote 2]
Some courts have extended the scope of habeas corpus to embrace an Eighth Amendment
violation occurring during confinement following a valid conviction. Coffin v. Reichard, 143
F.2d 433 (6th Cir. 1944); State ex rel. Cole v. Tahash, 129 N.W.2d 903 (Minn. 1964); In re
Riddle, 372 P.2d 304 (Cal.
____________________

1
Nev. Const. art. 1, 6; U.S. Const. amend. VIII. The Eighth Amendment is binding upon the states through
the Fourteenth Amendment. Robinson v. California, 370 U.S. 660 (1962).

2
See Marshall v. Warden, 83 Nev. 442, 434 P.2d 437 (1967); Krause v. Fogliani, 82 Nev. 459, 421 P.2d 949
(1966); Bundrant v. Fogliani, 82 Nev. 388, 419 P.2d 293 (1966); Orsborn v. Fogliani, 82 Nev. 300, 417 P.2d
148 (1966); Messmore v. Fogliani, 82 Nev. 153, 413 P.2d 306 (1966); Morford v. Fogliani, 82 Nev. 79, 411
P.2d 122 (1966).
1962). We do not choose to do so, since the post-conviction remedies of chs. 34 and 177 do
not contemplate relief for conduct or occurrences unrelated to the validity of the conviction,
sentence, or restraint. Other redress is available to the petitioner if his charges are true. See
Comment, Enforcement of Prison Discipline and Its Effect Upon the Constitutional Rights of
Those Imprisoned, 8 Vill.L.Rev. 379, 388 (1963).
Affirmed.
____________
84 Nev. 541, 541 (1968) Milchem Inc. v. District Court
STATE OF NEVADA ex Rel. MILCHEM INCORPORATED, a Corporation, and TONY
MILLER, Petitioners, v. THE THIRD JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Lander; Honorable John F.
Sexton, Judge Thereof, and WILLIAM ROBERTS, WILLIAM LAURITZEN,
and LYMAN THOMAS, Respondents.
Nos. 5467 and 5483
September 20, 1968 445 P.2d 148
Original proceedings in prohibition.
The Supreme Court, Mowbray, J., held, inter alia, that no constitutional infirmity existed
in statutes relating to, inter alia, prospecting on unfenced, unimproved land held in private
ownership and to the procedure for acquiring title to land, but statute relating to basis for
determination of value of land was unconstitutional and therefore void in that it did not
provide a means by which just compensation to landowner for minerals could be determined.
Writ issued.
[Rehearing denied November 12, 1968]
Cooke & Roberts and George G. Holden, of Reno, for Petitioner Milchem Incorporated.
Harry B. Swanson and Richard E. Fray, of Reno, for Petitioner Tony Miller.
Gordon W. Rice and Leo P. Bergin, of Reno, for Respondents.
1. Prohibition.
Where respondents were in possession of property owned by petitioners and were able to mine the
limited supply of minerals, so that they were thus able virtually to destroy the mining value of the land, and
where petitioners had no assurance that they would ever be adequately compensated for any damage done
to such land, the slow process of appeal would not provide an adequate remedy and prohibition in such
circumstances would be a proper remedy.
2. Election of Remedies.
Fact that petitioners seeking prohibition had commenced an action to quiet title to property did not not
mean that prohibition proceeding should be dismissed on grounds that petitioners had pursued another and
inconsistent remedy, in situation where petitioners who owned the property claimed that quiet-title action
was filed as a cautionary measure to prevent respondents from claiming five years of continuous adverse
possession; the right of petitioners to protect themselves in such fashion was an exception to the general
rule of waiver by pursuit of an inconsistent remedy.
Ownership of minerals is a property right protected by the state and federal Constitutions.
4. Eminent Domain.
Where mineral right is itself the interest sought to be condemned it must be valued and paid for
separately.
5. Eminent Domain.
Condemned property can be taken only after an ample and certain provision has been made for a just, full
and adequate compensation.
6. Eminent Domain.
Whatever is an essential element in compensation to be paid for condemnation purposes cannot be
excluded from such payment, even by a legislative enactment.
7. Eminent Domain.
One may not be deprived of his properly without full compensation merely because he has chosen to let it
lie dormant or because he was perhaps unaware of the value or the existence of minerals upon it.
8. Eminent Domain; Mines and Minerals.
No constitutional infirmity existed in statutes relating to, inter alia, prospecting on unfenced, unimproved
land held in private ownership and to the procedure for acquiring title to land, but statute relating to basis
for determination of value of land was unconstitutional and therefore void in that it did not provide a means
by which just compensation to landowner for minerals could be determined. NRS 516.010-516.060;
Const. art. 1, 3.
OPINION
Respondents Roberts, Lauritzen, and Thomas commenced an eminent domain action under
NRS 516.010-516.060 against the petitioners.
against the petitioners. Petitioner Milchem Incorporated is the present owner of the property.
Petitioner Miller is one of Milchem's predecessors of title.
These respondents filed a notice of location in 1963 for certain minerals on Miller's land.
Later that year a certificate of location was recorded for another claim on the land. One year
later the respondents filed their only proof of annual labor. In late 1966, after Milchem
acquired title, another certificate of location was recorded.
Respondents have actually occupied and mined a certain lode in an open pit on a portion
of the property since 1963. On November 16, 1966, they were advised by petitioner Milchem
to cease such work and remove their property from the land. Respondents refused and instead
went to court, filed the condemnation action, and obtained a temporary restraining order
preventing petitioner Milchem from interfering with or obstructing respondents' possession,
mining, or use of the property.
On January 6, 1967, Milchem filed a motion to dismiss respondents' action. In March 1967
Milchem filed a motion for a preliminary injunction to require the respondents to cease
mining operations and yield possession to petitioner Milchem. Petitioner Miller also filed a
motion to dismiss respondents' action. Miller also counterclaimed for damages against the
respondents. Petitioners' motions were denied. Respondents have continued to remove the ore
from the land. Petitioners claim that they have no plain, speedy, or adequate remedy in the
ordinary course of law, and therefore filed in this court the present petition for an alternative
writ of prohibition. Petitioners are asking this court to command the lower court to desist and
refrain from any further proceedings in the eminent domain action below.
1. Respondents' claim that prohibition is not an appropriate remedy is without merit. In
Bell v. First Judicial Dist. Court, 28 Nev. 280, 294, 81 P. 875, 876 (1905), this court said:
It appears from the petition herein that petitioners applied to the lower court for relief,
and that the questions herein presented were urged upon that court upon motions to quash and
to dismiss the proceedings. If the proceedings in the lower court would be void because of the
unconstitutionality of the sections of the act under which it is instituted, I think it is a case for
the proper interference of this court by prohibition, unless it appear that there is another plain,
speedy, and adequate remedy. See also Mitchell v. District Court, 82 Nev. 377, 418 P.2d 994
(1966).
[Headnote 1]
When the motions to dismiss and the motion for a preliminary injunction were denied by
the lower court after a presentation of the arguments herein urged, the petitioners were left
with no other plain, speedy, and adequate remedy. Their claim is that the statute upon which
respondents seek to act is unconstitutional. The respondents are in possession of the property
and are able to mine the limited supply of minerals. They are thus able virtually to destroy the
mining value of the land. Petitioners have no assurance that they will ever be adequately
compensated for any damage done to their land. The slow process of appeal would not
provide an adequate remedy under such circumstances. Prohibition is a proper remedy.
2. Respondents have moved to dismiss this proceeding upon the ground that Milchem has
pursued another and inconsistent remedy by commencing an action to quiet title to the
property. Respondents claim that petitioners, Milchem and Miller, have thereby waived their
right to prosecute this proceeding.
Much of the authority cited by the respondents is not in point in that it contemplates an
appeal from a judgment of the lower court and a subsequent attempt by an appellant to pursue
an inconsistent remedy. In the present case there has been no judgment below; indeed, that is
what the petitioners are trying to prevent. This is an original proceeding to obtain a permanent
alternative writ of prohibition.
The statute of limitations on a potential claim of adverse possession by the respondents ran
its 5 years on March 21, 1968. Petitioners claim that the quiet-title action was filed on
February 15, 1968, as a cautionary measure to prevent the respondents from claiming 5 years
of continuous adverse possession. This is a reasonable explanation which has its basis in law.
Knoke v. Swan, 42 P.2d 1019 (Cal. 1935).
[Headnote 2]
The petitioners should not be forced to give up either their right to protect themselves
against the allegedly unconstitutional actions of the lower court or the potential claim of
adverse possession by the respondents. The petitioners' right to protect themselves in such a
fashion is an exception to the general rule of waiver by pursuit of an inconsistent remedy.
Smith v. Patton, 241 S.W. 109 (Com.App.Tex. 1922).
Under these facts, petitioner Milchem's quiet-title action cannot be considered so
inconsistent as to constitute a clear and unmistakable voluntary waiver of petitioners' right
to proceed.
and unmistakable voluntary waiver of petitioners' right to proceed. Basic Refractories, Inc. v.
Bright, 71 Nev. 248, 286 P.2d 747 (1955).
3. We now reach the merits. The statute
1
under which respondents' original action was
brought is apparently unique to Nevada. In essence, it seeks to encourage the development of
the mineral resources of the State by extending to certain lands held in private ownership
the same rights to discover and exploit minerals which prevail upon the public domain
under the federal mining laws.
____________________

1
516.010 Mining declared a public use. Mining for gold, silver, copper, lead, cinnabar and other valuable
mineral is the paramount interest of this state, and is hereby declared to be a public use.
516.030 Citizens may prospect on unfenced, unimproved land held in private ownership. Any citizen of the
United States may enter upon any unfenced and unimproved land in the State of Nevada held in private
ownership, excepting mining claims and mining property already located or occupied for mining purposes, and
may prospect thereon for gold, silver or other valuable minerals or metals, being responsible to the owner of the
land for all damage done thereon.
516.040 Location of mineral ledge, deposit on unfenced, unimproved land held in private ownership;
acquisition of title to land by special proceedings. Any citizen of the United States discovering a ledge or
deposit containing gold, silver or other valuable mineral or metals in or upon any unfenced and unimproved land
in this state held in private ownership, except mining claims or mining property already located or occupied for
mining purposes, may locate such ledge or deposit in accordance with the laws of the United States and of this
state in respect to the location of mining claims, the same as though such ledge or deposit was found upon the
public domain, and may acquire title to such land so located by means of the special proceedings prescribed in
NRS 516.030 to 516.060, inclusive.
516.050 Procedure for acquiring title to land.
1. The special proceedings shall be substantially as provided in this section.
2. There shall be filed in the clerk's office of the district court in the county where the real property is
situated a petition verified according to law. The petition shall state:
(a) The names of the person or persons presenting the petition.
(b) That he or they have discovered a ledge or deposit containing gold, silver or some other valuable
mineral or metal.
(c) The description by metes and bounds, or by some other accurate designation, of the tract or tracts of
land located in the manner of mining claims as provided in NRS 516.030 to 516.060, inclusive, and desired to be
appropriated for mining purposes.
(d) That the land is more valuable for mining purposes than the purpose for which the same is being held.
(e) The names of those in possession of the land, and those claiming any right, title or interest therein, so far
as the same can be obtained by reasonable diligence.
3. The proceedings following the filing of such petition shall be as prescribed in chapter 37 of NRS, insofar
as the same are not inconsistent with the provisions of NRS 516.030 to 516.060, inclusive.
4. If, upon the bearing of the petition filed as provided in this section, it appears to the satisfaction of the
court or judge thereof that the land in question is more valuable for mining than for the purpose
of the mineral resources of the State by extending to certain lands held in private ownership
the same rights to discover and exploit minerals which prevail upon the public domain under
the federal mining laws. It also purports to protect the rights of the private owner by
providing for an eminent domain proceeding to ascertain and compensate him for the value of
any land taken. Petitioners' primary claim is that this eminent domain proceeding is
unconstitutional in that it does not provide a just compensation (Nev. Const. art. 1, 8) for
the taking of private property. The exclusion of the value of the minerals contained in the
land, pursuant to NRS 516.060, is the alleged unconstitutional defect.
When this statute was enacted, it was a common belief that the United States had retained
mineral rights in large quantities of land to which it had issued patents. Most congressional
acts which allowed for selection and patent of public lands contained restrictions which
prevented the selection of lands which were known to be valuable for minerals. This applied
to lands selected under the railroad grants and under the homestead laws. The enabling act
which admitted Nevada as a State required it to consent to a reservation of minerals in favor
of the United States as to all lands selected by the State. Since it was physically impossible to
catalog and inventory all public lands selected for grant or entry to determine if they were
valuable for minerals, the Secretary of the Interior normally included in early patents a
reservation or exception of mineral rights or lands valuable for minerals. Similarly, patents
issued by the State of Nevada normally contained a reservation of mineral rights or mines
valuable for specified minerals in favor of the United States. Thus, when the Nevada statute
was enacted, it was common belief the patentee of most lands (excluding mineral patents)
owned only the surface rights and that the mineral rights were retained by the United States.
Respondents contend that the language mineral land excluded in the patent deed from
the United States to the Central Pacific Railway Co., a predecessor in interest of the
petitioners, precludes them from having any interest in the minerals in the land.
____________________
for which the same is being used, then the petitioner or petitioners shall acquire title thereto in a manner similar
to that prescribed in chapter 37 of NRS.
516.060 Basis for determination of value of land. In determining the value of the land as a basis for the
compensation which the petitioner or petitioners shall pay to the owners thereof, the minerals therein contained
shall not be considered as going to make up the value, but the value which shall govern is the reasonable value
of the land for the use to which the same has previously been put, or reasonably might be expected to be put in
the future, by the owners thereof.
petitioners, precludes them from having any interest in the minerals in the land. It is clear,
however, that this language means only that mineral lands known to be such at the time of the
patent were not conveyed by the instrument. In Burke v. Southern Pac. R. R., 234 U.S. 669,
690 (1914), it was held that the Secretary of the Interior must determine at the time of issuing
such a railroad grant patent which lands are to be excluded as mineral, and that such
determination of fact * * * will be considered as conclusive. See also Dredge Corp. v.
Husite Co., 78 Nev. 69, 369 P.2d 676 (1962); Francoeur v. Newhouse, 40 F. 618 (C.C.N.D.
Cal. 1889). Petitioner Milchem is the owner of the present mineral rights which were
subsequently discovered to be in the land.
[Headnote 3]
Ownership of minerals is a property right protected by the State and Federal Constitutions.
United States v. 4.553 Acres of Land, 208 F.Supp. 127 (N.D. Cal. 1962); Idaho Maryland
Mines Corp. v. United States, 104 F.Supp. 576 (Ct.Cl. 1952). The rights acquired by eminent
domain are only those which are fully paid for. Pennsylvania Coal Co. v. Mahon, 260 U.S.
393 (1922).
[Headnote 4]
Where the mineral right is itself the interest sought to be condemned, it must be valued
and paid for separately. State ex rel. State Highway Comm'n v. Foeller, 396 S.W.2d 714 (Mo.
1965); 4 Nichols, Eminent Domain 13.22[2] at 422 (3d ed. 1962).
[Headnote 5]
Condemned property can be taken only after an ample and certain provision has been
made for a just, full and adequate compensation * * *. Dayton Gold & Silver Mining Co. v.
Seawell, 11 Nev. 394, 411 (1876).
As was stated in Board of Directors v. Morledge, 332 S.W.2d 822, 829 (Ark. 1960): * * *
the landowner is entitled to all the damages sustained because of the taking, and the
Legislature has no power to specify a few items of damage and deprive the landowner of the
other damages that he has sustained.
* * * * *
We hold that the Legislature had the right to call the attention of the condemnor to these
five elements of damage as particularly worthy of consideration; but that it was beyond the
power of the Legislature to limit the landowner to these five elements of damage as
mentioned in the two Acts. * * *.
The landowner is entitled to all the damages which may reasonably flow from the taking of
his property; * * *.
[Headnote 6]
The general rule is that, Whatever is an essential element in that compensation cannot be
excluded, even by legislative enactment. United States v. Rogers, 257 F. 397 * * *. City of
Richmond v. Goodwyn, 112 S.E. 787, 789 (Va. 1922).
NRS 516.060 does not provide a means by which just compensation can be determined.
The land here in question is virtually waste land and has little value apart from its mineral
wealth. The reason Milchem, a mining company, bought the land was to exploit its future
worth as a source of minerals. To allow this property to be taken from Milchem without
paying it for the only attribute of value the land possesses would be grossly unfair.
None of the cases cited by respondents in support of the taking of property by eminent
domain for mining purposes reaches this infirmity of NRS 516.060. They correctly hold that
the determination that mining is a public use is within the power of the Legislature to make.
State ex rel. Standard Slag Co. v. Fifth Judicial Dist. Court, 62 Nev. 113, 143 P.2d 467
(1943); Goldfield Consol. Milling & Transp. Co. v. Old Sandstorm Annex Gold Mining Co.,
38 Nev. 426, 150 P. 313 (1915); Overman Silver Mining Co. v. Corcoran, 15 Nev. 147
(1880); Dayton Gold & Silver Mining Co. v. Seawell, supra. See also Urban Renewal Agency
v. Iacometti, 79 Nev. 113, 379 P.2d 466 (1963); Berman v. Parker, 348 U.S. 26 (1954).
[Headnotes 7, 8]
In the light of these cases and of the evident purpose of the statute, we find no
constitutional infirmity in NRS 516.010-516.050, but we hold that NRS 516.060 is
unconstitutional and therefore void. With respect to NRS 516.060, we would add to the
holdings cited only the observation that one may not be deprived of his property without full
compensation merely because he has chosen to let it lie dormant or perhaps was unaware of
the value or the existence of the minerals. NRS 516.030 is no more drastic, considering the
nature of the use to be established, than NRS 37.050, which permits prior entry to survey for
public uses generally. NRS 516.040 must be read in the same light, as prescribing that any
mineral found must be posted and the boundaries of the claim defined in the manner already
familiar to prospectors under the mining laws. We caution, however, that a location under
NRS 516.040 carries with it none of the possessory or extractive rights of a mineral location
on the public domain.
mineral location on the public domain. If it did, NRS 516.040 would suffer from the same
infirmity found in NRS 516.060. We therefore so construe it as to avoid unconstitutionality.
State ex rel. Copeland v. Woodbury, 17 Nev. 337, 356, 30 P. 1006, 1012 (1883). The
acquisition of rights, other than priority of right to bring an action under NRS 516.050, must
await the proceedings under that section and be strictly in accordance therewith.
Because the record clearly shows that both the individual respondents and the district court
have proceeded upon the theory that NRS 516.060 prescribed the court standard of valuation,
and have failed even under that meager standard to accord petitioners their rights under NRS
516.050 as it adopts by reference the immediate entry provisions of chapter 37 of NRS, the
writ should issue as prayed for.
____________
84 Nev. 549, 549 (1968) Dudley v. Prima
JAMES B. DUDLEY, Appellant, v. LOUIS
PRIMA, Respondent.
No. 5512
September 20, 1968 445 P.2d 31
Appeal from the Eighth Judicial District Court, Clark County; Clarence Sundean, Judge.
Action was brought for injuries sustained by plaintiff's horses. The trial court entered an
order granting motion of defendant to set aside a verdict and judgment in favor of the plaintiff
and to have judgment entered in favor of the defendant, and the plaintiff appealed. The
Supreme Court, Mowbray, J., held that defendant, who rented land from which water pipes
extended across highway, was not liable for injuries sustained by horses when tandem horse
trailer became unhitched and overturned when pickup truck towing the trailer struck the water
pipes, where there was no substantial evidence showing that defendant either created or
maintained the pipes or even knew of the existence of the pipes until after the accident.
Affirmed.
Stanley W. Pierce and Robert Farkas, of Las Vegas, for Appellant.
Wiener, Goldwater & Galatz, of Las Vegas, for Respondent.
1. Judgment.
Motion for judgment notwithstanding verdict presents solely a question of law to be determined by court.
NRCP 50(b).
2. Judgment.
Power to grant motion for judgment notwithstanding verdict should be cautiously exercised. NRCP
50(b).
3. Judgment; Trial.
In determining whether defendant is entitled to directed verdict, evidence must be treated as proving
every fact which is favorable to plaintiff's case and which is established either directly or by reasonable
inference, and same rule applies to motion of defendant for judgment notwithstanding verdict for plaintiff.
NRCP 50(b).
4. Nuisance.
Person is not liable for injuries resulting from conditions which he has not been instrumental in creating
or maintaining.
5. Nuisance.
If one creates nuisance and another adopts it and continues it and keeps it up, both are liable for injuries
caused by nuisance.
6. Automobiles.
Defendant, who rented land from which water pipes extended across highway, was not liable for injuries
sustained by horses when tandem horse trailer became unhitched and overturned when pickup truck towing
the trailer struck the water pipes, where there was no substantial evidence showing that defendant either
created or maintained the pipes or even knew of the existence of the pipes until after the accident.
OPINION
By the Court Mowbray, J.:
This is an appeal from an order granting respondent's motion, made pursuant to NRCP
50(b), to set aside a verdict and judgment based thereon in favor of appellant and to have
judgment entered in respondent's favor.
On March 6, 1966, at approximately 6:20 p.m., appellant and his family were driving their
pickup truck on Placid Street, a highway in Clark County. Appellant was towing a tandem
horse trailer loaded with his two horses. He was traveling at the speed of 20 to 25 m.p.h.
when his truck struck two unmarked water pipes 3 to 4 inches in diameter which had been
placed across the road bed at a distance of about 6 feet apart. The water pipes extended from
under the fence of property rented but not owned by respondent, over the roadway onto
property owned by Warm Springs Country Club, Inc. When the truck struck the water pipes,
the trailer became unhitched, veered to the left, overturned, and appellant's horses were
thereby injured.
Appellant sued respondent for negligence in creating or maintaining the water pipes, and
the jury awarded $955 in damages. Respondent, at the conclusion of appellant's case, moved
for a directed verdict, which the trial judge did not grant, but reserved for ruling. After the
jury returned its verdict, respondent moved, pursuant to NRCP 50(b), to set aside the jury's
verdict and judgment in favor of appellant, and asked that judgment be granted in his favor.
This the trial judge did, and properly so.
[Headnotes 1, 2]
The sole issue before us on this appeal is whether, in the record before the trial court,
there is any substantial evidence to support the jury's verdict. Baker v. Simonds, 79 Nev. 434,
386 P.2d 86 (1963). A motion for judgment notwithstanding the verdict presents solely a
question of law to be determined by the court, and the power to grant such motions should be
cautiously exercised. Clarke v. Chicago & N. W. Ry. Co., 63 F.Supp. 579 (D. Minn. 1945).
As the court said in Ries v. Sanders, 34 F.R.D. 468, 470 (N.D. Miss. 1964):
In 30 Am.Jur., Judgments [sic], 300, pp. 354-355, cited with approval in Green v. Gulf,
Mobile & Ohio Railroad Co., 244 Miss. 211, 141 S.2d 216, it is stated.
In determining whether to render a judgment non obstante veredicto, the court is not
justified in trespassing on the province of the jury to be the judge of all questions of fact in
the case, and the party favored by the verdict is entitled to have the testimony read in the light
most advantageous to him, and to be given the benefit of every inference of fact fairly
deducible therefrom. Accordingly, an application for such judgment will be refused where
there is evidence tending to support the verdict, or where there is a conflict of evidence, so
that the jury could properly decide, either way, even though the conflict is such that the court
would be justified in granting a new trial * * *.'
A motion for a judgment notwithstanding the verdict differs from a motion for a new trial
in that the court in considering a motion for a judgment notwithstanding the verdict is not free
to weigh the evidence. Hamilton Foundry & Mach. Co. v. International Molders and Foundry
Workers Union of North America, (6 Cir. 1952), 193 F.2d 209; Kimmel v. Yankee Lines,
Inc., (D.C. Pa. 1954), 125 F.Supp. 702, affirmed (3 Cir. 1954), 224 F.2d 644. Also the fact
that the court may feel that the testimony is unworthy of credit is not a proper ground for
granting judgment notwithstanding the verdict for the question of credibility of witnesses is
within the jury's sole province.
verdict for the question of credibility of witnesses is within the jury's sole province. Thieman
v. Johnson, (8 Cir. 1958), 257 P.2d 129. * * *.
[Headnote 3]
It is unnecessary to cite the decisions supporting the well established rule that in
determining whether the defendant is entitled to a directed verdict, the evidence must be
treated as proving every fact favorable to the plaintiff's case which is established either
directly or by reasonable inference. The same rule applies to a motion for a judgment
notwithstanding the verdict.
Appellant sued respondent in the trial court below on the theory that respondent
negligently created or maintained the water pipes crossing the roadway and that when his
truck struck the pipes his horse trailer became detached, overturned, and his horses were
injured.
[Headnote 4]
The law is settled that a person is not liable for injuries resulting from conditions which he
has not been instrumental in creating or maintaining.
As the court stated in Lucas v. St. Louis & S. Ry. Co., 73 S.W. 589, 591 (Mo. 1903):
[Headnote 5]
All of the adjudicated cases wherein a citizen has been held liable for an obstruction or
nuisance in a highway have been cases where the person held liable placed the obstruction or
nuisance on the highway, or was under some duty to remove it. Schweickhardt v. St. Louis, 2
Mo.App. 571; Waltemeyer v. Kansas City, 71 Mo.App. 354; Donoho v. Vulcan v. Ironworks,
75 Mo. 401; Wiggin v. St. Louis, 135 Mo. 558, 37 S.W. 528; Grogan v. Foundry Co., 87 Mo.
321; Merrill v. St. Louis et al., 83 Mo. 244, loc. cit. 255, 53 Am.Rep. 576; Campbell v. Pope,
96 Mo. 468, 10 S.W. 187. Of course, if one creates the nuisance, and another adopts it, and
continues it, and keeps it up, as where one constructs a coal hole in a sidewalk, and another
uses it and maintains it, both are liable. Merrill v. St. Louis, 83 Mo., loc. cit. 255, 256, 53
Am.Rep. 576. The general rule is thus stated in 2 Smith's Modern Law of Municipal
Corporations, 1525: The general rule is that the primary duty to keep highways and streets
in repair rests upon the municipal corporations within whose limits they are, this duty being
implied in the acceptance of a charter from the state. Such duty is not discharged by the fact
that a duty is also imposed upon abutting owners to keep the highway in repair in front of
their land.
highway in repair in front of their land. A lot owner's obligation to repair streets or sidewalks
does not exist at common law, but is statutory or arises from contract. It seems well settled
that the neglect of an abutting owner to keep the sidewalk in repair, and to keep it free from
snow and ice, as required by a city ordinance, does not render him liable to a party injured or
to the city himself, unless such owner himself caused the defect.' (The italics are added.) See
also Major v. Fraser, 78 Nev. 14, 368 P.2d 369 (1962), and Scapecchi v. Harold's Club, 78
Nev. 290, 371 P.2d 815 (1962).
In the instant case the record shows that respondent occupied but did not own the land
adjacent to where the water pipes passed over the roadway. The owner's duty in such cases
has been set forth in Restatement (Second) of Torts 349 (1965):
A possessor of land over which there is a public highway or private right of way is not
subject to liability for physical harm caused to travelers upon the highway or persons lawfully
using the way by his failure to exercise reasonable care:
(a) to maintain the highway or way in safe condition for their use, or
(b) to warn them of dangerous conditions in the way which, although not created by him,
are known to him and which they neither know nor are likely to discover.
[Headnote 6]
The record before the trial court is void of any evidence tending to establish that the
respondent even knew of the existence of the water pipes until after the appellant's accident.
In the absence of some substantial evidence showing that respondent either created or
maintained the hazardous condition causing the accident which resulted in injury to
appellant's horses, the respondent's motion to set aside the jury's verdict and to have judgment
entered in his favor was well taken, and the order of the learned trial judge must be affirmed.
Thompson C. J., Collins, Zenoff, and Batjer. JJ., concur.
____________
84 Nev. 554, 554 (1968) Lawrence v. Warden
THOMAS E. LAWRENCE, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 5510
September 24, 1968 445 P.2d 156
Appeal from judgment of the Fifth Judicial District Court, Mineral County, denying
habeas corpus; Grant L. Bowen, Judge.
Defendant, who had pleaded guilty to first-degree burglary, sought his release from prison
by post-conviction proceeding. The lower court rendered judgment adverse to the defendant,
and the defendant appealed. The Supreme Court, Thompson, C. J., held that where evidence
disclosed that defendant was familiar with criminal court proceedings when arraigned, and
his handwritten confession revealed fine ability to communicate and to understand, and he
prepared post-conviction petition for relief and filed brief in support thereof, and each
document reflected knowledge and familiarity with criminal court procedures and relevant
law, court was justified in concluding that when defendant was arraigned he knowingly, and
intelligently waived his right to counsel.
Affirmed.
Fred A. Nelson, of Reno, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, and Leonard P. Root, District
Attorney, Mineral County, for Respondent.
1. Criminal Law.
For waiver by defendant of counsel to be valid, defendant must appreciate nature of charge, included
offenses, range of allowable punishments, possible defenses, and other relevant facts essential to an
understanding of the whole matter.
2. Criminal Law.
Where court at arraignment advised defendant that an attorney would be appointed at state expense if that
was his desire, and he replied that he did not want an attorney and proceeded to plead guilty, court should
have investigated more thoroughly to be certain that defendant understood consequences of pleading guilty
without aid of counsel.
3. Criminal Law.
Where evidence in post-conviction hearing disclosed that defendant was familiar with criminal court
proceedings when arraigned, and his handwritten confession revealed fine ability to communicate and to
understand, and he prepared post-conviction petition for relief and filed brief in support thereof, and each
document reflected knowledge and familiarity with criminal court procedures and
relevant law, court was justified in concluding that when defendant was arraigned be
knowingly and intelligently waived his right to counsel.
document reflected knowledge and familiarity with criminal court procedures and relevant law, court was
justified in concluding that when defendant was arraigned be knowingly and intelligently waived his right
to counsel.
4. Criminal Law.
Record of post-conviction hearing did not support contention of defendant that he was induced to enter
guilty plea through fear, promises, or misapprehension.
OPINION
Lawrence pleaded guilty to first degree burglary and is serving his sentence. He seeks
release from prison by a postconviction proceeding asserting that he was not fully advised of
his right to counsel before entering his plea and could not, therefore, intelligently and
knowingly waive counsel. Evidence introduced at the post-conviction hearing caused the
district court to deny Lawrence relief. This appeal followed. We affirm.
[Headnote 1]
1. At arraignment the court advised Lawrence that an attorney would be appointed at state
expense if that was his desire. Lawrence replied that he did not want an attorney and
proceeded to plead guilty. It is now Lawrence's contention that the brief colloquy between
himself and the court did not satisfy the standards expressed by the United States Supreme
Court in Von Moltke v. Gillies, 332 U.S. 708 (1948), and followed by our decisions of
Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965), and Bundrant v. Fogliani, 82 Nev. 388,
419 P.2d 293 (1966). In Von Moltke, supra, the court acknowledged a strong presumption
against waiver of the constitutional right to counsel. For such a waiver to be valid the accused
must appreciate the nature of the charge, included offenses, the range of allowable
punishments, possible defenses, and other relevant facts essential to an understanding of the
whole matter. Von Moltke v. Gillies, supra, at 723-24.
[Headnote 2]
The record of the arraignment does not satisfy the requirements of Von Moltke and its
Nevada progeny. The court should have investigated more thoroughly to be certain that
Lawrence understood the consequences of pleading guilty without the aid of counsel. It does
not follow, however, that his post-conviction application for relief should automatically be
granted.
[Headnote 3]
2. At the post-conviction hearing the court received evidence which was relevant to the
knowledge, understanding, and mental acuity of Lawrence at the time of his arraignment. For
example, that evidence disclosed that Lawrence was not a stranger to criminal court
proceedings when arraigned in Nevada. He had twice before been arraigned on felony charges
and convicted, and was on parole when arrested on the Nevada burglary charge. The court
received his handwritten confession of the Nevada crime. It revealed a fine ability to
communicate, and to understand. He prepared the post-conviction petition for relief and filed
a brief in support thereof. Each document reflects knowledge and familiarity with criminal
court procedures and relevant law. He wished to discharge court-appointed counsel and
represent himself at the postconviction hearing. With this evidence before it, the district court
permissibly could conclude that when Lawrence was arraigned on the Nevada burglary charge
he knowingly and intelligently waived his right to counsel. In re Fresquez, 432 P.2d 959 (Cal.
1967).
[Headnote 4]
3. The record of the post-conviction hearing does not support Lawrence's contention that
he was induced to enter a guilty plea through fear, promises, or misapprehension.
Affirmed.
Collins, Zenoff, Batjer and Mowbray, JJ., concur.
____________
84 Nev. 556, 556 (1968) McMillan v. Torre
THOMAS G. McMILLAN, Appellant, v.
S. J. TORRE, Respondent.
No. 5499
September 26, 1968 445 P.2d 160
Appeal by Thomas G. McMillan from a judgment finding Thomas G. McMillan and
California Lenders, Inc., jointly and severally liable for salary due respondent. Second
Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Employee brought action to recover salary due him against individual and corporate
defendants. The trial court awarded employee judgment for $5,300 plus interest and costs,
and individual defendant appealed. The Supreme Court, Zenoff, J., held that evidence on
issue of applicability of statute of frauds supported finding that individual defendant, in
exchange for the corporate assets, had personally assumed debt of corporation which had
contracted with employee to pay him $10,000 in satisfaction of unpaid salary.
J., held that evidence on issue of applicability of statute of frauds supported finding that
individual defendant, in exchange for the corporate assets, had personally assumed debt of
corporation which had contracted with employee to pay him $10,000 in satisfaction of unpaid
salary.
Affirmed.
Stewart & Horton, of Reno, for Appellant.
Richards & Demetras, of Reno, for Respondent.
1. Contracts; Frauds, Statute of.
If promise was from individual to corporation to pay debts of corporation in exchange for the corporate
assets, contract, even if oral, would not be voided by statute of frauds and employee who had not been paid
his salary could enforce promise as contractual third-party beneficiary. NRS 111.220, subd. 2.
2. Frauds, Statute of.
Evidence on issue of applicability of statute of frauds supported finding that individual defendant, in
exchange for the corporate assets, had personally assumed debt of corporation which had contracted with
employee to pay him $10,000 in satisfaction of unpaid salary. NRS 111.220, subd. 2.
Trial court's findings should, if possible, be construed to support the judgment and should not be set aside
unless clearly erroneous. NRCP 52(a).
OPINION
On March 22, 1963 S. J. Torre and California Lenders, Inc., entered into a written contract
employing Torre as a real estate project manager. On May 18, 1964 the contract was
terminated by a written bilateral agreement which contained a promise by the corporation to
pay Torre $5,000 on July 1, 1964 and the balance of $5,000 on September 15, 1964 in
satisfaction of unpaid salary.
On July 17, 1964 Thomas G. McMillan sent Torre his personal check of $4,000 in
payment of the $5,000 installment of California Lenders, Inc., due on July 1st. He stated in
his transmittal letter that $1,000 was being withheld for taxes. Thereafter no monies were
paid, so Torre commenced suit against the corporation, McMillan, and the McMillan
Mortgage Company. Torre pleaded in his complaint that the McMillan Mortgage Company
was dissolving California Lenders, Inc., and that McMillan was receiving assets of the
corporation in exchange for which he was personally assuming corporate debts. McMillan
was not present at the trial and his counsel presented no evidence. The trial judge
awarded Torre judgment for $5,130 plus interest and costs against McMillan and
California Lenders, Inc., jointly and severally.
Inc., and that McMillan was receiving assets of the corporation in exchange for which he was
personally assuming corporate debts. McMillan was not present at the trial and his counsel
presented no evidence. The trial judge awarded Torre judgment for $5,130 plus interest and
costs against McMillan and California Lenders, Inc., jointly and severally.
McMillan appeals claiming that the evidence is insufficient to support the findings and
that the findings of fact and judgment are outside of the pleadings.
[Headnote 1]
1. McMillan admitted in a pretrial deposition that California Lenders, Inc., was being
dissolved, that he was receiving assets of the corporation, and that he was assuming some of
the obligations, including the one arising out of the lawsuit. California Lenders, Inc., was
found liable. Therefore, McMillan is liable unless his assumption is not enforceable. He urges
that the statute of frauds, NRS 111.220(2), voids his promise to answer for the debt of
another because it was not proven to be in writing. But NRS 111.220(2) contemplates a
promise in the nature of a surety. If the promise involved here was from McMillan to
California Lenders, Inc., and not from McMillan to Torre, the contract, even if oral, between
McMillan and California Lenders, Inc., is not voided by the statute of frauds and Torre may
enforce the promise as a contractual third party beneficiary. 2 Corbin, Contracts 363, at
261-63 (1950). See also Acoustics, Inc. v. American Surety Co., 74 Nev. 6, 320 P.2d 626
(1958); Miliani v. Tognini, 19 Nev. 133, 7 P. 279 (1885); cf. Wills v. Bank of Nevada, 23
Nev. 59, 42 P. 490 (1895). The contention that the statute of frauds was not applicable
because of the above reason was raised for the first time by the court at oral argument.
Counsel conceded the inapplicability of the statute of frauds if the promise ran from
McMillan to California Lenders, Inc. In view of the uncontroverted admission of assumption
by McMillan, his personal letter of July 17, 1964, in which he enclosed his personal check for
$4,000 in partial payment of the debt of California Lenders, Inc., and the evidence that
McMillan had received assets of California Lenders, Inc., it was permissible for the trial court
to find that McMillan had personally assumed the debt of California Lenders, Inc., in
exchange for assets of that firm. Therefore, unless the trial court's findings must be set aside
because they are ambiguous or outside of the pleadings, McMillan's contentions have no
merit.
[Headnotes 2, 3]
2. The trial court found that McMillan was acting in his individual capacity at the time of
the termination of the employment agreement and at the time he sent the $4,000 payment to
Torre. There was an allegation in the complaint that McMillan had assumed the debts of
California Lenders, Inc., in exchange for its assets. The findings should, if possible, be
construed to support the judgment. Edmonds v. Perry, 62 Nev. 41, 140 P.2d 566 (1943); cf.
Harold's Club v. Sanchez, 70 Nev. 518, 525, 275 P.2d 384, 388 (1954). And they should not
be set aside unless clearly erroneous. NRCP 52(a). It is reasonable to construe the finding as
determining that McMillan assumed the debt of California Lenders, Inc., owed to Torre in
exchange for the corporation's assets. The finding is supported by substantial evidence.
LeMon v. Landers, 81 Nev. 329, 402 P.2d 648 (1965); Bird v. Mason, 77 Nev. 460, 366 P.2d
338 (1961); Richardson v. Minker, 77 Nev. 220, 361 P.2d 669 (1961); Kraemer v. Kraemer,
76 Nev. 265, 352 P.2d 253 (1960).
Affirmed.
____________
84 Nev. 559, 559 (1968) Robertson v. State
JERRY D. ROBERTSON, GEORGE R. McCRAY and JAY J. REGAS, Appellants, v. THE
No. 5506
September 27, 1968 445 P.2d 352
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli. Judge.
Appeal from order of the lower court denying habeas corpus following indictment of
petitioners by grand jury of Washoe County for robbery. The Supreme Court, Collins, J., held
that evidence was sufficient to justify grand jury indictment of habeas corpus petitioners for
robbery.
Affirmed.
J. Rayner Kjeldsen, and Nelson, Santos, Bull & Hickey, of Reno, for Appellants.
Deputy District Attorney, for Respondent.
Evidence was sufficient to justify grand jury indictment of habeas corpus petitioners for robbery. NRS
172.230.
Though inadmissible hearsay evidence may have been adduced before grand jury contrary to legal and
best evidence requirement, if there was slightest sufficient legal evidence and best in degree appearing in
the record the indictment would be sustained. NRS 172.260, subd. 2.
3. Arrest.
An officer may stop occupants of an automobile for legitimate police investigation so long as there is
probable cause for that action; this action is proper even though there is not probable cause for arrest at
moment, but if investigation conducted, together with knowledge originally available to officers combines
to supply probable cause for arrest, it may then be made, and a reasonable, incidental search conducted.
4. Arrest.
Temporary illegal detention is cured after detention becomes lawful.
OPINION
This is an appeal from denial of habeas corpus following indictment of petitioners by the
Grand Jury of Washoe County for robbery. We affirm the lower court ruling.
The record of evidence received by the grand jury shows that on September 18, 1967 at
4:30 a.m., the Continental Lodge in Reno was robbed by three men. Two wore silk stockings
over their faces. The third man did not. They tied up and blindfolded their victim-employees.
The robbers took money, receipts and checks from the lodge. When the employees freed
themselves they called the police. One masked robber was described as wearing a black top
and black trousers. The second masked robber was described as wearing a black top and
brown trousers, taller than the first with lighter colored hair and a receding hair line. The
unmasked robber was described as wearing dark clothing, dark gloves and carrying a gun and
a blackjack.
The police broadcast the fact of the robbery to all units. Officer Gary O'Neill, an
automobile patrolman, heard the alarm and commenced a police trained lookout for the
bandits.
He observed an automobile in the vicinity of the lodge which caught his attention. His
suspicion was aroused when he observed that the auto rolled through a stop sign at an
intersection and that it was making good speed away from the lodge. He pulled close to the
auto and saw two people in the front and clothes in the back. He called for a stolen car check
which was negative and about the same time received a description of the robbers. He then
decided to stop the car for investigation and when requested cover from other police units
arrived, they asked the occupants outside for identification. Three persons got out of the car,
two of whom matched the description of the robbers, one with a receding hair line and two
wearing dark clothing. The officers observed from outside the car dark colored gloves and a
blackjack. The three persons were arrested, identified themselves as petitioners above named,
and the automobile was searched. In the back seat of the automobile they found boxes in a
pillow slip with money, receipts and checks from the Continental Lodge.
On September 25 a criminal complaint was filed against them and they were arraigned. On
October 13 the grand jury indicted them. On October 19 they petitioned for habeas corpus
which was denied on October 23 and from which they take this appeal.
The issues are these:
1. Was there sufficient evidence justifying grand jury indictment of petitioners?
2. Does receipt of some hearsay evidence by the grand jury preclude an indictment under
the legal and best evidence requirement of NRS 172.260?
3. Could petitioners be detained for investigation and thereafter arrested and searched? 4.
Were petitioners' rights to a speedy trial violated?
4. Were petitioners' rights to speedy trial violated?
[Headnote 1]
1. There can be no serious question from the record in this case that evidence received by
the grand jury in returning its indictment against these appellants satisfied the requirements of
the Nevada statute (NRS 172.280) as interpreted by our cases. Ex parte Stearns, 68 Nev. 155,
227 P.2d 971 (1951); Ex parte Kline, 71 Nev. 124, 282 P.2d 367 (1955); State v. Eddington,
83 Nev. 359, 432 P.2d 87 (1967).
[Headnote 2]
2. Though inadmissible hearsay testimony may have been adduced before the grand jury
contrary to NRS 172.260(2), still if there is the slightest sufficient legal evidence and best in
degree appearing in the record the indictment will be sustained.
degree appearing in the record the indictment will be sustained. State v. Logan, 1 Nev. 509
(1865).
[Headnote 3]
3. It is now the settled law of this state that an officer may stop the occupants of an
automobile for legitimate police investigation so long as there is probable cause for that
action. United States v. Kuntz, 265 F.Supp 543 (N.D. N.Y. 1967); People v. Rivera, 201
N.E.2d 32 (N.Y. 1964), Cert. denied, 379 U.S. 978 (1965); Terry v. Ohio, 392 U.S. 1 (1967);
Harper v. State, 84 Nev. 233, 440 P.2d 893 (1968, concurring opinion of Thompson, C. J.).
This action is proper even though there is not probable cause for arrest at the moment. But if
the investigation conducted, together with knowledge originally available to the officers
combines to supply probable cause for arrest, it may then be made, and a reasonable,
incidental search conducted. People v. Mickelson, 380 P.2d 658 (Cal. 1963). The record in
this case discloses that rule was correctly followed by Officer O'Neill.
[Headnote 4]
4. We see nothing in the pre-indictment handling of this case to warrant quashing of
indictment as a violation of the speedy trial mandate of the federal or state law. In any event,
temporary illegal detention is cured after the detention becomes lawful. Victoria v. Young, 80
Nev. 279, 392 P.2d 509 (1964).
The ruling of the lower court denying release through habeas corpus is affirmed.
____________
84 Nev. 562, 562 (1968) In re DuBois
In the Matter of the Petition of STUART W.
DuBOIS for Habeas Corpus.
No. 5611
September 27, 1968 445 P.2d 354
Original proceedings in habeas corpus.
The Supreme Court, Mowbray, J., held that where petitioner represented himself and
prosecutor's statement that petitioner had an opportunity to take the stand was made in effort
to keep petitioner's argument within proper bounds and did not amount to comment upon the
evidence against the petitioner, prosecutor's remark concerning failure of defendant to
testify was harmless error.
84 Nev. 562, 563 (1968) In re DuBois
petitioner, prosecutor's remark concerning failure of defendant to testify was harmless error.
Writ of habeas corpus denied.
Theodore H. Stokes, of Carson City, for Petitioner.
Harvey Dickerson, Attorney General; William J. Raggio, District Attorney, and Virgil D.
1. Criminal Law.
To constitute former jeopardy, the earlier offense must have been one necessarily included in the later.
2. Criminal Law.
Where violation of municipal ordinance forbidding any person to carry or wear firearms in certain
designated places or to carry or wear a loaded firearm in a public place was not a lesser included offense
within offense of possession of a firearm by an ex-felon, defendant's conviction under the possession by
ex-felon statute subsequent to conviction of the ordinance violation did not constitute former jeopardy.
NRS 202.360; Const. art. 1, 8.
Test whether offense is necessarily included in offense charged is whether offense charged cannot be
committed without committing lesser offense.
4. Criminal Law.
Where municipal court did not have jurisdiction to convict for felony of possession of a firearm by an
ex-felon, defendant's conviction of violation of city ordinance prohibiting the carrying or wearing of a
firearm in a public place did not form basis for claim of former jeopardy. NRS 202.360; Const. art. 1,
8.
5. Criminal Law.
An act prohibited by both a city and the state can properly be punished by both. Const. art. 1, 8.
6. Criminal Law.
Defendant is entitled to be represented by counsel at proceeding whether it be labeled a revocation of
probation or a deferred sentencing.
7. Criminal Law.
Where sentencing of defendant occurred prior to determination regarding probation, defendant was not
entitled to be represented by counsel during revocation of probation proceeding.
8. Criminal Law.
Defendant's failure to testify cannot directly or indirectly be subject of comment by prosecution, but
reference to evidence or testimony which stands uncontradicted is acceptable. Const. art. 1, 3;
9. Criminal Law.
Where defendant represented himself and prosecutor's statement that defendant had a opportunity to take
the stand was made in effort to keep defendant's argument within proper bounds and did not amount
to comment upon the evidence against the defendant, prosecutor's remark
concerning failure of defendant to testify was harmless error.
84 Nev. 562, 564 (1968) In re DuBois
and did not amount to comment upon the evidence against the defendant, prosecutor's remark concerning
failure of defendant to testify was harmless error. Const. art. 1, 3; U.S.C.A.Const. Amend. 6.
10. Habeas Corpus.
Record in habeas corpus proceeding brought by petitioner who had been convicted of possession by
ex-felon of firearm capable of being concealed did not establish that juror who was close personal friend of
defendant's court appointed counsel was prejudiced against defendant because of disparaging manner in
which defendant spoke of his counsel.
11. Criminal Law.
Defendant who acted as his own attorney in criminal prosecution assumed the responsibilities of such
office.
12. Criminal Law.
Where trial court specifically informed defendant, who was acting as his own attorney, of his right to
challenge a juror before he was sworn and defendant failed to so challenge juror who was friend of counsel
appointed by court to assist defendant, defendant will not be heard to complain of prejudice resulting from
such juror's presence on the jury.
OPINION
Petitioner DuBois, who was found guilty by a jury in Washoe County of violation of NRS
202.360 (possession by an ex-felon of firearm capable of being concealed) and sentenced to
the Nevada State Prison, where he is presently confined, seeks the issuance from this court of
a writ of habeas corpus ordering his release from confinement on the grounds that his
imprisonment is illegal and in derogation of his constitutional rights as provided in the
Constitutions of the United States and the State of Nevada.
On March 23, 1966, the petitioner fired a .22-caliber pistol in the men's rest room of
Harrah's Club in Reno. He was immediately apprehended by a security guard and taken into
custody by the Reno police. Thereafter, he was charged in the Reno Municipal Court with
three misdemeanors: (1) carrying a concealed weapon, (2) discharging a firearm in a public
place, and (3) gross intoxication. He entered a plea of guilty to each charge and was sentenced
by the Municipal Judge on March 24, 1966. On April 1, 1966, the District Attorney of
Washoe County charged the petitioner with a felony, namely, a violation of NRS 202.360
(possession by an ex-felon of firearm capable of being concealed). Petitioner was tried before
a jury, found guilty, and sentenced to the Nevada State Prison for a term of not less than 1
nor more than 5 years.
84 Nev. 562, 565 (1968) In re DuBois
for a term of not less than 1 nor more than 5 years. However, the execution of the sentence
was suspended and the petitioner placed on probation for a period of 5 years. One of the
express conditions of probation imposed by the trial judge and accepted by the petitioner was
that the petitioner would join Alcoholics Anonymous and refrain from intoxicating beverages,
which appeared to be a principal cause of his difficulties.
One month later petitioner was found in a grossly intoxicated condition, arrested by the
Reno police, and carried to the Reno jail. His probation was revoked, and petitioner is
presently serving his term in the Nevada State Prison.
1. Petitioner asserts that his constitutional rights guaranteed under Article 1, Section 8, of
the Constitution of the State of Nevada
1
and the Fifth Amendment to the Constitution of the
United States
2
were violated in that he was twice put in jeopardy because he was first
convicted under Reno Municipal Code Section 11.12.040 and later convicted under NRS
202.360 of the same offense arising from the same conduct. Petitioner argues that the same
evidence required to convict him of the violation of the Reno Municipal Code section would
be sufficient to convict him of a violation of NRS 202.360.
____________________

1
Nevada Constitution, Art. 1, 8. Rights of accused in criminal prosecutions; jeopardy; due process of
law; eminent domain. No person shall be tried for a capital or other infamous crime (except in cases of
impeachment, and in cases of the militia when in actual service and the land and naval forces in time of war, or
which this state may keep, with the consent of congress, in time of peace, and in cases of petit larceny, under the
regulation of the legislature) except on presentment or indictment of the grand jury, or upon information duly
filed by a district attorney, or attorney-general of the state, and in any trial, in any court whatever, the party
accused shall be allowed to appear and defend in person, and with counsel, as in civil actions. No person shall be
subject to be twice put in jeopardy for the same offense: nor shall he be compelled, in any criminal case, to be a
witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use without just compensation having been first made, or secured, except in cases of
war, riot, fire, or great public peril, in which case compensation shall be afterward made.

2
United States Constitution, Amendment V [Rights of Persons]. Prosecution by presentment, indictment;
double jeopardy; self-incrimination; due process; property taken for public use. No person shall be held to
answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just compensation.
84 Nev. 562, 566 (1968) In re DuBois
sufficient to convict him of a violation of NRS 202.360. A reading of the code provision and
the statute will illustrate the fallacy in petitioner's argument. The pertinent portion of Section
11.12.040 of the Reno Municipal Code provides:
(a) It shall be unlawful for any person within the city limits to carry or wear a firearm in
any casino, bar, bank, cabaret, theater, park, school or playground.
(b) It shall further be unlawful for any person, except as provided above[,] to carry or
wear a loaded firearm upon the public streets or in a public place within the city without first
obtaining permission from the chief of police.
Under part (a) it must be shown that the accused carried or wore a firearm in a particular
location within the city limits. Under (b) it must be shown that the firearm was loaded while
being worn in a public place within the city, without the permission of the chief of police.
NRS 202.360 provides, in relevant part:
2. * * * [N]o person who has been convicted of a felony in the State of Nevada, or in any
one of the states of the United States of America, or in any political subdivision thereof, or of
a felony in violation of the laws of the United States of America, shall own or have in his
possession or under his custody or control any pistol, revolver or other firearm capable of
being concealed upon the person.
This statute requires not only the proof of a prior felony conviction, but also the proof of a
firearm capable of being concealed upon the person.
[Headnotes 1, 2]
These are two very different offenses with different elements and different purposes.
Conviction under one would not necessarily lead to conviction under the other. See State v.
Feinzilber, 76 Nev. 142, 350 P.2d 399 (1960). To constitute former jeopardy, the earlier
offense must have been one necessarily included in the later. State v. Holm, 55 Nev. 468, 37
P.2d 821 (1935). Conviction under the Municipal Code cannot be considered a lesser offense
necessarily included in the later state violation.
[Headnote 3]
The standard applied in such cases was stated by this court in Lisby v. State, 82 Nev. 183,
187, 414 P.2d 592, 594 (1966): We adhere to the rule that to determine whether an offense is
necessarily included in the offense charged, the test is whether the offense charged cannot be
committed without committing the lesser offense.
84 Nev. 562, 567 (1968) In re DuBois
[Headnotes 4, 5]
An ex-felon can be convicted under NRS 202.360 without ever carrying or wearing a
firearm in any of the public places mentioned in the Reno Municipal Code. Mere ownership
or control of a concealable weapon would be sufficient. Petitioner's argument is without
merit.
3

2. Petitioner next asserts a violation of his constitutional rights under the Sixth
Amendment to the Constitution of the United States
4
and Article 1, Section 8, of the
Constitution of the State of Nevada, supra, in that he was denied the right to counsel when the
trial judge revoked his probation.
The trial judge appointed Allan Shamberger, Esq., of the Washoe County Bar, to represent
the defendant at the State's expense. Mr. Shamberger ably represented the petitioner at his
arraignment in district court, during his preliminary hearing, the jury trial, and sentencing.
The petitioner, however, elected to defend himself at the commencement of the trial, as
evidenced by his remarks appearing in the transcript of the proceedings.
The Court: All right. As you know, Mr. Shamberger, the defendant or you may make the
opening statement at this time on behalf of the defendant. I have indicated in preliminary
matters that I would permit the defendantwhich is his rightto act as his own attorney, and
he has said that he wants to be his attorney in this case, as I understand it. Is that right?
The Defendant: Yes, your Honor.
The Court: All right. You go ahead. But I am going to hold you accountable to the strict
rules of procedure, as I would any other lawyer. All right, go ahead.
The Defendant: Thank you. Ladies and gentlemen of the jury: First, I would like to say
that I have not chosen to defend myself in this matter due to any delusions that I might have
as to my ability, but it is a custom to be appointed an attorney to defend you.
____________________

3
The further point of lack of jurisdiction in the municipal court to convict for the felony may also serve as an
independent basis for denying the claim of former jeopardy. State v. Holm, supra. An act prohibited by both the
city and the state can properly be punished by both. Ex parte Sloan, 47 Nev. 109, 217 P. 233 (1923).

4
United States Constitution, Amendment VI [Rights of Accused in Criminal Prosecutions].Rights of
accused in criminal prosecutions. In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses
in his favor, and to have the Assistance of Counsel for his defense.
84 Nev. 562, 568 (1968) In re DuBois
attorney to defend you. Mine has been practicing law for sixteen months, divorces
The Court: Now, just a minute, just a minute. We are not going to let you make an
argument at this time. You tell us what you expect to prove.
The petitioner did conduct his own defense, assisted whenever permitted by Mr.
Shamberger. The jury found him guilty. The trial judge ordered a presentencing investigation
and placed the petitioner on probation for 5 years. The following appears in the transcript of
proceedings after the defendant was sentenced and when the trial judge granted him
probation:
The Court: Do you have anything else to say?
The Defendant: No, your Honor.
The Court: Well, I must admit that I have been concerned about your case, even though
perhaps you didn't think that I was, ever since the case went to trial, and ever since the jury
returned a verdict of guilty, which they, of course, were entitled to do, and which they almost
had to do under the circumstances, because there is no question but what you are an ex-felon
and that you were in possession of a firearm, and that's a violation of the felony law of the
State of Nevada. So, the jury promptly came in with a verdict of guilty, which is, of course,
what they should have done in the first instance.
I suppose, though, the easiest thing for me to have done at that particular time,
particularly after you put us to a lot of trouble, was to deny your request for probation at that
particular time. But I guess that II don't say that I felt sorry for you, but I did feel that there
was something about your make-up, something about you that maybe you deserved some
additional consideration, so that is one of the reasons that I granted the request that the matter
be referred to the Probation Officer. As I say, I don't know that you deserved any particular
assistance or help from any of us around here. You have got the full treatment, so far as the
law is concerned, so far as being informed against, and then having your case sent back to the
Justice's Court for a preliminary hearing. Then you got sent back here, and you were tried,
and you had a good lawyer, and you gave him a bad time, and you gave me a bad time.
Incidentally, I didn't think that you were a very good lawyer before the jury. I thought that
your presentation was about as poor as anything that I have ever seen, and I thought
The Defendant: I will agree with that.
The Court: Don't interrupt. I thought you made a very poor impression before the jury,
and I was just hoping that some of the other gentlemen downstairs who were in the county
jail would have an opportunity of seeing a defendant handle his own criminal case.
84 Nev. 562, 569 (1968) In re DuBois
jail would have an opportunity of seeing a defendant handle his own criminal case.
* * * * *

Well, you know what your record is. Commencing in 1928, four prior felonies, including
one ex-felon in possession. You have had three misdemeanor penalties for larceny, joy riding,
as you say, for taking a fellow's car for just a few minutes, which may or may not be bad in
your opinion.
You have had two lewd conduct cases, and whatever your explanation is, they are on your
record as lewd conduct with a minor, which may or may not be exactly true. But, then, they
are on your record.
At least thirteen times you have been arrested for drinking. How many other times you
have been drunk in and about a public place, I don't know, but you have had at least thirteen
arrests. You have been in twenty-five, thirty, fifty different towns around the country. You
have got a record here of five pages with the Federal Bureau of Investigation.
I must admit, though, that a good many of these things are as a result of drinking, and I
must say that nobody has been hurt, apparently, and whatever you have burglarized, you have
undoubtedly deprived someone of their property, which may or may not be hurting
somebody. But, at least, you certainly have occupied the time of the police and the District
Attorneys and other people for a good many years, and that is not to your credit, I can tell you
that.
Well, I must say this: That I still considered your case, and back of it all is the fact that
there has been a considerable amount of drinking. Further, in back of my thinking is the fact
that eventually something happens to all criminals. I guess there are some old convicts in the
State Prison, but I don't know any that are fifty-five, or sixty, or seventy, so, somewhere along
the way. I guess a fellow sees the light, and I guess somewhere along the way he straightens
himself out. Rather than prolonging this, I hope maybe you have seen the light in this
particular case, and I am going to grant you probation.
Maybe it is against my best ideas, but I am going to grant you probation. It is going to be
for a period of five years. You are going to join AA and be a good member. I am going to
make this further condition: That if you are arrested for drunkenness of any sort, or
description, I am going to revoke your probation.
Is that understood?
The Defendant: That is the best thing that has ever happened to me, your Honor.
84 Nev. 562, 570 (1968) In re DuBois
The Court: As I say, it is against my better judgment, I guess, but I am going to give you
one more chance and see if you can't see the light here, just one more time.
I guess if you get drunk, why, you understand what the consequences are. I hope that you
will come in and say: All right, I am going to Carson without any more ado.
Do you understand that?
The Defendant: I certainly do, your Honor.
Mr. Ballman [Probation Officer]: Your Honor, was this a special condition, that he
participate in the program of AA?
The Court: I should say it is.
All right. You may have to make some arrangements with him before he can be released,
but you take your time and do whatever you need to do, will you?
Mr. Ballman: Yes.
The Court: I don't know whether I should let you have this case or not. To me, maybe it is
a waste of time, but, as I say, if there is any indication that he is drinking, I mean drinking,
not drunkenness, but, I mean, drinking, if there is any indication of that, I want you to process
his case through and revoke his probation that quick. Do you understand that?
Mr. Ballman: Yes.
The Court: All right. You are under a specific duty to do that. All right.
The petitioner within one month was arrested by the Reno police as grossly intoxicated
and had to be literally carried into the Reno police station. The trial judge, as promised,
revoked his probation, and he was remanded to the custody of the Sheriff of Washoe County
for delivery to the Warden of the State Prison so that he might commence his prison term.
Among the remarks at the probation revocation hearing appears the following colloquy
between the trial judge and the petitioner:
The Probation Officer: Your Honor, on September 21, 1966, this year, the defendant, Mr.
DuBois, was granted probation, after having been convicted by a jury of ex-felon in
possession of a firearm. As a special condition of that probation, he was instructed by the
Court to avoid entirely the use of alcohol.
On November 7th, approximately a month following his being granted probation, he was
arrested by officers of the Reno Police Department, who stated in their report that he was so
grossly intoxicated that he had to be carried to the jail.
As per the order of the Court, a request for a warrant and this revocation hearing was
subsequently made on that basis.
* * * * *
84 Nev. 562, 571 (1968) In re DuBois
[The Defendant] I went back to the motel. About 11:00 o'clock Saturday night, this
Saturday night, she and another girl went off for some groceries and got a pint of gin, and I
succumbed to a drink of gin about 1:00 o'clock in the morning.
The Court: How much did you say you had?
The Witness [Defendant]: Oh, well, I started with that one drink, your Honor. I have
heard each of those alcoholic membersnot each one of them, but eight of ten, and it's
always* * *
The Court: Well, You remember, I said that I was going to give you a further chance. I
thought maybe that you had been in trouble so long, or at least over these years, and that
something happens to a fellow after all of these years.
I was just hoping that maybe you could see the light, but, I don't know.
I said: As I say, it's against my better judgment, I guess, but I'm going to give you one
more chance and see if you can't see the light here just one more time. I guess if you get
drunk, why, you understand what the consequences are. I hope that you will come in and say:
All right, I'm going to Carson without any more ado.'
Do you understand that?
You said: I certainly do, Your Honor, yes.
In Shum v. Fogliani, 82 Nev. 156, 158, 413 P.2d 495, 496 (1966), we held that the
probationer need not be represented by counsel during a revocation proceeding, on the
grounds that probation is not a constitutional right but a right given the defendant by
legislative grace.
Petitioner, however, asserts that the Supreme Court of the United States, in Mempa v.
Rhay (and its companion case, Walkling v. Washington State Bd. of Prison Terms &
Paroles), 88 S.Ct. 254 (1967), has settled this question and that a probationer at a revocation
hearing may be represented by his counsel and must be advised that counsel will be appointed
to represent him at the state's expense if he is without funds to secure his own attorney. The
Mempa and Walkling cases were appeals from the State of Washington, where the statutory
proceedings for sentencing are substantially different from those in Nevada. In Washington
the sentencing is deferred and imposed at the time probation is revoked, and the Court in the
Mempa and Walkling cases was primarily concerned with the right to counsel at a sentencing
proceeding.
84 Nev. 562, 572 (1968) In re DuBois
[Headnote 6]
As Mr. Justice Marshall, who wrote the Court's opinion, stated in the concluding
paragraph:
In sum, we do not question the authority of the State of Washington to provide for a
deferred sentencing procedure coupled with its probation provisions. Indeed, it appears to be
an enlightened step forward. All we decide here is that a lawyer must be afforded at this
proceeding whether it be labeled a revocation of probation or a deferred sentencing. We
assume that counsel appointed for the purpose of the trial or guilty plea would not be unduly
burdened by being requested to follow through at the deferred sentencing stage of the
proceeding.
In United States v. Hartsell, 277 F.Supp. 993, 994 (1967), the court said:
The Supreme Court announced its hopefully awaited opinion in Mempa v. Rhay and
Walkling [sic] v. Washington State Board of Prison Terms and Paroles on November 13,
1967. Therein, Mr. Justice Marshall, reviewing earlier decisions of the Court, stated flatly
* * * that appointment of counsel for an indigent is required at every stage of a criminal
proceeding where substantial rights of a criminal accused may be affected. In particular,
Townsend v. Burke, supra [1948, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690], illustrates the
critical nature of sentencing in a criminal case and might well be considered to support by
itself a holding that the right to counsel applies at sentencing. [Footnote reference here
omitted.] Many lower courts have concluded that the Sixth Amendment right to counsel
extends to sentencing in federal cases.
4
* * *' 389 U.S. 128, at 134, 88 S.Ct. 254, at 257, 19
L.Ed.2d 336.

4.
. [in original] E.g., Martin v. United States, 182 F.2d 225 [20 A.L.R.2d 1236] (C.A. 5th Cir. 1950);
McKinney v. United States, [93 U.S.App.D.C. 222] 208 F.2d 844 (1953); Nunley v. United States, 283 F.2d 651
(C.A. 10th Cir. 1960).'
At first blush, the foregoing language might be accepted as holding that a federal
probationer, such as Mr. Hartsell, who admits in a probation revocation hearing the violation
of, or is found judicially to have violated, the conditions of his probationary sentence, and as
a consequence is sentenced, is entitled to the benefit of retained or appointed counsel.
2
Such
is not the holding, however.

2.
This particular judge would welcome such a rule, if accompanied by the provision of counsel for
indigents under the provisions of
84 Nev. 562, 573 (1968) In re DuBois
the Criminal Justice Act, but must follow the precedent established by the Court of Appeals
for this Circuit.
Federal courts have long held that * * * the constitutional right to assistance of counsel
in the defense of a criminal prosecution, given by the Sixth Amendment, does not apply to a
hearing on a motion to revoke probation. * * *' Welsh v. United States, C.A. 6th (1965), 348
F.2d 885, 887[5], citing, inter alia, Bennett v. United States, C.A. 8th (1947), 158 F.2d 412,
415, certiorari denied (1947), 331 U.S. 822, 67 S.Ct. 1302, 91 L.Ed. 1838; Crowe v. United
States, C.A. 4th (1949), 175 F.2d 799, 801, certiorari denied (1950), 338 U.S. 950, 70 S.Ct.
478, 94 L.Ed. 586, rehearing denied (1950), 339 U.S. 916, 70 S.Ct. 559, 94 L.Ed. 1341.
Obviously, although accorded several opportunities to overturn this holding, the Supreme
Court, by denials of certiorari, has allowed it to stand as stated by the Court of Appeals for
the Sixth and other circuits.
Welsh, supra, is easily distinguishable from Mempa and Walking [sic], supra. Unlike the
state prosecutions in the latter cited cases, the federal probation violator in Welsh had been
either tried and convicted (or convicted on a plea of guilty), could not have withdrawn his
plea of guilty after having begun a probationary sentence, received a completely ascertainable
sentence, and had no legal rights to lose, absent their exercise at the sentencing stage of the
proceedings, in the sentencing process. Also, none of the citations noted by Mr. Justice
Marshall in footnote 4 of the opinion, supra, involved sentencing after revocation of
probation. Finally, the Supreme Court made it clear in its most recent proclamation that all
that was being decided in those cases was that a lawyer must be present in a proceeding for a
deferred sentencing procedure coupled with provisions for probation under a state statute,
whether the proceeding * * * be labeled a revocation of probation or a deferred sentencing. *
* *' 389 U.S. at 137, 88 S.Ct. at 258, concluding paragraphs.
[Headnote 7]
Since the paramount factors which the Court found so important in sentencing in Mempa
and Walkling are not present under the Nevada procedure, where sentencing occurs prior to a
determination regarding probation, petitioner's contention is without merit.
3. Next, petitioner complains that his constitutional rights guaranteed under Article 1,
Section 3, of the Constitution of the State of Nevada5 and under the Sixth Amendment to
the Constitution of the United States, supra, were violated by the Deputy District
Attorney's comments to the jury regarding petitioner's failure to take the stand and
testify during the trial.
84 Nev. 562, 574 (1968) In re DuBois
the State of Nevada
5
and under the Sixth Amendment to the Constitution of the United
States, supra, were violated by the Deputy District Attorney's comments to the jury regarding
petitioner's failure to take the stand and testify during the trial.
Petitioner conducted his own closing argument to the jury. During the course of that
argument the prosecutor felt compelled to respond to certain statements. The following
excerpts from the transcript contain the allegedly prejudicial comments made by the
prosecutor.
The Defendant: * * *
I returned to the State of Texas, and at that time, automatically
Mr. Santos: Your Honor, I think the defendant is testifying rather than arguing. He had
his opportunity to take the stand in his own behalf.
The Court: I never heard any evidence to the effect that you left the State, Mr. DuBois.
(Emphasis added.)
And further:
The Defendant: There has been no aggravation of the case. Ladies and gentlemen, you
heard the man say that he walked up, took the pistol out of my pocket. Of course, Mr. Moore
denied that I submitted to him the gun for sale and I wasn't, of course, permitted to prove that
I hadn't had the gun 30 minutes
Mr. Santos: I would have to object, your Honor, in order to have the jury understand that
statement. The defendant had an opportunity to take the stand. He said he didn't have an
opportunity to refute anything.
* * *
The Court: All right, Mr. DuBois, I am not going to permit you to make the argument that
you just made. * * *. (Emphasis added.)
[Headnote 8]
In Fernandez v. State, 81 Nev. 276, 279, 402 P.2d 38, 40 (1965), this court stated:
The distinction appears to be that defendant's failure to testify cannot directly or indirectly
be the subject of comment by the prosecution, but a reference to evidence or testimony
that stands uncontradicted is acceptable.
____________________

5
Nevada Constitution, Art. 1, 3. Trial by jury; waiver in civil cases. The right of trial by Jury shall be
secured to all and remain inviolate forever; but a Jury trial may be waived by the parties in all civil cases in the
manner to be prescribed by law; and in civil cases, if three fourths of the Jurors agree upon a verdict it shall
stand and have the same force and effect as a verdict by the whole Jury, Provided, the Legislature by a law
passed by a two thirds vote of all the members elected to each branch thereof may require a unanimous verdict
notwithstanding this Provision.
84 Nev. 562, 575 (1968) In re DuBois
the prosecution, but a reference to evidence or testimony that stands uncontradicted is
acceptable. Paraphrasing Griffin, what the jury may infer given no help from the court (or
prosecution) is one thing. What they may infer when the court (or prosecution) solemnizes the
silence of the accused into evidence against him is quite another. Permitting such comment
imposes a penalty for exercising a constitutional privilege. The dividing line must be
approached with caution and conscience.
[Headnote 9]
Under this language it does appear that the brief comments by the prosecutor were
improper. However, in the unusual context of this closing argument they would appear to be
harmless. There appears to be no effort by the prosecution unfairly to encourage the jury to
draw improper inferences. Indeed, the objections were but brief attempts to keep the
argument of the petitioner within proper bounds and were not even comments upon the
evidence against the petitioner. There was no attempt to solemnize the silence of the accused
into evidence against him.
The remark by the prosecutor sustained in Fernandez, supra, at 278, actually seems more
prejudicial to that defendant's interests than the remarks presently before the court. In that
case the prosecutor stated: In the defendant's case, as feeble as if was, there was no denial
that the defendant ever possessed this device * * * . In the context of the case at bar, the
present prosecutor's statements, though improper, should be and are deemed harmless error.
Chapman v. California, 386 U.S. 18 (1967).
[Headnote 10]
4. Finally, the petitioner asserts that he was also denied his constitutional right to a trial
before an impartial jury. In his affidavit filed with this court on July 26, 1966, in support of
his petition for the writ, petitioner alleges that one of the jurors was a friend of petitioner's
counsel and should have been, therefore, challenged peremptorily and removed from the jury.
6
Mr.

____________________

6
Affidavit of petitioner:
2. That ALLAN SHAMBERGER, attorney at law, was appointed by the Court to represent him, but that he
elected to represent himself; and that said ALLAN SHAMBERGER remained to advise affiant as might be
necessary during the trial at the Court's direction.
3. That although affiant was representing himself, the Court did not permit him to conduct the voir dire
examination of the jury but directed that said ALLAN SHAMBERGER conduct the examination.
4. That on voir dire examination Juror No. 4, one BUDDY GARCIA, admitted that he was a personal
friend of the said ALLAN SHAMBERGER.
5. That affiant felt that said BUDDY GARCIA was prejudiced
84 Nev. 562, 576 (1968) In re DuBois
Mr. Shamberger, petitioner's counsel, was apparently satisfied with the qualifications of Juror
Garcia, because he refused to challenge him. Petitioner argues that Mr. Garcia, Juror No. 4,
was shown to be a close personal friend of petitioner's appointed counsel and that said juror
was prejudiced against the petitioner because of the disparaging manner in which petitioner
spoke about his' counsel, who was present at the request of the court, petitioner having
elected to act as his own counsel. The record reflects no factual basis for petitioner's claim.
[Headnotes 11, 12]
Even assuming the facts to be as petitioner states them, they do not come to his aid.
Though the voir dire examination of the jurors was conducted by counsel, the petitioner was
acting as his own attorney and assumed the responsibilities of such office. People v. Mattson,
336 P.2d 937 (Cal. 1959). In spite of this assumption of responsibility, the court specifically
made sure that petitioner understood that he had the right to challenge a juror before he was
sworn.
7
The petitioner failed to so challenge this juror and therefore is in no position to
complain of prejudice resulting from his presence on the jury. State v. Fouquette, 67 Nev.
505, 221 P.2d 404 (1950); Peoples v. State, 83 Nev. 115, 423 P.2d 883 (1967).
The application for the writ is denied.
Thompson, C. J., Collins, Zenoff, and Batjer. JJ., concur.
____________________
against him because of his friendship with ALLAN SHAMBERGER and asked ALLAN SHAMBERGER during
said voir dire examination to have BUDDY GARCIA removed for cause or peremptorily.
6. That ALLAN SHAMBERGER refused to challenge the said BUDDY GARCIA who remained a
member of the jury which returned a verdict of guilty in said action.

7
The Court: Mr. Shamberger, the defendant is informed that if he intends to challenge an individual juror,
he must do so when the juror appears and before he is sworn.
____________
84 Nev. 576, 576 (1968) Luc v. Oceanic Steamship Co.
MARIE LUC, Petitioner, v. OCEANIC STEAMSHIP COMPANY, a Corporation, and
EAGLE THRIFTY SHOPPING WORLD, Respondents.
No. 5497
October 14, 1968 445 P.2d 870
Original petition for writ of certiorari testing jurisdiction of trial court to strike complaint for
personal injuries pursuant to defendant's motion. The Supreme Court, Collins, J., held that
proof of actual receipt by plaintiff's attorney of motion was not necessary element of
jurisdiction of court to rule upon motion, as long as service was made by mailing copy to
plaintiff's attorney, and proof of service was made by affidavit.
that proof of actual receipt by plaintiff's attorney of motion was not necessary element of
jurisdiction of court to rule upon motion, as long as service was made by mailing copy to
plaintiff's attorney, and proof of service was made by affidavit.
Petition denied.
James C. Martin, of Carson City, Jarvis, Miller & Stender and R. Jay Engel, of San
Francisco, California, for Petitioner.
Echeverria and Osborne, of Reno, for Respondent Eagle Thrifty Shopping World.
1. Certiorari.
On application for certiorari or writ of review, the scope of inquiry is limited to the question whether the
act done by the court was in excess of its jurisdiction. NRS 34.090.
2. Motions.
Proof of actual receipt of a motion properly mailed to an opposing party's attorney is not a necessary
element of the jurisdiction of that court to rule upon the motion. NRCP 5, 5(b).
3. Pleading.
Trial court had jurisdiction of defendant's motion to strike plaintiff's complaint, where defendant
complied with rule authorizing service of motion upon opposing party's attorney by mailing it to him at his
last known address and allowing proof of such service to be made by affidavit, and proof of receipt of
service of motion was not necessary. NRCP 5, 5(b).
4. Certiorari.
Plaintiff's contention that complaint was not defective went to merits of case and not to jurisdiction of
court to act and could not be reached by certiorari. NRS 34.090.
OPINION
This application for certiorari tests the jurisdiction of the lower court in striking Marie
Luc's complaint for personal injury. We conclude the lower court had jurisdiction to make the
order and dismiss the petition.
On March 23, 1967 a complaint was filed in the district court on behalf of Marie Luc. It
was signed by R. Jay Engel as attorney for plaintiff. Mr. Engel, a California attorney, was not
admitted to practice law in Nevada, nor had he associated Nevada counsel. This complaint
was served on defendant Eagle Thrifty in Reno.
On April 5, 1967 Eagle Thrifty moved to dismiss or, in the alternative, to strike the
complaint because it was not signed by an attorney licensed to practice law in Nevada. The
record reveals an affidavit stating that a copy of the motion was deposited in the mail April
5th addressed to plaintiff's counsel.
On May 1 and again on May 25, plaintiff's California counsel wrote Eagle Thrifty directly,
inquiring why the market had not answered the complaint and threatening default for
continued failure to plead.
On May 5, the trial court struck Marie Luc's complaint. The plaintiff did not appear in
person or through counsel, nor was a defense offered to the motion as required by local rules
of court. The record does not indicate this order was served upon Luc's California counsel.
On July 13 California counsel associated Nevada counsel on behalf of Marie Luc. Written
evidence of that association was filed in the lower court but not served upon counsel for
Eagle Thrifty. Thereupon Luc's local counsel, instead of moving to vacate the order striking
the complaint, or pursuing some other course of action, secured issuance of a new summons
in the same action and, on August 1, served a copy of the same complaint upon Eagle Thrifty.
On August 15 Eagle Thrifty moved to quash service of the summons on the ground that
the complaint had been previously stricken. Service of this motion was made upon Luc's
California counsel, who filed opposing points and authorities contending he was not
previously aware of the motion or order striking the complaint and that he had received no
notice of it.
The trial judge granted the motion to quash service of summons on Eagle Thrifty, and this
petition for certiorari resulted.
The statute of limitations expired on the cause of action July 21, 1967. It is evident that
unless the original complaint filed by Luc's California counsel be reinstated, the right of
action is lost forever.
Marie Luc brings this writ of certiorari contending the lower court exceeded its jurisdiction
in striking her complaint pursuant to an ex parte, unnoticed motion and order.
The issues presented to us then are these:
Did the lower court exceed its jurisdiction in striking petitioner's complaint,
(a) Because service of the motion to strike, properly mailed pursuant to NRCP 5, may not
have been actually received?
(b) Because the complaint was not defective? [Headnote 1]
[Headnote 1]
[Headnote 1]
In considering the application for certiorari or a writ of review, the scope of inquiry is
limited to the question whether the act done by the court was in excess of its jurisdiction.
NRS 34.090; Opaco Lumber & Realty Co. v. District Court, 73 Nev. 278, 317 P.2d 957
(1957); Iveson v. District Court, 66 Nev. 145, 206 P.2d 755 (1949); State ex rel. Hinckley v.
District Court, 53 Nev. 343, 1 P.2d 105 (1931); Mack v. District Court, 50 Nev. 318, 258 P.
289 (1927).
[Headnotes 2, 3]
(1) The question then becomes whether or not proof of actual receipt of a motion properly
mailed is a necessary element of the jurisdiction of that court to rule upon the motion. We
hold that it is not. In Iveson v. District Court, supra, the court held that to relieve a party of a
default, among other things, notice must be given to the adverse party. The giving of notice is
a jurisdictional requirement, and where a rule or statute prescribes the manner in which notice
is to be given, that mode must be complied with or the proceeding will be a jurisdictional
nullity.
Rule 5, NRCP, requires that every written motion, other than one which may be heard ex
parte, shall be served upon each of the parties. Rule 5(b) directs that service required to be
made upon a party represented by an attorney shall be upon the attorney, unless service upon
the party himself is ordered by the court. Service upon the attorney shall be made by
delivering a copy to him or by mailing it to him at his last known address. Service by mail is
complete upon mailing. Proof of service may be made by affidavit.
The record indicates all those requirements had been complied with by Eagle Thrifty at the
time the motion to strike was granted by the court. Proof of receipt of service of such a
motion is not a prerequisite to the jurisdiction of the court to grant the order sought by the
motion.
[Headnote 4]
(2) Petitioner next contends that the court was without or exceeded its jurisdiction in
striking the complaint because the complaint was not in fact defective. That issue goes to the
merits of the case and not to the jurisdiction of the court to act. Even if the court erred, abused
its discretion, or if no appeal would lie therefrom the order striking the complaint was within
its jurisdiction and may not be reached by certiorari. Mack v. District Court, supra.
(3) Petitioner does not challenge the jurisdiction to enter the order quashing service of
summons and we express no opinion upon that question.
(4) We point out that petitioner Marie Luc had opportunity after association of Nevada
counsel and prior to running of the statute of limitations to urge a reconsideration of the order
striking the complaint and, if the lower court erred, to seek a review by direct appeal.
Accordingly the petition for writ of certiorari is hereby dismissed.
____________
84 Nev. 580, 580 (1968) Lamar v. Urban Renewal Agency
VELMA E. LAMAR, BILLIE MOORE, CLAUDE R. PODGER and BLANCHE H.
PODGER, ABRAMO FONTANA, and WILLIAM B. BAILEY, Sr., Appellants, v.
URBAN RENEWAL AGENCY OF THE CITY OF RENO, NEVADA, a Public Body
Corporate and Politic, Respondent.
No. 5515
October 14, 1968 445 P.2d 869
Consolidated appeals from judgments of the Second Judicial District Court, Washoe
County.
Condemnation proceeding. The lower court, John E. Gabrielli, Grant L. Bowen, and John
W. Barrett, JJ., entered judgments and condemnees appealed. The Supreme Court,
Thompson, C. J., held that condemnees were not entitled to recover attorney fees as part of
the just compensation awarded for their property and that witness who was sworn was
entitled to both $5 per day witness fees and mileage for each day in attendance, including
those days when he did not testify.
All judgments affirmed except one which is modified.
Streeter, Sala & McAuliffe, of Reno, for Appellants.
Thornton, Guinan & Griswold, of Reno, for Respondent.
1. Eminent Domain.
There is no constitutional right in condemnee to recover his attorney's fees as part of just compensation
awarded for his property.
2. Eminent Domain.
Nevada statutes dealing with eminent domain do not provide for allowance of attorney fees to
condemnee. NRS 37.009 et seq.
3. Eminent Domain.
Even if general statute dealing with allowance of attorney fees to defendant as prevailing party had
application to eminent domain proceeding, it did not authorize allowance of attorney fees where
condemnee recovered more than $10,000. NRS 18.010.
4. Witnesses.
Term witness fees as used in statute relating to allowance of witness fees to any person in attendance at
trial refers to statutory witness fee of $5 per day. NRS 48.290.
5. Witnesses.
Witness who was sworn was entitled to both $5 per day witness fees and mileage for each day in
attendance, including those days when he did not testify. NRS 48.290, 48.290, subd. 2.
OPINION
By the Court, Thompson C. J.:
This is a consolidated appeal from judgments entered in five separate condemnation
actions instituted by the Urban Renewal Agency. The main issue concerns attorney's fees.
Each condemnee-appellant asserts that he may recover a reasonable attorney's fee from the
condemnor as a matter of constitutional right and, in any event, by reason of Nevada statute.
The district court in each case rejected that assertion. That court ruled correctly.
[Headnotes 1-3]
There is no constitutional right in the condemnee to recover his attorney's fees as a part of
the just compensation awarded for his property. It has long been established law that
attorney's fees are not embraced within just compensation for land taken by eminent domain.
Dohany v. Rogers, 281 U.S. 362, 368 (1930); City of Ottumwa v. Taylor, 102 N.W. 2d, 376
(Iowa 1960). Neither do the Nevada Statutes provide for such an allowance. NRS ch. 37,
dealing with eminent domain, does not provide for an allowance of attorney's fees except
upon abandonment of the action by the condemnor. This did not happen in any of the cases
before us. The general statute governing such fees in civil actions, NRS 18.010, authorizes
the court to make an allowance of attorney's fees when the defendant has not recovered
more than $10,000.1 In these cases each condemnee recovered more than $10,000.
when the defendant has not recovered more than $10,000.
1
In these cases each condemnee
recovered more than $10,000. Hence, NRS 18.010 cannot apply. We do not decide whether
that statute may ever have application to an eminent domain proceeding.
[Headnotes 4, 5]
Another point is pressed by one of the appellantswhether a witness who appears without
subpoena, and is sworn to testify, is entitled to mileage and the statutory witness fee for each
day he attends, including those days when he does not testify. Before 1951 the statutory
witness fee of $5 per day could be allowed only if the witness has been subpoenaed to attend.
NRS 48.290(1). This was enlarged by amendment to read: That any person being in
attendance at the trial and sworn as a witness shall be entitled to witness fees irrespective of
service of subpena. The term witness fees is clear; it can only refer to the $5 amount
specified in NRS 48.290(1). Mileage must also be contemplated by this provision since it is a
subdivision of NR8 48.290(2), specifically allowing mileage.
2
We conclude that a witness
sworn as such is entitled to both $5 per day and mileage for each day in attendance.
The disallowance of attorney's fees in each case is affirmed. The allowance of witness fees
and mileage for days in attendance in those cases where such an allowance was made, is
affirmed.
____________________

1
NRS 18.010 in part reads: The court may make an allowance of attorney's fees to: * * * The defendant as
prevailing party when the defendant has not recovered more than $10,000.

2
NRS 48.290: Witnesses required to attend in the courts of this state shall receive the following
compensation:
1. For attending in any criminal case, or civil suit or proceeding before a court of record, master,
commissioner, justice of the peace, or before the grand jury, in obedience to a subpena, $5 for each day's
attendance, which shall include Sundays and holidays.
2. Mileage shall be allowed and paid at the rate of 15 cents a mile, one way only, for each mile necessarily
and actually traveled by the shortest and most practical route, provided:
(a) That no person shall be obliged to testify in a civil action or proceeding unless his mileage and at least 1
day's fees shall have been paid him if he demanded the same.
(b) That any person being in attendance at the trial and sworn as a witness shall be entitled to witness fees
irrespective of service of subpena.
3. Witness fees in civil cases shall be taxed as disbursement costs against the defeated party upon proof by
affidavit that they have been actually incurred. Costs shall not be allowed for more than two witnesses to the
same fact or series of facts, nor shall a party plaintiff or defendant be allowed any fees or mileage for attendance
as a witness in his own behalf.
affirmed. The disallowance of witness fees and mileage for days in attendance in the Fontana
case is reversed, and that judgment modified to allow such fees and mileage.
____________
84 Nev. 583, 583 (1968) Clark Co. v. State Department of Health
CLARK COUNTY, a Political Subdivision of the State of Nevada, Petitioner, v. NEVADA
STATE DEPARTMENT OF HEALTH, WELFARE AND REHABILITATION, and KARL
HARRIS, Director Thereof, Respondents.
No. 5524
October 15, 1968 445 P.2d 873
Original petition for alternative writ of mandamus.
Clark County brought a proceeding against the Nevada State Department of Health,
Welfare and Rehabilitation and the director thereof in the Supreme Court for alternative writ
of mandamus. The Supreme Court, Zenoff, J., held that where infant female child was born
illegitimate and indigent, was without known relatives, and was hydrocephalic, so that she
was completely deteriorated, physically and mentally, and she was placed in hospital, county,
and not state, was responsible for child's care, support, and maintenance for the first two years
of the child's life.
Petition denied.
George E. Franklin, Jr., District Attorney, and Michael J. Wendell, Deputy District
Attorney, Clark County, for Petitioner.
Harvey Dickerson, Attorney General, Norman Samuelson, Deputy Attorney General, and
Robert A. Grayson, Deputy Attorney General, for Respondents.
Paupers.
Where infant female child was born illegitimate and indigent, was without known relatives, and was
hydrocephalic, so that she was completely deteriorated, physically and mentally, and she was placed in
hospital, county, and not state, was responsible for child's care, support, and maintenance for the first two
years of the child's life.
84 Nev. 583, 584 (1968) Clark Co. v. State Department of Health
child's life. NRS 428.010, 432.020, subd. 1(b), 433.300, subd. 1, 435.010, 442.180.
OPINION
By the Court Zenoff, J.:
An infant female child, born illegitimate and indigent, and now without known relatives, is
also hydrocephalic. Medically, this means that she is so completely deteriorated, physically
and mentally, that the prognosis is hopeless for any type of normal life. Having been a ward
of the juvenile court in Clark County she was placed in Southern Nevada Memorial Hospital
there. The county contends that the state is responsible for the child's care, support and
maintenance and the state responds that its responsibility does not commence under NRS
433.300(1) until after the child becomes two years of age. The dispute centers upon the
hospital costs charged to the county for the first two years of the infant's life and the county
claims reimbursement from the state for that sum.
Certain statutes provide for remedial care to children who have specified needs. NRS
432.020(1)(b) provides for assistance to handicapped children and NRS 442.180 for
assistance to crippled children. Both are remedial and both relate to state aid. NRS 435.010
places the duty upon the county to care for feeble-minded children. Only two statutes make
provision for custodial care. One, NRS 433.300(1), does not become effective for children
until they reach the age of two. Until then the only other custodial statute is NRS 428.010
which requires that [e]very county shall relieve and support all * * * those incapacitated by
age, disease or accident * * * when such persons are not supported * * * by * * * relatives * *
* or by state hospitals * * *.
Obviously the legislature intended that the responsibility for this child and those in the
same or similar circumstances belongs to the county at least until eligibility for state care
occurs.
1

Petition denied.
____________________

1
NRS 428.270(2)(d), not cited by either party, was not in existence when this child was born nor do its
provisions appear to encompass these circumstances.
____________
84 Nev. 585, 585 (1968) Bank of Las Vegas v. Hoopes
BANK OF LAS VEGAS, a Nevada Corporation, Appellant, v. J. GORDON HOOPES and
WILLIAM WERNER, Respondents.
No. 5500
October 22, 1968 445 P.2d 937
Appeal from summary judgment of the Eighth Judicial District Court, Clark County; John
Mowbray, Judge.
Action by bank-mortgagee to recover amount alleged to be due upon installment note
secured by chattel mortgage. The lower court entered summary judgment in favor of
defendants and the bank appealed. The Supreme Court, Thompson, C. J., held that conflicting
statements of bank's vice-president consisting of an acknowledged satisfaction of debt and
subsequent affidavit stating that debt was not paid, did not create a genuine issue of material
fact precluding summary judgment against bank.
Affirmed.
Paul L. Larsen, of Las Vegas, for Appellant.
Calvin C. Magleby, of Las Vegas, for Respondents.
1. Judgment.
Genuine issue of material fact within intendment of statute governing summary judgments may not be
created by conflicting sworn statements of the party against whom summary judgment was entered, and it is
permissible for court deciding summary judgment motion to prefer one statement over the other. NRCP
56.
2. Judgment.
Conflicting statements of bank's vice-president consisting of an acknowledged satisfaction of debt and
subsequent affidavit stating that debt was not paid, did not create a genuine issue of material fact
precluding summary judgment against bank in its action to recover amount allegedly due upon installment
note secured by chattel mortgage. NRCP 56.
OPINION
The district court granted summary judgment to the defendants, Hoopes and Werner, in an
action brought by the Bank of Las Vegas to recover an amount alleged to be due upon an
installment promissory note secured by a chattel mortgage. The Bank made no effort to
exhaust its security before commencing suit. The district court judgment rests upon two
grounds.
grounds. First, that the Bank's action on the note was premature since it had failed first to
foreclose upon its security as required by the one action rule [NRS 40.430; Nevada Land &
Mtge. v. Hidden Wells, 83 Nev. 501, 435 P.2d 198 (1967); McMillan v. United Mortgage
Co., 82 Nev. 117, 412 P.2d 604 (1966) ].
1
Second, that the vice-president of the Bank had
signed and acknowledged a satisfaction of mortgage which the defendants recorded,
reciting that the debt was satisfied in full. Therefore, the district court reasoned that the
Bank's claim for relief was either premature or nonexistent, and entered judgment for the
defendants.
The appellant Bank concedes that no effort was made to foreclose the chattel mortgage
before bringing suit on the note, and acknowledges that, on the advice of counsel, it signed a
satisfaction of mortgage. Nonetheless, the Bank insists that summary judgment was improper
since the debt was not paid, and the execution of the satisfaction of mortgage was intended to
be a waiver of the security to enable the Bank to sue on the note. Affidavits to that effect were
presented in opposition to the defendants' motion for summary judgment. The Bank,
therefore, urges that a genuine issue of material fact exists, namely, whether the mortgage
debt was satisfied, or the security merely waived.
[Headnote 1, 2]
In Aldabe v. Adams, 81 Nev. 280, 402 P.2d 34 (1965), we ruled that a genuine issue of
material fact within the intendment of NRCP 56 may not be created by the conflicting sworn
statements of the party against whom summary judgment was entered, and that it was
permissible for the court to prefer one statement over the other in deciding a summary
judgment motion. The rationale of Aldabe, supra, applies to the case at bar, since we have an
acknowledged satisfaction of the debt signed by the vice-president of the Bank, and his later
affidavit stating that the debt was not paid. These conflicting statements from the Bank's
officer do not create a genuine issue of material fact, since Rule 56 expects the conflict to be
created by adversaries. In these circumstances the court was not required to accept the
affidavit as true and disregard the satisfaction. Aldabe v. Adams, supra, at 285.
Affirmed.
____________________

1
The Uniform Commercial Code does not apply to this case since the note and chattel mortgage were
executed long before the Code became the law.
Collins and Batjer, JJ., Gezelin, D.J., and Compton, D. J., concur.
____________
MILTON TELLIS, Appellant, v. THE
No. 5503
October 22, 1968 445 P.2d 938
Appeal from the Eighth Judicial District Court, Clark County; Howard W. Babcock,
Judge.
Defendant was convicted in the trial court of selling heroin, and he appealed. The Supreme
Court, Collins, J., held, inter alia, that police informer, who was recruited to buy narcotics
from defendant, was not an accomplice and, accordingly, conviction of defendant could be
founded on the informer's uncorroborated rated testimony.
Affirmed.
[Petition for rehearing denied December 31, 1968]
Foley Brothers, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, Charles
E. Thompson, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Police informer, who was recruited to buy narcotics from defendant, was not an accomplice and,
accordingly, conviction of defendant could be founded on the informer's uncorroborated testimony. NRS
175.265, subd. 2.
2. Criminal Law.
Buyer of narcotics is not an accomplice to act of selling. NRS 175.265, subd. 2.
3. Criminal Law.
Accomplice must stand in same relation to crime as person charged and must approach it from same
direction. NRS 175.265, subd. 2.
4. Poisons.
Testimony of but one witness, be it an informer or an undercover policeman, is sufficient to convict a
defendant for sale of narcotics if the testimony contains all of essential elements of the crime; modifying
Crowe v. State, 34 Nev. 358, 441 P.2d 90 (1968).
5. Criminal Law.
Defendant was not prejudiced by certain leading questions propounded by prosecutor or by certain
allegedly prejudicial remarks attributed to him during argument to jury, since the leading questions were
but a recapitulation of prior testimony and since the comments were withdrawn and the jury admonished to
disregard them.
6. Criminal Law.
Trial judge has wide discretion in manner and extent he answers jury's questions during deliberation, and
if he is of the opinion instructions already given are adequate, correctly state the law, and fully advise jury
on procedures they are to follow in their deliberation, his refusal to answer a question already answered in
the instructions is not error. NRS 175.395.
7. Criminal Law.
Under statute providing that, upon jurors being brought back into court from their deliberations, the
information required shall be given in the presence of, or after notice to, the district attorney and the
defendant or his counsel, mandatory word shall applies only to presence of counsel if the information
requested is given, and the word is not a mandatory command to the trial judge to give jurors any
information they request during their deliberations. NRS 175.395.
8. Poisons.
Statute providing that every person convicted of felony for which term of imprisonment is provided by
statute shall be sentenced to definite term of imprisonment within limits prescribed by applicable statute
unless the statute in force at the time of commission of such felony prescribed a different penalty
constituted a legislatively enacted savings clause, and accordingly, court correctly imposed sentence in
force at time of commission of heroin offense in question. NRS 193.130.
OPINION
This appeal is from conviction of appellant for selling heroin, a felony, and from an order
denying a motion for new trial and in arrest of judgment. We affirm in all respects.
James Alexander, a police informer, was recruited to make a buy from Milton Tellis.
Alexander sought the aid of Sybil Strano in his effort on behalf of law enforcement.
Alexander and Strano first went to Tellis' home in furtherance of their purpose and later
met him on a deserted road, where Mrs. Strano, with money supplied by the police through
Alexander, purchased a package of heroin caps from Tellis. She kept two caps for herself
and turned the others over to Alexander who in turn gave them to the police. No law officer
witnessed the transaction.
Tellis was arrested, tried, convicted, and pursuant to NRS 453.210(2a) was sentenced to a
penitentiary term of twenty to forty years and a fine of $10,000.
The conviction depended entirely upon the testimony of James Alexander. There was no
corroborative evidence.
Appellant's specifications of error include:
(1) That Alexander was an accomplice as defined in NRS 175.265 and his testimony being
uncorroborated would not support the conviction.
(2) That Alexander being an addict-informer, corroboration of his testimony was required.
(3) That the lower court should have declared a mistrial for prejudicial leading questions
by and remarks of the prosecutor.
(4) The trial court improperly refused to answer a question propounded by the jury during
its deliberation.
(5) The trial court imposed a wrong sentence.
[Headnote 1]
1. James Alexander was not an accomplice, and conviction upon his uncorroborated
testimony need not be reversed for that reason.
NRS 175.265(2) provides as follows: An accomplice is hereby defined as one who is
liable to prosecution, for the identical offense charged against the defendant on trial in the
cause in which the testimony of the accomplice is given.
Appellant is here charged with a sale of narcotics. Alexander, if criminally responsible at
all, was a buyer of narcotics but more correctly a feigned buyer.
1

[Headnotes 2, 3]
The question really becomes this: Is the buyer of narcotics an accomplice to the act of
selling? Our court has never considered that question head on. The California courts which
have passed upon the issue say no. People v. Frayer, 295 P.2d 456 (Cal.App. 1956); People v.
Lamb, 285 P.2d 941 (Cal. App. 1955). We agree with their resolution of the problem. We see
no merit to appellant's contention that Alexander was Tellis' accomplice because of the
former's participation in the purchase of the narcotics through Mrs.
____________________

1
See State v. Verganadis, 50 Nev. 1, 248 P. 900 (1926); and State v. Smith, 33 Nev. 438, 117 P. 19 (1911).
Both those cases were decided prior to enactment of NRS 175.265(2). They indicate that testimony of a feigned
accomplice does not require corroboration to support a conviction. They also appear to hold that if the evidence
is clear (as it is here) that there is no criminal intent, the court may say as a matter of law the accomplice is
feigned. But if there is conflicting testimony upon the manner of cooperation, the feigned accomplice question
becomes one of fact for the jury. But neither the prosecution nor defense appears to have relied upon that theory
in this case.
Tellis' accomplice because of the former's participation in the purchase of the narcotics
through Mrs. Strano. But see State v. Carey, 34 Nev. 309, 122 P. 868 (1912), which holds
that the complaining witness is an accomplice in a prosecution for the crime of assault with
intent to commit the infamous crime against nature if he voluntarily consented to the act; and
State v. Pray, 64 Nev. 179, 179 P.2d 449 (1947), which holds that a person suborned of
perjury and the sole witness, was an accomplice to the act of perjury but not to the
subornation. We think both those cases can be distinguished because there is no element in
the crime of sale of narcotics of which the seller and buyer could both be convicted.
Furthermore, the California cases and our statute require that an accomplice must stand in the
same relation to the crime as the person charged and must approach it from the same
direction. People v. Frayer and People v. Lamb, supra. We therefore hold Alexander was not
an accomplice to the criminal act of selling narcotics with which Tellis was charged and
convicted.
[Headnote 4]
2. The second point urged has been resolved by our decision in Crowe v. State, 84 Nev.
358, 441 P.2d 90 (1968). We do agree however that one of the statements in Crowe must be
corrected. We said on page 367 of the opinion (441 P.2d 95), In this context we believe that
the testimony of but one witness, be it an informer, an accomplice or an undercover
policeman, is sufficient to convict a defendant for the sale of narcotics if the testimony
contains all of the essential elements of the crime. Inclusion of an accomplice in that
sentence was inadvertent and we now modify that rule excluding an accomplice.
[Headnote 5]
3. Appellant complains of certain leading questions propounded by the prosecutor and
certain prejudicial remarks attributed to him during argument to the jury. The leading
questions were but a recapitulation of prior testimony and the comments of the prosecutor
were withdrawn and the jury admonished to disregard them. We see no prejudice in either
regard.
4. Appellant contends the trial judge improperly refused to answer a question propounded
by the jury to the court during deliberation. The question was: Is Tellis charged with a sale
of narcotics to Alexander as on the indictment or is he charged with a sale of narcotics? The
court's answer was: The court must advise you that the jury has been instructed in
accordance with the law of the State of Nevada, and that the question proposed by you
must be resolved within the framework of those instructions, and the evidence that has
been adduced.
in accordance with the law of the State of Nevada, and that the question proposed by you
must be resolved within the framework of those instructions, and the evidence that has been
adduced. That is the answer of the Court. Do you wish to return to the Jury Room at this time,
sir.
[Headnotes 6, 7]
Appellant urges that NRS 175.395
2
is a mandatory command to the trial judge to give the
jury any information they request during their deliberation. We do not so read that statute.
The trial judge has wide discretion in the manner and extent he answers a jury's questions
during deliberation. If he is of the opinion the instructions already given are adequate,
correctly state the law and fully advise the jury on the procedures they are to follow in their
deliberation, his refusal to answer a question already answered in the instructions is not error.
State v. Vaughn, 265 P.2d 249 (Ore. 1954); State v. Flett, 380 P.2d 634 (Ore. 1963). The
mandatory word shall in the statute applies only to the presence of counsel if the
information requested is given. State v. Vaughn, supra.
5. The final point involves the sentence affixed by the lower court. When the defendant
was charged, the statute then in force was NRS 453.210(2a), which required an indeterminate
sentence of not less than twenty nor more than forty years and a mandatory fine of $10,000.
By the time he was convicted and sentenced however, NRS 453.210(2a) had been amended
by the 1967 Nevada legislature
3
reducing the sentence to a determinate sentence of not less
than one nor more than twenty years which may be punished further by a fine of not more
than $5,000.
[Headnote 8]
Appellant contends that because the legislature failed to enact a savings clause
4
as part
of the 1967 statute amending NRS 453.210(2a), we are obligated to construe the statute
strictly and give him the benefit of the sentence in effect at the time he was convicted and
sentenced, notwithstanding the statute carrying a more severe penalty was in force at the
time of his arrest.
____________________

2
NRS 175.395. After the jury have retired for deliberation, if there is any disagreement between them as to
any part of the testimony, or if they desire to be informed on any point of law arising in the cause, they must
require the officer to conduct them into court. Upon their being brought into court, the information required shall
be given in the presence of, or after notice to, the district attorney and the defendant or his counsel.

3
Stats. Nev. 1967, ch. 211.

4
An example of a savings clause would be, Nothing herein shall affect any pending prosecution. See 103
A.L.R. 1044.
time he was convicted and sentenced, notwithstanding the statute carrying a more severe
penalty was in force at the time of his arrest.
We hold NRS 193.130 constitutes a legislatively enacted savings clause. That statute reads
as follows:
* * * Every person convicted of a felony:
1. For which a term of imprisonment is provided by statute, shall be sentenced to a
definite term of imprisonment which shall be within the limits prescribed by the applicable
statute, unless the statute in force at the time of commission of such felony prescribed a
different penalty.
Accordingly, the lower court correctly imposed the sentence in force at the time of the
commission of the felony in question.
The conviction and sentence are affirmed.
Thompson, C. J., Zenoff, Batjer, JJ., and Gabrielli, D. J., concur.
____________
84 Nev. 592, 592 (1968) Carter v. State
DAVID LEE CARTER, Appellant, v. THE STATE
No. 5522
October 23, 1968 446 P.2d 165
Appeal from the Third Judicial District Court, Lander County; John F. Sexton, Judge.
Prosecution for assault with deadly weapon. The trial court entered judgment of conviction
and defendant appealed. The Supreme Court, Mowbray, J., held that sentencing defendant
under provision of statute defining penalty for assault with specified intent rather than
provision defining penalty for assault with a deadly weapon was improper.
Remanded with directions.
Harvey Dickerson, Attorney General, and T. David Horton, District Attorney, Lander
1. Criminal Law.
Statement of witnesses that broken cocktail glass sought to be introduced into evidence looked like or
was similar to glass used in assault and statements detailing chain of custody were sufficient foundation for
admission.
2. Criminal Law.
It is not necessary that an object to be received into evidence be positively identified; it is sufficient if it is
recognized that it is similar or bears a sufficient resemblance to remove the elements of mere speculation
and surmise.
3. Criminal Law.
It is not necessary, in laying foundation for admission of exhibit, to negative the possibility of an
opportunity for tampering with an exhibit nor to trace its custody by placing each custodian on the stand.
4. Criminal Law.
Statement that exhibit is identical object or reasonably resembles it and that it is in the same condition as
at the time the offense occurred makes the exhibit admissible.
5. Witnesses.
A character witness may be cross-examined as to the existence of reports of particular acts or associations
of the person concerning whom he has testified inconsistent with the reputation attributed to him by
witness, not to test the truth of the facts, but to test the credibility of witness and to ascertain what weight is
to be given the witness' testimony.
6. Witnesses.
Cross-examination of character witness as to existence of reports of particular acts or associations of
person concerning whom he has testified is improper when witness testifies not to reputation of the accused
but to the personal knowledge of his character.
7. Witnesses.
Trial courts are clothed with a broad discretion in respect to permitting cross-examination of defendant's
character witness as to rumors or reports of particular acts or offenses.
8. Criminal Law; Witnesses.
Cross-examination of defendant's character witnesses as to particular acts of defendant should not extend
beyond its true limits and should be carefully limited by admonition of trial court, defining its purposes.
9. Witnesses.
A high degree of good faith on the part of the prosecuting officer is required in cross-examining
defendant's character witnesses.
10. Witnesses.
Questions put to a character witness on cross-examination should never be asked for the purpose of
intimating defendant's guilt of other offenses which have no foundation in the prosecutor's knowledge or
information.
11. Witnesses.
After defendant's character witness testified on direct examination both from her personal knowledge of
defendant and regarding his reputation for truth and veracity, examining her as to knowledge of defendant's
brushes with the law at other times and places did not exceed bounds of legitimate cross-examination.
12. Criminal Law.
Record disclosing that when jury returned after eight hours of deliberation trial judge returned verdicts to
foreman with statement that they would have to find defendant guilty in same degree as his brother or
acquit him and that slightly more than one hour after jury informed judge they did
not wish to retire for evening jury found defendant guilty and acquitted his brother
did not indicate verdict was result of weariness or court's influence in light of fact
that jury was admonished not to coerce a verdict.
as his brother or acquit him and that slightly more than one hour after jury informed judge they did not
wish to retire for evening jury found defendant guilty and acquitted his brother did not indicate verdict was
result of weariness or court's influence in light of fact that jury was admonished not to coerce a verdict.
13. Assault and Battery.
Sentencing defendant convicted of assault with a deadly weapon under provision of statute defining
penalty for assault with specified intent rather than provision defining penalty for assault with a deadly
weapon was improper. NRS 200.400, subds. 1, 2.
OPINION
David Lee Carter appeals from a jury verdict finding him guilty of assault with a deadly
weapon.
In the early morning hours of January 20, 1967, David Lee Carter, in the company of his
younger brother, Mitchell J. Carter, visited a roadhouse in Lander County near Battle
Mountain. They ordered drinks from the barmaid, Jeanne, and David engaged one of the
employees, Carrole Lauderbaugh, in conversation. A dispute arose between David and
Carrole which climaxed in David's throwing his glass of whiskey (which he complained of
being iced tea) in Carrole's face, grabbing her throat, and cutting her about the face with his
broken glass. The struggle and cutting continued, with Carrole holding her chin down and
against her body to prevent David from cutting her throat. The assault finally ended when
Sugar, a kitchen maid, entered the bar and, with Jeanne's, the barmaid's, assistance,
telephoned the law.
David and his brother, Mitchell, were charged with assault with a deadly weapon, and
assault and battery. Mitchell was acquitted, and David appeals from the jury conviction of
assault with a deadly weapon. He asserts four specifications of error as grounds for reversal:
(1) The court erred in admitting the glass in evidence; (2) the State exceeded the proper limits
in cross-examining Mrs. Lois Carter, David's mother, whom he called as his character
witness; (3) the jury's verdict was the result of weariness and the influence of the trial judge's
comments; and (4) the sentence imposed is excessive and in violation of the statute in effect
at the time the court sentenced David.
With the exception of No. 4, we find the specifications of error without merit, and the
conviction must stand.
[Headnote 1]
1. Appellant complains that the broken glass should not have been received in evidence,
because (1) it was never positively identified as the glass which David used to cut Carrole,
and (2) the foundation for its admission was inadequate, in that the chain of custody was not
complete.
The record does not support appellant's contention, for it shows that, immediately
following the assault, Sugar, the kitchen maid, recovered the broken glass, which was
covered with blood, and gave it to the barmaid, Jeanne, who handed it to Deputy Sheriff
Edgar. Edgar delivered the broken glass to Sheriff Schwinn. Except for the time when the
sheriff sent the glass to the FBI headquarters for processing, the glass was kept by the sheriff
in a locked file cabinet. The trial judge, in properly overruling objections to the admission of
the glass in evidence, said:
Mr. Horton: Yes. At this time we will offer State's Exhibit A', the cocktail glass.
The Court: Do you have any objection?
Mr. Richards: Yes, your Honor. With regard to this glass, it can be admitted as a broken
cocktail glass. Any other testimony with regard to it, your Honor, particularly whether this
was a glass thatI mean it is just a broken cocktail glass.
The Court: Well, that is up to the jury to determine. All right, admitted in evidence as a
broken cocktail glass.
[Headnote 2]
The victim, Carrole; the barmaid, Jeanne; and the kitchen maid, Sugar, testified that the
glass received in evidence looked like, or was similar to, the glass David used in cutting
Carrole. This is sufficient, for it is not necessary that the object received be positively
identified. It is sufficient if it is recognized that it is similar or bears a sufficient resemblance
to remove the elements of mere speculation and surmise. People v. Cullen, 234 P.2d 1 (Cal.
1951).
[Headnotes 3, 4]
A proper foundation was laid for the broken glass. The chain of custody was established. It
is not necessary to negative the possibility of an opportunity for tampering with an exhibit nor
to trace its custody by placing each custodian upon the stand. The statement that the exhibit is
the identical object or reasonably resembles it and that it is in the same condition as at the
time the offense occurred makes the exhibit admissible. Eisentrager v. State, 79 Nev. 38, 45,
378 P.2d 526, 531 (1963).
2. Lois Carter, David's mother, was called as his character witness. Mrs. Carter testified at
length that David was a good boy, was helpful at home, had not been in any trouble, and had
a good reputation for truth and veracity. On cross-examination, the prosecutor questioned
Mrs. Carter and asked if she knew David had been in trouble in Batavia, New York, in 1957.
Similar questions were asked about other places and times through July 1966. Mrs. Carter
answered, No, to each of the questions.
David took the stand and testified as to his version of the assault, flatly denying that he had
cut Carrole. He was asked by his counsel regarding his trouble at the times and places
previously asked his mother by the prosecutor, and he testified regarding them before the
jury.
[Headnotes 5, 6]
It is generally held that a character witness may be cross-examined as to the existence of
reports of particular acts or associations of the person concerning whom he has testified
which are inconsistent with the reputation attributed to him by the witnessnot to test the
truth of the facts, but to test the credibility of the witness and to ascertain what weight is to be
given the witness's testimony. Such cross-examination is improper, however, when the
witness testifies not to the reputation of the accused but to personal knowledge of his
character. Lois Carter testified on direct examination both from her personal knowledge of
David and regarding his reputation for truth and veracity.
Q. And what was his reputation for truth and veracity in his adult life?
A. Very good. * * *.
[Headnote 7]
Trial courts are clothed with a broad discretion in respect to permitting the
cross-examination of the defendant's character witness as to rumors or reports of particular
acts or offenses. People v. Burwell, 279 P.2d 744 (Cal. 1955).
[Headnote 8]
A general recognition of the dangerous condition of the evidence produced by the
cross-examination of the defendant's character witness as to particular acts of the defendant
requires that the cross-examination not be extended beyond its true limits and that it should
be carefully limited by an admonition of the trial court, defining its purposes. 3 Wigmore,
Evidence 988 (3d ed. 1940).
[Headnote 9]
A very high degree of good faith on the part of the prosecuting officer is required in such
examination. People v. McKenna, 79 P.2d 1065 (Cal. 1938).
[Headnote 10]
The questions put to a character witness on cross-examination should never be asked for
the purpose of intimating the defendant's guilt of other offenses which have no foundation in
the prosecutor's knowledge or information.
[Headnote 11]
We find nothing in the record before us to indicate that the questions of the prosecutor
exceeded the bounds of legitimate cross-examination.
[Headnote 12]
3. The case was submitted to the jury at 11:35 a.m. The jury returned it 7:40 p.m. The
foreman submitted the jury's verdicts finding David guilty of assault with a deadly weapon
and his brother Mitchell guilty of assault and battery. The trial judge returned the verdicts to
the foreman with the statement:
The Court: You are going to have to find him [Mitchell] guilty in the same degree as his
brother [David], or acquit him, but you can't find him guilty of assault and battery.
Juror Magee: We can acquit him or find him guilty of the same thing as his brother?
The Court: Under that Instruction.
The jury returned at 10:05 p.m., and at their request testimony from the record was read to
them. The trial judge inquired if they wished to retire for the evening and commence their
deliberations at nine o'clock the following morning. The majority desired to continue
deliberating. The jury retired and returned at 11:16 p.m. The jury found David guilty of
assault with a deadly weapon. Mitchell was acquitted.
There is nothing in the record before us to indicate that the jury's verdicts were the result
of weariness or the trial judge's influence, as appellant charges. On the contrary, the
transcript reveals that the trial judge admonished the jurors:
The Court: Well, the only thing about this, it might be that you all want to get home and
coerce a verdict. I don't want this to happen. Most of you, naturally, want to get home.
Juror Magee: I think that we are very anxious to reach a fair decision. * * *.
[Headnote 13]
4. We turn to consider appellant's final specification of errorthat the sentence imposed
by the judge was excessive and in violation of the statute then in effect.
and in violation of the statute then in effect. We agree. David and Mitchell were charged with
two offenses: (1) assault with a deadly weapon
1
and (2) assault and battery. The trial judge
sentenced David to serve not less than 1 nor more than 14 years in the state penitentiary. This
penalty applied to the first subsection of NRS 200.400. The jury found David guilty of assault
with a deadly weapon,
2
for which the penalty was as stated in the second subsection of NRS
200.400, i.e., confinement of not less than 1 year nor exceeding 2 years and/or a fine of not
less than $1,000 nor exceeding $5,000.
In State v. Johnson, 75 Nev. 481, 483, 346 P.2d 291, 292 (1959), we said:
A judgment of conviction and sentence must conform to the punishment prescribed by
statute. Ex Parte McClure, 6 Okl.Cr.241, 118 P. 591.
* * *
Where the penal statute gives no discretion to the trial court in fixing the punishment, it
would be proper for this court without remand to modify the sentence to conform to the
statute. State v. Moore, 48 Nev. 405, 233 P. 523. In this case, however, the applicable statute
does give discretion, limited as it is to the amount of the fine.
The trial court in the instant case is given discretion in fixing the punishment, under NRS
200.400. Therefore, the cause must be remanded with directions to the trial judge to correct
his judgment in accordance with the terms of the statute and in his discretion as he may
deem proper.
____________________

1
1. An assault with intent to kill, commit rape, the infamous crime against nature, mayhem robbery or grand
larceny shall subject the offender to imprisonment in the state prison for a term not less than 1 year, nor more
than 14 years; but if an assault with intent to commit rape be made, and if such crime be accompanied with acts
of extreme cruelty and great bodily injury inflicted, the person guilty thereof shall be punished by imprisonment
in the state prison for a term of not less than 14 years, or be shall suffer death, if the jury by their verdict affix the
death penalty.
2. An assault with a deadly weapon, instrument or other thing, with an intent to inflict upon the person of
another a bodily injury, where no considerable provocation appears, or where the circumstances of the assault
show an abandoned and malignant heart, shall subject the offender to imprisonment in the state prison not less
than 1 year or exceeding 2 years, or to a fine not less than $1,000, nor exceeding $5,000, or to both fine and
imprisonment. [This section was amended in 1967, but these definitions were not changed, and the new
penalties apply only to offenses committed on or after July 1, 1967.]

2
We, the jury in the above-entitled action, do find the defendant DAVID LEE CARTER GUILTY OF
ASSAULT WITH A DEADLY WEAPON.
correct his judgment in accordance with the terms of the statute and in his discretion as he
may deem proper.
____________
84 Nev. 599, 599 (1968) Howard v. State
THOMAS CORNELIUS HOWARD, Appellant, v. THE
No. 5518
October 29, 1968 446 P.2d 163
Compton, Judge.
Defendant was convicted in the trial court of first degree murder and he appealed. The
Supreme Court, Thompson, C. J., held that selecting prospective jurors from qualified
electors who registered to vote and actually voted was not in violation of statute governing
selection of trial jurors.
Affirmed.
Harvey Dickerson, Attorney General, of Carson City, and George E. Franklin, Jr., District
Attorney, Clark County, for Respondent.
A state court conviction violates equal protection clause of Fourteenth Amendment if based on a verdict
of a jury from which Negroes are excluded because of race. U.S.C.A.Const. Amend. 14.
2. Jury.
Defendant's charge that Negroes were excluded from jury service because of race was without evidentiary
basis.
3. Jury.
References to voting registration in statute governing selection of trial jurors permit inclusion of qualified
voters who have not registered to vote, but do not require their inclusion; the provision is directory. NRS
6.010, 6.045, subd. 2, 6.050.
4. Jury.
Selecting prospective jurors from qualified electors who registered to vote and actually voted was not in
violation of statute governing selection of trial jurors. NRS 6.010, 6.045, subd. 2, 6.050.
5. Jury.
Elimination of exempt jurors before they requested exemption was not without authority and did not
invalidate jury finally selected to try defendant. NRS 6.020, 175.036.
6. Criminal Law; Jury.
United States Supreme Court decision holding that sentence of death cannot be carried out if jury that
imposed it was chosen by excluding veniremen for cause simply because they voiced general objections to
death penalty did not require setting aside of jury verdict directing life imprisonment in case that was tried
while former statute disqualifying jurors whose opinions against death penalty would preclude their finding
defendant guilty was in effect. NRS 175.036.
7. Criminal Law.
It is constitutionally permissible to give a jury that discretion to fix the nature and extent of punishment
within limits legislatively decreed.
OPINION
A Clark County jury found Howard guilty of first degree murder and directed his
imprisonment for life. His appeal presses three claims of error. We find that none has merit
and affirm the conviction.
1

1. It is asserted that the trial jury was an unconstitutional jury since, in the total selection
process, Negroes, nonvoters, and exempt jurors were automatically excluded. It is the practice
in Clark County to select prospective jurors from the list of registered voters. Since this case
was tried in 1967, the Jury Commissioner used the list of 93,357 voters who had registered to
vote at the general election of November 1966. From that number was purged the names of
26,853 registered voters who did not vote. The names of those remaining, 66,504 in number,
were placed on individual addressograph cards, and all cards deposited in a huge drum from
which was drawn a jury panel of 7,042 persons for the 1967 court year.
2
From that panel was
drawn 800 names to serve all departments of court for the first few months of 1967, and
about 350 of those S00 were found to be exempt from serving.
____________________

1
Although two additional assignments of error were specified, appellant's counsel did not brief or orally
argue them. We, therefore, deem them waived and shall not consider them.

2
NRS 6.045(2) provides: If a jury commissioner is so selected, he shall in January of each year estimate the
number of trial jurors which will be required for attendance on the district court until the next annual selection,
and shall select such number from the qualified electors of the county not exempt by law from jury duty, whether
registered as voters or not * * *.
few months of 1967, and about 350 of those 800 were found to be exempt from serving. From
the remaining 450, about 107 were assigned to the Howard case.
[Headnotes 1, 2]
(a) A state court conviction violates the equal protection clause of the Fourteenth
Amendment if based on a verdict of a jury from which Negroes are excluded because of race.
Whitus v. Georgia, 385 U.S. 545 (1967); Strauder v. West Virginia, 100 U.S. 303 (1879).
Such discrimination must be proved. Tarrance v. Florida, 188 U.S. 519 (1903). The record
before us contains nothing to suggest an exclusion of Negroes from jury service because of
race. Our statutes do not exclude them. Cf. Bush v. Kentucky, 107 U.S. 110 (1882). Neither
may we find an underrepresentation of Negroes because of the selection method employed
since the record is silent as to the number of Negroes who were qualified electors in Clark
County, the number who registered to vote and voted, and the number whose names were
drawn for trial jury service for the term of court in question. Thus, there exists no basis from
which to ascertain whether a significant disparity exists between the percentage of Negroes
who are qualified electors and eligible for jury, service and those on the jury venire. Cf. Sims
v. Georgia, 389 U.S. 404 (1967); Jones v. Georgia, 389 U.S. 24 (1967); Whitus v. Georgia,
supra. On this record there is no substance to the charge that Negroes were excluded from
jury, service because of race.
(b) Registered voters who did not vote were automatically excluded in the jury selection
process. Statutory law provides that trial jurors shall be selected from the qualified electors of
the county not exempt by law from jury duty, whether registered as voters or not [NRS
6.045(2); NRS 6.050], and NRS 6.010 specifically provides that every qualified elector of
the state, whether registered or not, who has sufficient knowledge of the English language,
and who has not been convicted of treason, felony, or other infamous crime, and who is not
rendered incapable by reason of physical or mental infirmity, is a qualified juror of the county
in which he resides.
[Headnotes 3, 4]
Appellant contends that he was entitled to be tried by a jury drawn from a venire of
qualified electors, and that it was impermissible to limit such electors to those who registered
to vote and actually voted. It is true that the above noted statutes provide that one may be a
juror if a qualified elector whether registered as a voter or not. It does not follow, however,
that the statutory purpose was to require inclusion of non-registered voters on the venire.
the statutory purpose was to require inclusion of non-registered voters on the venire. The
statutory references to voting registration permit the inclusion of qualified electors who have
not registered to vote, but do not require their inclusion. The provision is directory [State v.
Squaires, 2 Nev. 226 (1866)] and we find no statutory violation in the selection process
employed here. We do not decide whether a question of federal constitutional dimension
would arise if the record were to demonstrate that exclusion of qualified electors who had not
registered to vote carried with it a concomitant discrimination because of race.
[Headnote 5]
(c) The statutory exemptions from jury service provided for by NRS 6.020 were
automatically honored in the jury selection process. Some 350 persons enjoying exempt status
were eliminated from the panel of 800 persons drawn to serve the court during the first few
months of 1967. It is claimed that this automatic purging without request from the persons
involved was without authority and invalidated the jury finally selected to try Howard. This
claim is not sound. Efficient administration suggests the wisdom of eliminating exempt jurors
before they request exemption.
On the record before us we conclude that the jury selection process satisfied constitutional
and statutory requirements.
[Headnote 6]
2. When this case was tried NRS 175.105(9) was in effect.
3
By reason of that statute and
the decision of Witherspoon v. Illinois, 391 U.S. 510 (1968), the appellant contends that the
jury verdict directing life imprisonment must be set aside. This contention has no merit.
Witherspoon does not touch a case where the sentence imposed is life imprisonment. Bumper
v. North Carolina, 391 U.S. 543 (1968). In any event, the rationale of Witherspoon is
inapposite to the Nevada statute since the statutory purpose is to disqualify jurors whose
opinions against the death penalty would preclude their finding the defendant guilty.
____________________

3
NRS 175.105 provided: A challenge for implied bias may be taken for all or any of the following causes,
and for no other:
* * * * *
(9) If the offense charged is punishable with death, the entertaining of such conscientious opinions as
would preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to
serve as a juror. This statute has since been repealed and replaced by NRS 175.036, effective January 1, 1968,
which allows a challenge for any cause or favor which would prevent him as a juror from adjudicating the facts
fairly.
the defendant guilty. The Illinois statute considered in Witherspoon did not involve the right
to challenge for cause those prospective jurors who stated that their reservations about capital
punishment would prevent them from making an impartial decision as to the defendant's
guilt. Witherspoon v. Illinois, supra, at 513.
[Headnote 7]
3. The third claim of error is unclear. It seems to challenge the constitutionality of NRS
200.030 which allows the jury to fix the penalty for first degree murder at death or
imprisonment for life with or without the possibility of parole. It is constitutionally
permissible to give a jury the discretion to fix the nature and extent of punishment within
limits legislatively decreed. Pinana v. State, 76 Nev. 274, 284, 352 P.2d 824 (1960).
Affirmed.
Collins, Zenoff, Batjer, JJ., and Craven, D. J., concur.
____________
ROBERT WILLIAM WALLACE, Appellant, v. THE
No. 5525
November 7, 1968 447 P.2d 30
Bowen, Judge.
Defendant was convicted of murder before the trial court and he appealed. The Supreme
Court, Thompson, C. J., held that evidence on issue whether defendant's oral confession was
voluntary and without coercion even though he was in pain from gunshot wound and
surrounded by officers, supported ruling admitting testimony by officers as to confession.
Affirmed.
Leslie M. Fry and Richard C. Minor, of Reno, for Appellant.
Harvey Dickerson, Attorney General, of Carson City, William J. Raggio, District Attorney,
and Virgil D. Dutt, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Multiple instructions upon same subject are not required.
2. Criminal Law.
Evidence on issue whether defendant's oral confession was voluntary, given at time when defendant was
in pain from gunshot wound and surrounded by officers, supported ruling admitting testimony by officer as
to confession.
3. Criminal Law.
Fact that testimony of police officer as to defendant's oral confession was offered during rebuttal rather
than during state's case was no cause for complaint where evidence tended to impeach defendant on a
material point.
4. Criminal Law.
Colored photograph of victim taken at morgue and used to explain to jury various wounds and their
relation to cause of death was relevant and admissible against defendant charged with murdering decedent.
5. Criminal Law.
Testimony of state's psychiatrist who had not examined defendant charged with murder, based on
hypothetical question which included only those facts from evidence which were compatible with
prosecution's theory of case, was admissible.
6. Criminal Law.
Hypothetical question need not include all evidence in the case which is relevant to the opinion sought
from the witness, but may contain selected facts from evidence which are compatible with examiner's
theory of case.
7. Witnesses.
Cross-examination and not objection is the weapon with which to elicit the opinion of the witness upon
facts as the adversary contends them to be.
8. Criminal Law.
Record would not sustain contention that testimony of state's psychiatrist was based wholly or in part
upon hearsay information secured from conversations with persons outside of court.
9. Criminal Law.
Permitting psychiatrist for state, called on rebuttal, to remain in courtroom and listen to testimony of
defense psychiatrist was not error even though trial court had entered order excluding from courtroom any
witness of adverse party not at the time under examination. NRS 48.250.
OPINION
[Headnote 1]
The appellant, Wallace, was sentenced to imprisonment for life without the possibility of
parole for having committed first degree murder. He contends that major errors occurred at
trial with respect to the admissibility of three items of evidencehis confession, a colored
photograph of the decedent, and certain expert opinion testimony.
certain expert opinion testimony. Subordinately, he complains of the trial court's refusal to
give five jury instructions which he had submitted. The latter complaint has no merit at all
since the subject matter of each of the proffered instructions was adequately covered by
instructions that were given. Multiple instructions upon the same subject are not required.
Carlson v. State, 84 Nev. 534, 445 P.2d 157 (1968). Neither do we perceive error with regard
to the evidentiary matters and, therefore, affirm the conviction. However, brief comment in
this connection may be useful.
1. Wallace shot and killed Landra Nielson and then shot himself in the lower portion of
his face. About an hour and a half later he was interrogated by police officers while seated on
a gurney in the hospital emergency room. He had been given no medication and was bleeding
from the self-inflicted wound. Before interrogation commenced, Wallace was orally given the
Miranda warnings, and he then signed a written ackowledgment which again advised him of
his rights. He read the written form back to the officers and, when asked if he understood
what he had read, replied in the affirmative. Thereafter, questions were asked and responses
given. His responses amounted to a full oral confession.
The prosecution did not offer testimony concerning the oral confession during presentation
of its case in chief. The defendant testified and, among other things, portrayed himself as
grossly intoxicated at the time of the homicide. Testimony about the oral confession was
offered by the State during rebuttal to impeach the defendant's testimony since the substance
of the confession given but an hour and a half later tended to establish premeditation in spite
of intoxication.
[Headnotes 2, 3]
The basis for complaint is that any confession secured under the circumstances here
involved cannot be deemed voluntary and without coercion since the suspect was in pain and
surrounded by officers of the law. The trial court, in the absence of the jury, received
evidence on that issue, and ruled that a police officer could testify to the accused's oral
confession. There is substantial evidence to support that ruling. The fact that the oral
confession was offered during rebuttal rather than during the State's case in chief is not cause
for complaint (State v. Holt, 47 Nev. 233, 244, 219 P. 557 (1923)) if the evidence tends to
impeach on a material point. The defendant's degree of intoxication was a material point.
[Headnote 4]
2. The colored photograph of the nude decedent was taken at the morgue. The doctor used
that photograph to explain to the jury the various wounds and their relation to the cause of
death. It is not suggested that the photograph was inaccurate. Since the purpose of trial is to
ascertain and disclose the truth we will not subvert that purpose and declare relevant
photographic evidence inadmissible simply because it damages the defense. Langley v. State,
84 Nev. 295, 439 P.2d 986 (1968).
[Headnote 5]
3. The defendant testified to his gross intoxication. A defense psychiatrist gave his
opinion that at the time of the homicide the defendant was suffering from substantial
alcoholic intoxication. In rebuttal the State offered the opinion of a psychiatrist that the
defendant knew the nature and quality of his act, and had the capacity to premeditate, form a
specific intent, and entertain malice when he shot Landra Nielson. The State's psychiatrist had
not examined the defendant. His opinion was given in response to a hypothetical question
which excluded evidence in the case concerning the defendant's intoxication. The defense
objection to this opinion testimony was threefold: first, that the hypothetical question did not
include all relevant evidence; second, that the doctor's opinion was based wholly, or in part,
upon heresay information secured from conversations with other persons out of court; third,
that the doctor had been permitted to listen to the testimony of the defense psychiatrist in
violation of an earlier order of the court excluding witnesses from the courtroom. In the
context of this case none of the objections is sound. The district court properly allowed the
State's psychiatrist to give his opinion.
[Headnotes 6, 7]
A hypothetical question need not include all evidence in the case which is relevant to the
opinion sought from the witness. The examiner may select those facts from the evidence
which are compatible with his theory of the case, and ask for an opinion based upon those
facts. Van Fleet v. O'Neill, 44 Nev. 216, 225, 192 P. 384 (1920). This is precisely what
occurred here. Defense counsel during cross-examination had the opportunity to inquire
whether the opinion of the witness would be different had the hypothetical question included
facts showing gross intoxication. This, counsel failed to do. His failure in this regard does
not, however, lend validity to his initial objection. Cross-examination and not objection is the
weapon with which to elicit the opinion of the witness upon the facts as the adversary
contends them to be.
to elicit the opinion of the witness upon the facts as the adversary contends them to be.
United States v. Sessin, 84 F.2d 667, 669 (10 Cir. 1936).
[Headnote 8]
A close reading of the record does not reveal that the doctor's opinion was based wholly,
or in part, upon hearsay information secured from conversations with other persons outside of
court. Indeed, the doctor was never asked if such was the case. All that the record shows is
that the doctor did have conversations with other persons about the defendant. Thus, we do
not reach the situation presented to the court in People v. Keough, 11 N.E.2d 570 (N.Y.
1937), upon which the appellant relies.
[Headnote 9]
Early during the trial the court entered an order excluding from the courtroom any witness
of the adverse party, not at the time under examination, to preclude his hearing the testimony
of other witnesses. NRS 48.250. Later, when the defense psychiatrist was called to testify, the
prosecutor requested the court to allow the State's psychiatrist to remain in the courtroom and
listen to the defense expert's testimony. It was permissible for the court to so relax the
exclusionary rule previously invoked. Elizabeth River Tunnel District v. Beecher, 117 S.E.2d
685, 691 (Va. 1961); Oskison v. Bagby, 46 P.2d 331, 333 (Okla. 1935). Indeed, it is doubtful
that the order excluding witnesses from the courtroom was meant to reach witnesses in
rebuttal since their identity is frequently not known when the exclusionary order is made.
Hughes v. State, 148 S.W. 543, 556 (Tenn. 1912); Heaton v. Dennis, 52 S.W. 175, 177
(Tenn. 1899).
We direct the lower court to give appellant's court-appointed counsel the certificate
specified by NRS 7.260(3) for compensation of services on this appeal.
Affirmed.
____________
84 Nev. 608, 608 (1968) Gallegos v. State
JOSE L. P. GALLEGOS, Appellant, v. THE
STATE OF NEVADA Respondent.
No. 5532
November 7, 1968 446 P.2d 656
Appeal from conviction of murder. Seventh Judicial District Court, White Pine County;
Roscoe H. Wilkes, Judge.
Defendant was convicted in the trial court of murder and he appealed. The Supreme Court,
Zenoff, J., held that substitution, in information, of words willfully, unlawfully, feloniously,
deliberately and premeditatedly for statutory term malice aforethought was proper, did not
prejudice defendant, and conveyed same meaning as statutory term.
Affirmed.
Harry M. Watson, of Ely, and Harry E. Claiborne, of Las Vegas, for Appellant.
Harvey Dickerson, Attorney General, and Merlyn H. Hoyt, District Attorney, White Pine
Neither statutes nor courts insist upon strict conformance to statutory phraseology in charging portion of
information, and if words used convey same meaning as those in statute, and the substantial rights of
defendant are not prejudiced, words of common understanding are acceptable. NRS 173.100, 173.300,
173.310. subd. 6, 173.320, 200.010.
2. Homicide.
Defendant was not prejudiced by the substitution, in information filed against him, for statutory term
malice aforethought of the words wilfully, unlawfully feloniously, deliberately and premeditatedly.
NRS 173.100, 173.300, 173.310, subd. 6, 173.320, 200.010.
3. Criminal Law.
Insanity is in the nature of an affirmative defense.
4. Criminal Law.
Sanity is presumed and in order to overcome this presumption a criminal defendant must establish his
insanity by a preponderance of the evidence.
5. Homicide.
Jury which found defendant guilty of murder was properly instructed on issue of insanity.
6. Criminal Law.
Court may exercise its discretion liberally in allowing the adding of names of witnesses to an information,
subject however, to possible prejudice to defendant, which can usually be cured by giving him additional
time to prepare for witnesses' testimony. NRS 173.080.
7. Criminal Law.
Defendant's conversation with his niece, while be was in custody, in which he admitted crime charged,
did not constitute interrogation requiring the giving of warnings of constitutional rights and niece's
testimony was admissible at trial.
8. Criminal Law.
Photographs of victim and bloody garments were properly admitted into evidence in prosecution for
murder. NRS 200.010.
OPINION
Jose L. P. Gallegos was found guilty of murdering his wife and sentenced to the state
prison for life without possibility of parole. His points of error on appeal are directed
principally against an alleged error in the drafting of the information, although he contends
that there are other errors which require reversal of his conviction. In all respects we affirm
the rulings of the trial court.
1. The information charged that Gallegos wilfully, unlawfully, feloniously, deliberately
and premeditatedly killed his wife. He contends that the failure to accuse him in the language
of NRS 200.010 which defines murder as the unlawful killing of a human being with malice
aforethought makes the information fatally defective because the words malice
aforethought are not in the accusation against him.
[Headnotes 1, 2]
Neither the statutes nor the courts insist upon strict conformance to the statutory
phraseology in the charging portion of an information. If the words used convey the same
meaning as those in the statute, and the substantial rights of the defendant are not prejudiced,
words of common understanding are acceptable. NRS 173.300; NRS 173.100; NRS 173.320;
Langley v. State, 84 Nev. 295, 439 P.2d 986 (1968). The words wilfully, unlawfully,
feloniously, deliberately and premeditatedly convey the same meaning as malice
aforethought. A person of common understanding would know what was intended by the
information filed against Gallegos and that is all that NRS 173.310(6) requires. No prejudice
resulted to Gallegos by the use of the substituted words.
[Headnotes 3-5]
2. The trial court refused Gallegos' request for two instructions on his theory of insanity.
Insanity is in the nature of an affirmative defense.
affirmative defense. Sanity is presumed and in order to overcome this presumption the
defendant must establish his insanity by a preponderance of evidence. State v. Bourdlais, 70
Nev. 233, 265 P.2d 761 (1954); State v. Lewis, 20 Nev. 333, 22 P. 241 (1889). The jury was
not only properly instructed, but its verdict is supported by substantial evidence on this issue.
Elias v. State, 73 Nev. 108, 310 P.2d 621 (1957).
[Headnote 6]
3. The prosecutor added names of witnesses to the information after it was filed. NRS
173.080. The court may exercise its discretion liberally in allowing additional names subject,
however, to possible prejudice to the defendant which can usually be cured by giving him
additional time to prepare for their testimony. Dalby v. State, 81 Nev. 517, 406 P.2d 916
(1965); State v. Monahan, 50 Nev. 27, 249 P. 566 (1926). No complaint is made by Gallegos
that he was prejudiced by the adding of the witnesses to the list he already had.
[Headnote 7]
4. While he was in custody Gallegos sent word through the police that he would like to
talk to his niece who was employed elsewhere in the courthouse. The message was delivered
and while she was talking to him he admitted the crime. She testified to the admission at the
trial. He now contends that because he had not been given warnings in accordance with
Miranda v. Arizona, 384 U.S. 436 (1966), the evidence was improper. The defendant was not
interrogated; therefore, the Miranda requirements do not apply. Guyette v. State, 84 Nev. 160,
438 P.2d 244 (1968); cf. Ibsen v. State, 83 Nev. 42, 422 P.2d 543 (1967). See also
Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967).
[Headnote 8]
5. We find no error in the admission into evidence of either photographs of the deceased
or bloody garments. Langley v. State, 84 Nev. 295, 439 P.2d 986 (1968); State v. Holt, 47
Nev. 233, 219 P. 557 (1923); State v. Roberts, 28 Nev. 350, 82 P. 100 (1905). Other
allegations of error are equally without merit.
Gallegos is an indigent and has been represented by court-appointed counsel. Accordingly,
we direct the district court to give counsel the certificate specified in NRS 7.260(3) to enable
him to receive compensation as Provided in NRS 7.260{4) for services on appeal.
him to receive compensation as Provided in NRS 7.260(4) for services on appeal.
Affirmed.
____________
84 Nev. 611, 611 (1968) Lapinski v. State
EDWARD LAPINSKI, Appellant, v. THE
No. 5535
November 7, 1968 446 P.2d 645
Appeal from conviction of feloniously taking a vehicle based on the contention that the
statute under which the conviction was obtained unconstitutionally delegated legislative
power to the district attorney because it gave him discretionary power to determine the
standard of punishment. Eighth Judicial District Court, Clark County; John F. Mendoza,
Judge.
The lower court rendered judgment, and the defendant appealed. The Supreme Court,
Zenoff, J., held that penalty provision of statute making it an offense to feloniously take a
vehicle without consent of owner thereof and with intent to deprive owner of title or
possession of such vehicle, and leaving it to discretion of district attorney whether there
should be charged a felony, gross misdemeanor, or a misdemeanor is void because of an
unlawful delegation of legislative power.
Affirmed in part and remanded for new sentence.
James D. Santini, Public Defender, Robert N. Peccole, Chief Deputy Public Defender, and
Robert G. Legakes, Deputy Public Defender, Clark County, for Appellant.
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Jerry
J. Kaufman, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Power to define crimes and penalties lies exclusively in the legislature.
Delegation by legislature of power to define crimes and penalties without adequate guidelines is
improper.
3. Automobiles; Constitutional Law.
Penalty provision of statute making it an offense to feloniously take a vehicle without consent of owner
thereof and with intent to deprive owner of title or possession of such vehicle, and leaving it to discretion
of district attorney whether there should be charged a felony, gross misdemeanor, or a
misdemeanor is void because of an unlawful delegation of legislative power.
be charged a felony, gross misdemeanor, or a misdemeanor is void because of an unlawful delegation of
legislative power. NRS 205.272; Const. art. 4, 1.
4. Automobiles; Criminal Law.
Only penalty provision of statute dealing with feloniously taking a vehicle without consent of the owner
thereof and with intent to deprive the owner of title to or possession of such a vehicle and leaving to
discretion of district attorney the decision whether there should be charged a felony a gross misdemeanor,
or a misdemeanor is void, and motorist convicted under statute would be deemed to have been convicted of
a misdemeanor. NRS 193.170, 205.272.
OPINION
Edward Lapinski, a 50-year-old unemployed man, was stopped by police for speeding
while driving in Las Vegas on the evening of July 1, 1967. He revealed he did not have a
driver's license, then attempted to flee. He was chased and captured. Scrutiny revealed the
absence of a license plate on the front of the car he was driving and a California license plate
on the rear covered with a Nevada license plate. Further investigation disclosed that the car
had been stolen. The car was returned to the owner approximately three hours after it had
been taken.
Lapinski was charged with feloniously taking a vehicle without the consent of the owner
thereof and with the intent to deprive the owner of title to or possession of such vehicle
pursuant to NRS 205.272 as amended by 1967 Nev. Stats. 500, Chapter 211, effective July 1,
1967. The statute before amendment classified the theft as either a felony or as a gross
misdemeanor and set forth the circumstances which would justify each charge. The statute as
amended leaves to the discretion of the district attorney the decision whether there should be
charged a felony, a gross misdemeanor, or a misdemeanor.
The only issue at trial was whether the requisite intent was present. Appellant was the sole
witness in his defense. He testified that he was so drunk that he could not remember what
happened between the time he sat in the car and the time he was incarcerated. He was
convicted.
Lapinski contends that the statute as amended is unconstitutional because it effects a
prohibited delegation of legislative power contrary to Nev. Const. art. 4, 1. We agree.
The amendment was designed to allow the district attorney to fit the punishment to the
offense. Apparently the legislature did not want to punish juvenile joy riding as severely as
an intentional deliberate theft.
did not want to punish juvenile joy riding as severely as an intentional deliberate theft. While
the end purpose is commendable, the means is prohibited. This purpose does not appear from
the face of the statute. The only guide as to what penalty should be imposed is the mandate in
NRS 205.272(4) which states that the class of crime shall be charged as the facts warrant.
This guide is too indefinite. It affords no basis to determine whether the proper penalty has
been imposed. It gives the district attorney the legislative power to determine punishment.
The statute can be written so that different types of conduct can be met with appropriate
different degrees of punishment. It must be so drawn in order to meet the constitutional tests.
[Headnotes 1, 2]
The power to define crimes and penalties lies exclusively in the legislature. Fox v. United
States, 354 F.2d 752 (10th Cir. 1965); People v. Hess, 234 P.2d 65 (Cal.App. 1951); State v.
Allen, 423 P.2d 867 (N.M. 1967); Commonwealth v. Redline, 137 A.2d 472 (Penn. 1958).
There may not be a delegation of this power without adequate guidelines. Walden v. Hart,
420 S.W.2d 868 (Ark. 1967); Application of Schillaci, 16 Cal.Rptr. 757 (Cal.App. 1961);
Mahon v. Sarasota County, 177 So.2d 665 (Fla. 1965); Krol v. Will County, 233 N.E.2d 417
(Ill. 1968); Schakel v. Board, 235 N.E.2d 497 (Ind.App. 1968); Turner v. Peters, 327 S.W.2d
958 (Ky.App. 1959); O'Brien v. Comm'r, 134 N.W.2d 700 (Mich. 1965); Arlan's Dep't
Stores, Inc. v. Kelley, 130 N.W.2d 892 (Mich. 1964); State v. California Mining Co., 15 Nev.
234 (1880); Harvell v. Scheidt, 107 S.E.2d 549 (N.C. 1959); Blacker v. Wiethe, 235 N.E.2d
143 (OhioApp. 1968); cf. Wolin v. Port of N.Y. Authority, 392 F.2d 83 (2d Cir. 1968);
Annotation, 92 A.L.R. 400 (1934). See also Southern Pacific Company v. Cochise County,
377 P.2d 770 (Ariz. 1963); City of Toledo v. Sims, 169 N.E.2d 516 (Ohio Mun. Ct. 1960).
[Headnote 3]
While the conduct prohibited is clearly defined, the concomitant punishment is not. This
allows arbitrary law enforcement which cannot be countenanced. Giaccio v. Pennsylvania,
382 U.S. 399 (1966); Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965); Cox v.
Louisiana, 379 U.S. 536 (1965); N.A.A.C.P. v. Button, 371 U.S. 415 (1963); Thornhill v.
Alabama, 310 U.S. 88 (1940); Herndon v. Lowry, 301 U.S. 242 (1937).
This decision does not deny to the district attorney the discretionary power to decide
what crime will be charged.
discretionary power to decide what crime will be charged. It is a common administrative
function to determine facts to which law will apply. But only the legislature can promulgate
the law which will apply to what must be a clearly designated state of facts.
[Headnote 4]
Only the provision made for affixing the penalty is void. The prohibition of the expressed
conduct is valid and, in the absence of a valid penalty, will be deemed to constitute a
misdemeanor. NRS 193.170.
Affirmed in part and remanded for sentencing pursuant to NRS 193.150.
____________
84 Nev. 614, 614 (1968) Trailor v. Trailor
LEROY V. TRAILOR, Appellant, v. ELLOUISE M.
TRAILOR, Respondent.
No. 5625
November 7, 1968 446 P.2d 404
Gabrielli, Judge.
The lower court modified a divorce decree and appeal was taken. The Supreme Court held
that where modification proceeding was not reported and record was barren of information
upon which to judge validity of order distributing certain personal property, reviewing court
did not have information upon which to judge validity of order.
Affirmed.
Richard C. Minor, of Reno, for Appellant.
Samuel B. Francovich, of Reno, for Respondent.
Appeal and Error.
Where modification proceeding was not reported and record was barren of information upon which to
judge validity of order distributing certain personal property, reviewing court did not have information
upon which to judge validity of order.
OPINION
Per Curiam:
We are asked to review the lower court's exercise of discretion in modifying a divorce
decree to change custody of a minor child from the father to the mother, and distributing
certain items of personal property not theretofore distributed.
84 Nev. 614, 615 (1968) Trailor v. Trailor
minor child from the father to the mother, and distributing certain items of personal property
not theretofore distributed. The record shows that the custody change was pursuant to a
stipulation between the father and mother. We have no information upon which to judge the
validity of the incidental personal property distribution since the modification proceeding was
not reported and the record is otherwise barren in that regard.
Affirmed.
____________
84 Nev. 615, 615 (1968) Nevada Bank of Commerce v. Three Seas
NEVADA BANK OF COMMERCE, a Nevada Corporation, Appellant and
Cross-Respondent, v. THREE SEAS CORPORATION, a Nevada Corporation,
Respondent and Cross-Appellant.
No. 5523
November 8, 1968 446 P.2d 647
Appeal from the Eighth Judicial District Court, Clark County, Clarence Sundean, Judge.
Lessor brought action against lessee for damages resulting from breach of lease agreement
between parties. The trial court rendered judgment in favor of the lessor, and the lessee
appealed, and the lessor cross-appealed claiming additional damages. The Supreme Court,
Mowbray, J., held that evidence sustained trial judge's finding that a binding lease of ground
floor of building with changes to be made in accordance with plans and specifications came
into existence and that parties were bound thereby when parties subsequently agreed to plans
and specifications.
[Rehearing denied December 9, 1968]
Singleton, DeLanoy, Jemison & Reid, of Las Vegas, for Appellant and Cross-Respondent.
Foley Brothers, of Las Vegas, for Respondent and Cross-Appellant.
Plans and specifications are not the instruction of the lessor to the architect, nor a general outline of the
work to be done, but included dimensions and mode of construction and a detailed description of the
materials to be utilized, and therefore must be thoroughly understood and agreed on
in lease by lessor and lessee.
description of the materials to be utilized, and therefore must be thoroughly understood and agreed on in
lease by lessor and lessee.
Evidence sustained trial judge's finding that a binding lease of ground floor of building with changes to
be made in accordance with plans and specifications came into existence and that parties were bound
thereby when parties subsequently agreed to plans and specifications.
Where lessor failed to prove any damages because lessee of ground floor of building failed to install
certain improvements agreed on, there was no duty on lessee to prove mitigation of damages.
Where trial judge's award of $16,050 represented annual rental, payable in 12 monthly installments of
$1,337.50, interest at 7 percent per annum should have been allowed on each monthly installment as it
became due and that total sum should be added to the $16,050 damage award granted lessor.
OPINION
Nevada Bank of Commerce appeals from a judgment of $16,050 awarded respondent,
Three Seas Corporation, for damages resulting from breach of a lease agreement between the
parties. Respondent has cross-appealed, claiming interest due on the $16,050 award and
additional damages of $16,721, representing certain improvements to the leased premises
which appellant was bound by the lease agreement to install. The trial judge before whom the
case was tried found that the parties had entered into a binding written lease agreement and
were bound by its terms. To this finding the appellant strenuously objects, upon the grounds
that the parties failed to reach a binding agreement because appellant never approved in
writing the plans and specifications covering the finishing and refurbishing of the leased
premises.
The record discloses that the parties began negotiations in December 1963 for the rental of
the ground floor of respondent's building, which appellant desired to lease for use as a
temporary banking facility. Appellant desired the facility for a short period only, as plans
were under consideration for the construction of permanent quarters by First Western
Financial Corporation of Las Vegas, which corporation had earlier, in August 1963,
purchased practically all (99.06 percent) of appellant's stock. Mr. Melvin Moss, Executive
Vice President of First Western Financial Corporation, with appellant's approval and
authority, negotiated with Mr.
approval and authority, negotiated with Mr. Joseph Foley, a Director of respondent, and
agreed upon a 1-year, groundfloor lease in respondent's building, with two successive 1-year
options for renewal.
Since the ground-floor space to be rented required finishing and refurbishing, so that it
could be used for the purposes intended, two rental alternatives were discussed: (1)
Respondent agreed to bear the costs of finishing and refurbishing, in which event appellant
agreed to pay a monthly rental of 65 cents per square foot, or (2) appellant agreed to pay the
costs to be incurred in the finishing and refurbishing, in which event the agreed monthly
rental would be reduced to 45 cents per square foot. It was understood that the cost of the
improvements was estimated at about $15,000, not considering the contractor's fee.
The second proposal was agreed upon, and the parties reduced their agreement to a written
lease. The lease was signed and acknowledged on January 27, 1964, by appellant's corporate
officers, President D. B. Bates and Secretary D. R. Heidrich. The agreement contained the
following rental provisions:
2. RENTAL PROVISIONS
(a) The Lessee shall pay to the Lessor as and for rent for the premises the sum of
$16,050.00 per year, and in addition thereto, a sum equal to the total cost to Lessor for the
fabrication and installation of a ceiling, lighting fixtures, power outlets, heating and
air-conditioning duct work, flooring, and alterations to the entrance or entrances done
pursuant to plans and specifications approved in writing by the Lessee.
(b) The said sum of $16,050.00, together with the cost of the improvements above
described, shall be payable by the Lessee in 12 equal monthly installments commencing on
the 15th day of March, 1964, and continuing thereafter on the 15th day of each month.
Appellant urges that, since the final plans and specifications for the finishing and
refurbishing were never formally approved in writing by the lessee, the parties never did in
fact reach a mutual understanding and therefore the trial court erred in finding that they had
effected a binding contract.
[Headnote 1]
We appreciate fully that plans and specifications have a most significant and vital
meaning in the construction trades and are certainly not an owner's instruction to the
architect, Nave v. McGrane, 113 P. 82 (Idaho 1910), nor a general outline of the work to be
done, Jenks v. Town of Terry, 40 So.
outline of the work to be done, Jenks v. Town of Terry, 40 So. 641 (Miss. 1906), but do
include the dimensions and mode of construction and a detailed description of the materials
to be utilized in the building to be constructed, and therefore must be thoroughly understood
and agreed upon by the parties.
The principal issue for our consideration in this appeal is whether the record before the
trial court will support the trial judge's finding that the plans and specifications were
approved by the appellant and that a contract was entered into by the parties, whether it be
January 27 or some later date.
The plans and specifications (admitted as Exhibit H) were prepared by the architect and
submitted to the appellant on January 27. They were reviewed by appellant's Secretary, D. R.
Heidrich. Mr. Heidrich prepared a list of nine changes to the proposed plansnone as to the
specificationsand returned to the architect the plans and specifications containing the
changes indicated, with an attached list of the specified changes (Exhibit I) which Mr.
Heidrich had signed.
The architect then prepared Exhibit J (the final plans and specifications), which was in
accordance with Exhibit H (the original plans and specifications) with the changes designated
in Exhibit I. Exhibit J was let out for bids. Several were received, and the low bid of Martin
Construction Company of $16,721 was accepted and approved by the appellant. Mr. Bates,
President of the appellant, testified in substance during the trial that he had reviewed the
plans and specifications with Mr. Heidrich, and knew of and approved Exhibit I and also the
final bid of Martin Construction Company.
DIRECT EXAMINATION
by MR. FOLEY:
Q. Will you state your name, please?
A. Donald B. Bates,
* * *
Q. Now, Mr. Bates, you signed the lease that's in evidence here as Exhibit F?
A. Yes.
Q. All right. Now, Mr. Bates, were you furnished the plans and specifications that are
Exhibit H in evidence?
A. I have never seen these before.
* * *
Q. Yes. Would you read on over to Page 10 of that [Mr. Bates'] deposition. Read it to
yourself, Mr. Bates, and then I will ask you the question.
A. Okay.
(Witness complies.)
A. I said I saw them and I don't remember it. I guess I did. I said I did then.
* * *
Q. And you recall reviewing this [sic] plans which are Exhibit H in evidence?
A. Yes.
Q. And they were sent back with changes?
A. Yes.
* * *
Q. Now
A. But IDel [Mr. Heidrich] consulted me on all these plans and I went along with him
on all of them. As you know what we were trying to do was get the bank open, period.
Q. Now, you were told about the bids, were you not, that were received?
A. Yes.
Q. Mr. Moss told you about them, didn't he?
A. Yes.
Q. And you knew the high bid and you knew the low bid?
A. Yes.
Q. And you had no objection to it?
A. Well
Q. Can you say yes or no?
A. I said the other day I had no objection to it.
The record discloses that Mr. Moss approved the bid and was desirous to have the
premises readied for use at the earliest possible date.
DIRECT EXAMINATION
by MR. FOLEY:
Q. Would you state your name, please?
A. La Marr Dees.
Q. And your address?
A. 1390 Creek Side, Apartment 12, Walnut Creek, California.
Q. Mr. Dees, have you ever been an employee of Mr. James McDaniel, an architect?
A. That is correct.
(Mr. McDaniel was the principal architect involved throughout the transactions of the
parties.)
And further: "Q.
Q. And what did [you] do with respect to those change requests?
A. In reference to the memo and to drawings I, they were incorporated into our drawings
and we reprinted them and sent out revised drawings which was delivered to each one of the
bidding contractors and to Mr. Moss and to the Three Seas Corporation.
Q. And was that Exhibit J?
A. Exhibit J.
* * *
Q. And you delivered a copy of Exhibit J to Mr. Moss on that date [February 3, 1964]?
A. That is correct.
Q. And thereafter, Mr. Dees, what next occurred then, after you got the bidding out?
A. We received bids in duplicate from the General Contractors on February 6th.
Q. I hand you Exhibit K; would you tell us what those are?
A. These are the bidding documents from Martin Construction Company, Lemke
Construction Company, Ben O. Davey Construction Company, and Sierra Construction
Corporation.
Q. I hand you Exhibit Number L. Could you tell us what that is?
A. This is a letter of transmittal from Mr. McDaniel's office to Mr. Mel Moss,
transferring one set of drawings for the remodeling the first floor, one set of specifications,
two addenda, and one copy of bids by Martin, Lembe [sic]. Sierra, and Davey, submitted on
February 7, 1964.
Q. Do you know if those were delivered?
A. I delivered them in person.
Q. To who [sic]?
A. I delivered them to his secretary.
Q. Mr. Moss's?
A. Mr. Moss's secretary.
Q. May I ask you what next occurred?
A. The next was a meeting between Mr. Moss and myself and Mr. Martin.
Q. Mr. Ted Martin?
A. Ted Martin, to arrange the transmittal of shop drawings, submittal of rough plans for
remodeling of the first floor and to lay the ground work to get the work done.
Q. Did you have a discussion at the time with Mr. Moss?
A. The only discussion was getting the work completed by March 10th and how to tie the
job together.
Q. What did he say with respect to architect and contracting?
A. When we were leaving we shook hands all around, and he said, You're my architect;
you're my contractor; get me in there by March 10, 1964.'
Q. Mr. Moss said that to you and to Mr. Martin?
A. Yes.
Q. Do you know the date of that meeting?
A. I believe it was February 11th.
The work was never commenced on the leased premises. Appellant returned the lease
agreement to respondent, striking the names of President Bates and Secretary Heidrich and
inserting the typed notation:
Delivery of the above lease is rejected and signatures cancelled for the reason that parties
have been unable to agree upon plans and specifications as required by terms of proposed
lease agreement.
Appellant urges that a difference in the cost of the floor covering, which was estimated at
the architect's original cost breakdown of January 22 (Exhibit E) in the sum of $2,280, or 76
cents per square foot, but which appeared in the plans and specifications (Exhibits H and J) at
a cost of $1.95 per square foot, was excessive and not acceptable to appellant. The total
original cost estimate (Exhibit E) was $14,830, without the contractor's fee, which the
architect estimated during the trial to be 15-20 percent of $14,830. Since the low bid
approved and accepted by appellant was $16,721, and therefore did not exceed the initial
estimate, we find appellant's position untenable.
The lease agreement was signed and acknowledged by the parties. The plans and
specifications were reviewed by appellant's President Bates and Secretary Heidrich. Changes
were made on the plans and set forth with specificity in a letter attached which was directed
to the architect and signed by Secretary Heidrich. Final plans and specifications based on
Secretary Heidrich's changes were finalized and let out for bid. Bids were received and the
low one approved and accepted by the appellant.
[Headnote 2]
Based on the record before us, we find that it does contain evidence sufficient to support
the trial judge's finding that a binding contract did come into existence between the parties
and that they were bound thereby. The findings should be considered to support the judgment.
Edmonds v. Perry, 62 Nev. 41, 140 P.2d 566 (1943). The finding of the trial judge in this
case is supported by substantial evidence.
this case is supported by substantial evidence. LeMon v. Landers, 81 Nev. 329, 402 P.2d 648
(1965); Bird v. Mason, 77 Nev. 460, 366 P.2d 338 (1961).
[Headnote 3]
Respondent cross-appeals from the trial judge's decision denying any award for the
improvements which appellant failed to install on the leased premises, for the reason that the
appellant had the burden to prove mitigation of the damages incurred. The argument falls, for
the simple reason that respondent failed in the first instance to prove any damages in this
area, and therefore there was no duty on appellant to prove mitigation.
Respondent urges that the trial judge erred in not allowing respondent interest on the rental
award granted. We held in Paradise Homes v. Central Surety, 84 Nev. 109, 437 P.2d 78
(1968), that three items must be determined, to enable the trial court to make an appropriate
award of interest: (1) the rate of interest, (2) the time when it commences to run, and (3) the
amount of money to which the rate of interest must be applied.
[Headnote 4]
Since the trial judge's award of $16,050 represented the entire annual rental, payable in 12
monthly installments of $1,337.50 commencing on the 15th day of March 1964 and on the
15th day of each following month, interest at 7 percent per annum should have been allowed
on each monthly installment as it became due and that total sum added to the $16,050 damage
award granted respondent.
The judgment is affirmed as modified.
____________
84 Nev. 623, 623 (1968) Checker, Inc. v. Public Service Commission
CHECKER, INCORPORATED, dba CHECKER CAB COMPANY, Petitioner, v. THE
PUBLIC SERVICE COMMISSION OF NEVADA, REESE H. TAYLOR, Jr., NOEL A.
CLARK and EVO A. GRANATA, Respondents.
VICTOR F. WHITTLESEA, dba WHITTLESEA BLUE CAB COMPANY,
Petitioner-Intervenor, v. THE PUBLIC SERVICE COMMISSION OF NEVADA, REESE H.
TAYLOR, Jr., NOEL A. CLARK, and EVO A. GRANATA, Respondents.
VICTOR F. WHITTLESEA, dba WHITTLESEA BLUE CAB COMPANY, Petitioner, v.
THE HONORABLE LLEWELLYN YOUNG, THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA and the PUBLIC SERVICE COMMISSION OF
NEVADA, Respondents.
UNION CAB CO., Petitioner-Intervenor, v. THE PUBLIC SERVICE COMMISSION OF
NEVADA, REESE H. TAYLOR, Jr., NOEL A. CLARK, and EVO A. GRANATA; and THE
HONORABLE LLEWELLYN YOUNG and the EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, Respondents.
ACE CAB COMPANY and YELLOW CAB COMPANY, Amici Curiae.
CAB EMPLOYEES, AUTOMOTIVE WORKERS AND WAREHOUSEMEN LOCAL NO.
881, Amicus Curiae.
Nos. 5651 and 5670
November 8, 1968 446 P.2d 981
An original proceeding in certiorari to review an ex parte order of the Public Service
Commission.
Taxicab carrier filed original application in certiorari to review order of Public Service
Commission allocating number of taxicabs among holders of certificates of public
convenience and necessity. The Supreme Court, Mowbray, J., held that Public Service
Commission's original order that allocated number of taxicabs and that was entered at time
adequate notice was given and full hearing afforded was valid and was not superseded by
subsequent ex parte orders of commission entered without sufficient notice or hearing, but
where taxicab carriers relied on the invalid ex parte orders, commission had to hold
another hearing within reasonable time to consider allocation.
entered without sufficient notice or hearing, but where taxicab carriers relied on the invalid ex
parte orders, commission had to hold another hearing within reasonable time to consider
allocation.
Order declared void as being in excess of jurisdiction.
E. M. Gunderson, of Las Vegas, for Petitioner Checker, Incorporated, dba Checker Cab
Company.
Hilbrecht & Jones, of Las Vegas, for Petitioner Victor F. Whittlesea, dba Whittlesea Blue
Cab Company.
Bell & Morris, of Las Vegas, for Petitioner Union Cab Co.
Harvey Dickerson, Attorney General, and John Sheehan, Deputy Attorney General, for
Respondents.
Gabe Hoffenberg, of Las Vegas, Amicus Curiae on behalf of Ace Cab Company and
Yellow Cab Company.
I. R. Ashleman, II, of Las Vegas, Amicus Curiae on behalf of Cab Employees, Automotive
Workers and Warehousemen Local No. 881.
1. Statutes.
Whenever a power is conferred by statute, everything necessary to carry out power and make it effectual
and complete will be implied.
2. Automobiles.
Power to regulate in all matters given to Public Service Commission by Legislature includes power to
allocate taxicabs among various holders of certificates of public convenience and necessity, and further
commission has duty, where need exists in interest of public good, to so allocate taxicabs. NRS 704.020,
subd. 1(b), 706.130, 706.150, 706.210, 706.250.
3. Habeas Corpus.
Where competing carriers were not parties to litigation for habeas corpus brought by persons who had
been arrested for violating order allocating taxicabs, court allocation of taxicabs made in habeas corpus suit
could not stand and court was without power to adjudicate interest of competing carriers. NRS 704.020,
subd. 1(b), 706.150, 706.250.
4. Automobiles.
Orders entered by Public Service Commission subsequent to original order allocating taxicabs among
various holders of certificates of public convenience and necessity and entered either without notice or
without hearing were void. NRS 233B.060, 704.020, subd. 1(b), 706.150, 706.250.
5. Automobiles.
When Public Service Commission exercises its power of allocation of taxicabs it may do so only after full
hearing duly noticed, where all parties have had an opportunity to appear.
where all parties have had an opportunity to appear. NRS 233B.060, 704.020, subd. 1(b), 706.130,
706.150, 706.210, 706.250.
6. Administrative Law and Procedure.
Before an order affecting not only property rights but revenue producing capacity of companies involved
may be entered, notice and an opportunity to be heard must be given. NRS 233B.060.
7. Administrative Law and Procedure; Public Service Commissions.
Public Service Commission cannot act without notice and a reasonable opportunity to be heard and must
act within constitutional limits. NRS 233B.060, 704.020, subd. 1(b), 706.150, 706.250.
8. Automobiles.
Public Service Commission's original order that allocated number of taxicabs and that was entered at time
adequate notice was given and full hearing afforded was valid and was not superseded by subsequent ex
parte orders of commission entered without sufficient notice or hearing, but where taxicab carriers relied on
the invalid ex parte orders, commission had to hold another hearing within reasonable time to consider
allocation. NRS 233B.060, 704.020. subd. 1(b), 706.130, 706.150, 706.210, 706.250.
OPINION
This is an original application by Checker, Incorporated, dba Checker Cab Company and
Victor F. Whittlesea dba Whittlesea Blue Cab Company in certiorari to review an order of the
Public Service Commission of Nevada dated June 3, 1968. The applicants contend that the
entry of the June 3 order, which bears upon the number of taxicabs they and other cab
companies may operate in Clark County, was in excess of the Commission's jurisdiction and
is void. We agree.
The Commission's order of June 3 was the last in a series of orders commencing in
December 1966 issued by the Commission and the Eighth Judicial District Court concerning
the allocation of taxicabs in Clark County. Because of the confusion that has resulted from
these orders and counterorders, it is imperative that the powers and responsibilities of the
Commission be clarified, to the end that the taxicab industry, which plays a vital role in the
economy of Clark County, be properly controlled and regulated.
1. A threshold issue for our determination is whether the Public Service Commission of
Nevada has the power to allocate the number of taxicabs operated by any holder of an
unlimited certificate of public convenience and necessity. We hold that it does.
NRS 706.150
1
vests the Public Service Commission with the power and authority to
supervise and regulate every common motor carrier of property and passengers in all matters
on the highways of this State. Our Legislature has declared taxicab motor carriers as common
carriers within the meaning of the public utilities laws of the State. NRS 706.250.
2
A public
utility has been defined as any partnership, company, or association owning or operating
automobiles engaged in transporting persons, for hire as common carriers. NRS 704.020
(1)(b).
3

The purpose and intent of the Legislature in granting the Commission the power to
regulate and to promote safe, adequate, and efficient service is specifically set forth in NRS
706.130, as follows:
1. It is hereby declared to be the purpose and policy of the legislature in enacting this
chapter:
(a) To confer upon the commission the power and authority and to make it the duty of the
commission to supervise and regulate the common and contractor motor carrying of
property and passengers for hire, and to regulate for licensing purposes the private motor
carrying of property when used for private commercial enterprises on the public highways
of this state, and to confer upon the department the power and authority to license all
motor carriers, so as to relieve the existing and all future undue burdens on such
highways arising by reason of the use of such highways by motor vehicles in a gainful
occupation thereon;
____________________

1
NRS 706.150. Licensing of motor carriers by department; supervision, regulation by commission
applicability of other common carrier laws to motor carriers.
1. The department is hereby vested with the power and authority to and it shall license, and the commission
is hereby vested with the power and authority to and it shall supervise and regulate every common motor carrier
of property and of passengers in this state in all matters affecting the relationship between such carriers and the
traveling and shipping public over and along the public highways of this state.
2. All laws relating to the powers, duties, authority and jurisdiction of the commission over common carriers
are hereby made applicable to all such motor carriers except as otherwise specifically provided in NRS 706.010
to 706.700, inclusive.

2
NRS 706.250. Certain carriers, brokers declared to be common carriers affected with public interest. All
common motor carriers of property, common motor carriers of passengers, brokers, taxicab motor carriers and
motor convoy carriers are hereby declared
1. To be common carriers within the meaning of the public utility laws of this state; and
2. To be affected with a public interest, and subject to NRS 706.010 to 706.720, inclusive, and to the laws
of this state, including the regulation of all rates, charges and services now in force or that hereafter may be
enacted, pertaining to public utilities and common carriers as far as applicable, and not in conflict herewith.

3
NRS 704.020.'Public utility' defined.
1. As used in this chapter, public utility' shall mean and embrace:
* * *.
(b) Any person, partnership, corporation, company or association owning or operating automobiles, auto
trucks or other self-propelled vehicles engaged in transporting persons or property for hire over and along the
highways of this state as common carriers.
regulate the common and contractor motor carrying of property and passengers for hire, and
to regulate for licensing purposes the private motor carrying of property when used for private
commercial enterprises on the public highways of this state, and to confer upon the
department the power and authority to license all motor carriers, so as to relieve the existing
and all future undue burdens on such highways arising by reason of the use of such highways
by motor vehicles in a gainful occupation thereon;
(b) To provide for reasonable compensation for the use of such highways in such gainful
occupations, and enable the State of Nevada, by a utilization of the license fees, to provide
more fully for the proper construction, maintenance and repair thereof, and thereby protect
the safety and welfare of the traveling and shipping public in their use of the highways; and
(c) To provide for fair and impartial regulation, to promote safe, adequate, economical
and efficient service and foster sound economic conditions in motor transportation, and to
encourage the establishment and maintenance of reasonable charges for such transportation
services, without unjust discriminations, undue preferences or advantages, or unfair or
destructive competitive practices.
2. All of the provisions of this chapter shall be administered and enforced with a view to
carrying out the declaration of policy contained in subsection 1.
The Legislature has also granted police power to the Public Service Commission for the
enforcement of the Motor Vehicle Carriers Act.
4

In Reo Bus Lines Co. v. Southern Bus Line Co., 272 S.W. 18, 20 (Ky. 1925), the court
said:
Public highways are public property, established, constructed, and maintained at public
expensefor public use, and naturally fall under governmental control.
* * *.
Clearly, these companies have no vested or inherent right in the highways, and their
unrestrained use thereof is equivalent to an appropriation of public property for private use,
and it is within the power of the Legislature to prohibit this use or to prescribe the terms
upon which it may be exercised."
____________________

4
NRS 706.210. Enforcement by commission, inspectors; inspectors may carry firearms.
1. The commission and its inspectors shall:
(a) Enforce all rules and regulations of the commission and the department pertaining to this chapter.
(b) Assist in the enforcement of all laws pertaining to the registration of motor vehicles.
2. The commission and its inspectors shall have police power for the enforcement of chapter 704 of NRS
and this chapter, and laws pertaining to the registration of motor vehicles. (Emphasis added.)
to an appropriation of public property for private use, and it is within the power of the
Legislature to prohibit this use or to prescribe the terms upon which it may be exercised.
In Yellow Cab & Baggage Co. v. Publix Cars, 253 N.W. 80, 84 (Neb. 1934), the court
held: The object in requiring such certificates [of public convenience and necessity] is not
only to protect those already occupying the field in their investment, but to protect the public
as well. Unreasonable and unwarranted competition might be carried to the extent that it
would not only injure and jeopardize the property of those operating the utilities, but might
even result in destroying them. Such a result might be disastrous to the interests of the
public.
Oscar L. Pond, in volume 3 of the fourth and last edition (1932) of his A Treatise on the
Law of Public Utilities, discusses the subject of the regulation of public utilities and motor
vehicle carriers by the State. He says, in sections 754 and 755:
754. Right of state to regulate use of its streets and highways.The power of the state
thus to regulate the use of its public thoroughfares is as fully established and generally
recognized as the police power itself upon which it is founded. And as it includes the power
to prohibit, the conditions of its exercise and enjoyment are subject to the broadest
restrictions and regulations consistent with equality and other constitutional property rights.
In fact few legal propositions are more fully and firmly established than the right of the state
in the exercise of its police power to regulate or prohibit the use of its streets and highways as
places of private business, or as the chief instrumentality of conducting such business as that
of operating motor vehicle systems for profit.
* * *.
755. Regulation for public good.The power to prohibit includes the power to regulate
even to the extent of prohibition, and the reasonableness of the conditions of regulation may
only be questioned in the light of constitutional provisions and limitations imposed upon the
legislature. As no one has the inherent right to use the streets and public thoroughfares as a
place wherein to conduct a private business, permission so to use them may be afforded
certain parties, but always subject to the right to regulate and control their use in the interest
of the public and for the common good of all. The public safety and the general business
policy of providing public service are logical and necessary questions to consider in
determining the nature and extent and in defining the conditions of public regulation and
control of motor vehicles operating as common carriers.
The Supreme Court of Utah held, in McCarthy v. Public Serv. Comm'n, 77 P.2d 331 (Utah
1938), that the Legislature may regulate, in the public interest, common motor carriers. At
page 337, the court said:
Every such permit, every act of transportation, tends to produce competition for business,
and increased activity to get and control business. But competition is not, in itself and always,
a benefit to the public or in the public interest; not any more than is monopoly always in the
public interest. Rather, it lies in a medium between the two. As well said in a recent case,
People's Transit Co. v. Henshaw, 8 Cir., 20 F.2d 87, at page 90:
The results of such competition, where there is not sufficient business to sustain all of
the competitors, is that a season of experience causes all or some to drop out or compels the
purchase of competitors (usually at exaggerated amounts), thus causing an increase of capital
expenditure of the purchasers upon which the charges to the public must be based and thereby
increased.
These considerations, and others, amply justify differences to protect and preserve the
existing permanent system. No new system has a legal right to destroy such existing system
and have the public at its mercy. The public welfare is not served, but harmed thereby. The
public may protect itself against such results. Nor can any theory of free competition change
this situation. Competition is recognized and encouraged for the sole reason that it is
supposed to result in the public good. But competition is not necessarily unrestrainable. It
cannot be allowed to harm the very public it was designed to protect and aid. It may be
restrained for the public welfare just the same as monopoly may be restrained or as
competition may be left unrestrained. The test in each instance is the public good. Where the
restraint upon competition is for the public good, it is sustainable just as restraint upon
freedom of action by the individual is valid where for the public good. Such is the basis of
and the reason for the entire police power.'
Applicants contend that even if the Commission has the power to regulate the taxicab
industry, it has not been given the power to allocate the number of cabs among the holders of
certificates of public convenience and necessity, for the reason that the power of allocation is
not specifically mentioned in the statute granting the Commission the power to regulate in all
matters. We do not agree.
[Headnote 1]
It is the universal rule of statutory construction that wherever a power is conferred by
statute, everything necessary to carry out the power and make it effectual and complete
will be implied.
to carry out the power and make it effectual and complete will be implied. Koelling v. Board
of Trustees, 146 N.W.2d 284 (Iowa 1966).
As the court said in Juzek v. Hackensack Water Co., 225 A.2d 335, 342 (N.J. 1966):
The grant of an express power is always attended by the incidental authority fairly and
reasonably necessary or appropriate to make it effective. Cammarata v. Essex County Park
Comm'n, 26 N.J. 404, 140 A.2d 397 (1958); 3 Sutherland, Statutory Construction 5402 (3d
ed. 1943). That which is clearly implied, is as much a part of the law as that which is
expressed. Giles v. Gassert, 23 N.J. 22, 127 A.2d 161 (1956); State v. DeMeo, 20 N.J. 1, 118
A.2d 1, 56 A.L.R.2d 905 (1955); State v. Lanza, 27 N.J. 516, 143 A.2d 571 (1958), appeal
dismissed, 358 U.S. 333, 79 S.Ct. 351, 3 L.Ed. 2d 350 (1959), rehearing denied 359 U.S. 932,
79 S.Ct. 606, 3 L.Ed.2d 634 (1959); Brandon v. Montclair, 124 N.J.L. 135, 11 A.2d 304
(Sup.Ct. 1940), affirmed 125 N.J.L. 367, 15 A.2d 598 (E. & A. 1940); Jersey City v. State
Water Policy Comm'n, 118 N.J.L. 72, 191 A. 456 (E. & A. 1936); 82 C.J.S. Statutes 327
(1953).
[Headnote 2]
We conclude that the power to regulate in all matters gives the Public Service Commission
the power and indeed the duty, where the need exists in the interest of the public good, to
allocate taxicabs.
2. The inception of the instant controversy was an order issued by the Public Service
Commission on December 14, 1966. At that time the Commission assumed authority to
allocate taxicabs among competing carriers operating in Clark County. That order followed a
duly noticed hearing at which all interested carriers appeared and presented their contentions.
Thereafter followed a series of court adjudications and ex parte Commission orders,
culminating in the Commission's order of June 3, 1968, the validity of which is challenged by
this proceeding in certiorari. We turn to a brief consideration of those later court and
Commission orders.
On January 10, 1968, a district court entered an order in a habeas corpus proceeding
instituted by Mirin and Chenoweth, who had been arrested for operating too many taxicabs,
in violation of the county allotment of taxicabs. The court in that proceeding ruled, inter alia,
that the Public Service Commission lacked authority to allocate taxicabs in Clark County.
Apparently because of the district court ruling, the Public Service Commission on January
15, 196S, suspended its prior order of December 14, 1966.
Service Commission on January 15, 1968, suspended its prior order of December 14, 1966.
This was done ex parte.
On March 27, 1968, in another separate civil action instituted by Mirin and Chenoweth,
the district court in Clark County enjoined the County Commissioners of that county from
attempting to allocate taxicabs among competing carriers, and ruled that the power to allocate
resided with the Public Service Commission rather than with the County Commissioners.
Because of that court ruling, the Public Service Commission on March 29, 1968, reinstated
its allocation order of December 14, 1966. This order was entered ex parte.
Mirin and Chenoweth were again arrested in May (1968) and commenced another habeas
corpus proceeding. The district court granted their petition for relief and designated the
number of taxicabs which all competing carriers could operate in Clark County.
Finally, on June 3, 1968, the Public Service Commission entered a new order of allocation,
based mainly upon the district court allocation of May 27, 1968. The June 3 order was also
entered ex parte.
[Headnote 3]
The court allocation of May 27, 1968, cannot stand, since all interested, competing carriers
were not parties to that litigation and the court was without power to adjudicate their
interests.
[Headnotes 4, 5]
3. With regard to the orders of the Public Service Commission, an examination of the
record before us discloses that, with the exception of the order entered by the Commission on
December 14, 1966, all orders of the Commission were entered either without notice or
without hearing, and therefore are void. We hold that, when the Public Service Commission
exercises its power of allocation, such as in the instant case, it may do so only after a full
hearing duly noticed, where all parties have had an opportunity to appear.
[Headnote 6]
When the Commission allocates the number of taxicabs that a company may operate in a
given area, that order not only affects the property rights of the companies involved, but also
affects their revenue-producing capacity. It is a well recognized principle of administrative
law that notice and an opportunity to be heard must be given before such an order may be
entered.
This view is expressed in NRS 233B.060, a section of the Nevada Administrative Procedure
Act, which provides:
1. Prior to the adoption, amendment or repeal of any regulation, the agency shall give at
least 20 days' notice of its intended action.
2. The notice shall:
(a) Include a statement of either the terms or substance of the proposed regulation or a
description of the subjects and issues involved, and of the time when, the place where, and
the manner in which, interested persons may present their views thereon.
(b) Be mailed to all persons who have requested in writing that they be placed upon a
mailing list, which shall be kept by the agency for such purpose.
3. All interested persons shall be afforded a reasonable opportunity to submit data, views
or arguments, orally or in writing. With respect to substantive regulations, opportunity for
oral hearing must be granted if requested by any interested person who will be directly
affected by the proposed regulation. The agency shall consider fully all written and oral
submissions respecting the proposed regulation.
4. If an agency finds that an emergency exists, and such a finding is concurred in by the
governor by written endorsement on the original copy of a proposed regulation, a regulation
may be adopted and become effective immediately upon its being filed in the office of the
secretary of state. A regulation so adopted may be effective for a period of not longer than
120 days, but the adoption of an identical regulation under subsections 1 to 3, inclusive, is not
precluded.
5. No regulation adopted after July 1, 1965, is valid unless adopted in substantial
compliance with this section, but no objection to any regulation on the ground of
noncompliance with the procedural requirements of this section may be made more than 2
years after its effective date. Regulations in effect on July 1, 1965, shall continue in effect
until amended or repealed in accordance with the provisions of this chapter, if an original and
two copies are deposited with the secretary of state on or before July 1, 1965.
6. Upon adoption of a regulation, the agency, if requested to do so by an interested
person, either prior to adoption or within 30 days thereafter, shall issue a concise statement of
the principal reasons for and against its adoption, and incorporate therein its reason for
overruling the consideration urged against its adoption.
In addition to the provisions of the Nevada Administrative Procedure Act, the Rules of
Practice and Procedure adopted by the Public Service Commission of Nevada on July 1,
1961, provide for hearings and notice.5 [Headnote 7]
Procedure Act, the Rules of Practice and Procedure adopted by the Public Service
Commission of Nevada on July 1, 1961, provide for hearings and notice.
5
[Headnote 7]
[Headnote 7]
____________________

5
4.1 Rights of Parties
At any hearing, all parties named in the preceding rule, except interested parties, shall be entitled to enter an
appearance, to introduce evidence, examine and cross-examine witnesses, make arguments, and generally
participate in the conduct of the proceeding. Interested parties who are or may be directly and substantially
affected by the proceeding may enter an appearance, introduce evidence and, subject to the discretion of the
Commission, may otherwise participate in the conduct of the proceeding.
* * *.
4.3 Representation of Parties
Appearances and representation of parties shall be made as follows:
(a) A party shall be entitled to be heard in person or by his attorney;
* * *.
9.1 Place and Time
Hearings will be held before one or more Commissioners. Notice of the place, date, and hour of the hearing
will be served at least ten (10) days before the time set therefor. Hearings will be held in the State Office
Building, Carson City, Nevada, or at such other place in the State as may be designated in the notice of hearing.
9.2 Publication of Notice of Hearings
All hearings required by the Public Service Commission of Nevada must be noticed by publication and
mailing. The notice shall be in the following form:
NOTICE
Notice is hereby given that the hearing in the matter of
will be held in
Title and cause of action Name of city and address
on at
Date Time
All interested parties may appear and be heard.
The notice shall be published one time in an ad not less than one (1) column by three (3) inches, with black
border on all sides, and not less than ten (10) days prior to the day fixed for said hearing in one newspaper of
general circulation published in each county wherein patrons or customers of said applicant will be affected by
the application. If no newspaper of general circulation is published in any such county, then the notice may be
published in any newspaper of general circulation which is located in any county which adjoins the county where
patrons or customers therein reside.
Copies of the notice shall also be mailed to all city clerks and county clerks of each county or city wherein
patrons or customers affected by the application reside, and such other parties as designated by the Commission.
Affidavits of publication and of mailing shall be filed with the Public Service Commission of Nevada at or
prior to the time of initial hearing.
All notices of hearing shall be mailed by the applicant. All costs of mailing and publications shall be paid by
applicant.
[Headnote 7]
The Commission cannot act without notice and a reasonable opportunity to be heard and
must act within constitutional limits. Carroll v. Public Util. Comm'n, 207 A.2d 278 (Conn.
1964).
As the court said in McCormick v. Pennsylvania Pub. Util. Comm'n, 30 A.2d 327, 329
(Pa.App. 1943):
We concede that it is the duty of the administrative boards to hold fair and open hearings
and to give notice so that those interested may have an opportunity to be heard and the
rudiments of fair play' be observed.
The Supreme Court of the United States has ruled, in Ohio Bell Tel. Co. v. Public Util.
Comm'n, 301 U.S. 292, 304 (1937):
Regulatory commissions have been invested with broad powers within the sphere of duty
assigned to them by law. Even in quasi-judicial proceedings their informed and expert
judgment exacts and receives a proper deference from courts when it has been reached with
due submission to constitutional restraints. West Ohio Gas Co. v. Public Utilities Comm'n
(No. 1), supra [294 U.S. 63], p. 70; West Ohio Gas Co. v. Public Utilities Comm'n (No. 2),
294 U.S. 79; Los Angeles Gas & Electric Corp. v. Railroad Commission, 289 U.S. 287, 304.
Indeed, much that they do within the realm of administrative discretion is exempt from
supervision if those restraints have been obeyed. All the more insistent is the need, when
power has been bestowed so freely, that the inexorable safeguard' (St. Joseph Stock Yards
Co. v. United States, 298 U.S. 38, 73) of a fair and open hearing be maintained in its
integrity. Morgan v. United States, 298 U.S. 468, 480, 481; Interstate Commerce Comm'n v.
Louisville & N. R. Co., supra [227 U.S. 88]. The right to such a hearing is one of the
rudiments of fair play' (Chicago, M. & St. P. Ry. Co. v. Polt, 232 U.S. 165, 168) assured to
every litigant by the Fourteenth Amendment as a minimal requirement. West Ohio Gas Co. v.
Public Utilities Comm'n (No. 1), (No. 2), supra, Brinkerhoff-Faris Co. v. Hill, 281 U.8. 673,
682. Cf. Norwegian Nitrogen Co. v. United States, supra [288 U.S. 294]. There can be no
compromise on the footing of convenience or expediency, or because of a natural desire to be
rid of harassing delay, when that minimal requirement has been neglected or ignored.
4. In summary, therefore, we hold that the power to regulate includes the power to allocate
the number of taxicabs serving an area, and when that need in the public interest exists, the
Commission has the duty to do so. We conclude that the Commission's order entered on
June 3 is void for want of jurisdiction, as are the orders of the Commission entered after
its order entered in December 1966, at which time adequate notice was given and a full
hearing afforded all interested parties.
Commission's order entered on June 3 is void for want of jurisdiction, as are the orders of the
Commission entered after its order entered in December 1966, at which time adequate notice
was given and a full hearing afforded all interested parties.
[Headnote 8]
We therefore rule that the allocation order of the Public Service Commission of December
14, 1966, is valid and has not been superseded by the subsequent ex parte orders of that
Commission. However, since the taxicab carriers in Clark County have relied upon such
invalid ex parte orders of the Commission, we direct the Commission to hold another hearing
within a reasonable time to consider the allocation of taxicabs within that county, and to grant
to all certified carriers the full opportunity to be heard.
____________
84 Nev. 635, 635 (1968) In re John, a Minor
In the Matter of JOHN.........., a Minor.
No. 5519
November 13, 1968 446 P.2d 989
Commitment of a minor pursuant to the Juvenile Court Act. First Judicial District Court,
Ormsby County; Richard L. Waters, Jr., Judge.
The Supreme Court, Zenoff, J., held that testimony of two minors that juvenile sold them
cigarettes which he represented to be marijuana cigarettes but that when they smoked the
cigarettes they suffered no effects and did not know if the cigarettes contained marijuana was
insufficient to justify commitment of juvenile to boy's training center pursuant to Juvenile
Court Act.
Reversed for new hearing.
Martillo & Bucchianeri, of Carson City, for Appellant.
Robert F. List, District Attorney, and Michael E. Fondi, Deputy District Attorney, Ormsby
Infants.
Testimony of two minors that juvenile sold them cigarettes which he represented to be marijuana
cigarettes but that when they smoked the cigarettes they suffered no effects and did not know if the
cigarettes contained marijuana was insufficient to justify commitment of juvenile to
boys' training center pursuant to Juvenile Court Act. NRS 62.010 et seq., 62.190,
subd.
not know if the cigarettes contained marijuana was insufficient to justify commitment of juvenile to boys'
training center pursuant to Juvenile Court Act. NRS 62.010 et seq., 62.190, subd. 3, 453.210;
OPINION
John .............., a minor, 16 years of age, was adjudged to be under the purview of the
Juvenile Court Act, NRS, Chapter 62, and was committed to the boys training center in Elko
on November 20, 1967. His commitment came about by reason of a petition from the juvenile
department of the First Judicial District that Subject minor did on or about the 20th day of
August, 1967, in Carson City, Ormsby County, Nevada, wilfully and unlawfully sell or supply
marihuana to Steve .............., age 16, and Jerry .............., age 18, all of which took place in a
motor vehicle in Carson City, Nevada. The family names of the minors are omitted
intentionally by this court.
The only evidence presented to the district court sitting in its capacity as a juvenile court
was the statements of the two named juveniles that John had sold them what he represented to
be marihuana cigarettes for 50 each and that they smoked the substance received from him.
They testified that they suffered no effects and did not know if in fact the so-called cigarettes
did contain marihuana. No other evidence was presented to the court.
No time limitation was placed in the order of commitment, but by custom and practice the
juvenile orders of commitment in this state either provide or imply that the commitment shall
be for the minority of the minor or until further order of the court. The statutes provide that
the superintendent of the youth training center may release minors placed under his
supervision at his discretion. No issue is presented in this case concerning the discretionary
feature of the order.
We must be ever mindful that whatever the turbulence of the law relating to juveniles, if
we are to serve the laudable purposes of specialized handling of children in trouble, the very
minimum should be that the child does not receive the worst of two worlds, that he gets
neither the protections accorded to adults nor the solicitous care or the regenerative
treatment postulated for children. Kent v. United States, 383 U.S. 541 (1966). So far as they
go, the standards of In re Gault, 387 U.S. 1 {1967), must be applied and in this case those
standards were met.
U.S. 1 (1967), must be applied and in this case those standards were met. The minor's parents
were notified of the date of the hearing and were present. The minor was advised of his
constitutional rights, and he acknowledged awareness of them. In fact he refused to be
interrogated. He was also represented by an attorney of his own choice. The boy was released
to the custody of his parents pending the hearing, thus no pretrial bail issue was presented.
Our Juvenile Court Act, NRS, Chapter 62, expressly provides that juvenile proceedings
shall not be deemed criminal or criminal in nature. NRS 62.190 (3). Yet Gault requires those
proceedings to meet some of the criminal standards afforded adults. Neither the Fourteenth
Amendment nor the Bill of Rights is for adults alone. Gault, supra.
Appellant is charged with the sale of marihuana, a felony. NRS 453.210. If the accused
were an adult he would be entitled to a trial with the requirement that guilt be proven beyond
a reasonable doubt. Respondent contends that juvenile proceedings are not criminal, and
therefore the offense must be established only by a preponderance of the evidence.
In the lower court proceeding the two boys testified that John .............. told them the
cigarettes were marihuana and that they believed him but that they had no reaction from
smoking the spikes. There was no other proof of any kind, type or nature whatsoever to
establish that the so-called marihuana cigarettes were in truth marihuana or just ordinary
cigarettes. Neither Kent, supra, nor Gault, supra, permit us to indulge in whimsical
adjudication under the diluted doctrine of parens patriae. Cf. Ginsburg v. New York, 390 U.S.
629 (1968), which appears to give some rebirth to parens patriae under the police power.
Without even a preponderance of the evidence to establish the presence of the narcotic, the
case must fail.
1

Reversed for a new hearing.
____________________

1
At present, the measure of proof in juvenile cases is uncertain. Illinois (In re Urbasek, 232 N.E.2d 716, 719
(Ill. 1967)), adopts the reasonable doubt standard. Others have not gone that far. In re Wylie, 231 A.2d 81
(D.C.App. 1967); Annotation, 43 A.L.R.2d 1128, 1138-41 (1955). The United States Supreme Court has not yet
ruled. In re Whittington, 391 U.S. 341 (1968).
____________
84 Nev. 638, 638 (1968) Craig v. Margrave
FLORINE I. CRAIG, Appellant, v. EMMA GLADYS MARGRAVE
AND WILTON MARGRAVE, Respondents.
No. 5521
November 13, 1968 446 P.2d 653
Appeal from the Second Judicial District Court, Washoe County; John E. Gabrielli. Judge.
Broker brought garnishment action against vendors for real estate commission. The lower
court rendered judgment adverse to the broker, and the broker appealed. The Supreme Court,
Collins, J., held that where agreement for sale of realty provided that the broker was to
receive commission of five percent as each installment payment was received pursuant to
note and trust deed, and after partial payment under agreement purchaser became in default,
agreement was not enforceable by broker until fund was realized by vendors, and receipt of
payments under the note as secured by the trust deed was a condition precedent to obligation
of vendors to pay commission, and broker was to receive her commission when installments
under note were paid, and not when they were due.
Affirmed.
Sidney, W. Robinson, of Reno, for Respondents.
1. Brokers.
Where agreement for sale of realty provided that the broker was to receive commission of five percent as
each installment payment was received pursuant to note and trust deed, and after partial payment under
agreement purchaser became in default, receipt of payments under the note as secured by the trust deed was
a condition precedent to obligation of vendors to pay commission, and broker was to receive her
commission when installments were paid, and not when due.
2. Brokers.
Right of broker to fee is measured by terms of his contract with principal, and if contract imposes a
contingency such as performance of purchaser as condition to broker's right to receive his fee, broker
cannot complain if, through non-performance of purchaser, broker's contingent rights are lost.
3. Brokers.
agreement purchaser because in default, sale of realty under trust deed to independent
purchaser would constitute an installment payment satisfying condition precedent, so
as to entitle broker to her agreed commission.
sale of realty under trust deed to independent purchaser would constitute an installment payment satisfying
condition precedent, so as to entitle broker to her agreed commission.
4. Brokers.
agreement purchaser became in default, and vendors took no action against the security to require a sale of
the realty under the trust deed, broker could not recover commission from vendors for unpaid installments,
in absence of bad faith, collusion, of fraud by vendors in seeing to deny or deprive broker of her
commission.
OPINION
This appeal is from a decision of the lower court that appellant's brokerage commission
upon an installment sale of real estate is not yet due or payable. We agree and affirm that
decision.
On June 1, 1962, respondents Emma Gladys Margrave and Wilton Margrave executed an
agreement as sellers with Charles A. Steen as buyer for the sale of certain real property for the
sum of $1,050,000.
Pursuant to the terms of the agreement:
(a) a down payment was made:
(b) the title to the real property was conveyed from sellers to buyer;
(c) the buyer executed and delivered his promissory note to the sellers in the sum of
$850,300, which was secured by a first deed of trust upon the property.
The agreement provided in part that:
It is further mutually understood and agreed that Florine I. Clayton, doing business as
Tiptop Realty, is the broker responsible for the consummation of this transaction and that
sellers shall pay to said broker a commission of five percent (5%) upon the total gross sales
price, payable as follows: (1) As each installment payment hereunder is received by sellers,
five percent (5%) of the portion of said payment representing principal shall be paid to said
broker, and (2) as each installment payment is received pursuant to the note and deed of trust
herein referred to, five percent (5%) of the portion of said payment representing principal
shall be paid to said broker. Any commission over and above said amount shall be paid by
buyer.
Certain payments were made upon the promissory note and as each payment was made,
the commission due appellant was paid. Payments upon the note ceased and it is now in
default. There is presently due, owing and unpaid upon the promissory note the principal sum
of $419,034.30, together with interest from July 8, 1965.
Sellers have taken no action against the security to require a sale of the property under the
trust deed.
This suit is a garnishment action against sellers for the balance of the real estate
commission calculated to be due appellant under the above agreement. On October 17, 1967,
the lower court decided that:
* * * Plaintiff is not entitled to relief prayed for by her, nor any further payments by way
of commission until such time as additional payments are received from garnishee's
purchaser, or until such time as the land here involved [sic] is sold to independent purchasers
on foreclosure of the Deed of Trust hereinvolved [sic] and the sellers have received the
balance of the purchase price in cash.
This appeal is from that decision.
The issues to be decided are these:
I. IS RECEIPT OF PAYMENT FROM BUYER TO RESPONDENTS A CONDITION
PRECEDENT TO RESPONDENTS' OBLIGATION TO PAY APPELLANT HER
COMMISSION IN THAT IT (1) SPECIFIES THE TIME WHEN PAYMENT IS DUE
APPELLANT OR, (2) SPECIFIES THE FUND FROM WHICH PAYMENT IS TO BE
MADE.
II. DOES FAILURE OF RESPONDENTS TO FORECLOSE ON THE DEED OF
TRUST EXECUTED BY BUYER EXCUSE THE CONDITION PRECEDENT SO THAT
APPELLANT'S COMMISSION IS NOW DUE AND PAYABLE.
[Headnote 1]
1. We interpret the agreement as restricting appellant's broker's commission to a particular
fund and not enforceable until the fund is realized. Seminole Fruit & Land Co. v.
Rosborough-Weiner, Inc., 43 So.2d 864 (Fla. 1950). Thus receipt of payments under the note
as secured by the deed of trust is a condition precedent to respondents' obligation to pay the
commission. Appellant then is to receive her commission when the installments under the
note are paid, not when they are due. House v. Cook, 267 P. 354 (Cal.App. 1928); Cannon v.
Selmser, 260 P. 332 (Cal.App. 1927).
[Headnote 2]
A broker's right to his fee is measured by the terms of his contract with the principal. If the
contract imposes a contingency such as performance of the buyer as a condition to his right to
receive his fee, he cannot complain if through nonperformance of the buyer, his contingent
rights are lost. Stromer v. Browning, 55 Cal.Rptr. 18 (1966); Fitch v. LaTourrette, 75 Nev.
484, 346 P.2d 704 (1959); House v. Cook, supra; Cannon v. Selmser, supra.
2. The next issue involves failure of respondent to foreclose or sell under the deed of trust.
Appellant contends this excuses the condition precedent so that the commission is now due
and payable.
[Headnote 3]
There is no doubt but that a sale of the property under the trust deed to an independent
buyer would constitute an installment payment satisfying the condition precedent, and
entitling appellant to her agreed commission. Margolis v. Los Angeles First Nat. Trust &
Savings Bank, 9 P.2d 526 (Cal.App. 1932); Dunne v. Colomb, 221 P. 912 (Cal. 1923).
The question is, however, if at a sale of the property under the trust deed, sellers bid in the
property themselves, is the condition precedent thus satisfied entitling appellant to the
commission? While this court has never adopted a view upon that question, there are two
distinct lines of authority. One group of courts holds that if sellers bid in the property
themselves, they would not be obligated to pay the commission under the terms of the
agreement in this case. Margolis v. Los Angeles First Nat. Trust & Savings Bank, supra;
Seminole Fruit & Land Co. v. Rosborough-Weiner, Inc., supra.
Another group of courts holds that where a broker is to receive his commission out of the
purchase money as it is paid to seller, in the event of default by buyer and sale under the
security arrangement where seller purchases or bids in the property, the broker is entitled to
his commission. Crane v. Eddy, 61 N.E. 431 (Ill. 1901); Elmen v. Winfield, 80 S.W.2d 343
(Tex. 1935). That group of courts reasons there should be no different result to the broker as
to his commission whether an independent party or the seller purchases the property at the
foreclosure sale.
The lower court in this case held in accordance with the rule announced by the California
and Florida courts when it ruled that the brokerage commission is not due until such time as
additional payments are received from garnishee's purchaser, or until such time as the land
hereinvolved [sic] is sold to independent purchasers on foreclosure of the Deed of Trust
hereinvolved [sic] and the sellers have received the balance of the purchase price in
cash."
to independent purchasers on foreclosure of the Deed of Trust hereinvolved [sic] and the
sellers have received the balance of the purchase price in cash.
We think that ruling is correct and sustain it.
The reasons supporting such rule are that the sellers have required, as here, that the
commission comes from the purchase price and not their pocket. The sellers have bargained
to receive installment payments in money for their property and not the property back, and at
the foreclosure sale, if an independent purchaser bids in the property, sellers receive their
money. If sellers bid it in they get the property back, not the installment payments of money
for which they contracted.
1

[Headnote 4]
3. Finally, we turn to consideration of the issue raised by appellant that if sellers refuse,
fail, or decline for any reason to foreclose under the trust deed, the condition precedent is
excused and the commission is due and payable. See Stromer v. Browning, supra. We
disagree.
There is no contention by appellant of bad faith, collusion or fraud by respondents in
seeking to deny or deprive her of her commission. Whether those factors if raised and shown
would excuse the condition precedent and entitle her to the commission will be decided by us
when urged in a proper case.
____________________

1
We think that if the real estate broker is in a strong enough position between the seller and buyer, he can
always require by contract that he be paid his commission in full where at a foreclosure sale, seller bids in the
security property.
____________
84 Nev. 642, 642 (1968) Kinna v. State
MIKE KINNA aka MIKE KEYENA, Appellant, v. THE
No. 5536
November 13, 1968 447 P.2d 32
Judge.
Defendant was found guilty before the trial court of unlawful possession of narcotics and
he appealed. The Supreme Court, Mowbray, J., held that arrest, on vagrancy charge, of
defendant, who had been observed entering premises of abandoned school each morning
through hole in fence and leaving by same means in evening, and who had set up
temporary, makeshift sleeping quarters in school building, was lawful, and thus, search of
defendant's person contemporaneous with his arrest resulting in seizure of marijuana
was legal.
84 Nev. 642, 643 (1968) Kinna v. State
Court, Mowbray, J., held that arrest, on vagrancy charge, of defendant, who had been
observed entering premises of abandoned school each morning through hole in fence and
leaving by same means in evening, and who had set up temporary, makeshift sleeping
quarters in school building, was lawful, and thus, search of defendant's person
contemporaneous with his arrest resulting in seizure of marijuana was legal.
Affirmed.
James D. Santini, Public Defender, and Robert N. Peccole, Assistant Public Defender,
Harvey Dickerson, Attorney General; and George E. Franklin, Jr., District Attorney, and
James L. Buchanan, II, Deputy District Attorney, Clark County, for Respondent.
1. Arrest.
When person is lawfully arrested, police have right, without search warrant, to make contemporaneous
search of person arrested.
2. Arrest.
Arrest, on vagrancy charge, of defendant, who had been observed entering premises of abandoned school
each morning through hole in fence and leaving by same means in evening, and who had set up temporary,
makeshift sleeping quarters in school building, was lawful, and thus, search of defendant's person
contemporaneous with his arrest resulting in seizure of marijuana was legal. NRS 171.124.
3. Criminal Law.
If circumstances, all taken together, exclude to moral certainty every hypothesis but single one of guilt,
and establish that one beyond reasonable doubt, they are sufficient.
4. Criminal Law.
It is presumed that persons ascending trial bench will not allow their personal temperament to interfere
adversely with ascertainment and declaration of truth.
5. Criminal Law.
Ascertainment and declaration of truth is object and goal of every judicial proceeding.
6. Criminal Law.
Trial judge must, at all times, be and remain impartial.
7. Criminal Law.
Trial judge must not only be totally indifferent as between parties, but he must also give appearance of
being so.
8. Criminal Law.
Harassment of counsel, prejudicial to his client, may require new trial.
84 Nev. 642, 644 (1968) Kinna v. State
9. Criminal Law.
Court may not hamper or embarrass counsel in conduct of case by remarks or rulings which prevent
counsel from presenting his case effectively or from obtaining full and fair consideration from jury.
10. Criminal Law.
Amount of judicial misconduct necessary to reverse conviction depends on how strong and convincing is
the evidence of guilt.
11. Criminal Law.
Even when evidence of guilt is quite apparent, judicial misconduct may so interfere with right to fair trial
as to constitute grounds for reversal.
12. Criminal Law.
Defendant was not denied right to fair and impartial trial by judge's alleged display of impatience and
active participation during trial as advocate, where evidence of his guilt was substantial and convincing.
OPINION
A jury in Clark County found Mike Kinna guilty of unlawful possession of narcotics. His
appeal is predicated upon two specifications of error: (1) The narcotic (marijuana) seized at
the time of his arrest was unlawfully received in evidence; (2) the conduct of the trial judge
deprived him of a fair and impartial trial.
In March 1967, William C. Kirstein, who resided near the abandoned Fifth Street
Grammar School in Las Vegas, observed a car parked near the school. On one occasion he
saw appellant working on the car. Later he noticed appellant entering the school grounds
through a hole in the school fence. Appellant entered in the morning and left in the evening.
After observing appellant's conduct for several weeks, Mr. Kirstein reported appellant's
activities to the Las Vegas police. The police, upon investigation, found appellant asleep in
one of the rooms of the school, which he had been using for several weeks as his sleeping
quarters. He was arrested for vagrancy. When he was arrested, the officers observed a black
pouch among appellant's belongings and upon examination suspected it contained marijuana.
A chemist's analysis confirmed their suspicions. Appellant was charged, tried, and convicted
of unlawful possession of marijuana.
We have two issues presented for our consideration: (1) Was the marijuana found in the
school the result of an illegal search and seizure? (2) Were appellant's constitutional rights to
a fair and impartial trial denied by judicial misconduct? [Headnotes 1, 2]
84 Nev. 642, 645 (1968) Kinna v. State
[Headnotes 1, 2]
1. Former NRS 171.235,
1
in force at the date of this arrest, provided that a peace officer
may make an arrest in obedience to a warrant delivered to him, or may without a warrant
arrest a person for a public offense committed or attempted in his presence. When a person is
lawfully arrested, the police have the right, without a search warrant, to make a
contemporaneous search of the person arrested. The question presented for our consideration
is whether Kinna's arrest was lawful. If so, the search was permissible and the marijuana
properly received in evidence. If not, the search was constitutionally impermissible, the
marijuana was improperly received, and the conviction must be reversed.
Kinna was arrested for vagrancy. Paragraph F of Las Vegas City Ordinance 6-1-39 defines
a vagrant as Every person who lodges in any barn, shed, shops, outhouse, or place other than
that kept for lodging purposes, without the permission of the owner or persons entitled to the
possession thereof. (Emphasis added.)
Appellant urges that the record is void of any evidence tending to show that the arresting
officer at the time of Kinna's arrest knew or determined that Kinna was lodging in the Fifth
Street Grammar School without permission of the owner or those entitled to possession of the
school, namely, the Clark County Board of School Trustees, and therefore his arrest was
invalid and the resulting search and seizure of the marijuana in derogation of Kinna's
constitutional rights. We do not agree.
Kinna had been observed entering the school premises each morning through a hole in the
fence and leaving by the same means in the evening. He had set up temporary, makeshift
sleeping quarters in a public school building. These facts are sufficient, in our opinion, to
show that he was there absent the permission of the Clark County Board of School Trustees.
____________________

1
Former NRS 171.235. Arrests by peace officers.
1. A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a
warrant, arrest a person:
(a) For a public offense committed or attempted in his presence.
(b) When a person arrested has committed a felony, although not in his presence.
(c) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested
to have committed it.
(d) On a charge made, upon a reasonable cause, of the commission of a felony by the party arrested.
2. He may also, at night, without a warrant, arrest any person whom he has reasonable cause for believing
to have committed a felony, and is justified in making the arrest, though it afterward appear that a felony has not
been committed.
84 Nev. 642, 646 (1968) Kinna v. State
permission of the Clark County Board of School Trustees. Circumstantial evidence has long
been held sufficient to establish the necessary elements of a public offense, if proved beyond
a reasonable doubt. The rule was well stated by this court in State v. Snyder, 41 Nev. 453,
461, 172 P. 364, 366 (1918):
[Headnote 3]
If the circumstances, all taken together, exclude to a moral certainty every hypothesis
but the single one of guilt, and establish that one beyond a reasonable doubt, they are
sufficient.' (State v. Mandich, 24 Nev. 336, 54 Pac. 516.)
See State v. Grenz, 175 P.2d 633 (Wash. 1946), where the charge was vagrancy, and State
v. Slaughter, 425 P.2d 876 (Wash. 1967).
Admittedly, it would have been preferable if the officer had made an appropriate inquiry
regarding permission for Kinna to be in the school, but to reverse his conviction under the
state of the record would exalt form over matter and technicality over truth.
2

2. We turn to appellant's second contentionthat he was denied a fair and impartial trial
due to judicial misconduct. The acts complained of vary from mild admonishment to strong
reprimands. They center for the most part on colloquies between the trial judge and the
Deputy Public Defender regarding counsel's attempt to cross-examine and to impeach the
state's witnesses.
[Headnotes 4, 5]
Presumably, those persons ascending the trial bench will not allow their personal
temperament to interfere adversely with the ascertainment and declaration of the truth, for
that is the object and goal of every judicial proceeding.
While we are not unmindful of the heavy court calendars of our district courts and the
sincere desire of our trial judges to expedite the disposition of cases pending before them, the
trial judge's conduct in this casehis display of impatience and active participation during
the trial as an advocateconstituted a disregard for the effect such conduct might have upon
the jury who look to the judge as their guide and guardian.
____________________

2
Query: An officer arresting a person found at midnight in a rancher's chicken house with several hens in his
possession would hardly be required to inquire of the person whether he had permission of the rancher to take
the chickens.
84 Nev. 642, 647 (1968) Kinna v. State
[Headnotes 6, 7]
Firmly embedded in our tradition of even-handed justiceand indeed its very
cornerstoneis the concept that the trial judge must, at all times, be and remain impartial. So
deeply ingrained is this tradition that it is now well settled that the trial judge must not only
be totally indifferent as between the parties, but he must also give the appearance of being so.
[Headnotes 8, 9]
Harassment of counsel, prejudicial to his clientand this can take many formsmay
require a new trial. The court may not hamper or embarrass counsel in the conduct of the case
by remarks or rulings which prevent counsel from presenting his case effectively or from
obtaining full and fair consideration from the jury.
Canon 16 of the Canons of Judicial Ethics adopted by this court in 1962 for all the courts
of justice in the State of Nevada provides in part:
A judge may properly intervene in a trial of a case to promote expedition, and prevent
unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his
undue interference, impatience or participation in the examination of witnesses, * * * may
tend to prevent the proper presentation of the cause, or the ascertainment of the truth in
respect thereto.
Conversation between the judge and counsel in court is often necessary, but the judge
should be studious to avoid controversies which are apt to obscure the merits of the dispute
between litigants and lead to its unjust disposition. In addressing counsel, litigants or
witnesses, he should avoid a controversial manner or tone.
The issue before us is narrowed to a determination whether the judicial misconduct of
which appellant complains denied him his constitutional right to a fair and impartial trial.
[Headnotes 10, 11]
In State v. Clark, 38 Nev. 304, 149 P. 185 (1915), this court held that the amount of
misconduct necessary to reverse depends on how strong and convincing is the evidence of
guilt. However, even when evidence is quite apparent, misconduct may so interfere with the
right to a fair trial as to constitute grounds for reversal. State v. Boyle, 49 Nev. 386, 248 P. 48
(1926); People v. Mahoney, 258 P. 607 (Cal. 1927).
84 Nev. 642, 648 (1968) Kinna v. State
[Headnote 12]
While it is difficult to appraise the effect judicial misconduct may have played in the case
before us, it is clear from the record that the evidence of appellant's guilt is most substantial
and convincing, and for that reason only, appellant's conviction must be affirmed.
Affirmed.
Collins, Zenoff, and Batjer, JJ., concur.
The conviction of Kinna for the unlawful possession of narcotics should not be allowed to
stand since it rests upon evidence secured in violation of the Fourth Amendment proscription
against unreasonable searches and seizures.
Kinna was arrested without a warrant at an abandoned schoolhouse where he had been
living. The arrest was for vagrancy as defined by Las Vegas City Ordinance ch. 1, 6-1-39(f).
1
The incidental seizure of marijuana which followed was constitutionally permissible if the
arrest was valid; otherwise, the seizure exceeded Fourth Amendment commands.
A peace officer may arrest without a warrant for a misdemeanor committed in his
presence. NRS 171.235. Kinna was not a vagrant when arrested unless he was lodging in the
abandoned schoolhouse without the permission of the owner. Lack of permission is the
essence of the crime. The record shows that the arresting officer did not inquire whether
Kinna had permission of the owner to be there. Lack of permission may not be established by
inference, but must be known to the arresting officer as a precondition of his authority to
arrest for a violation of the ordinance. A misdemeanor is not committed in the presence of an
officer unless the acts constituting the offense are known to him through his own senses.
Elrod v. Moss, 278 P. 123 (4 Cir. 1921); State v. Duren, 123 N.W.2d 624 (Minn. 1963);
Venable v. State, 362 S.W.2d 222 (Tenn. 1962); Smith v. Hubbard, 91 N.W.2d 756 (Minn.
1958); State v. Pluth, 195 N.W. 789 (Minn. 1923); Hughes v. State, 238 S.W. 588 (Tenn.
1922). Although a person may actually be committing a criminal offense, it is not committed
in the presence of an officer if the officer does not know it. State v. Pluth, supra. In the case at
hand the arrest was not shown to be valid and there exists no basis upon which to justify the
incidental seizure of marijuana.
____________________

1
That section of the ordinance provides that a vagrant is Every person who lodges in any barn, shed, shops,
outhouse, or place other than that kept for lodging purposes, without the permission of the owner or persons
entitled to the possession thereof.
84 Nev. 642, 649 (1968) Kinna v. State
incidental seizure of marijuana. The reception of the marijuana as evidence during trial was,
therefore, impermissible.
Respectfully, I dissent.
____________
84 Nev. 649, 649 (1968) Mathews v. Sheriff
LEOLA LOVE MATHEWS, Appellant, v. RALPH LAMB, Sheriff of Clark County, State of
Nevada, Respondent.
No. 5546
November 13, 1968 446 P.2d 651
Appeal from order of Eighth Judicial District Court, Clark County, denying habeas corpus;
Howard W. Babcock, Judge.
Pretrial petition for habeas corpus was denied by the lower court and petitioner appeared.
The Supreme Court held that witness' testimony, at preliminary hearing, that she had never
received particular check and had never seen it before but that it was her paycheck, that
signature on back was not her signature, and that she had never authorized anyone to sign her
paychecks was not objectionable as hearsay and was sufficient to establish corpus delicti of
forgery and to justify order binding accused over to district court.
Affirmed.
Attorney, and Janson F. Stewart, Deputy District Attorney, Clark County, for Respondent.
1. Forgery.
Lack of authority to endorse is an essential element of the corpus delicti of crime of forgery.
2. Forgery.
Prior knowledge or possession of forged instrument by witness asserting lack of endorser's authority is
not essential element of corpus delicti of crime of forgery.
3. Criminal Law.
At preliminary hearing, state only has to establish a reasonable inference that accused has committed a
crime to justify order binding accused over to district court. NRS 171.206.
4. Criminal Law.
Witness' testimony, at preliminary hearing, that she had never received particular check and had never
seen it before but that it was her paycheck, that signature on back was not her signature,
and that she had never authorized anyone to sign her paychecks was not
objectionable as hearsay and was sufficient to establish corpus delicti of forgery and
to justify order binding accused over to district court.
that it was her paycheck, that signature on back was not her signature, and that she had never authorized
anyone to sign her paychecks was not objectionable as hearsay and was sufficient to establish corpus delicti
of forgery and to justify order binding accused over to district court. NRS 171.206.
OPINION
Per Curiam:
Appellant was bound over to the district court following a preliminary hearing on the
charge of forgery. A pre-trial petition for habeas corpus was denied, and appeal is taken from
that order. Appellant's sole contention is that the prosecution failed to establish the corpus
delicti of the crime of forgery. We do not agree, and affirm the order denying habeas.
The charge of forgery is based on the false endorsement of a paycheck issued by the
Central Telephone Company to Susan A. Cummings. Miss Cummings testified at the
preliminary hearing that she was employed by the telephone company on the date the check
was issued, but was absent on vacation. She further testified that the check in question was
her paycheck, that the signature on the back was not her signature, and that she had never
authorized anyone to sign her paychecks. She also stated that she had never received that
particular check, and had never seen it before.
On the basis of this latter statement, defense counsel contends all of Miss Cummings'
testimony should have been stricken as hearsay evidence in that she had neither seen nor
received the subject document and that, therefore, there was no competent evidence
establishing lack of authority.
[Headnotes 1, 2]
It is undisputed that lack of authority is an essential element of the corpus delicti of the
crime of forgery. Owen v. People, 195 P.2d 953 (Colo. 1948); People v. Whiteman, 46 P. 99
(Cal. 1896). But the necessity of prior knowledge or possession of the forged instrument by
the witness asserting lack of authority finds no support in case precedent. Authorities relied
on by appellant to the effect that the crime of forgery had not been established are not in
point, since in those cases there was no evidence offered on the issue of lack of authority. Cf.
Owen v. People, supra; State v. Fitzgerald, 205 P.2d 549 (Ore. 1949).
The situation here presented is identical to that in People v. McGlade, 72 P. 600 (Cal.
1903), wherein a paycheck issued by the City of San Francisco was falsely endorsed in the
name of the payee.
issued by the City of San Francisco was falsely endorsed in the name of the payee. One
individual bearing the same name was allowed to testify that he was employed by the City at
the time of issuance of the check, and that no one else had ever been authorized to endorse his
name. The Supreme Court of California held that this was sufficient negative proof on the
subject to warrant a jury verdict of guilty.
[Headnotes 3, 4]
At preliminary hearing, where the State only has to establish a reasonable inference that
the accused has committed a crime in order to satisfy the statute (NRS 171.455, now NRS
171.206; Beasley v. Lamb, 79 Nev. 78, 80, 378 P.2d 524 (1963)), evidence similar to that
introduced in McGlade is clearly sufficient to establish the corpus delicti.
Order denying habeas corpus is affirmed.
____________
84 Nev. 651, 651 (1968) Nevada Bank Commerce v. Edgewater, Inc.
NEVADA BANK OF COMMERCE, a State Bank Corporation, Appellant, v.
EDGEWATER, INC., a Corporation, S. R. MUENSTERMANN, DALE LANDERS, and E.
G. GRIMSLEY, Respondents.
DALE LANDERS and ANN LANDERS, Respondents and Cross-Appellants, v. NEVADA
BANK OF COMMERCE, a State Banking Corporation, Appellant and Cross-Respondent.
No. 5543
November 14, 1968 446 P.2d 990
Appeal from judgment of the Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Appeal by bank from judgments of lower court in favor of three individual defendants and
for one defendant on his counterclaim against bank. The Supreme Court held that allowing
defendant, on the day set for trial, to amend his answer and counterclaim to include an
additional counterclaim was not error where there was no showing that plaintiff not only
failed to seek a continuance but indicated it would be ready to proceed to trial on the date set
and was not prejudiced in its right to present a defense to the amended counterclaim.
Affirmed.
Hilbrecht & Jones of Las Vegas for Appellant and Cross-Respondent.
Melvin D. Close, Jr., of Las Vegas, for Respondents and Cross-Appellants Landers.
Samuel S. Anter, of Las Vegas, for Respondent Grimsley.
Raymond Little, of Las Vegas, for Respondent Muenstermann.
1. Appeal and Error; Pleading.
Allowance of amendments to counterclaims is within sound discretion of trial court and will not be
disturbed on appeal in absence of gross abuse thereof. NRCP 13(f).
2. Pleading.
Allowing defendant, on the day set for trial, to amend his answer and counterclaim to include an
additional counterclaim was not error where plaintiff not only failed to seek a continuance but indicated it
would be ready to proceed to trial on the date set and was not prejudiced in its right to present defense to
amended counterclaim. NRCP 13(f)
Fact that jury instructions are repetitious does not alone constitute reversible error.
Fact that instruction is more favorable to defendant's theory of defense than to plaintiff's theory of
recovery does not alone constitute reversible error.
5. Trial.
Giving instructions that were allegedly repetitious and overemphasized defense theories was not error
where instructions given were relevant to issues at trial and were correct statements of law on those issues.
OPINION
Per Curiam:
Nevada Bank of Commerce appeals from judgments in favor of three individual
defendants, and for one defendant on his counterclaim against Bank. Two specifications of
error are asserted. We find that neither one has merit, and affirm the judgment of the lower
court.
[Headnote 1]
1. Defendant Landers was permitted, on the day set for trial, to amend his answer and
counterclaim against Bank to include an additional counterclaim. Appellant contends this was
error in that Landers made no showing of oversight, inadvertence, or excusable neglect"
under NRCP 13{f).1 But counterclaims may also be set up by amendment under Rule 13{f)
"when justice requires," to the end that substantial justice may be accomplished between
all parties to the litigation.
inadvertence, or excusable neglect under NRCP 13(f).
1
But counterclaims may also be set
up by amendment under Rule 13(f) when justice requires, to the end that substantial justice
may be accomplished between all parties to the litigation. Bream v. Nevada Motor Co., 51
Nev. 100, 104, 269 P. 606 (1928); Ramezzano v. Avansino, 44 Nev. 72, 80, 189 P. 681
(1920); McCausland v. Ralston, 12 Nev. 195, 203 (1877). The allowance of such
amendments is within the sound discretion of the trial court, and is not to be disturbed on
appeal in the absence of a gross abuse thereof. Edmonds v. Perry, 62 Nev. 41, 54, 140 P.2d
566 (1943).
[Headnote 2]
Here, there is no showing that appellant was prejudiced in his right to present a defense to
the amended counterclaim. If he was in fact so prejudiced he should have moved the court for
a continuance. McCausland v. Ralston, supra, at 203. Appellant not only failed to seek a
continuance, but indicated he would be ready to proceed to trial on the date set. Under these
circumstances, no error appears in the allowance of the amendment.
[Headnotes 3-5]
2. Appellant complains of the giving of certain jury instructions on the ground that they
were repetitious and overemphasized defense theories. The instructions given were relevant
to the issues at trial, and were correct statements of the law on those issues. If there was some
repetition, this alone does not constitute reversible error (Reah v. Jupin, 206 P.2d 558, 561
(Ariz. 1949)), nor does the fact that the instructions might be more favorable to respondents'
theory of defense than to appellant's theory of recovery. No error resulted from the giving of
these instructions.
____________________

1
NRCP 13(f): Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight,
inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by
amendment.
____________
84 Nev. 654, 654 (1968) Voorheis-Trindle Co. v. Boyd
VOORHEIS-TRINDLE COMPANY OF NEVADA, a Nevada Corporation, Appellant, v. A.
W. BOYD, Administrator, INTERNATIONAL UNION OF OPERATING ENGINEERS
LOCAL NO. 12, SOUTHERN NEVADA VACATION-HOLIDAY
SAVINGS TRUST AND APPRENTICESHIP TRUST FUNDS, Respondent.
No. 5554
November 14, 1968 447 P.2d 36
Compton, Judge.
Appeal from adverse judgment rendered by the trial court. The Supreme Court held that
where case was tried to court and was not reported and appellant made no effort to prepare
statement of evidence or proceedings from best available means, including recollection or
agreed statement of the case, reviewing could would be unable to review sufficiency of
evidence to support judgment and would affirm the judgment.
Affirmed.
Bell & Morris and Daryl EngeBregson, of Las Vegas, for Appellant.
J. Forest Cahlan, of Las Vegas, for Respondent.
Appeal and Error.
Where case was tried to court and was not reported and appellant made no effort to prepare statement of
evidence or proceedings from best available means, including recollection or agreed statement of the case,
reviewing court would be unable to review sufficiency of evidence to support judgment and would affirm
the judgment. NRCP 75(n), 76.
OPINION
Per Curiam:
This case was tried to the court and was not reported. The issue we are asked to resolve
concerns the sufficiency of the evidence to support the judgment. Since that evidence was not
reported and transcribed, and since no effort was made to utilize the provisions of Rule 75{n)
or Rule 76,1 we are wholly unable to decide the issue presented.
84 Nev. 654, 655 (1968) Voorheis-Trindle Co. v. Boyd
utilize the provisions of Rule 75(n) or Rule 76,
1
we are wholly unable to decide the issue
presented.
Affirmed.
____________________

1
NRCP 75(n) reads: Appeals When No Stenographic Report Was Made. In the event no stenographic
report of the evidence or proceedings at hearing or trial was made, the appellant may prepare a statement of the
evidence or proceedings from the best available means, including his recollection, for use instead of a
stenographic transcript. This statement shall be served on the respondent who may serve objections or propose
amendments thereto within 10 days after service upon him. Thereupon the statement, with the objections or
proposed amendments, shall be submitted to the district court for settlement and approval and as settled and
approved shall be included by the clerk of the court in the record on appeal.
NRCP 76 reads: When the questions presented by an appeal can be determined without an examination of
all the pleadings, evidence, and proceedings in the court below, the parties may prepare and sign a statement of
the case showing how the questions arose and were decided in the district court and setting forth only so many of
the facts averred and proved or sought to be proved as are essential to a decision of the questions by the
appellate court. The statement shall include a copy of the judgment appealed from, a copy of the notice of appeal
with its filing date, and a concise statement of the points to be relied on by the appellant. If the statement
conforms to the truth, it, together with such additions as the court may consider necessary fully to present the
questions raised by the appeal, shall be approved by the district court and shall then be certified to the appellate
court as the record on appeal.
____________
84 Nev. 655, 655 (1968) Tidwell v. Clarke
THEO L. TIDWELL, Appellant, v. JOHN P.
CLARKE, Respondent.
No. 5504
November 19, 1968 447 P.2d 493
Appeal from the Fifth Judicial District Court, Mineral County; Peter Breen, Judge.
Action arising out of rear-end collision. The trial court found for defendant and plaintiff
appealed. The Supreme Court, Collins, J., held that where there was substantial evidence that
passing driver's visibility of left lane was restricted by vehicle being overtaken, court should
have instructed jury as to statutory provisions relating to limitations on overtaking on left, and
that counsel who submitted requested instruction incorporating statute relating to limitations
on overtaking and stated that that was law on overtaking vehicles was entitled to present for
review issue of court's refusal of such instruction even though he neglected to review
evidence which was in record to demonstrate that that issue was before court.
to present for review issue of court's refusal of such instruction even though he neglected to
review evidence which was in record to demonstrate that that issue was before court.
[Rehearing denied December 10, 1968]
Michael L. Hines and Henry R. Gordon, of Las Vegas, for Appellant.
Vargas, Bartlett & Dixon and James P. Logan, of Reno, for Respondent.
1. Automobiles.
Statute relating to overtaking on left is intended to protect not only vehicle approaching from opposite
direction but vehicle overtaken as well and prohibits vehicle from being driven to left side of two-lane,
two-directional roadway in overtaking and passing another vehicle proceeding in same direction unless left
side is clearly visible and is free from oncoming traffic for sufficient distance to permit passing to be
completely made without interfering with safe operation of vehicle approaching from opposite direction or
any vehicle overtaken. NRS 434.117, subd. 1.
2. Automobiles.
Where there was substantial evidence that passing driver's visibility of left lane was restricted by vehicle
being overtaken, court should have instructed jury as to statutory provisions relating to limitations on
overtaking on left. NRS 484.117, subd. 1.
Counsel who submitted requested instruction incorporating statute relating to limitations on overtaking
and stated that that was law on overtaking vehicles was entitled to present for review issue of court's refusal
of such instruction even though he neglected to review evidence which was in record to demonstrate that
that issue was before court. NRCP 51; NRS 484.117, subd. 1.
Where counsel clearly, fairly and timely calls to attention of trial court issue of law involved, any slight
omission on compliance with rule requiring specific objection to instructions would not preclude counsel
from raising issue on appeal. NRCP 51.
OPINION
This appeal is from a jury verdict in favor of respondent (defendant below) and against
appellant (plaintiff below) in a personal injury action resulting from an automobile accident.
Appellant complains the trial court erred in refusing an instruction proposed by him
consisting of a section of the Nevada traffic laws, when supported by substantial evidence
before the court, covering his theory of the case and not offered in any other instruction. We
agree, reverse the judgment and remand the case for a new trial.
About midday on January 1, 1966, appellant, as driver, and accompanied by a friend, was
driving east on U.S. Highway 93 approximately 24 miles west of Caliente. His automobile
was struck from the rear by an automobile driven by respondent who was also headed
eastbound.
The highway at the point of impact was a two-lane, two-directional roadway. The day was
clear but the road was completely covered to a depth of about one inch with hard-packed
snow which obscured the marked center line. The right front quadrant of respondent's car
struck the left rear quadrant of appellant's car while an effort was being made to pass.
There is conflict in the evidence as to the cause of the collision, but there is substantial
evidence in the record to support each party's contention as to what happened.
Appellant contends he was driving along the highway, so far as he recalls, in his own lane
when without warning or awareness of another vehicle, he was struck from behind by
respondent's auto.
Respondent, on the other hand, contends he first saw appellant approximately 150 yards
ahead of him, who appeared on his first view after coming over a slight rise to be stopped in
the middle of the highway. Respondent, who was then traveling approximately 50 mph, tried
to stop, but could not because of the road's slippery condition. He then realized appellant's
auto was moving in the same direction as his own but more slowly, and being unable to stop
decided to pass on appellant's lefthand side. He pulled to the extreme left of the lefthand lane,
whereupon respondent says appellant's auto also moved into the lefthand lane in front of him,
where the accident occurred.
Appellant denied changing lanes or pulling in front of respondent.
Before the investigating officer arrived, some three hours later, the automobiles had both
been moved and a snowplow passed through the scene, eliminating all marks upon the
snow-covered roadway as they related to the highway center line.
Appellant sought to prove respondent negligent and therefore liable, upon two theories.
The first involved a vehicle overtaking and passing another vehicle proceeding in the same
direction, upon which the trial court refused to instruct. The second involved one vehicle
following another vehicle too closely, concerning which the trial court did instruct.
second involved one vehicle following another vehicle too closely, concerning which the trial
court did instruct.
Appellant specifies as error refusal of the trial judge to instruct upon his first theory and
specifically to read to the jury subsection 1, NRS 484.117.
1

Appellant contends he is entitled to an instruction to the jury in line with the theory of his
case, so long as there is substantial evidence in the record to support it. As his authority he
cites Rocky Mountain Produce v. Johnson, 78 Nev. 44, 52; 369 P.2d 198 (1962), and Dearden
v. Galli, 70 Nev. 543; 277 P.2d 381 (1954).
Respondent, in opposition, contends there was no evidence before the trial court justifying
the giving of the proposed instruction as he interpreted the statute in question and urging that,
in any event, appellant's counsel failed to object in a timely or adequate manner to refusal of
the instruction offered as required by NRCP 51.
2
As authority for his position, and by way of
interpretation of that rule, he cites Lathrop v. Smith, 71 Nev. 274, 275-276, 288 P.2d 212
(1955); Wagon Wheel v. Mavrogan, 78 Nev. 126, 129, 369 P.2d 688 (1962); Duran v.
Mueller, 79 Nev. 453, 458, 386 P.2d 733 (1963); Hotel Riviera, Inc. v. Short, 80 Nev. 505,
512, 396 P.2d 855 (1964).
1. We feel the trial judge interpreted the statute (NRS 484.117(1)) as a single-pronged
statute, when it is a double-pronged statute intended to protect not only a vehicle
approaching from the opposite direction but a vehicle overtaken as well.
____________________

1
That entire section of the statutes reads as follows: 434.117 Limitations on overtaking on the left, driving
to left of center of roadway.
1. No vehicles shall be driven to the left side of the center of a two-lane two-directional roadway in
overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible
and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be
completely made without interfering with the safe operation of any vehicle approaching from the opposite
direction or any vehicle overtaken.
2. No vehicle shall at any time be driven to the left side of the roadway under the following conditions:
(a) When approaching the crest of a grade or upon a curve in the highway where the driver's view is
obstructed within such distance as to create a hazard in the event another vehicle might approach from the
opposite direction.
(b) When approaching within 100 feet of or traversing any intersection or railroad grade crossing.
(c) When the view is obstructed upon approaching within 100 feet of any bridge, viaduct or tunnel.
3. Subsection 2 does not apply upon a one-way roadway.

2
NRCP 51 reads in part as follows: No party may assign as error the giving or the failure to give an
instruction unless he objects hereto before the jury retires to consider its verdict, stating distinctly the matter to
which he objects and the grounds of his objection.
approaching from the opposite direction but a vehicle overtaken as well. The statute, as we
interpret it, prohibits a vehicle from being driven to the left side of a two-lane, two-directional
roadway in overtaking and passing another vehicle proceeding in the same direction unless
the left side
(1) is clearly visible, and
(2) is free from oncoming traffic for a sufficient distance ahead to permit such overtaking
and passing to be completely made without interfering with the safe operation of
(a) any vehicle approaching from the opposite direction, or
(b) any vehicle overtaken.
[Headnote 1]
It is apparent from the trial judge's ruling, he did not consider the statute applicable in the
absence of evidence of a vehicle approaching from the opposite direction. There was none
here. But as we view the statute as it is worded, the passing driver must not pass if for any
reason the left or passing lane is not clearly visible as well. The statute says these two
directions must be followed not only for safety of oncoming vehicles but for the vehicle
overtaken as well.
[Headnote 2]
There was substantial evidence in the record that respondent's visibility of the left lane was
restricted by appellant's automobile. This was sufficient, in our view, to require the trial judge
to instruct the jury of the statute as requested by appellant. Cummings v. County of Los
Angeles, 363 P.2d 900 (Cal. 1961); Rocky Mountain Produce v. Johnson, supra; Dearden v.
Galli, supra.
2. We next must consider whether, as respondent contends, appellant has failed to
preserve the error for our consideration.
At the time of settlement of the instructions, the following colloquy took place between
counsel for appellant and the court regarding appellant's offered instruction B (NRS
484.117(1)):
The Court: Counsel do you offer any instructions?
Mr. Hines: I offered Instruction B,' Your Honor, which I think and I feel states the law.
In other words the statute sets out the limit when a person(interruption.).
The Court: Just state your objections.
Mr. Hines: I am offering it.
The Court: You are offering it?
Mr. Hines: On the grounds that that is the law on overtaking vehicles in Nevada.
The Court: Anything further?
Mr. Hines: It is my contention, Your Honor, that this is the law and that is what the
statute says.
The Court: Well that instruction will be refused. Marked Plaintiff's Proposed Instruction
B' and it is refused.
In Downing v. Marlia, 82 Nev. 294, 417 P.2d 150 (1966), a similar question arose as is
presented here.
The following discourse took place between the court and counsel upon proposed
instructions which were refused:
The Court: Does the plaintiff have any instructions to offer in addition to those the Court
has indicated will be given?
Mr. Garroway: The plaintiff has offered A, B, C, and D, instructions that have been
refused by the Court. Each of these instructions in my opinion, is proper and under the
evidence in this case should be given.
We said at page 298 of that opinion:
Appellant's objection to the refusal of Instruction B was insufficient under Rule 51.
Merely informing the court that refused instructions In my opinion, (are) proper and under
the evidence in this case should be given' does not assist the trial judge in determining the
grounds for objection so that he may properly consider whether to revise his initial decision
and cure what otherwise might be error.
This court has held to a hard line in interpreting NRCP 51 which requires that counsel
state with specificity his reason for or against an instruction to be given or refused if he is to
present it as error for our consideration. Downing v. Marlia, supra; Lathrop v. Smith, supra;
Duran v. Mueller, supra; Wagon Wheel v. Mavrogan, supra; and Hotel Riviera, Inc. v. Short,
supra.
In Downing, supra, footnote 2 at page 298, we said:
We recognize that the concept of plain error,' and this Court's continuing desire to
prevent manifest injustice, permit occasional exceptions to the otherwise strict requirements
for compliance with the specificity of objections asked by Rule 51. However, we need not
now decide what constitutes such exceptions. There was proper protest to at least one
prejudicial instruction.
This case presents just such exception to the strict requirement of our previous
interpretation to Rule 51.
[Headnote 3]
Mr. Hines' argument to the court offering his proposed instruction B clearly brought to
the judge's attention the full import of the statute as we have pointed out above. He said he
was offering the instruction on the grounds that that is the law on overtaking vehicles in
Nevada."
law on overtaking vehicles in Nevada. The only thing he neglected to do was to review the
evidence then in the record to demonstrate that such an issue of law was before the court.
There is no doubt such evidence was then of record and the trial judge is presumed to have
knowledge of it. It is eminently clear, however, that the judge, in refusing the instruction,
failed to recognize the dual purpose of the statute.
[Headnote 4]
Where counsel clearly, fairly and timely calls to the attention of the trial court the issue of
law involved, any slight omission in compliance with our interpretation of Rule 51 will not
preclude him from raising the issue on appeal. Green v. Reading Co., 183 F.2d 716, 719 (3
Cir. 1950); Williams v. Powers, 135 F.2d 153, 156 (6 Cir. 1943); Pierro v. Carnegie-Illinois
Steel Corp., 186 F.2d 75, 78 (3 Cir. 1950).
The judgment of dismissal is reversed and the cause remanded for a new trial.
Batjer and Mowbray, JJ., concur.
Thompson, C. J., with whom Zenoff, J., concurs, dissenting:
The district court properly refused to give a jury instruction based upon NRS 484.117(1).
There was no oncoming traffic in this case, and the existence of oncoming traffic is one of
two preconditions to the applicability of that statute. This statute prohibits passing another
vehicle proceeding in the same direction unless the left side of the road is clearly visible and
is free of oncoming traffic. Each condition must be present before the statute is operative.
The existence of only one is not enough.
The fault of the majority opinion is its conclusion that only one precondition must exist.
They apparently read the phrase is clearly visible and is free from oncoming traffic to mean
is clearly visible or is free from oncoming traffic. This substitution of the word or for
and is unwarranted, and casts an entirely different meaning than the meaning intended. It is
not our business to rewrite the statute. NRS 484.113(1),
1
is designed to cover the case where
one vehicle passes another to the left in the absence of oncoming traffic.
____________________

1
NRS 484.113(1) reads: The driver of a vehicle overtaking another vehicle proceeding in the same direction
shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until
safely clear of the overtaken vehicle.
____________
84 Nev. 662, 662 (1968) Truckee-Carson Irrigation District v. Wyatt
THE TRUCKEE-CARSON IRRIGATION DISTRICT,
Appellant, v. CECIL WYATT, Jr., Respondent.
No. 5419
November 25, 1968 448 P.2d 46
Appeal from a judgment awarding $500,000 as compensation for injuries caused by
appellant's negligence; Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
Action against irrigation district and driver of boat for injuries sustained in water skiing
accident on lake operated for irrigation purposes. The trial court entered judgment for
plaintiff against district only and district appealed. The Supreme Court, Zenoff, J., held that
evidence supported finding that injury sustained by skier was proximately caused by
irrigation district's negligence in failing to maintain premises in reasonably safe condition for
use by boaters to whom it issued permits and failing to warn such invitees of known hazards
created by submerged tree trunks.
Affirmed.
Mann, D. J., and Batjer, J., dissented.
Richard P. Wait, of Reno, for Appellant.
Bradley & Drendel, of Reno, and Boccardo, Blum, Lull, Niland, Teerlink & Bell, of San
Jose, California, for Respondent.
1. Negligence.
If evidence favorable to party seeking recovery points to two or more possibilities to explain accident and
if one or more of these conclusions is equally consistent with nonliability of defendant, then selection made
by jury as between these possibilities could be said to be based upon mere speculation and conjecture.
Evidence supported finding that injury sustained by skier on artificial lake operated for irrigation
purposes was proximately caused by irrigation district's negligence in failing to maintain premises in
reasonably safe condition for use by boaters to whom it issued permits and failing to warn such invitees of
known hazards created by submerged tree trunks.
Prejudice is not presumed and judgment cannot be reversed by reason of erroneous instructions unless
upon consideration of entire proceedings it shall appear that such error has resulted in miscarriage of
justice. NRCP 61.
If instruction cautioning jury in considering evidence of oral admission of party other than his own
testimony at trial was error, as expression of opinion by trial judge, it was harmless
because upon considering entire record it was not probable that a different result
would ensue at new trial free of the contested instruction.
as expression of opinion by trial judge, it was harmless because upon considering entire record it was not
probable that a different result would ensue at new trial free of the contested instruction. NRS 3.230;
Const. art. 6, 12; NRCP 61.
Burden is upon appellant to show that omission of erroneous instruction would probably obtain different
result. NRCP 61.
Under rule requiring court to disregard error which does not affect substantial rights of parties, integrity
of verdicts in civil cases is presumed. NRCP 61.
7. Appeal and Error; Courts.
Rule requiring court to disregard error which does not affect substantial rights of parties is taken from
Federal Rules of Civil Procedure so its interpretation there should govern. NRCP 61.
He who seeks to have a judgment set aside because of an erroneous ruling carries burden of showing that
prejudice resulted. NRCP 61.
The record must be considered as a whole to determine whether an erroneous ruling resulted in prejudice.
NRCP 61.
Presumption that verdict in favor of skier who sustained personal injuries as a result of water skiing
accident was not result of prejudice due to instruction challenged as expression of judge's opinion and
directing jury to consider special circumstances, such as lack of knowledge of submerged tree trunks by
skier and companions and absence of sand burns on injured skier was not rebutted nor was it probable that
there would be a different result from new trial. NRS 3.230; NRCP 61; Const. art. 6 12.
11. Negligence.
Before assumption of risk may be found there must be a voluntary exposure to danger, actual knowledge
of risk assumed and consent to assume it.
OPINION
Truckee-Carson Irrigation District, hereinafter referred to as TCID, appeals from a
judgment entered in favor of Cecil Wyatt, Jr. The judgment awarded Wyatt damages in the
sum of $500,000, based upon a jury verdict awarding damages in that amount. The action
grew out of an injury incurred by Wyatt while water skiing at Lake Lahontan in the counties
of Churchill and Lyon, Nevada, on July 23, 1964. While water skiing, Wyatt suddenly
somersaulted in the air and struck his head thereby sustaining a severe injury and resultant
paralysis from the neck down.
Wyatt brought an action to recover damages for this injury from TCID and Joseph Broyles,
who owned and was driving the boat when the accident occurred. The trial court granted a
motion for a directed verdict in favor of Joseph Broyles. Judgment was entered on the verdict
in favor of Wyatt against TCID. TCID appeals.
1. Negligence of TCID is predicated upon its failure to maintain its premises in a
reasonably safe condition for use of its business invitees in a manner consistent with the
purpose of the invitation and for failure to warn such invitees of known hazards. Lake
Lahontan is an artificial lake created by the construction of Lahontan Dam. As the lake was
filled it covered a land area on which grew trees and other vegetation. The primary function
of the lake was to store water for irrigation purposes, but boating enthusiasts used the lake.
This use increased to the extent that TCID imposed certain regulations which required that all
boaters secure a permit. A part-time employee was hired to sell the permits and to patrol the
lake, checking for boats without valid permits and for boats which were being operated in a
reckless and unsafe manner. Prior to Wyatt's accident this employee had advised TCID's
Board of Directors that submerged tree trunks constituted a hazard when the water level was
lowered during the summer months, although he had not singled out the two stumps which
figured importantly in this case. But this same employee had observed the exposure of these
same two stumps by the receding water level in the year prior to the accident.
2. But TCID contends that even if it was negligent, the evidence does not establish that
Wyatt was injured as a result of any of the described hazards or because of any unsafe
condition of the premises. The jury was properly instructed on the issue of proximate cause,
and it is clear that they found that the negligence of TCID was the proximate cause of Wyatt's
injury.
The evidence presented by Wyatt was to the effect that he, Joseph Broyles and Chris Reyes
went water skiing in the early afternoon on July 23, 1964 at Lake Lahontan. They took turns
skiing. Wyatt used only one slalom ski. While Wyatt was skiing, Broyles was operating the
boat. He pulled out about 500 feet toward the center of the lake and then made a right turn.
This caused Wyatt to go to the left of the boat. After the turn, he crossed the wake of the boat
and was skiing to the right of the boat. At this time the boat was about 100 feet offshore, due
to the variations in the shoreline, and Wyatt's position was estimated to be 25 to 50 feet
from the shore.
position was estimated to be 25 to 50 feet from the shore. Wyatt stated that the boat was
going about 20 to 25 miles per hour, that the ride was normal, and that he did not lose his
balance or fall from the ski. Wyatt stated that as he was skiing he hit something and was sent
headfirst into the water. He stated that what he hit felt like a solid object, but that he could not
tell exactly what it was. Evidence was presented that he was floating in water, which was
about chest deep, and that his companions got out of the boat and floated him to shore and
summoned help. The testimony of the event related by his two companions was substantially
the same, except that they were not in a position to know what Wyatt struck. They stated that
as they observed him he was skiing normally and suddenly hit something and somersaulted
through the air, holding on to the tow rope, and went headfirst into the water.
James Vaughn, the TCID patrolman, was called to the scene of the incident. He stated that
he observed a small limb and some wood chips floating just offshore. He identified the place
on the beach at which he found Wyatt as being opposite a sandy point. A little more than a
month later, when the lake level receded, he returned to the general area and noted a tree
stump just opposite the point where he had observed the respondent and another tree stump a
short distance away. He stated that these were the two tree stumps he had seen the year
before. The nature of the injury suffered by respondent indicated a sudden blow on the head
as its cause.
[Headnotes 1, 2]
TCID claims that the jury could have found proximate causation only as a result of
speculation and conjecture. But it is only where the evidence favorable to the party seeking
recovery tends equally to sustain either of two inconsistent propositions that neither of them
can be said to have been established by legitimate proof. Southern Pacific Co. v. Huyck, 61
Nev. 365, 128 P.2d 849 (1942). If the evidence favorable to Wyatt pointed to two or more
possibilities to explain the accident, and if one or more of these conclusions is equally
consistent with the nonliability of TCID, then the selection made by the jury as between these
possibilities could be said to be based upon mere speculation and conjecture. The jury here
might have concluded that Wyatt lost his balance and that he fell or that he came into the
beach too fast in dismounting and struck the sand. However, there was direct evidence which
raised the probability that the injury was caused by TCID's negligence, and it was the function
of the jury to accept or reject this evidence. Barsland, Inc. v. Shaw, 83 Nev. 69, 422 P.2d
1003 {1967).
P.2d 1003 (1967). Under these circumstances, its choice cannot be said to be based upon
mere speculation or conjecture. Terminal Taxi Co. v. Flynn, 240 A.2d 881 (Conn. 1968). See
also Wolf v. Reynolds Elec. & Eng. Co., 304 F.2d 646 (9th Cir. 1962) (Nev.); Lewis v.
Drake, 158 S.E.2d 266 (Ga.App. 1967).
3. TCID also contends that an instruction was erroneously given to the jury.
1
It contends
that this instruction constitutes an expression of opinion by the trial judge which is prohibited
by NRS 3.230
2
and Nev. Const. art 6, 12.
3
This instruction may have been merely an
instruction by the judge calculated to call the jury's attention to special facts. This is often
done when the jury is instructed to consider a child's age in determining its negligence or the
short period of time within which to react in an emergency. Instructions cautioning the jury to
carefully consider a witness's testimony are often given. Carlson v. State, 84 Nev. 534, 445
P.2d 157 (1968); Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968).
Assuming arguendo that the instruction was erroneously given, the error is harmless when
considered in view of the whole record and the normal predilections of the jurors.
[Headnotes 3-5]
A judgment cannot be reversed by reason of an erroneous instruction unless upon a
consideration of the entire proceedings it shall appear that such error has resulted in a
miscarriage of justice. Prejudice is not presumed. Boyd v. Pernicano, 79 Nev. 356, 385 P.2d
342 (1963); Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952). See also Eldorado Club,
Inc. v. Graff, 78 Nev. 507, 377 P.2d 174 (1962); Lee v. Baker, 77 Nev. 462, 366 P.2d 513
(1961). If the giving of the instruction was error, it is harmless because upon considering
the entire record, it is not probable that a different result would ensue at a new trial free
of the contested instruction.
____________________

1
INSTRUCTION NO. 14:
Any evidence that has been received of an act, omission, or declaration of a party which is unfavorable to
his own interests, should be considered and weighed by you as you would any other admitted evidence, but
evidence of the oral admission of a party, other than his own testimony in this trial ought to be viewed by you
with caution.

2
NRS 3.230. District judge not to charge juries upon matters of fact. District judges shall not charge juries
upon matters of fact but may state the evidence and declare the law. In stating the evidence, the judge should not
comment upon the probability or improbability of its truth nor the credibility thereof. If the judge state the
evidence, he must also inform the jury that they are not to be governed by his statement upon matters of fact.

3
Nev. Const. art. 6, 12. Judges not to charge juries respecting matters of fact; may state testimony and
declare law. Judges shall not charge juries in respect to matters of fact, but may state the testimony and declare
the law.
instruction was error, it is harmless because upon considering the entire record, it is not
probable that a different result would ensue at a new trial free of the contested instruction.
The burden is upon the appellant to show the probability of a different result. Serpa v. Porter,
80 Nev. 60, 389 P.2d 241 (1964); Gordon v. State, 137 So.2d 752 (Ala. 1962); Shelby County
v. Baker, 110 So.2d 896 (Ala. 1959); Kyne v. Eustice, 30 Cal.Rptr. 391 (Cal.App. 1963);
Edgett v. Fairchild, 314 P.2d 973 (Cal.App. 1957); Casalo v. Claro, 165 A.2d 153 (Conn.
1960); Enix v. Diamond T. Sales & Serv. Co., 188 So.2d 48 (Fla.App. 1966); Carpenter v.
Forshee, 120 S.E.2d 786 (Ga. App. 1961); McCray Mem. Hosp. v. Hall, 226 N.E.2d 915
(Ind.App. 1967); Traylor Bros., Inc. v. Alford, 230 N.E.2d 336 (Ind.App. 1967); Osborn v.
Lesser, 439 P.2d 395 (Kan. 1968); Miller v. Braun, 411 P.2d 621 (Kan. 1966); McCandless v.
Manzella, 369 S.W.2d 188 (Mo. 1963); Apodaca v. United States F. & G. Co., 433 P.2d 86
(N.M. 1967); Scott v. Brown, 416 P.2d 516 (N.M. 1966); Tevis v. McCrary, 402 P.2d 150
(N.M. 1965); Kanoy v. Hinshaw, 160 S.E.2d 296 (N.C. 1968); London v. London, 157 S.E.2d
90 (N.C. 1967); Gregory v. Lynch, 155 S.E.2d 488 (N.C. 1967); Jacobs v. Barefoot Oil Co.,
144 S.E.2d 275 (N.C. 1965); Gleson v. Thompson, 154 N.W.2d 780 (N.D. 1967); Zimmer v.
Bellon, 153 N.W.2d 757 (N.D. 1967); Plank v. Heirigs, 156 N.W.2d 193 (S.D. 1968); Dwyer
v. Christensen, 92 N.W.2d 199 (S.D. 1958); Cook v. Blytheville Canning Co., 359 S.W.2d
828 (Tenn. 1961); Martinez v. H. B. Butt Grocery Co., 379 S.W.2d 94 (Tex. Civ.App. 1964);
Hall v. Blackham, 417 P.2d 664 (Utah 1966); Collier v. Nolan, 211 A.2d 265 (Vt. 1965); cf.
Trombley v. Jennings, 189 So.2d 516 (Fla.App. 1966); Batts v. Carter, 312 P.2d 472 (Okla.
1957); Baldwin v. State, 223 A.2d 556 (Vt. 1966).
[Headnotes 6-9]
Furthermore, if the requirements of Rule 61 of the Nevada Rules of Civil Procedure are
fulfilled, then there was only harmless error. The standard of Rule 61 is pertinent. Eldorado
Club, Inc. v. Graff, supra; Lee v. Baker, supra; Serpa v. Porter, supra. It is taken from the
Federal Rules of Civil Procedure so its interpretation there should govern here. It is clear that
the doctrine of presumed prejudice has been rejected, 7 J. Moore, Federal Practice 61.02
(2d ed. 1966), and the presumption of integrity of verdicts in civil cases is the rule. Id. at
61.03, 61.11. He who seeks to have a judgment set aside because of an erroneous ruling
carries the burden of showing that prejudice resulted. Palmer v. Hoffman, 318 U.S. 109, 116
{1943).
116 (1943). The record must be considered as a whole. Jiffy Markets Inc. v. Vogel, 340 F.2d
495 (8th Cir. 1965).
The injured Wyatt and his ski-buddies consistently testified that Wyatt was skiing along
until he hit something under the surface of the water. Vaughn, TCID's caretaker, added that
a month later when the water was down considerably he saw tree stumps at the site of the
accident previously indicated by the boys. He was able to pinpoint it because it was almost
immediately in front of his dwelling at the beach. Therefore they told a plausible story.
TCID in defense attempted to prove its case by impeaching Wyatt's witnesses and by
arguing that the jury should believe that Wyatt had hit the sand on the beach because hospital
records prepared by a doctor, an admitting clerk and a nurse reflected that Wyatt had said that
he was injured in a water skiing accident when he went toward the beach to end his skiing.
Neither the doctor nor the two women exactly recalled Wyatt's statements after the
accident nor did Wyatt or his companions know what he hit. Wyatt and his companions did
say that he was not heading into the beach for a whip landing. Wyatt did not have any sand
bruises or abrasions which would ordinarily have resulted had he hit the beach as TCID
claimed. If we consider together the testimony of the doctor, and of the admitting clerk and
nurse, and give full credence to what they claimed Wyatt said, in no way does the aggregate
add or detract from the evidence which was already before the jury. Wyatt may have thought
he hit a sand bar concealed in shallow water, but he did not know. Whether he was upset
because of hitting sand is irrelevant anyway if it was the stump which hit his head and caused
the injury. When the stumps became evident, the real cause of the injury became apparent, or
so the jury could find.
[Headnote 10]
The judge's admonition in Instruction 14 merely directed the jury to consider special
circumstances, such as the lack of knowledge of Wyatt and his companions and absence of
sand burns, which appear to be nothing more or different than the average jury of reasonable
persons could or would reasonably consider anyway. The presumption that the verdict was
not the result of prejudice clearly is not rebutted nor is it probable that there would be a
different result from a new trial.
[Headnote 11]
4. It is also contended that Instruction 32,
4
given with Instruction 33,
5
was erroneous. It
is well settled that before there may be found an assumption of risk, there must be a voluntary
exposure to danger, actual knowledge of the risk assumed, and consent to assume it. Downing
v. Marlia, 82 Nev. 294, 417 P.2d 150 (1966); Frame v. Grisewood, 81 Nev. 114, 399 P.2d
450 (1965); Sierra Pac. Power Co. v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961); Papagni v.
Purdue, 74 Nev. 32, 321 P.2d 252 (1958); Hotels El Rancho v. Pray, 64 Nev. 591, 187 P.2d
568 (1947).
The instruction complained of is not erroneous.
Affirmed.
Mowbray, J., and Babcock, D. J., concur.
Mann, D. J., dissenting:
I cannot agree with the conclusion reached by the majority. In my opinion, the giving of
Instruction No. 14 was error which affected the substantial rights of the parties and that a new
trial is required.
Instruction No. 14 advises the jury that evidence of the oral admissions of a party, other
than his own testimony in the trial, ought to be viewed by them with caution. The majority
state that the instruction may have been merely an instruction by the judge calculated to call
the jury's attention to special facts. In my opinion, this is a function of the trial judge which
the Constitution of Nevada expressly prohibits. Directing the jury to view the respondent's
oral admissions with caution, within the factual context of this case, necessarily focuses
attention upon the limitations placed upon trial judges. Under the common law, a judge was
allowed considerable latitude in commenting upon the evidence and expressing an opinion
on the facts.
____________________

4
INSTRUCTION NO. 32. A person has assumed a risk when he freely, voluntarily and knowingly, places
himself in, or remains in, a position of danger and voluntarily exposes himself to a danger which he knows does
exist. A person who thus assumes a risk is not entitled to recover for damages which resulted from the danger to
which he thus exposed him.

5
INSTRUCTION NO. 33. While plaintiff, Cecil Wyatt, Jr., may have assumed the risk of the normal spills
incident to water skiing, he did not assume the risk of injury that would be caused to him by concealed objects or
diminished depth of which he had no actual knowledge. The defense of assumption of risk requires actual
knowledge of a specific hazard that produces injury and a voluntary consent and exposure to it on his part.
commenting upon the evidence and expressing an opinion on the facts. 53 Am. Jur., p. 462,
585. In federal courts the trial judge has similar discretion and may be more of an activist.
This role has been denied trial judges in Nevada by the express provisions of the
Constitution. Nev. Const. art. 6, 12. All questions regarding the wisdom and expediency of
this limitation upon the functions of trial judges were settled by the people when the
Constitution was adopted.
The clear purpose of the constitutional provision is to prohibit the trial judge from making
known to the jury his opinions as to which witnesses are entitled to be believed or
disbelieved, or how much weight should be given to either specific testimony or a general
category of testimony. If he calls attention to special facts or directs the jury to consider
special factual circumstances in judging the weight to be accorded oral admissions, this
reflects his view as to how the jury should determine the weight of that evidence. As stated in
State v. Warren, 18 Nev. 459, 465, 5 P. 134, 138 (1884): The vice of remarks like those
under consideration, * * * is not that they take from the jury their right to judge of the facts,
but is that they throw the weight of the court's opinion into the scale opposed to defendant,
when he has the right to be judged by the evidence as construed by the jury, uninfluenced and
unbiased by any opinion of the judge.
I do not say that the giving of a so-called cautionary instruction is, per se, an expression
of opinion by the trial court on matters of fact. If the law requires a certain quantum of proof
in a particular situation to establish a fact or facts, or if the rules of law view with some
distrust a particular source of testimony, such as that of an accomplice, it may be permissible
to call this to the attention of the jury by a cautionary instruction. When that is done the trial
judge is instructing the jury on a matter of law and the instruction may be quite proper. Thus,
instructing the jury to view with caution the testimony of an accomplice, the testimony of an
informer, or the testimony of a child may be warranted if the court is stating a general rule of
law which is applicable in a given situation. Carlson v. State, 84 Nev. 534, 445 P.2d 157
(1968); Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968). However, if the motivation of the
trial judge in giving the instruction in a particular case is prompted by special facts or factual
circumstances which he thinks the jury should consider in determining the weight to be given
certain evidence, and if he so instructs the jury, then it seems to me that he is putting his
opinion to work in the deliberations of the jury.
The record here does not reflect the reason that the instruction was given in this particular
case. However, it is well-settled that the oral admissions of a party are admissible and that
they are not regarded as second class evidence to be viewed with caution. This issue was
settled in Peterson v. Pittsburg Silver Peak Gold Mining Co., 37 Nev. 117, 140 P. 519 (1914),
wherein the court stated, * * * But, whatever may be the weight or significance to be given
to admissions against interest, or declarations inconsistent with the contentions of the party
who makes them, it is nevertheless a rule that, when a party to a civil action has made an
admission of fact material to the issue, it is admissible against him. The weight and
consideration to be given to such admission or declaration, whether great or nil, is for the
jury. (37 Nev. 117, 135, 140 P. 519, 526.) This principle withstood a recent attack when this
court held that it was not error to refuse to give an instruction that oral admissions of a party
ought to be viewed with caution. Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965). The
court noted that the appellant's contention that such an instruction should be given was novel,
but that it did not believe that it was the law, either of Nevada or the United States. This court
has also held that a statement made by the trial judge, which was deemed the equivalent of an
instruction, incorrectly advising the jury that a dying declaration had greater weight and
standing than the law provided, was error. State v. Scott, 37 Nev. 412, 142 P. 1053 (1914).
Oral admissions against interest of a party do not constitute a class of evidence which is
inherently unreliable or to be viewed with distrust, and in my opinion, the instruction so
characterizing such evidence did not correctly state the law.
True, the respondent contends that the evidence of his oral admissions in this case
warranted the cautionary instruction. He claims that he was in severe pain and under sedation
when some of the statements were made and he argues that the evidence shows vague and
imperfect recall by the witnesses to whom the oral admissions had allegedly been made.
However, there was conflicting evidence as to these matters, and this points up the precise
situation which our Constitution requires the jury to resolve, without any opinion by the
judge. If the motivation of the trial court in giving this cautionary instruction was due to a
belief on his part that the oral admissions were given in a setting which made them unreliable,
then it would follow clearly that such would be an expression of opinion as to the weight to
be given certain testimony, and that it would be prohibited by the constitutional provision
cited above.
This court has been careful to preserve this barrier between judge and jury as enunciated in
the Constitution. It has pointed to the fact that it is natural for juries to be greatly influenced
by the remarks of the judge. They are told, with emphasis, that it is their duty to follow the
court's instructions. If the comments of the trial judge in ruling upon the admission of
evidence or in giving instructions indicate an opinion that certain ultimate facts have been
proven or not proven where the evidence is conflicting, or that give an opinion, direct or
indirect, as to the weight to be accorded certain evidence, then it has been uniformly held that
such is error. State v. Bonds, 1 Nev. 31 (1865); State v. Duffy, 6 Nev. 138 (1870); State v.
Harkin, 7 Nev. 377 (1872); State v. Tickel, 13 Nev. 502 (1878); State v. Warren, 18 Nev.
459, 5 P. 134 (1884); State v. Scott, 37 Nev. 412, 142 P. 1053 (1914). The effect of such an
opinion is not cured by other instructions which advise the jury of its independent function in
determining the facts. State v. Ah Tong, 7 Nev. 148 (1871). Other states which have similar
constitutional provisions have held that a cautionary instruction which is prompted by
considerations affecting the weight of the testimony cannot be given. Gianini v. Cerini, 171 P.
1007 (Wash. 1918); Brown v. Atlantic Coast Line R. Co., 64 S.E. 1012 (S.C. 1909).
Instruction No. 14 is an instruction advising the jury as to how they should consider a
general category of evidence. The majority opinion states that the jury is merely being
directed to consider special circumstances such as the lack of knowledge of Wyatt and his
companions and the absence of sand burns in determining the weight to be accorded his oral
admissions. It is my view that this is precisely what our Constitution seeks to prevent.
I also believe that the error is such as to require a new trial. The evidence of the oral
admissions of respondent relate to statements that he made when he was brought to the
hospital after the accident. The admitting clerk testified that she asked him how the accident
happened and he replied that he had been water skiing behind a boat and that he ran up on the
beach, or that his ski ran up on the beach. The admitting nurse testified that in response to a
similar question, the respondent said that he was coming in toward shore to get off the skis
and he fell on the beach. A history taken by a consulting physician a day or two after the
accident disclosed that respondent said that apparently the boat got a little too close to the
shore and that his water skis hung up on the sand, causing him to quickly decelerate and fall.
The doctor observed that he stated that he did not lose consciousness and that as soon as he
stopped rolling he was immediately aware that he had no feeling in his legs.
did not lose consciousness and that as soon as he stopped rolling he was immediately aware
that he had no feeling in his legs. Another record, that of his attending physician, disclosed a
history that shortly prior to admission the patient ran up on the beach when water skiing and
started rolling, that he did not lose consciousness and that when he fell he was aware that he
did not have any sensation of the body and could not move his legs.
Wyatt's theory was that the solid object he hit was one of the submerged tree stumps.
Indeed, he is necessary committed to this view if he is to show that the negligence of TCID
was the proximate cause of his injury. TCID could be charged with negligence if the variable
water level of the lake covered known underwater hazards. If Wyatt ran aground while
coming into the beach to dismount, or even if his single slalom ski hit the sand in shallow
water, it would be impossible to relate this cause of the accident to any negligent act of TCID.
Wyatt stated that he hit something that felt like a solid object, which he claimed was later
disclosed to be the tree stump. His companions did not see what he hit, nor did they discover
any object when they came to Wyatt's aid. TCID, which does not have the burden of proof,
claims that Wyatt hit the sand. It suggests he hit the beach when he came in to dismount from
the ski, or that he was too close to the shore and hit the sand in shallow water. Wyatt's oral
admissions would support either theory. The available circumstantial evidence does not shed
much light on the controversy. As pointed out in the majority opinion, there were no sand
burns or bruises on Wyatt's body, such as might be the case if he rolled on the sand of the
beach. On the other hand, it is equally true that there were no scratches or other marks on the
ski such as might be expected if the ski hit the jagged tree stump. Wyatt's companions state
that Wyatt was propelled forward hanging onto the tow rope, indicating that the ski came to a
sudden stop. On the other hand, it is doubtful that the front portion of a planing ski would
strike a submerged stump not much more than six inches in diameter and come to a sudden
stop. In planing, the front part of the ski would tend to be raised, and a glancing blow on the
midsection of the ski is perhaps more probable. Wyatt felt that he had hit his head on the lake
bottom and the lack of lacerations on his head would tend to negate any conclusion that he hit
his head on the tree stump. This possibility, suggested in the majority opinion, was not
advocated by Wyatt and I can find little or no support in the evidence to support this theory.
Wyatt was the witness in the best position to know how the accident occurred.
how the accident occurred. As a matter of fact, since no one saw what he hit, he was the only
witness who could describe what he saw or felt to help explain the occurrence. His statements
as to what happened were of critical importance, both to himself and TCID.
In determining whether the error substantially affects the rights of the complaining party, it
may be conceded that the burden is on the appellant to establish the probability of a different
result if it were not for the erroneous instruction. Prior decisions of this court furnish
adequate guidance for analysis and in this case I do not believe that it is necessary to resort to
presumptions.
NRCP 61 states the rule of harmless error. Its provisions are about the same as the prior
law and I agree with the concurring opinion of Justice Thompson in Lee v. Baker, 77 Nev.
462, 469, 366 P.2d 513, 517 (1961), wherein he stated, I find no substantial difference
between NRCP 61, effective January 1, 1953, and the prior law, NCL 8622. That case states
that the discretion vested in the appellate court must be guided by such applicable legal
principles as may have become recognized as proper in determining the course of justice.
One factor to be considered is the degree of conflict in the evidence. If there is a sharp
conflict in the evidence relating to negligence and proximate cause, the improper admission
of evidence material to such issue is more likely to be considered harmful. Lee v. Baker,
supra. It would seem to me that the same rule would apply to the giving of an erroneous
instruction, especially where the instruction is one upon the evidence and its effect and which
dilutes the weight of evidence which sharply conflicts with evidence favorable to the other
party.
Another factor to be considered is whether the question of liability is close on the facts. If
so, prejudicial error may more easily result. Boyd v. Pernicano, 79 Nev. 356, 385 P.2d 342
(1963). If the error would be harmless as to one issue in the case, but contains multiple
possibilities of improper application as to other issues, prejudicial error will result. Eldorado
Club, Inc. v. Graff, 78 Nev. 507, 377 P.2d 174 (1962).
It is a uniform rule that, except for those cases where no prejudice results, that a charge
indicating the opinion of the court as to the weight of the evidence is ordinarily reversible
error, and the weight of authority is that it is not cured by other instructions telling the jury it
is their exclusive province to determine the facts. (For a statement of this general rule see 5A
C.J.S. 1767, p. 1231 citing in excess of 60 cases from various jurisdictions.)
It is apparent that Wyatt's oral admissions were a critical part of the case of TCID,
constituting its major evidentiary thrust. It is likewise clear that they were admissible with the
weight to be given them to be determined by the jury. Peterson v. Pittsburg Silver Peak Gold
Mining Co., supra. It follows that diluting the weight to be accorded those admissions in the
face of the sharp conflict in the evidence affected a substantial right of TCID. NRCP 61. The
majority opinion states that the judge's admonition in Instruction No. 14 merely directed the
jury to consider special circumstances which the average jury of reasonable persons could or
would reasonably consider anyway. The special circumstances related deal with factual
matters and I cannot agree that the error can be minimized in this manner. Wyatt's counsel, as
would be expected, discussed all of the factors which affected the weight to be given these
oral admissions. However, his argument was fortified by Instruction No. 14 which he used
with telling effect. There were numerous and repeated references to the content of Instruction
No. 14, emphasizing that the law required them to view such evidence with caution and that
the law itself required that the evidence of oral admissions be given less effect than testimony
given under oath at the trial. He argued the reason for this so-called law. Surely the jury
would have considered all factors relating to the weight of the admissions. But here they
could not consider those factors in the light of their own judgment and experience, because if
they heeded the court's instructions, they were forewarned that the law itself required them to
view those admissions with caution, if not distrust.
Even though a substantial right of TCID may have been affected, it is necessary to
determine whether it is reasonable to expect a different result if it were not for the error. None
of us can compute the evidence without the error and arrive at a hypothetical jury verdict. In
my opinion, we must adopt some sort of objective test, as the choice between the harmless or
prejudicial nature of the error cannot be patent guesswork. I would exclude the evidence of
Wyatt, since the error affected only his testimony, and look to the record to determine
whether there is clear and convincing evidence to show that the same result would have been
obtained. As noted, the physical facts or circumstances do not support the theory of Wyatt any
more than they support the theory of TCID. His two companions did not see him hit anything.
They could only relate that he was skiing along and suddenly somersaulted head first in the
water holding on to the tow rope. They did not observe anything regarding the ski itself. The
fact that tree stumps in the general area were exposed a month later, while important in
connection with Wyatt's testimony that he hit a solid object, cannot be fixed as the cause
of the accident by connection with any of the testimony of his companions.
area were exposed a month later, while important in connection with Wyatt's testimony that
he hit a solid object, cannot be fixed as the cause of the accident by connection with any of
the testimony of his companions. In my view, it would be impossible to establish that the
cause of the accident was proximately caused by any of the negligence attributed to TCID,
without Wyatt's testimony.
Consequently, I believe that appellant has shown that, if it were not for the error, a
different result might reasonably be expected, which is the test set forth in Peterson v. Silver
Peak Gold Mining Co., supra, and followed in subsequent Nevada cases. It is also my opinion
that appellant has met any burden to show that the error was not harmless, although I note
that this court has previously stated that, Such a presumption (of prejudice) may be proper in
cases where the record of the evidence discloses that the erroneous ruling may have affected
the verdict.' Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952).
I agree with the statement expressed in the concurring opinion in Lee v. Baker, 77 Nev.
462, 471, 366 P.2d 513, 517 (1961), that, A trial free from error is more likely to produce a
just result than one in which error has occurred. I would remand the case for a new trial.
Batjer, J., concurs in the dissent.
____________
84 Nev. 676, 676 (1968) Serrano v. State
THOMAS SERRANO, Appellant, v. THE STATE
No. 5434
November 27, 1968 447 P.2d 497
Appeal from conviction of first degree murder. Second Judicial District Court, Washoe
County; Emile J. Gezelin, Judge.
The trial court entered judgment of conviction and defendant appealed. The Supreme
Court, Zenoff, J., held that where witness, when asked at trial what defendant told him after
initial argument with deceased, replied that he did not recall, post-indictment testimony of
witness before grand jury that after the argument defendant told witness Well, it's just some
musclehead trying to push people around was admissible, even if illegally obtained, because
subject matter of testimony was collateral, not direct, did not go to guilt or innocence and
because testimony was used largely to refresh his recollection and did not necessarily
impeach witness.
collateral, not direct, did not go to guilt or innocence and because testimony was used largely
to refresh his recollection and did not necessarily impeach witness.
Affirmed.
Robert E. Rose and F. DeArmond Sharp, of Reno, for Appellant.
Harvey Dickerson, Attorney General, William J. Raggio, District Attorney, Virgil D. Dutt
and Gene R. Barbagelata, Deputy District Attorneys, Washoe County, for Respondent.
1. Witnesses.
Where witness, when asked at trial what defendant told him after initial argument with deceased, replied
that he did not recall, post-indictment testimony of witness before grand jury that after the argument
defendant told witness Well, it's just some musclehead trying to push people around was admissible,
even if illegally obtained, because subject matter of testimony was collateral, not direct, did not go to guilt
or innocence and because testimony was used largely to refresh his recollection and did not necessarily
impeach witness.
2. Witnesses.
Post-indictment testimony before grand jury, even if it is illegally obtained, can be used to impeach a
witness on a matter not related to guilt or innocence of defendant.
3. Criminal Law.
Even though prosecutor's remark in presence of jury that defendant was coached was error, defendant
was not prejudiced thereby where remark was ordered stricken and jury admonished to disregard it.
4. Criminal Law.
Instructing jury, after inquiry, as to meaning of imprisonment without possibility of parole and as to
minimum number of years of imprisonment before becoming eligible for parole on sentence of life with
possibility of parole was not error since in charge of murder determination of whether parole should be
allowed is within province of jury.
5. Homicide.
Instructions on requirement of retreat were properly given where defendant claimed be was not guilty of
murder because of self-defense.
6. Criminal Law.
Refusal to permit witness to testify in substance to same matter regarding victim's reputation for violence
as was communicated to witness by other witnesses was proper as witness' testimony would have been
cumulative and unessential.
7. Criminal Law.
Even though on cross-examination of defendant it was brought out that he did not have a permit to carry a
concealed pistol, such disclosure did not constitute reversible error as subject was only collateral and
whether he had a permit or not did not bear on his guilt or innocence of charge of
murder.
collateral and whether he had a permit or not did not bear on his guilt or innocence of charge of murder.
OPINION
Early in the evening of September 3, 1966 Barry Forget and Thomas Serrano engaged in
an argument while in a Reno bar. Forget threatened to kill Serrano, but upon the intervention
of the bartender the two calmed themselves and shook hands. After more drinking Serrano
left the premises but as he did so Forget followed him, apparently to emphasize his regret at
the threat, and again they shook hands in a friendly manner. However, 45 minutes later
Serrano returned while Forget was lighting a cigarette for a female patron, his back to the
entrance. Serrano was carrying a .45 caliber pistol. He said, Now who did you say you were
going to kill. He then shot Forget. Serrano testified that he thought Forget made a move for
his gun. Serrano fired the entire clip of six bullets, hitting Forget three times, then beat him
over the head with the pistol until it broke. Forget died 11 days later. Serrano was convicted
of murder in the first degree and sentenced to life imprisonment without possibility of parole.
He asserts on appeal that his conviction should be reversed because of several alleged errors
committed by the trial court as hereinafter discussed.
[Headnote 1]
1. The state used the testimony of one of Serrano's witnesses before the grand jury to
allegedly impeach the same witness when he testified at the trial. The grand jury testimony
took place after an indictment had been returned. See Serrano v. State, 83 Nev. 324, 429 P.2d
831 (1967). The question now is whether the post-indictment testimony should have been
suppressed.
At the trial the witness was asked what Serrano had said to him after the initial argument
with Forget. He replied that he did not recall. Then his grand jury testimony was used to show
that he had previously answered the same question by stating that Serrano said, Well, it's just
some musclehead trying to push people around.
[Headnote 2]
The post-indictment testimony before the grand jury, even if it were illegally obtained, can
still be used to impeach the witness on a matter not related to the guilt or innocence of the
defendant.
witness on a matter not related to the guilt or innocence of the defendant. Walder v. United
States, 347 U.S. 62 (1954), holds that illegally obtained evidence relevant to the guilt or
innocence of the defendant may be used provided its use is confined to impeaching the
credibility of the defendant or another witness. The issue is narrowed in this case because the
subject matter is collateral, not direct, does not go to guilt or innocence, nor does the
testimony necessarily impeach the witness because it was used largely to refresh his
recollection. See also Note, Limited Use of Unlawfully Obtained Statements to Impeach
Defendant's Credibility, 13 N.Y.L. Forum 146 (1967); Note, Impeaching the Prosecution
Witness: Access to Grand Jury Testimony, 28 U.Pitt.L.Rev. 338 (1966).
[Headnote 3]
2. The prosecutor remarked in the presence of the jury while the defendant was testifying
that the defendant was coached. The remark was ordered stricken and the jury admonished
to disregard it. Under the circumstances of this case the statement was error but we deem it
harmless. Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967); Pacheco v. State, 82 Nev. 172, 414
P.2d 100 (1966); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964); Dotson v. State, 80 Nev.
42, 389 P.2d 77 (1964); Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962); State v. Helm, 66
Nev. 286, 209 P.2d 187 (1949); State v. Teeter, 65 Nev. 584, 642-647, 200 P.2d 657 (1948);
State v. Sheeley, 63 Nev. 88, 162 P.2d 96 (1945); State v. Lindsay, 63 Nev. 40, 161 P.2d 351
(1945); Annotation, 29 A.L.R.2d 996, 1022 (1953).
[Headnote 4]
3. After the jury retired for deliberation they sent a query to the judge as follows:
Does imprisonment without possibility of parole mean exactly what it states or is ultimate
parole possible; and * * * life with possibility of parole, what is the minimum number of
years of imprisonment before becoming eligible for parole?
Following is the court's reply to the jury:
The Court informs you that as to the first question this cannot be answered by this Court,
imprisonment without possibility of parole. This Court loses jurisdiction after sentence is
pronounced. There are other boards, there are other avenues for the defendant to take with
regard to this problem. If you pronounce, if you recommend sentence of life without the
possibility of parole, as far as this Court is concerned that's what it means.
what it means. Whether or not that can be modified at a later date, this Court cannot tell you
because it's not within our jurisdiction, and it's not within the jurisdiction of the jury. Its your
duty, if you feel that that is the penalty that must be imposed, it's your duty to recommend it,
and this Court will impose it. We have no jurisdiction beyond that.
As to the second question, life with the possibility of parole, what is the minimum
number of years of imprisonment before becoming eligible for parole, the new statute
provides that if the penalty is fixed at life imprisonment with possibility of parole, eligibility
for parole begins when a minimum of ten years has been served. That's the only thing I can
tell you. The reference to ten years was in error but for the present purposes is
inconsequential.
The error claimed was in the giving of the instruction at all. However, since in a charge of
murder the determination of whether parole should be allowed is within the province of the
jury, the instruction was proper. Cf. Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), where a
similar comment by the prosecutor was approved.
[Headnote 5]
4. Serrano's theory of defense was self-defense. The instructions given do not conflict and
completely, adequately and correctly express Nevada's age-old requirement of retreat. State v.
Robison, 54 Nev. 56, 74, 6 P.2d 433 (1931); State v. Stewart, 9 Nev. 120, 129 (1874). Indeed,
many of the 11 instructions given on self-defense were redundant.
[Headnote 6]
5. In support of the contention that Forget had a reputation for violence, witnesses
testified to their involvement with Forget in a commercial undertaking. Another witness,
Leslie Fry, proposed to testify in substance to the same manner as communicated to him by
those witnesses. The trial court refused to allow this testimony. Since Fry's testimony would
have been cumulative and unessential, there was no error in the ruling. State v. Cowell, 12
Nev. 337 (1887). See also Trimble v. Coleman Co., 437 P.2d 219 (Kan. 1968); M. A. Realty
Co. v. Commission, 233 A.2d 793 (Md.App. 1967).
[Headnote 7]
6. While Serrano was testifying on cross-examination,it was brought out that he did not
have a permit to carry a concealed pistol. But whether he had a permit or not did not bear on
his guilt or innocence of murder. The subject was only collateral and did not constitute
reversible error.
Other assignments of error are asserted but they are without merit.
Affirmed.
Thompson, C. J., Collins, Mowbray, JJ., and Wilkes, D. J., concur.
____________
84 Nev. 681, 681 (1968) In re Bowen
In the Matter of the Petition of DAVID K. BOWEN for Admission to
the Bar of Nevada.
No. 5560
November 27, 1968 447 P.2d 658
Petition for review of recommendation of the Board of Bar Examiners that petitioner's
application for membership in the State Bar of Nevada and admission to practice law in
Nevada be denied, and to set aside the same.
The Supreme Court, Batjer, J., held that where false statements on three bar applications
are clearly material and of such significance as to involve moral turpitude and lack of good
character, this alone is sufficient cause for denial of admission.
Petition denied.
[Rehearing denied January 24, 1969]
Laurance M. Hyde, Jr., of Reno, for Petitioner.
Howard L. Cunningham, Chairman, Board of Bar Examiners, Robert R. Herz, Secretary,
Board of Bar Examiners, both of Reno, and Douglas J. Shoemaker, of Las Vegas, for
Respondent.
That applicant for admission to the bar makes false statements which are clearly material and of such
significance as to involve moral turpitude and lack of good character is alone sufficient cause for denial of
admission. SCR 52(5).
Fact that applicant for admission to the bar is allowed to take bar examination and resubmit his
application is in no way a waiver of the provisions of Supreme Court Rule concerning false statements on
application for admission nor of enforcement thereof. SCR 52(5).
Findings of the board of bar examiners, while given great weight, are not binding upon Supreme Court.
SCR 52(5).
84 Nev. 681, 682 (1968) In re Bowen
Burden of showing that findings of board of bar examiners are not supported by evidence or that its
decision or action is erroneous or unlawful is upon applicant for admission. SCR 52(5).
Burden is upon applicant for admission to the bar to show that he is morally fit, whereas in disciplinary
proceeding burden is upon state bar to prove that an attorney is morally unfit. SCR 52(5).
Purpose of investigation by bar association into moral character of applicant for admission to the bar
should be limited to assurance that if admitted, applicant will not obstruct administration of justice or
otherwise act unscrupulously in his capacity as officer of the court.
Board of bar examiners' investigation need not be confined to acts which occurred after applicant first
made application to take state bar examination, but board may consider any act or course of conduct
occurring at any time, prior to admission, provided it has legal tendency to prove applicant's character at
that time. SCR 52(5).
Hearings concerning applicant for admission to state bar satisfy procedural requirements, where
cross-examination of witnesses called against him is permitted, counsel is appointed to investigate, evaluate
and present evidence, and opportunity is given to reply to or explain all documentary evidence presented
against applicant. SCR 52(5).
OPINION
On June 22, 1967, a hearing was held before a quorum of the Board of Bar Examiners in
Las Vegas, Nevada, to determine the fitness of the petitioner for admission to the bar of the
state of Nevada. The board was represented by Douglas J. Shoemaker, Esq., while the
petitioner appeared in proper person.
The hearing revealed uncontradicted proof that the petitioner had knowingly made false
statements of a material nature on his 1964, 1965 and 1967 state bar application forms
concerning prior arrests and convictions.
Thereafter, at the petitioner's request, the board continued the inquiry in order to allow him
to sit for the bar examination to be held during the month of September, 1967.
The petitioner took and passed the bar examination and additional hearings on his
character and qualifications were scheduled for November 17, 1967.
84 Nev. 681, 683 (1968) In re Bowen
scheduled for November 17, 1967. These hearings were continued through November 18,
1967, and were primarily concerned with an incident which occurred in the month of
September, 1967, just prior to the time the petitioner took the bar examination.
The board found that the petitioner, while employed as a law clerk of Jack Pursel, Esq., an
attorney with offices in Las Vegas, attempted to coerce one Caroline Ann Brown into signing
a prepared affidavit by threatening to have her arrested for prostitution if she did not sign.
That incident took place in Jack Pursel's office without his consent or knowledge. It was
further found that the petitioner had given false testimony under oath to the board concerning
that incident.
In December, 1967, the petitioner filed a request for rehearing, which was granted by the
board. Hearings were held on January 16, 1968 and on February 5, 1968. Thereafter the board
recommended that the application of the petitioner be denied on the ground that he lacked the
necessary moral character to become a member of the State Bar of Nevada.
As his specifications of error, the petitioner alleges:
1. That the incident involving Caroline Ann Brown was within the purview of the
Administrative Committee of the State Bar of Nevada rather than the Board of Bar
Examiners.
2. That the facts of the incident involving Caroline Ann Brown were insufficient to
warrant the board's recommendation against the petitioner's admission to practice law in the
state of Nevada.
3. That even if the investigations and hearings were within the purview of the Board of
Bar Examiners, they were improperly conducted and the petitioner was denied due process of
law.
4. That the delays by the Board of Bar Examiners were unreasonable and a denial of the
petitioner of due process of law.
We find all of the petitioner's specifications of error to be without merit.
1. Nevada Supreme Court Rule 52(5) provides: A false statement on the application
forms filed with the executive secretary, or failure to set out information required on the
forms, shall be sufficient cause for the denial of admission.
[Headnote 1]
There is undisputed proof that the petitioner made several false statements on his three bar
applications. Where, as in this case the false statements are clearly material and of such
significance as to involve moral turpitude and lack of good moral character, this alone is
sufficient cause for the denial of admission under SCR 52{5).
84 Nev. 681, 684 (1968) In re Bowen
moral character, this alone is sufficient cause for the denial of admission under SCR 52(5).
[Headnote 2]
The fact that the petitioner was allowed to take the bar examinations and to resubmit his
application for admission to the state bar is in no way a waiver of the provisions of our rule
52(5), nor of the enforcement of its provisions.
[Headnotes 3, 4]
2. The rule of law operative in fact patterns similar to the present one was recently
enunciated in Hallinan v. Committee of Bar Examiners of State Bar, 421 P.2d 76 (Cal. 1966).
The court said: The findings of the Board of Governors of the State Bar or of a committee
such as respondent, while given great weight, are not binding upon this court. (Citations
omitted.) The burden of showing that the findings are not supported by the evidence or that
its decision or action is erroneous or unlawful is upon the petitioner. (Citations omitted.)
[Headnote 5]
There are some distinctions between admission proceedings and disciplinary proceedings,
the essential one being that in the former the burden is upon the applicant to show that he is
morally fit, whereas in the later the burden is upon the State Bar to prove that an attorney is
morally unfit.
Here the petitioner bears the burden of overcoming the board's findings both as to the false
statements in his application and in the incident involving Caroline Ann Brown. This he has
failed to do.
[Headnote 6]
The purpose of an investigation by the bar association into an applicant's moral character
should be limited to an assurance that, if admitted, he will not obstruct the administration of
justice or otherwise act unscrupulously in his capacity as an officer of the court.
We believe that the petitioner's persistent effort to conceal his past record from the Board
of Bar Examiners and his utter failure to be candid in his response to the questions on the
application form, together with his conduct as demonstrated by the incident involving
Caroline Ann Brown can be characterized as involving moral turpitude.
The petitioner's prior arrests and convictions considered together with his continued failure
to give straight forward, candid answers to questions on the bar application forms and at the
hearings, and his unscrupulous handling of the Brown affidavit is the type of conduct
which has been held to justify non-admission to the bar.
84 Nev. 681, 685 (1968) In re Bowen
at the hearings, and his unscrupulous handling of the Brown affidavit is the type of conduct
which has been held to justify non-admission to the bar. (See In re Wells, 163 P. 657 (Cal.
1917), devious in bar application and obtaining credit through misrepresentation.)
The fraudulent acts charged in the admission cases herein cited, like the conduct of the
petitioner, necessarily impair the basic objects of the legal profession; they demonstrate in a
variety of ways the moral turpitude that is present here.
[Headnote 7]
The Board of Bar Examiner's investigation need not be confined to acts which have
occurred since the petitioner first made application to take the bar examination but it may
consider any act or course of conduct occurring at any time, prior to admission, provided they
have a legal tendency to prove the applicant's present character.
In the case of In re Wells, supra, the court said: While this conduct may not show great
depravity of character, we think it must be admitted that it indicates in the respondent a want
of that sincerity and integrity which the law demands of those who are to be allowed the
privilege of practicing law. One who obtains credit by concealing material facts from the
creditor and who, while endeavoring to practice in the superior court by indirection before he
is admitted as an attorney, endeavors to induce witnesses to conceal the truth and to evade the
giving of an honest answer, is not a person of that high character which the state intends shall
be possessed by those who practice as attorneys in the courts. In re Florida Board of Bar
Examiners, 183 So.2d 688 (Fla. 1966).
In re Farmer, 131 S.E. 661 (N.C. 1926), it was held that such a lack of moral perception or
careless indifference to the rights of others was shown as to render the court unable to say that
the applicant possessed the necessary and upright character to entitle him to a license to
practice law.
[Headnote 8]
3. All of the hearings conducted concerning this applicant met the procedural
requirements of Ex parte Kellar, 81 Nev. 240, 401 P.2d 616 (1965). First, the petitioner was
allowed to cross-examine all witnesses called against him. Second, the board appointed
counsel to investigate, evaluate and present evidence. Third, the petitioner was given every
opportunity to reply to or explain all documentary evidence presented against him.
In Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232 {1957), the court
said: "A State cannot exclude a person from the practice of law or from any other
occupation in a manner or for reasons that contravene the Due Process or Equal
Protections Clause of the Fourteenth Amendment."
84 Nev. 681, 686 (1968) In re Bowen
U.S. 232 (1957), the court said: A State cannot exclude a person from the practice of law or
from any other occupation in a manner or for reasons that contravene the Due Process or
Equal Protections Clause of the Fourteenth Amendment. The court went on to say: A State
can require high standards of qualification, such as good moral character or proficiency in its
law, before it admits an applicant to the bar, but any qualifications must have a rational
connection with the applicant's fitness or capacity to practice law * * *.
Here the evidence upon which the board relies raises substantial doubts as to the
applicant's present good moral character.
4. All the procedural delays complained of by the petitioner were either ordered for good
cause or were directly or indirectly occasioned by the petitioner.
Only after affording petitioner a full hearing which covered several separate sessions and
continuances, at the request of the petitioner, to enable him to present additional evidence,
and after causing an extensive investigation to be conducted, the board recommended that
petitioner be denied admission to the bar.
Petitioner requests that this court exercise its inherent power and admit him to the practice
of law in all courts of this state.
The Board of Bar Examiners, a committee of the State Bar of Nevada, opposed the
admission of the petitioner and presented a record which indicates that the petitioner fails to
possess the essential prerequisite to be admitted to the practice of law in this state.
The burden of establishing good moral character rests upon the applicant. Spears v. State
Bar of California, 294 P. 697 (Cal. 1930); In re Garland, 28 P.2d 354 (Cal. 1934); In re
Monaghan, 167 A.2d 81 (Vt. 1961); Application of Levine, 397 P.2d 205 (Ariz. 1964). On
the present record, it must be held that the petitioner has failed to satisfy that burden.
We are satisfied that the refusal of the Board of Bar Examiners to recommend the
petitioner for admission to practice law in the state of Nevada is based upon sound premises
and valid grounds, and its requirement of good moral character has a rational connection with
the petitioner's fitness to practice.
The petition is denied.
____________
84 Nev. 687, 687 (1968) Adams v. Lawson
KENNETH ADAMS, Doing Business as SAMBO'S PANCAKES and CLARENCE E.
MATTHEWS, Appellants, v. GORDON LAWSON, Respondent.
No. 5537
December 9, 1968 448 P.2d 695
Appeal from ruling of the Second Judicial District Court, Washoe County, denying a Rule
60(b) motion to set aside a default judgment; Thomas O. Craven, Judge.
The Supreme Court, Thompson, C. J., held that failure of defendants' counsel who had
received two claim files one of which contained letter of plaintiff's counsel granting open
extension of time within which to respond to complaint and one of which contained open
extension letter and letter withdrawing open extension and stating time certain in which to
answer, to discover the letter of withdrawal constituted an inadvertence within rule providing
for relief from final judgment and defendants were entitled to have default judgment set aside
and to have issue decided on merits.
Reversed.
Collins, J., dissented.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Appellants.
Richard C. Minor, of Reno, for Respondent.
1. Judgment.
Motion to set aside default judgment entered after failure of counsel to timely appear should not be
granted unless conduct of counsel outweighs policy that all actions be decided on their merits. NRCP
60(b) (1).
2. Judgment.
Failure of defendants' counsel who had received two claim files one of which contained letter of
plaintiff's counsel granting open extension of time within which to respond to complaint and one of which
contained open extension letter and letter withdrawing open extension and stating time certain in which to
answer, to discover the letter of withdrawal constituted an inadvertence within rule providing for relief
from final judgment. NRCP 60(b) (1).
Court reviewing cases which involve evidentiary conflicts and demeanor evidence is required to treat
discretionary ruling of trial court with deference and cannot resolve evidentiary conflicts, weigh evidence,
or assess credibility of unobserved witnesses.
Rule that reviewing court should pay special deference to trial court's discretionary rulings was not
applicable where action being reviewed was based on documentary evidence which was carried up with
appeal.
OPINION
The district court denied the defendants' Rule 60(b)(1) motion to set aside a default
judgment entered against them.
1
This appeal is from that ruling. The motion was timely
made in good faith and tendered a meritorious defense. The validity of the discretionary order
turns upon whether the failure of defense counsel to appear in time was an inadvertence
falling within the protection of the rule. We hold that the district court exceeded the
permissible limits of its discretion in precluding a trial on the merits, and reverse.
[Headnote 1]
The surest path to justice is a trial upon the merits. This objective should not be frustrated
unless the conduct of counsel in allowing the entry of default and judgment is of such a
character as to justify a departure from that objective in order to preserve the integrity of the
time sequences prescribed by our rules of procedure. The conduct of defense counsel in this
case was not of that character.
[Headnote 2]
The record shows that after filing suit, plaintiff's counsel entered into settlement
negotiations with the California claims adjuster for the insured defendants, and gave a written
open extension of time within which to respond to the complaint, subject to 20 days written
notice of withdrawal of extension. Plaintiff's counsel also negotiated with a local adjuster
representing the same insurance carrier. Settlement failed to materialize and, on September
12, 1967, the California adjuster was notified by letter that the defendants would have an
additional 20 days from that date within which to answer.
On September 21, 1967, defense counsel received a claims file from the local adjuster and
was employed to defend the case.
____________________

1
The rule in pertinent part reads: On motion and upon such terms as are just, the court may relieve a party
or his legal representative from a final judgment * * * for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect * * *.
case. That file did not contain a copy of the September 12 letter directing an appearance
within 20 days thereafter. It did contain the open extension letter which counsel read.
Four days later defense counsel received a second claims file from the California adjuster.
This file included the open extension agreement plus the September 12 letter. For some
reason, defense counsel did not see the September 12 letter among the documents in the
California file and was unaware that the open extension had been withdrawn. Consequently
he did not file a responsive pleading for the defendants. Plaintiff's counsel did not know that
defense counsel had been engaged and, when a responsive pleading was not forthcoming,
proceeded to enter default and secure judgment.
The district court expressed no reason for its refusal to set aside the judgment thus secured.
We can only assume that the court looked upon the oversight of defense counsel as
inexcusable. Such a view is unduly harsh and subverts our announced policy to encourage
trial upon the merits. Neither does the lower court's ruling support the subordinate concern of
preserving the integrity of the time sequences prescribed by our rules of procedure, since the
time to respond in this case was fixed by unilateral grant of plaintiff's counsel, and not by
rule. [Cf. Intermountain Lumber v. Glens Falls, 83 Nev. 126, 424 P.2d 884 (1967), where
counsel advised his opponent that the rules must be met and no quarter would be asked and
none would be given.] The withdrawal of that grant was simply overlooked. Since no
significant policy is served by the ruling below we do not hesitate to find an abuse of
discretion. Our holding is in line with prior expressions of this court in Hotel Last Frontier v.
Frontier Properties, 79 Nev. 150, 380 P.2d 293 (1963); Horton v. New Pass Co., 21 Nev. 184,
27 P. 376 (1891). See also: Blakeney v. Fremont Hotel, 77 Nev. 191, 360 P.2d 1039 (1961).
The oversight of defense counsel was an inadvertence falling within the protection of Rule
60(b)(1).
The dissenting opinion rests mainly upon the decision of Bryant v. Gibbs, 69 Nev. 167,
243 P.2d 1050 (1952). That case is inapposite. There, the defendant was served with process
and knew that he had to appear as directed. He mislaid the document at his home and did not
find it until after default and judgment were entered. The district court denied him relief and
was affirmed on appeal. The affirmance was on the basis that no reason for the inadvertence
or neglect was given. The statute construed in Bryant (8640, N.C.L. 1931-1941 Supp.)
required a showing of good cause in addition to inadvertence. Rule 60(b) allows a default
to be set aside upon such terms as are just" and does not require that a reason for
inadvertence be given.
terms as are just and does not require that a reason for inadvertence be given. Apart from
this difference between the statutory language construed in Bryant and the present Rule 60(b),
the instant case is factually distinguishable from Bryant in a material respect. The essence of
Bryant is that a defaulter must give a reason for not appearing in time when he is aware of his
duty to do so. Here, however, counsel was not aware of such duty to enter an appearance. All
that he could say after learning that judgment had been entered was that he did not see the
September 12 letter. No further explanation was possible.
[Headnotes 3, 4]
In reviewing cases which involve evidentiary conflicts and demeanor evidence the law and
good sense each demands that we treat a discretionary ruling of the trial court with deference.
In such cases we cannot resolve evidentiary conflicts, weigh evidence, or assess the
credibility of unobserved witnesses. However, in the matter before us there is no conflict in
relevant facts; oral testimony was not received; demeanor evidence is not involved. The
motion was presented to the district court on the file and the moving papers. The same papers
are before us. In this limited situation the reasons for paying special deference to a
discretionary ruling are not present. Bowles v. Beatrice Creamery Co., 146 F.2d 774, 780 (10
Cir. 1944); British America Assur. Co. v. Bowen, 134 F.2d 256, 260 (10 Cir. 1943); United
States v. Corporation of the President, etc., 101 F.2d 156, 160 (10 Cir. 1939). Cf. Sisson v.
Sisson, 77 Nev. 478, 367 P.2d 98 (1061); Garaventa v. Gardella, 63 Nev. 304, 169 P.2d 540
(1946). This court knows everything that the district court knew and is in precisely the same
position to decide the controversy.
Reversed.
Respondent Lawson (plaintiff below) and appellant Matthews, a cook for Sambo's
Pancakes, became involved in an altercation on June 3, 1967. Lawson was injured, and he
sued both Matthews and Adams (defendants below), doing business as Sambo's Pancakes.
Negotiations commenced between Lawson's counsel and Roy Hays of Republic Indemnity
Co. of America, liability insurer of Adams and his employee, Matthews. Richard Minor,
Lawson's counsel, and Hays entered into an agreement giving appellants an open-end
extension of time within which to plead to the complaint, subject however to 20 days
written notice terminating the extension.
to the complaint, subject however to 20 days written notice terminating the extension.
Minor also had negotiations with a Mr. Morris of K. H. Cornwall & Co., insurance
adjusters.
On September 12, 1967, Minor notified Hays by letter to his California office that
appellants would have 20 days from that date within which to answer the complaint. The time
expired on October 2. No answers were filed, and the clerk entered default against Matthews
and Adams on October 5, 1967. Ex parte proof of damages was made and judgment entered
by the Court for Lawson and against Matthews and Adams for $1,352 damages, $400
attorney's fees, and $38.60 costs. Notice of entry of judgment was mailed to appellants
October 12. A motion to vacate and set aside the default and judgment was filed on
November 3.
This appeal is from a denial of that motion.
On September 21, 1967, Woodburn, Forman, Wedge, Blakey, Folsom and Hug were
retained as defense counsel. Mr. Morris sent them his claim file containing copies of
statements and correspondence. On September 25 Mr. Hays sent them his file also, which
contained original statements, correspondence, the letter confirming the open extension to
plead agreement, and the notice from Mr. Minor limiting the time to answer to 20 days from
September 12. The Morris file contained a carbon copy of the agreement but not a copy of the
notice of limitation.
The only issue before us is whether the trial court abused its discretion in refusing to
vacate the default and judgment. To put it another way, where, as here, counsel (instead of the
party in interest) is responsible for the neglect, what must he demonstrate to the court to
justify setting aside the default?
The lower court rendered no opinion nor made any particular findings of fact in denying
the motion to set aside the default, but, as the majority of this court holds, it must have
concluded that the neglect admitted by counsel was inexcusable. The majority says that was
an abuse of discretion by the trial judge. But was it? Having before us the same record as was
before the lower court, as pointed out by the majority, we know everything that court knew
and are in precisely the same position to decide the controversy. We should then have the
same prerogative to analyze the facts presented in that record as did the trial court and draw
such inferences as are reasonable in deciding whether the neglect was excusable and whether
there really was any abuse of discretion by the lower court.
Appellants' counsel stated in his affidavit: * * * that on September 21, 1967, he
received in connection with the captioned case an investigation file consisting of carbon
copies of statements of witnesses and correspondence between representatives of K. H.
Cornwall & Co., and a representative of Republic Indemnity Company of America; that
among other documents said investigation file included a carbon copy of a letter from Roy
Hays, speaking for Republic Indemnity Company of America, addressed to Richard C.
September 21, 1967, he received in connection with the captioned case an investigation file
consisting of carbon copies of statements of witnesses and correspondence between
representatives of K. H. Cornwall & Co., and a representative of Republic Indemnity
Company of America; that among other documents said investigation file included a carbon
copy of a letter from Roy Hays, speaking for Republic Indemnity Company of America,
addressed to Richard C. Minor, attorney for plaintiff in the above entitled action, dated July
13, 1967, which confirmed an oral agreement granting the defendants an open extension of
time within which to appear or otherwise plead, subject to twenty (20) days written notice;
that said file also contained a letter dated September 18, 1967, from Richard C. Minor, to R.
C. Morris of K. H. Cornwall & Co., with which there was enclosed a copy of a letter from Dr.
Noah Smernoff, and which rejected an offer apparently theretofore made by Mr. Morris to
Mr. Minor; and said letter made a counteroffer by which the dispute might be disposed of;
That on September 25, 1967, affiant received from the aforesaid Roy Hays what appeared
to be a file in connection with the captioned case, which appeared to consist of the original
statements and correspondence, copies of which made up the file received on September 21,
1967, from R. C. Morris as aforesaid;
That in fact the file received by affiant on September 25, 1967, contained a letter dated
September 12, 1967, written by Richard C. Minor and addressed to Republic Indemnity
Company of America at Los Angeles, California, to the attention of Roy Hays; that said letter
among other things, advised the addressee that it might have an additional twenty (20) days in
which to file an answer; that a true copy of that letter is marked Exhibit A and attached hereto
and made a part hereof; that affiant, in examining the file which contained Mr. Minor's letter
of September 12, 1967, Exhibit A hereto, for some reason did not see that letter among the
documents making up the file, and was therefore wholly unaware of the notice thereby given
to Republic Indemnity Company of America;
That affiant has examined the investigation file delivered to him on September 21, 1967,
together with the like file delivered to him on September 25, 1967, and has also examined a
statement from a witness taken since those files were delivered to affiant; that the original and
a copy of statements given by three other persons present at the time of the occurrence of the
events described in the complaint and proposed answer appear in each of the above referred
to files, and affiant is familiar with the contents thereof; that the evidence made available
to affiant compels the conclusion that to the extent that there was an altercation between
plaintiff and defendant Matthews, it was provoked and brought about solely by the
activities of plaintiff and one of his companions;
* * *."
the contents thereof; that the evidence made available to affiant compels the conclusion that
to the extent that there was an altercation between plaintiff and defendant Matthews, it was
provoked and brought about solely by the activities of plaintiff and one of his companions;
* * *.
Now, what may we infer from that affidavit? Certainly we can infer that one or the other of
those files contained the complaints served on Adams and Matthews. Had counsel even
casually looked at them, he would have known that the complaint was filed June 21, 1967, an
amended complaint was filed July 7, 1967, and that both appellants were served July 7, 1967.
He would have known the identity of respondent's counsel. He likewise knew of the letter of
July 13 from Hays to Minor confirming the open-end extension to plead.
From any one of those documents which counsel for appellant must have seen, he would
have known that the time for answering in accordance with the rules was indeed long
overdue. He could infer, because of his long experience as trial counsel, there must be some
kind of extension in effect. When he did not see the letter from Minor to Hays requiring the
answer within 20 days from September 12, he should have nevertheless been alerted by the
letter of July 13 granting an open extension to plead to check with someone what the terms of
the extension were. He certainly could have called Hays or Cornwall & Co., either one of
whom could have told him of the end of the extension. And it does seem somewhat
incredulous that counsel was not specifically informed by either Cornwall & Co. or Hays,
who negotiated the open-end extension, that it had come to an end when they forwarded their
files to him.
Notwithstanding the circumstances related above, counsel allowed the file to remain
unattended from September 21, 1967, to October 5, 1967, when default was finally entered,
and even after that until November 3 when he finally got around to filing a motion to set aside
the default after notice of the entry of judgment had been served upon his clients, Kenneth
Adams and Clarence E. Matthews. He had never entered an appearance in the case prior to
that time.
Without reviewing again all the cases decided by this Court in construing NRCP 60(b), I
think the rule announced in Bryant v. Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952) is
controlling over the facts presented here. That case stands for the rule that the affidavit or
other proof offered supporting a motion to set aside a default must show or demonstrate facts
of excusable neglect or inadvertence. Words of neglect or inadvertence in the abstract or as
conclusions are not sufficient to justify the relief asked.
justify the relief asked. See also: Intermountain Lumber and Builders Supply, Inc. v. Glens
Falls Ins. Co., 83 Nev. 126, 424 P.2d 884 (1967); Nevada Industrial Guaranty Co. v.
Sturgeon, 80 Nev. 254, 391 P.2d 862 (1964); Wyoming Pacific Oil Company v. Preston, 321
P.2d 154 (Cal.App. 1958); Yarbrough v. Yarbrough, 301 P.2d 426 (Cal.App. 1956); Baratti v.
Baratti, 242 P.2d 22 (Cal.App. 1952); Shearman v. Jorgensen, 39 P. 863 (Cal. 1895); Harper
v. Mallory, 4 Nev. 447 (1868).
Here, all that was shown is that for some reason appellants' counsel did not see the letter
limiting the time to plead in the file received from Hays. It was neglect not to see itbecause
it was therebut no reason was shown why that neglect was excusable. There was no abuse
of discretion by the lower court in denying the motion.
I dissent.
____________
84 Nev. 694, 694 (1968) Horton v. D.I. Operating Co.
ERNEST J. HORTON, Appellant, v. D. I. OPERATING CO.,
a Nevada Corporation; and BOYD SCOTT, Respondents.
No. 5538
December 9, 1968 448 P.2d 36
Judge.
Suit was brought against employee and his employer for assault. The trial court gave
verdict for both defendants. Plaintiff filed two motions for new trial which were denied and
plaintiff appealed. The Supreme Court, Mowbray, J., held that motion for new trial based
upon newly discovered evidence which could not be brought under rule providing grounds for
motions for new trial because time for filing had expired could not be brought under rule
providing grounds for relief from judgment, since newly discovered evidence was not ground
for relief under that rule.
Affirmed.
Jack J. Pursel, of Las Vegas, for Appellant.
Bell & Morris, of Las Vegas, for Respondent D. I. Operating Co.
Deaner, Butler & Adamson, of Las Vegas, for Respondent Boyd Scott.
1. Trial.
Where bailiff upon being advised by jury that they had not reached a verdict stated that he would make
arrangement for jury to retire to their quarters for overnight stay, and shortly thereafter verdict was reached,
there was no evidence that jury had been coerced into arriving at verdict.
2. Trial.
Bailiff must not inquire of jury as to whether verdict has been reached unless directed to do so by judge.
3. Trial.
Where foreman and one of jurors discussed instructions given by court in hall separating two rooms used
by jury, act requiring that jurors be kept together was not violated, since conversation did not occur outside
juror's quarters and since there was no evidence that it influenced verdict. NRS 16.120.
Where appellant did not designate transcript of evidence or instruction that trial judge gave as part of his
record on appeal and no effort was made to utilize act permitting parties on appeal to prepare a statement
of case, whether jury was properly instructed could not be determined. NRCP 76.
5. Judgment.
Motion for new trial based upon newly discovered evidence which could not be brought under rule
providing grounds for motion for new trial because time for filing had expired could not be brought under
rule providing grounds for relief from judgment, since newly discovered evidence was not a ground for
relief under that rule. NRCP 59(a), 60(b).
OPINION
Ernest J. Horton brought a civil action against Boyd Scott, alleging assault. The D. I.
Operating Co., Scott's employer, was named as a codefendant. The case, which was tried
before a jury, resulted in verdicts in favor of both defendants. Horton filed two motions for a
new trial, one of which was timely. The trial judge denied both motions, and thus this appeal.
The first motion was predicated upon (1) irregularity in the proceedings of the jury, (2)
misconduct of the jury, and (3) the court's failure to instruct the jury properly.
1. Appellant urges that the conduct of the bailiff caused the irregularities in the jury
proceedings. The case went to the jury at 2:45 p.m. The bailiff inquired of the jury at
approximately 10:30 p.m. whether the jury had reached a verdict. Upon being advised they
had not, the bailiff stated that he would make arrangements for the jury to retire to their
quarters for an overnight stay. Shortly thereafter, a verdict was reached.
[Headnote 1]
While the bailiff's remarks were improper, there is nothing in the record to show they
coerced the jury into arriving at a verdict. As the court said in Williams v. Yellow Cab Co.,
136 N.E.2d 582, 585 (Ill.App. 1956): It appears from the testimony of the bailiffs in charge
of the jury that in response to questions from the jury as to how long they were to stay, a
bailiff told them they were to stay until they reached a verdict, and later, around 10 o'clock, a
bailiff jokingly said, I'm going up to get the cots.' A few minutes after 10:30 a bailiff went to
the jury room to dismiss the jury and was informed that they had reached a decision.
Defendants concede that the conduct of the bailiffs was free from any improper motive, but
contend that it coerced the jury into returning a verdict to their prejudice. The jury was polled
the following morning and none repudiated his verdict. The statements complained of should
not have been made by the bailiffs, but we find nothing to support the claim of coercion of
the jury and prejudice to the defendants.
[Headnote 2]
Bailiffs are officers of the court and serve the court by acting under and pursuant to the
direction of the trial judge. Any inquiries to the jury, such as in this case, should be made only
if directed by the judge.
[Headnote 3]
2. As his basis for the misconduct of the jury, appellant complains that the jury separated
during their deliberations and that they were not kept together as required in NRS 16.120.
1
At one point during the jury's deliberations, the foreman and one of the jurors discussed
the instructions given by the court.

____________________

1
NRS 16. 126. Deliberation of jury; how and where conducted.
1. After hearing the charge, the jury may either decide in court or retire for deliberation. If they retire, they
shall be kept together in a room provided for them, or some other convenient place under charge of one or more
officers, until they agree upon their verdict or are discharged by the court. The officer shall, to the utmost of his
ability, keep the jury separate from other persons. He shall not suffer any communication to be made to them, or
make any himself, unless by order of the court or judge, except to ask them if they have agreed upon their
verdict; and he shall not, before the verdict is rendered, communicate to any person the state of their
deliberations, or the verdict agreed upon.
2. Each party to the action may appoint one or more persons, one of whom on each side shall be entitled to
remain with the officer or officers in charge of the jury, and to be present at all times when any communication is
had with the jury, or any individual member thereof, and no communication, either oral or written, shall be made
to or received from the jurors, or any of them, except in the presence of and hearing of such persons so selected
by the parties; and in case of a written communication, it shall not be delivered until read by them.
At one point during the jury's deliberations, the foreman and one of the jurors discussed
the instructions given by the court. This discussion took place in a hall separating the two
rooms which were used for the convenience and comfort of the ladies and gentlemen of the
jury. The conversation was audible to the other jurors. It did not occur outside the jurors'
quarters, and there is nothing in the record to show it improperly influenced the verdict of the
jury.
[Headnote 4]
3. Appellant next urges that the trial court failed to instruct the jury properly regarding the
liability of Respondent D. I. Operating Co. Appellant's request for four additional instructions
2
was denied. This assignment of error has imposed a burden on this court which is not easily
overcome. Appellant did not designate the transcript of the evidence as part of his record on
appeal. Consequently, we do not know what, if anything, Respondent D. I. Operating Co. did
or failed to do in controlling its employees. Further, appellant has failed to designate as part
of the record on appeal the instructions that the trial judge did give, and as a result we are not
advised as to the theory of liability in which the jury was instructed. No effort was made to
utilize the provisions of NRCP 76.
3
For these reasons, we are completely unable to decide
whether the trial judge failed to instruct the jury properly.

____________________

2
PROPOSED INSTRUCTION C. You are instructed that a hotel and casino operator may be held liable for
the assaults of his servants committed while they are performing the duties they are employed to discharge. In
short, there may arise duties from the relationship between the hotel and casino operator and the person assaulted
by the employee which are absolute in character, imposing liability for assault committed by the employee
regardless of the fact that it was made in furtherance of the servant's personal ends.
PROPOSED INSTRUCTION D. You are instructed that in a hotel and casino operation, assaults by
employees attempting to maintain order about the premises, although unjustified, may have been committed by
such employees in the course and scope of their employment, since the amount of force required to quell
disturbances or eject unruly patrons is one of discretion, and there is no excuse if excessive force has been used
by such servants, even though the servant has been in part motivated by personal resentment or malice.
PROPOSED INSTRUCTION E. If you find that the employee, Boyd Scott, was charged with the duty of
maintaining order, quelling disturbances and protecting his employer's property, then you must find that his
employer defendant, Desert Inn Operating Co., was responsible for his acts committed toward plaintiff in
pursuance of such duties.
PROPOSED INSTRUCTION F. An innkeeper or hotel and casino operator is under an obligation to
protect its guests and business invitees from danger and harm when it is reasonably within its power to do so.

3
NRCP 76. RECORD ON APPEAL; AGREED STATEMENT
When the questions presented by an appeal can be determined without an examination of all the pleadings,
evidence, and proceedings
For these reasons, we are completely unable to decide whether the trial judge failed to
instruct the jury properly.
[Headnote 5]
Appellant's second motion for a new trial, based upon newly discovered evidence, was
filed 44 days
4
after service of the entry of judgment. Appellant seeks to avoid the 10-day rule
by proceeding under NRCP 60(b). This question was settled in Child v. George Miller, Inc.,
74 Nev. 223, 225, 327 P.2d 342, 343 (1958), when this court said:
Newly discovered evidence is a ground for a motion for new trial under Rule 59(a), but is
not a ground for relief from judgment under Rule 60(b). In this respect our rule differs from
the corresponding Federal Rule 60(b), 28 U.S.C.A., which allows relief from judgment upon
the ground of newly discovered evidence, not discovered in time to move for a new trial. This
departure from the federal rules was intentionally made in order to preserve the practice
theretofore established under the Civil Practice Act. See Advisory Committee notes to NRCP
60(b).
The orders of the trial judge denying appellant's motions for a new trial must be affirmed.
Affirmed.
Thompson, C. J., Collins and Zenoff, JJ., and Wilkes D. J., concur.
____________________
in the court below, the parties may prepare and sign a statement of the case showing how the questions arose and
were decided in the district court and setting forth only so many of the facts averred and proved or sought to be
proved as are essential to a decision of the questions by the appellate court. The statement shall include a copy
of the judgment appealed from, a copy of the notice of appeal with its filing date, and a concise statement of the
points to be relied on by the appellant. If the statement conforms to the truth, it, together with such additions as
the court may consider necessary fully to present the questions raised by the appeal, shall be approved by the
district court and shall then be certified to the appellate court as the record on appeal.

4
NRCP 59(b). Time for Motion. A motion for a new trial shall be served not later than 10 days after service
of written notice of the entry of the judgment.
____________
84 Nev. 699, 699 (1968) Hamlet v. State
FLOYD HAMLET, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 5570
December 9, 1968 447 P.2d 492
Mendoza, Judge.
Defendant was convicted before the trial court of possession of heroin and he appealed.
The Supreme Court held that reference by prosecutor in both opening statement and jury
summation to fact that, at time of arrest for possession of heroin, defendant was also arrested
for separate and distinct offense of possession of narcotics paraphernalia, was not prejudicial
where evidence of defendant's guilt as to possession of heroin was overwhelming and where
court sustained objections when testimony was offered on the matter and admonished jury to
disregard.
Affirmed.
James D. Santini, Public Defender, and George D. Frame, Deputy Public Defender, Clark
Harvey Dickerson, Attorney General, George F. Franklin, Jr., District Attorney, and
George H. Spizzirri, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Reference by prosecutor in both opening statement and jury's summation to fact that at time of arrest for
possession of heroin, defendant had also been arrested for separate and distinct offense of possession of
narcotics paraphernalia, was not prejudicial where evidence of defendant's guilt as to possession of heroin
was overwhelming and where court sustained objections when testimony was offered on the matter and
admonished jury to disregard.
OPINION
Per Curiam:
We are asked to set aside the appellant's conviction for possession of heroin on the ground
that the prosecutor referred to the fact that the appellant, at about the same time he was
arrested for that crime, also was arrested for possession of narcotics paraphernalia, a separate
and distinct offense. Such a reference was made by the prosecutor during his opening
statement, and again during jury summation, each time without objection by defense
counsel.
84 Nev. 699, 700 (1968) Hamlet v. State
statement, and again during jury summation, each time without objection by defense counsel.
When testimony was offered on the point, objection was interposed by defense counsel,
sustained by the court, and the jury admonished to disregard. The evidence of appellant's guilt
is overwhelming. In this context we are unable to find prejudicial error.
Affirmed.
____________
84 Nev. 700, 700 (1968) Slobe v. Kirby Stone, Inc.
DAVID G. SLOBE, EVELYN L. SLOBE and EUNICE SCHWARTZKOPF, Appellants, v.
KIRBY STONE, INC., a Nevada Corporation, Respondent.
No. 5565
December 10, 1968 447 P.2d 491
Appeal from judgment of the Second Judicial District Court, Washoe County; John B.
Gabrielli, Judge.
Purchaser brought action against vendor for equitable relief to preclude forfeiture. The trial
court rendered a judgment in favor of the purchaser, and the vendor appealed. The Supreme
Court, Thompson, C. J., held that evidence sustained finding that purchaser, who defaulted
under contract of sale providing for forfeiture for default and that time was of the essence,
was entitled to equitable relief precluding forfeiture and allowing purchaser and its new
purchaser a reasonable time to remedy default.
Affirmed.
Leo P. Bergin and Gordon W. Rice, of Reno, for Appellants.
Bible, McDonald, Carano & Wilson of Reno, for Respondent.
1. Vendor and Purchaser.
Fact that contract for purchase and sale of realty made time of the essence and provided for forfeiture did
not preclude equitable relief from default and declaration of forfeiture, if performance was later tendered
without unreasonable delay and no circumstances intervened to make it inequitable to give such relief.
2. Vendor and Purchaser.
Evidence sustained finding that purchaser, who defaulted under contract of sale providing for forfeiture
for default and that time was of the essence, was entitled to equitable relief precluding
forfeiture and allowing purchaser and its new purchaser a reasonable time to remedy
default.
that time was of the essence, was entitled to equitable relief precluding forfeiture and allowing purchaser
and its new purchaser a reasonable time to remedy default.
OPINION
A corporate buyer of a motel commenced this action for equitable relief to preclude
forfeiture of its rights under the contract of purchase and sale. The district court granted that
relief and the sellers appeal to us. We affirm that determination since the record contains
substantial evidence to support it.
The August 1963 contract fixed the purchase price at $129,000. The buyer paid
$26,005.25 down and was to pay the balance in monthly installments with interest. The buyer
was obliged to pay all property taxes. Time was made the essence of the contract. Taxes were
not paid from the time of purchase, nor was the monthly installment due September 26, 1967.
On October 20, 1967, the sellers caused a notice of default to issue from the title company
escrow giving buyer 30 days in which to cure default or forfeit all rights. The sum of
$8,310.28 was required to cure the default. When default was declared the buyer's investment
in the motel was about $90,000the down payment, plus subsequent principal payments of
about $24,000, interest payments of about $ 19,000, and remodeling expenses of about
$18,000. The facts which we have just recited are not in dispute.
The trial of the case centered upon representations and conduct of one of the sellers after
notice of default was given. On this aspect, the evidence was in conflict and the trial court
was free to resolve that conflict. The record may be read to show that one of the sellers
encouraged the president of the corporate buyer to secure a purchaser of the motel and cure
the defaults since the sellers did not want the property back and preferred the money; that the
president did so and entered into an escrow arrangement with such purchaser with the
knowledge and implied approval of the sellers; and that such purchaser had, in turn,
committed herself to others for financing. The trial court made findings in accordance with
that evidence, precluded forfeiture, and allowed the buyer and its new purchaser a reasonable
period of time within which to close their escrow.
[Headnotes 1, 2]
We cannot fault the trial court in these circumstances. The fact that the contract of
purchase and sale made time of the essence is not controlling.
essence is not controlling. That provision coupled with a provision for forfeiture does not
preclude equitable relief from a default and declaration of forfeiture if performance is later
tendered without unreasonable delay and no circumstances have intervened to make it
inequitable to give such relief. Mosso v. Lee, 53 Nev. 176, 185, 295 P. 776 (1931); Moore v.
Prindle, 80 Nev. 369, 394 P.2d 352 (1964); Barkis v. Scott, 208 P.2d 367 (Cal. 1949). As we
see it, the lower court's judgment protected all interested parties without damage to any of
them.
Affirmed.
____________
84 Nev. 702, 702 (1968) Bernardini v. Salas
STANLEY BERNARDINI, Appellant, v. GERALDINE SALAS, Individually and as
Guardian ad Litem for JAMES WILLIAM SALAS and MICHAEL SALAS, Respondent.
No. 5566
December 10, 1968 448 P.2d 43
Appeal from order of the Second Judicial District Court, Washoe County, granting a new
trial on the ground of newly discovered evidence; Emile J. Gezelin, Judge.
Heirs of deceased guest brought wrongful death action against driver of jeep which had
overturned at night while descending a mountain road. The jury returned a verdict for
defendant and from an order of the trial court granting plaintiff's motion for new trial on
ground of newly discovered evidence, the defendant appealed. The Supreme Court,
Thompson, C. J., held that granting plaintiff's motion for new trial on ground of newly
discovered evidence, where evidence consisted of affidavits of a husband and wife who were
in area when defendant's jeep went off the road and who stated their opinion as to excessive
speed of vehicle based on noise it made, was an abuse of discretion, inasmuch as a lay
witness who does not see a vehicle in motion may not give an opinion as to its speed.
Reversed.
[Rehearing denied January 8, 1969]
Goldwater, Taber, Hill and Mortimer, of Reno, for Appellant.
Murray V. Dolan, of Sparks, for Respondent.
1. New Trial.
One of several controls over trial court's discretion in granting a new trial on ground of newly discovered
evidence is requirement that such evidence be competent, material and, if believed, will probably produce a
different result.
2. Evidence.
A nonexpert witness may testify to rate of speed of moving vehicle if he is of ordinary intelligence and
has had an adequate opportunity to observe vehicle at time in question, but he is not competent to testify to
rate of speed of a moving vehicle based on sound alone.
3. New Trail.
Granting plaintiff's motion for new trial on ground of newly discovered evidence after jury returned a
verdict in favor of defendant in wrongful death action, where evidence consisted of affidavits of a husband
and wife who were in area when defendant's jeep in which plaintiffs decedent was riding went off the road
and who stated their opinion as to excessive speed of vehicle based on noise it made, was an abuse of
discretion, inasmuch as a lay witness who does not see a vehicle in motion may not give an opinion as to its
speed.
OPINION
The issue on this appeal is whether the district court abused its discretion in granting a new
trial to the plaintiff on the ground of newly discovered evidence.
A wrongful death action, premised upon gross negligence, was commenced by the heirs of
a deceased guest against the driver of a Jeep. The Jeep had overturned at night while
descending a narrow, steep, winding, dirt mountain road. The three occupants of the Jeep had
been hunting. No other vehicle was involved. The speed at which the driver propelled the
Jeep down the mountain road was relevant to the issue of gross negligence. The sole witness
at trial to speed was the defendant driver. He said that his speed was five miles per hour. No
other direct testimony on this subject was offered since one occupant was killed, and the other
was not contacted.
The jury returned a defense verdict which the court set aside because of the affidavit
evidence of two witnesses. The court apparently believed that their affidavits disclosed their
competency to give material evidence on the issue of gross negligence, and especially the
speed of the Jeep's descent before overturning.
and especially the speed of the Jeep's descent before overturning.
The affidavits were given by a husband and wife. The husband was asleep in a parked
station wagon on the side of the mountain road approximately 75 to 100 feet from the point
where the Jeep went off the road. The wife's affidavit does not state whether she was asleep
or awake. Neither affiant visually observed the Jeep. They only heard it. The noise of the Jeep
awakened the husband. Based upon that noise the husband concluded that the Jeep was going
at a high rate of speed; and the wife surmised that the Jeep was going too fast for the hill,
and at a speed of about 40 miles per hour. Other conclusory statements, not here material,
also were given by each affiant. The issue, therefore, is whether a witness is competent to
testify to the speed of a vehicle upon only hearing it pass. We turn to resolve that issue and its
bearing upon the limits of trial court discretion in ruling upon the plaintiff's motion for a new
trial.
[Headnote 1]
One of several controls over that discretion is the requirement that the newly discovered
evidence be competent, material and, if believed, would probably produce a different result.
Lucey v. First National Bank, 73 Nev. 64, 69, 307 P.2d 774 (1957); Whise v. Whise, 36 Nev.
16, 24, 131 P. 967 (1913). Here, the proferred evidence did not come from witnesses who
possessed competence to testify to the speed of the Jeep. A lay witness who does not see the
vehicle in motion may not give an opinion as to its speed. Shaw v. Sylvester, 116 S.E.2d 351,
355 (N.C. 1960). It is not permissible to receive testimony as to speed based on sound alone.
Meade v. Meade, 147 S.E.2d 171, 175 (Va. 1966); Thomas v. Dad's Root Beer, 356 P.2d 418,
419 (Ore. 1960). Noise is not an inevitable concomitant of speed. Carstensen v. Faber, 116
N.W.2d 161, 164 (Wis. 1962).
[Headnote 2]
In Patton v. Henrikson, 79 Nev. 197, 200, 380 P.2d 916 (1963), we ruled that a non-expert
witness may testify to the rate of speed of a moving vehicle if he is of ordinary intelligence
and has had an adequate opportunity to observe the vehicle at the time in question. We now
rule that a non-expert witness is not competent to testify to the rate of speed of a moving
vehicle based upon sound alone.
[Headnote 3]
Stripped of the incompetent material, the affidavits mean only that the affiants heard the
noise of the Jeep and were awakened by it.
awakened by it. Surely, this evidence, if believed, would not probably produce a different
result. We must conclude that the trial court, in these circumstances, exceeded the limits of its
discretion in granting the plaintiff's motion for a new trial. Other points need not be
considered.
Reversed.
Zenoff and Batjer, JJ., concur.
The opinion of the court in this case concedes that except for the competency and
materiality of the evidence the lower court's award of a new trial would be proper. I will,
therefore, confine my remarks to the limited issue of competency and materiality of the
evidence, the ground upon which the reversal is granted.
The posture of this case as it comes to us is highly significant. As I read the majority
opinion, no trial court in this state may hereafter receive opinion testimony as to speed based
upon sound alone. That sweeping rule is predicated solely upon two affidavits offered in
support of a new trial motion. It is not premised upon searching direct, cross and redirect
examination of witnesses testifying at a trial as I believe any rule of this magnitude should be.
The majority opinion pares the affidavits to the bone in announcing its rule when it says,
Stripped of the incompetent material, the affidavits mean only that the affiant heard the
noise of the Jeep and were awakened by it. However, when the affidavits are read in their
entirety, much meat is to be found on those bones.
1
Moreover, we are not entitled to weigh
the effect of the Breyer's affidavits.

____________________

1
The affidavits, in material part, read as follows:
From the affidavit of Joseph A. Breyer: That on November 13, 1965, I had hunted on Dog Skin Mountain
with my wife. We intended to stay overnight and hunt the following day. I parked my 1953 station wagon as far
up the mountain road as we could drive it. We were parked on a little flat stretch on the righthand side of the
road as you come down, facing down hill.
That about 7:00 p.m., my wife and I were in the back of my station wagon in our sleeping bags, I was
awakened by the noise of a jeep going by our station wagon at a high rate of speed. The speed was so great it
shook my station wagon. I was afraid it might start my car moving down hill. I told my wife They'll never make
the bottom of the hill at that speed.'
That shortly after that, I heard three rifle shots and I got up and put my clothes on as I knew something was
wrong.
That just after that, one of the passengers in the jeep ran up to us and told me they had had a little accident
that was kind of serious. I
Moreover, we are not entitled to weigh the effect of the Breyer's affidavits. That is the trial
court's prerogative. The trial judge in the exercise of his discretion clearly said they were of
sufficient weight to produce a probably different result on retrial. We should limit our review
to the appropriateness of the exercise of that discretion. I am frankly startled that the new trial
awarded by the lower court is being reviewed by this court upon an evidentiary question
rather than the question of judicial discretion.
Finally, I am not convinced the broad sweeping generalized rule announced by the
majority in precluding absolutely a witness from expressing his opinion of speed based on
sound alone is either correct or wise. There is much respectable authority to the contrary. See
Marshall v. Mullin, 320 P.2d 258 (Ore. 1958) (lay witness may state impression of speed of
motorcycle gained from sound of motor alone, but must express this impression in terms of
whether movement was rapid or slow and not in miles per hour); Hauswirth v. Pom-Arleau,
119 P.2d 674 (Wash. 1951) (testimony of witnesses residing along highway who heard roar
made by defendants' automobile and sound of collision immediately thereafter was
admissible on question of speed); Bennett v. Central California Traction Co. 1 P.2d 47
(Cal.App. 1931) (witness who was in bed in residence facing the street allowed to testify
whether street car which he heard on the street was traveling at a slow, moderate or rapid rate
of speed); see also discussion in 32 C.J.S., Evidence 546 (54) (judgment as to speed may be
based on knowledge gained through feeling or hearing, rather than sight); 156 A.L.R. 3S2.
____________________
asked him what he wanted me to do and he said he wanted me to drive the injured hunter to the hospital.
That my wife and I pulled the station wagon down the hill about seventy-five (75) or one hundred (100)
yards, and I helped them carry the injured man up the hill to my station wagon.
From the affidavit of Ethel Marie Breyer: That on November 13, 1965, my husband hunted on Dog Skin
Mountain and I accompanied him. We saw only one other vehicle, a jeep with three (3) men in it. They were
going up hill higher than our camp.
That about dark, my husband and I laid down on our sleeping bags in the back of our station wagon. I heard
this jeep making a racket coming down the hill and as it passed, it shook our station wagon. They were going too
fast for the hill. My husband and I both said they would never make the bottom of the hill going that fast. I
believe the jeep was going about 40 mph.
That about five (5) or ten (10) minutes after the jeep went by we heard several gun shots. Then a man came
running up and told us they had had a bad accident. We drove our station wagon down the hill a little ways and
they loaded one of the hunters, who was bleeding through his mouth, into our station wagon and we drove them
all to Washoe Medical Center.
knowledge gained through feeling or hearing, rather than sight); 156 A.L.R. 382.
If the opinion restricted the prohibition to a witness who was awakened from a sound
sleep, who could be shown by examination to have imperfectly heard a particular occurrence
because of sleep-induced grogginess, then I might agree. But here, both Joseph and Ethel
Breyer expressed the opinion from the sounds they heard that the Jeep was travelling down
the precipitous mountain road at a high rate of speed or too fast for the hill. It is true
under the authorities quoted above they should not be allowed to express that speed in a given
number of miles per hour, but they certainly knew from their own observations earlier that
day the steepness of the road and, from sounds they heard that evening, whether any vehicle,
including a four-wheel drive Jeep, was attempting to traverse it downhill in too fast a manner.
The majority apparently overlooks the fact that Ethel Breyer had not yet gone to sleep but
was lying on the sleeping bag in the back of their station wagon when she first heard the jeep
making a racket coming down the hill. After dark in a wilderness area, sound has a totally
different impact and significance than it has in an inhabited area. Every mountain noise draws
the listener's attention in a far more perceptive degree than would a similar noise in the city.
It is legally unreal to preclude admission of a listener's opinion of the relative speed of a
Jeep traveling down a precipitous mountain road, when the listener is lying awake in the still
blackness of a wilderness area.
I am also concerned about the impact of this decision in other situations. A listener with
his back to the regular flow of vehicular traffic on any street or roadway can certainly tell the
difference from sound alone when an automobile comes racing by at a high rate of speed, or a
dragster digs away from a stop light, with tires burning rubber, and upshifts without use of the
clutch. Similarly, a person who can hear but not see an airplane fly by in the sky can know the
difference in speed from a passing jet when compared to a propeller-driven aircraft. The
instances when sound alone tells a message of comparative speed are only limited by the
imagination. In this day and age and in contemplation of the future, it is indeed unrealistic to
preclude every witness in this state from expressing an opinion upon speed from sound alone.
I dissent.
Mowbray, J., concurs.
____________
84 Nev. 708, 708 (1968) White v. Moore
DONALD WHITE, MRS. DONALD WHITE, and DALE WHITE,
Appellants, v. ROBERT MOORE and DOROTHY MOORE, Respondents.
No. 5567
December 16, 1968 448 P.2d 35
Appeal from judgment of the Eighth Judicial District Court Clark County; John F. Sexton
Judge.
Action to quiet title to realty which defendants were purchasing under contract of sale. The
trial court restored property to plaintiffs and defendants appealed. The Supreme Court held
that defendants by reason of knowledge imputed to them by virtue of recording statutes must
be deemed to have had knowledge of encumbrance of record; they would not be permitted
thereafter to disclaim that knowledge; and they were not entitled on basis of lack of that
knowledge to stop making monthly payments due under agreement and forfeited what rights,
if any, they had thereunder by stopping payments.
Affirmed.
Hawkins & Walker, of Las Vegas, for Appellants.
Deaner, Butler & Adamson, of Las Vegas, for Respondents.
Vendor and Purchaser.
Purchasers by reason of knowledge imputed to them by virtue of recording statutes must be deemed to
have had knowledge of encumbrance of record; they would not be permitted to disclaim that knowledge;
and they were not entitled on basis of lack of that knowledge to stop making monthly payments due under
agreement and forfeited what rights, if any, they had thereunder by stopping payments. NRS 111.320.
OPINION
Per Curiam:
Respondents Robert and Dorothy Moore brought an action against appellants, Mr. and
Mrs. Donald White, and their son, Dale White, to quiet title to the respondents' service station
and adjoining duplex rental units situated in Clark County, which the appellants were
purchasing under a contract of sale. The district court found the contract void for want of
specificity and restored the property to respondents.
Dale White and the Moores signed a written agreement in October 1965 for the sale of the
service station and adjoining rental units.
84 Nev. 708, 709 (1968) White v. Moore
rental units. The instrument was prepared by Dale's sister, Doris White Bagley. The agreed
purchase price was $100,000, with $600 down and the balance to draw interest at 6 percent
per annum, payable monthly commencing November 1, 1965. The agreement made no
provision for the payment of the remaining principal of $99,400although appellants claim
they had a reasonable time in which to pay it.
Appellants took immediate possession of the property, operated the service station,
collected certain rentals from the duplexes, and paid to respondents the monthly interest
payments through October 1966. Appellants also paid the monthly installments due on two
recorded encumbrances covering the propertyone to James D. and Leta E. Kell, amounting
to $250 a month, and a second to Richfield Oil Corporation in the sum of $134.60 a month.
Appellants stopped all payments in October 1966 for the stated reason that they had no
actual knowledge, when the agreement was signed, that the recorded Richfield encumbrance
also contained a provision giving Richfield the power to consent and a first right of refusal to
purchase the property in the event of a lease, sale, or transfer of the service station. Appellants
do not charge fraud on the part of respondents for failure to disclose the terms of the
Richfield encumbrance.
We find appellants' contention wholly untenable. Even if the agreement of October 1965
was a valid and binding contract between the parties, the appellants by reason of the
knowledge imputed to them by virtue of our recording statutes are deemed to have had
knowledge of the provisions of the Richfield encumbrance of record, and they are not now
permitted to disclaim that knowledge.
1
Accordingly, the appellants were not justified in
stopping the monthly payments due under their agreement, and consequently forfeited what
rights, if any, they had thereunder.
The judgment of the trial judge is affirmed.
____________________

1
NRS 111.320. Filing of conveyances, instruments for record imparts notice to all persons: Effect on
subsequent purchasers and mortgagees. Every such conveyance or instrument of writing, acknowledged or
proved and certified, and recorded in the manner prescribed in this chapter, shall, from the time of filing the
same with the recorder for record, impart notice to all persons of the contents thereof: and subsequent purchasers
and mortgagees shall be deemed to purchase and take with notice.
____________
84 Nev. 710, 710 (1968) Murphy v. Murphy
JAMES L. MURPHY, Appellant, v. JO ELLEN
MURPHY, Respondent.
No. 5575
December 11, 1968 447 P.2d 664
Appeal from a decree awarding permanent custody of two children. Second Judicial
District Court, Washoe County; John W. Barrett, Judge.
The trial court awarded permanent custody to mother, and father appealed. The Supreme
Court, Zenoff, J., held that record did not show sufficient change of circumstances to support
decree modifying award of temporary custody to an award of permanent custody to mother.
Reversed.
Streerer, Sala & McAuliffe, of Reno, for Appellant.
Bible, McDonald, Carano & Wilson, of Reno, for Respondent.
1. Parent and Child.
Change of custody is warranted only when circumstances of parents have been materially altered and
child's welfare would be substantially enhanced by the change.
2. Parent and Child.
Record did not show sufficient change of circumstances to support decree modifying award of temporary
custody to an award of permanent custody to mother.
OPINION
Appellant father and respondent mother were divorced in July 1963. Temporary physical
custody of the two children, a boy and a girl, was given to the mother with technical legal
custody in the Washoe County Welfare Department. In June 1964 the temporary physical
custody of the children was given to the father. Over three years later, in November 1967, the
mother moved for return of custody to her. In February 1968, after a hearing, the custody was
again given to the mother. At that time the boy was 12 years old and the girl was 10 years old.
The trial court conferred with the children in chambers. It commented in open court that
the children had no parental preference and loved both parents. Yet it found in its findings of
fact that the children preferred their mother.
84 Nev. 710, 711 (1968) Murphy v. Murphy
of fact that the children preferred their mother. This conflict cannot be resolved by this court
because the interview in chambers was not preserved for appellate review. The court also
found that both parties were fit to have custody.
[Headnote 1]
A change of custody is warranted only when: (1) the circumstances of the parents have
been materially altered; and (2) the child's welfare would be substantially enhanced by the
change. Ferguson v. Krepper, 83 Nev. 408, 432 P.2d 668 (1967); Lyerla v. Ramsay, 82 Nev.
250, 415 P.2d 623 (1966); Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961); Osmun v.
Osmun, 73 Nev. 112, 310 P.2d 407 (1957); Nixon v. Nixon, 209 So.2d 878 (Fla.Ct.App.
1968); Hirsh v. Dobb, 160 S.E.2d 386 (Ga. 1968); Eggemeyer v. Eggemeyer, 229 N.E.2d 144
(Ill.App. 1967); Maikos v. Maikos, 147 N.W.2d 879 (Iowa 1967); Metz v. Morley, 289
N.Y.S.2d 364 (N.Y. Sup. Ct. 1968); Gibbons v. Gibbons, 442 P.2d 482 (Okla. 1968);
Holstein v. Holstein, 160 S.E.2d 177 (W.Va. 1968).
[Headnote 2]
The record does not show a sufficient change of circumstances. There is nothing in the
record which supports its decree. The only change shown was the improved mental health of
the mother. There is no evidence to suggest that the children's welfare would be promoted by
a custody change.
The unqualified contention that there need be no change of circumstances shown when a
temporary custody award is sought to be modified is unsound. The temporary award changed
by the trial court was made almost four years ago. The reasons for requiring a change of
circumstances before allowing modification of a permanent custody decree are present here.
Martin v. Hendon, 160 S.E.2d 893 (Ga. 1968).
Reversed.
____________
84 Nev. 712, 712 (1968) In re Waters
In the Matter of the Petition of KERMITT L. WATERS for Review of Application for
Admission to the State Bar of Nevada, 1967.
No. 5534
December 12, 1968 447 P.2d 661
Review of the recommendation of the Board of Bar Examiners that petitioner be denied
admission to the State Bar of Nevada.
The Supreme Court, Thompson, C. J., held that applicant made prima facie showing of
good moral character and that board's charges that applicant practiced law in California
without license to do so and without associating California counsel and held himself out as
attorney licensed to practice in Nevada were without substance.
Petition for admission to the Bar granted.
Robert A. Grayson and William H. Whitehead, III, of Carson City, for Petitioner.
Frank J. Fahrenkopf, Jr., of Reno, for State Bar of Nevada.
Burden is upon applicant for admission to the bar to satisfy Supreme Court that he should be admitted.
SCR 72.
Applicant for admission to the bar, for whom attorneys, law school professors and former employers
provided written letters attesting to his moral fitness for the practice of law, made prima facie showing of
good moral character. SCR 72.
Applicant for admission to the bar who did not disclose dismissal from a law school, but supplied board
of bar examiners with transcripts of law school, which showed dismissal and reason for it, wrote letter of
explanation and advised local administrative committee of circumstances, did not deliberately conceal
material information.
Grounds for board of bar examiners' adverse recommendation of applicant for admission to state bar were
without persuasion where they appeared to rest upon suspicion rather than solid fact.
Rules of professional conduct do not preclude a Texas attorney who lived in Nevada, from corresponding
with California prisoner about prisoner's California case or from mailing correspondence from Nevada
address.
Evidence did not support charges of board of bar examiners that applicant for admission to state bar
practiced law in California without license to do so and without associating California counsel and held
himself out as an attorney licensed to practice in Nevada.
84 Nev. 712, 713 (1968) In re Waters
counsel and held himself out as an attorney licensed to practice in Nevada.
Ultimate responsibility for admission to state bar is on Supreme Court, which must, in each instance,
exercise independent judgment.
OPINION
Kermitt L. Waters passed the 1967 bar examination. However, the Board of Bar
Examiners is of the opinion that he does not possess the moral character required for
admission to the bar of this State and has recommended that we deny admission. This
proceeding is to review that recommendation.
The adverse recommendation of the Board was made because of its belief that the
applicant made false statements on his application form and failed to disclose essential
information bearing upon moral character; held himself out as an attorney licensed to practice
in Nevada; and had practiced law in California without a license to do so and without
associating California counsel. We have concluded that the foundation of the Board's
recommendation to us is insubstantial, and order that Kermitt L. Waters be enrolled as an
attorney entitled to practice law in this State.
[Headnotes 1, 2]
The burden is upon the applicant to satisfy us that he should be admitted. SCR 72. He
made a prima facie showing of good moral character. Attorneys, law school professors, and
former employers have written letters attesting to his moral fitness for the practice of law. He
has been employed in Nevada as a legal research assistant for the state highway department.
His superiors find his work to be of good quality and his moral character beyond reproach.
The local administrative committee submitted a unanimous report approving his moral
qualifications for practice. He is a member in good standing of the State Bar of Texas. We
turn, then, to consider the particular occurrences which gave birth to the Board's unfavorable
report.
1. More than ten years ago the applicant attempted to deceive the University of Texas Law
School by allowing another person to take the Law School Aptitude Test for him. The
deception was discovered ten months later and the Dean of the Law School advised him that
no formal action was contemplated but that it would be best if he transferred out. He left,
subsequently applied to Baylor University School of Law, and was accepted, but without
disclosing the Texas deceit.
84 Nev. 712, 714 (1968) In re Waters
was accepted, but without disclosing the Texas deceit. The transcripts forwarded to Baylor
from Texas did not mention that incident. In 1960, however, Baylor learned of that incident
and dismissed him for concealment of material facts in connection with his application for
admission to the law school. The quoted statement appears on the Baylor transcripts.
The applicant attended John Marshall University Law School in Georgia for the academic
year 1962-63 and earned satisfactory credits. In the fall of 1963 the Dean of Student Life at
the University of Texas advised the Registrar of that school that Waters was entitled to a clear
transcript and readmission to the University of Texas. Waters then applied for admission to
Texas Southern University School of Law and received his LL.B. from that institution. Texas
Southern accepted him with full knowledge of the LSAT deception. In 1966 he wrote the
Texas bar examination and passed. The Texas Board had complete knowledge of the LSAT
deceit and the Baylor dismissal for nondisclosure. Waters is presently a member in good
standing of the Texas Bar.
The Nevada Bar application form contains the following questionHave you ever been
dropped, suspended, disciplined, or expelled by any college, university, or law school? To
this question the applicant answered yes. That answer was the truth. But the question
continues: If so, give complete details. The applicant responded: University of
TexasJune 1960now in good standing with University of Texas. The applicant did not
disclose his dismissal from Baylor Law School. His lack of candor in this respect is the
essence of the Board's conclusion that he is morally unfit.
[Headnote 3]
Of course, a detailed answer should have been given. However, it does not necessarily
follow that the failure to so answer amounted to an intentional deception. The applicant
supplied the Board with transcripts of his college and law school records. The Baylor
transcript reflected his dismissal and the reason therefor. When the secretary of the Board
received that transcript, he suggested to the applicant that he write a supplemental letter of
explanation, which he did. He also advised the local administrative committee of those
circumstances, and that committee, in turn, reported favorably to the Board. When all
relevant facts are considered we cannot conclude, as did the Board, that Kermitt Waters was
guilty of a deliberate concealment of material information. The cases of March v. Committee
of Bar Examiners, 433 P.2d 191 (Cal. 1967), and In re Application of Jolles, 383 P.2d 388
(Ore. 1963), support us.
84 Nev. 712, 715 (1968) In re Waters
This case is dissimilar to those where the applicant made a false statement deliberately to
conceal significant information bearing upon moral fitness. See: In re Bowen, 84 Nev. 681,
447 P.2d 658 (1968); Carver v. Clephane, 137 F.2d 685 (D.C. Cir. 1943); In re Greenblatt, 2
N.Y.S.2d 569 (1938); In re Portnow, 2 N.Y.S.2d 553 (1938); State Bar v. Hull, 284 P. 492
(Cal.App. 1930); Spears v. State Bar, 294 P. 697 (Cal. 1930). In the case at hand the applicant
answered truthfully that he had been dismissed from school. He failed to supply the details of
that dismissal on the application form. That information was subsequently submitted and the
deficiency corrected.
[Headnote 4]
2. The remaining grounds for the Board's adverse recommendation are equally without
persuasion since they appear to rest upon suspicion rather than solid fact.
[Headnote 5]
(a) The charge that the applicant held himself out as a Nevada attorney stems from
correspondence with two inmates of San Quentin Prison, California. One of them, a Robert
Ford, knew that Waters was a Texas lawyer and initially wrote to him at his Texas address as
another Texan to at least investigate my case a little. That letter was forwarded to Waters at
Carson City where he was then living. Thereafter a series of letters passed between them. The
letters from Waters were written on printed letterhead bond paper stating: Kermit L.
WatersAttorney at LawP. O. Box 502, Childress, Texas 79201with the Texas address
crossed out and his Carson City address typed in. This same letterhead was used by Waters in
writing two short letters to the other San Quentin inmate, a Robert Mason. This letterhead,
and nothing else of substance, prompted the Board's finding which was made apparently
without regard to the following significant facts. Waters did not advise either prisoner that he
was a Nevada lawyer. Each prisoner believed that Waters was a Texas lawyer and so testified
on deposition. Neither Ford nor Mason were involved with the Nevada courts. Neither of
them required the services of counsel licensed to practice in this state. Their legal problems
were in California. The rules of professional conduct do not preclude a Texas attorney from
corresponding with a California prisoner about his California case, nor do those rules suggest
that letters from the Texas counsel are to be mailed from some point in Texas.
84 Nev. 712, 716 (1968) In re Waters
[Headnote 6]
(b) The Board is of the opinion that the applicant had practiced law in California without a
license to do so and without associating California counsel. That opinion likewise rests upon
the applicant's correspondence with and advice to Ford and Mason. He was free to correspond
with those prisoners, to visit with them, and to advise them. It is not uncommon for a lawyer
to have clients in another state. The record discloses that the applicant had an agreement with
Floyd Silliman, a California attorney who is also licensed to practice in Nevada, to act as
associated counsel in the event a court appearance materialized. That eventuality did not
happen. We find no substance to any of the Board's charges concerning the applicant's
conduct with respect to Ford and Mason.
[Headnote 7]
The ultimate responsibility for admission to the bar of Nevada is ours [SCR 39, 76; Ex
parte Kellar, 79 Nev. 28, 31, 377 P.2d 927 (1963)] and we must, in each instance, exercise an
independent judgment. We order that Kermitt L. Waters be admitted to practice law in
Nevada.
____________
84 Nev. 716, 716 (1968) Northwestern Security Insurance Co. v. Clark
NORTHWESTERN SECURITY INSURANCE COMPANY, and GUARANTY SECURITY
INSURANCE COMPANY Appellants, v. RICHARD CLARK, Individually, AUDREY
CLARK, Individually, and AUDREY CLARK, Special Administratrix of the Estate of
MICHAEL KENT CLARK, Deceased, Respondents.
No. 5542
December 13, 1968 448 P.2d 39
Appeal from the Eighth Judicial District Court, Clark County; Howard W. Babcock,
Judge.
Proceeding to enforce award of arbitrator with respect to claim under uninsured motorist
coverage of policies. The lower court entered judgment enforcing award and the insurers
cross-appealed with respect to the district court's assumption of jurisdiction. The Supreme
Court, Collins, J., held that where two automobile insurance companies providing uninsured
motorist coverage with respect to passenger who was killed in an accident in nonowned
vehicle stipulated to submit to arbitrator issue of whether either policy applied and liability of
each insurer while preserving legal right of review of arbitrator's jurisdiction, arbitrator
had jurisdiction to decide issue of law as to coverage of policies and bind insurers unless
arbitrator exceeded his jurisdiction or power under Nevada statutes.
each insurer while preserving legal right of review of arbitrator's jurisdiction, arbitrator had
jurisdiction to decide issue of law as to coverage of policies and bind insurers unless
arbitrator exceeded his jurisdiction or power under Nevada statutes.
Affirmed.
Morse, Graves, Parraguirre & Rose, and Kent W. Michaelson, of Las Vegas, for
Appellants.
Wiener, Goldwater & Galatz, and J. Charles Thompson, of Las Vegas, for Respondents.
1. Insurance.
Where two automobile insurance companies providing uninsured motorist coverage with respect to
passenger who was killed in an accident in nonowned vehicle stipulated to submit to arbitrator issue of
whether either policy applied and liability of each insurer while preserving legal right of review of
arbitrator's jurisdiction, arbitrator had jurisdiction to decide issue of law as to coverage of policies and bind
insurers unless arbitrator exceeded his jurisdiction or power under Nevada statutes.
2. Arbitration and Award.
Arbitrator may decide all issues voluntarily submitted to him and range of decision is bound only by
scope of submission.
3. Arbitration and Award.
Under Nevada statute arbitrator or any party to arbitration could have submitted any question of law to
court for opinion and would have been bound by such opinion, but not having done so, parties were
deemed to have consented to arbitrator's decision on issue of law and could not thereafter attack his
decision even if erroneous. NRS 38.170, 38.180.
4. Insurance.
Trial court could have entertained motion of insurers to modify or correct arbitrator's award, but because
of breadth of submission of issues of both fact and law pursuant to stipulation of parties, trial court's
jurisdiction was limited to vacating award only if same had been procured by fraud, corruption, evident
partiality or undue means. NRS 38.170, 38.180.
OPINION
This is an appeal from a district court judgment enforcing an arbitration award in a dispute
between two automobile insurance companies and the heirs and estate of the deceased
insured.
Respondents cross-appeal the district court's assumption of jurisdiction over the dispute.
Michael Kent Clark was killed in an accident while a passenger in a nonowned vehicle
driven by an uninsured host. Clark was insured in two separate unrelated policies issued by
appellant insurance companies which provided uninsured motorist coverage with limits
for each policy of $10,000 for each person and $20,000 for each accident.
appellant insurance companies which provided uninsured motorist coverage with limits for
each policy of $10,000 for each person and $20,000 for each accident. He paid the full
premium for the coverage under each policy.
This action was brought by and on behalf of the surviving heirs of the deceased and sought
damages accruing to them by reason of his death. Each policy contained an other insurance
provision. The following paragraph, identical in wording, appeared in that section of each
policy:
[I]f the insured has other similar insurance available to him and applicable to the
accident, the damages shall be deemed not to exceed the higher of the applicable limits of
liability of this insurance and such other insurance, and the company shall not be liable for a
greater proportion of any loss to which this coverage applies than the limit of liability
hereunder bears to the sum of the applicable limits of liability of this insurance and such other
insurance.
Each policy also contained an identical arbitration clause which reads:
If any person making claim hereunder and the Company do not agree that such person is
legally entitled to recover damages from the owner or operator of an uninsured automobile
because of bodily injury to the Insured, or do not agree as to the amount of payment which
may be owing under this Part, then, upon written demand of either, the matter or matters upon
which such person and the Company do not agree shall be settled by arbitration in accordance
with the rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such
person and the Company each agree to consider itself bound and to be bound by any award
made by the arbitrators pursuant to this part.
A controversy arose between the claimants under the policies and the insurance companies
and between the insurers themselves. The controversy was referred to an arbitrator who, after
lengthy hearings, awarded Clark's heirs and estate $17,000. The arbitrator also found that an
uninsured motorist, through gross negligence, proximately caused the death of Michael Kent
Clark, a guest. He prorated the award equally between the two insurers, less any medical
expenses paid by the companies.
The parties to the arbitration entered into a stipulation before the arbitrator which set forth,
along with certain agreements, the following issues:
1. That the guest statute was in issue on the question of liability.
2. The amount of the damages.
3. Which, if either, policy applied, and if so the liability of the insurers under those
policies.
4. Whether the driver was an uninsured motorist.
5. That there was no waiver of the rights of any of the parties to pursue by any legal
means the jurisdiction of the arbitrator over any of the foregoing issues.
Following entry of the arbitration award, respondents petitioned the district court for
confirmation of the award.
1
Appellants objected to the petition and asked the lower court to
vacate, modify or correct the award on the principal ground that the award was in excess of
the policy limits or coverage, and thus the arbitrator exceeded his jurisdiction by proration of
the $17,000 damage award equally between the two insurers. Respondents countered that
position by contending the court had no authority to review the award of the arbitrator and
had jurisdiction only to confirm the award as made by the arbitrator.
The lower court ruled it did have jurisdiction to hear and determine the issues raised by
appellants' objections, but that the objections were without merit, and thereupon approved the
arbitrator's award in total.
From that order both sides appeal; appellant from the order approving the arbitration
awards; respondents from the determination of the lower court that it had jurisdiction to
consider the objections.
The issues before us for decision are:
1. Did the arbitrator exceed his powers in determining the controversy submitted to him?
2. Did the trial court properly exercise its power to review and enforce the arbitration
award?
Other issues are obviously present in this case such as:
1. Did the arbitrator and lower court properly interpret the policy clauses involved here?
2. What is meant by similar insurance under the uninsured motorist provision of the
policy and should any loss be prorated in proportion to the higher limit of liability under that
policy and other similar insurance? However, we do not reach the latter issues in this opinion
because we conclude that the first two issues are decisive of the matter, and affirm the
judgment below.
____________________

1
38.160 Court Confirmation or Award. At any time within 3 months after the award is made, unless the
parties shall extend the time in writing, any party to the arbitration may apply to the court for an order
confirming the award, and the court shall grant such an order unless the award is vacated, modified or corrected,
as provided in NRS 38.170 and 38.180. Notice in writing of the motion must be served upon the adverse party,
or his attorney, 5 days before the hearing thereof.
because we conclude that the first two issues are decisive of the matter, and affirm the
judgment below.
[Headnotes 1, 2]
1. The question of coverage under the policies was submitted to the arbitrator by the
parties, and he had not only the right but the power or jurisdiction to decide that issue of law.
We think that the stipulation of the parties relating to the issues submitted to the arbitrator,
No. 3 above, expressly related to the question of coverage. The arbitrator having decided the
issue against appellants, they are bound by that decision unless under the same stipulation
where they reserved the right to pursue legal review of the jurisdiction of the arbitrator, he
exceeded his jurisdiction, or unless the arbitrator exceeded his power under Nevada statutes
regulating arbitrations. An arbitrator may decide all issues voluntarily submitted to him. The
range of his decision is bound only by the scope of the submission. 5 Cal.Jur.2d Arbitration
and Award 44-45 (1967); D. Blashfield, Automobile Law and Practice 332 6 (3d ed.
1966); G. Couch, Cyclopedia of Insurance Law 50:224-26, 228-30 (2d ed. 1965). NRS
38.030; Forrest v. Hotel Conquistador, 14 Cal.Rptr. 349 (Cal.App. 1961); Pacific Fire Rating
Bureau v. Bookbinder's and Bindery Women's Union No. 31-125, 251 P.2d 694 (Cal.App.
1952); Bierlein v. Johnson, 166 P.2d 644 (Cal.App. 1946); Hetherington v. Continental Ins.
Co., 37 N.E.2d 366 (Ill.App. 1941); Schreck v. Standard Acc. Ins. Co., 156 A. 565 (PA.
1931).
The arbitration agreements in both policies, quoted above, are identical and clearly broad
enough to encompass both questions of fact and law. Both types of questions or issues were
submitted to the arbitrator as shown by the stipulation of the parties.
[Headnote 3]
It is true under the Nevada statute
2
the arbitrator or any party could have submitted any
question of law to the court for an opinion and would have been bound by such opinion.
____________________

2
38.140 Arbitrators May Submit Questions of Law to Court; May State Final Award in Form of
Conclusion of Fact. The arbitrators may, on their own motion, and shall by request of a party to the arbitration:
1. At any state of the proceedings submit any question of law arising in the course of the hearing for the
opinion of the court, stating the facts upon which the question arises, and such opinion when given shall bind the
arbitrators in the making of their award.
2. State their final award in the form of a conclusion of fact for the opinion of the court on the questions of
law arising on the hearing.
But not having done so, they are deemed to have consented to the arbitrator's decision on that
issue of law and may not thereafter attack his decision even if erroneous. Fisher v. State Farm
Mutual Auto Ins. Co., 52 Cal.Rptr. 721 (1966); Jordan v. Pacific Auto Ins. Co., 42 Cal.Rptr.
556 (1965); Interinsurance Exchange of Auto. Club of So. Cal. v. Bailes, 33 Cal.Rptr. 333
(Cal.App. 1963); Morceau v. Gould-Nat'l. Batteries, Inc., 181 N.E.2d 664 (Mass. 1962);
Wilcox v. Utica Mutual Ins. Co., 236 N.Y.S.2d 119 (1962). Cf. Agricultural Ins. Co. v. Biltz,
57 Nev. 370, 381, 64 P.2d 1042 (1937).
[Headnote 4]
2. The trial court could entertain appellants' motion to vacate, modify or correct the
award, but because of the breadth of the submission as disclosed in the preceding section of
this opinion, its jurisdiction was limited to the provisions of NRS 38.170
3
and 38.180.
4

Obviously, the lower court failed to find any grounds for vacation or modification of the
award under either NRS 3S.170 or 3S.1S0.
____________________

3
38.170 Vacation or Award by Court; Rehearing.
1. In any of the following cases the court shall, after notice and hearing, make an order vacating the award
upon the application of any party to the arbitration:
(a) Where the award was procured by corruption, fraud or other undue means.
(b) Where there was evident partiality or corruption in the arbitrators, or either of them.
(c) Where the arbitrators were guilty of misconduct, in refusing to postpone the hearing upon sufficient
cause shown, or in refusing to hear evidence, pertinent and material to the controversy; or of any other
misbehavior by which the rights of any party have been prejudiced.
(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and
definite award upon the subject matter submitted was not made.
2. Where an award is vacated and the time within which the agreement required the award to be made has
not expired, the court may, in its discretion, direct a rehearing by the arbitrators.

4
38.180 Modification or Correction of Award.
1. In any of the following cases, the court shall, after notice and hearing, make an order modifying or
correcting the award, upon the application of any party to the arbitration:
(a) Where there was an evident miscalculation of figures, or an evident mistake in the description of any
person, thing or property referred to in the award.
(b) Where the arbitrators have awarded upon a matter not submitted to them.
(c) Where the award is imperfect in a matter of form, not affecting the merits of the controversy.
2. The order must modify and correct the award, so as to effect the intent thereof.
vacation or modification of the award under either NRS 38.170 or 38.180. Likewise, the
lower court found, in approving the award, the question of coverage under the policies was
submitted to the arbitrator and decided by him. We agree with both conclusions.
Thompson, C. J., Zenoff, and Mowbray, JJ., and Wilkes, D. J., concur.
_____________
84 Nev. 722, 722 (1968) Department of Highways v. Haapanen
THE STATE OF NEVADA, on Relation of its Department of Highways, Appellant, v.
ARVO HAAPANEN and SITA HAAPANEN, Respondents.
No. 5561
December 30, 1968 448 P.2d 703
Appeal from award in condemnation trial. Eighth Judicial District Court, Clark County;
Alvin N. Wartman, Judge.
The trial court entered judgment from which the Department of Highways appealed. The
Supreme Court held that refusal to allow evidence of benefits resulting from site prominence
and increased traffic after taking of property for use in connection with downtown
expressway constituted reversible error.
Harvey Dickerson, Attorney General, and William M. Raymond, Deputy Attorney General,
for Appellant.
Close & Bilbray, of Las Vegas, for Respondents.
1. Eminent Domain.
Jury view is discretionary with trial court in condemnation action. NRS 16.100.
2. Eminent Domain.
Because maps, plats and ample testimony were presented to give a clear understanding of factual pattern
needed for a determination of damages in condemnation action, denial of jury view was not abuse of
discretion. NRS 16.100.
3. Eminent Domain.
Real estate agent's testimony that a prospective buyer of property had indicated interest in building a
bowling alley, cocktail lounge, restaurant and a small group of business buildings but became disenchanted
when he learned of state's contemplated condemnation action was admissible to show a change in possible
use of property.
4. Eminent Domain.
Refusal to allow evidence of benefits resulting from site prominence and increased traffic after taking of
property for use in connection with downtown expressway constituted reversible error. NRS 37.110,
subd. 4.
5. Eminent Domain.
In view of statute providing that benefits accruing to remaining property are deductible from severance
damages, a determination must be made by trier of fact whether site prominence, increased traffic and
possible change in use of property after taking, all or singularly, increased value of land after taking, and
the trier of fact must then determine whether the benefits, if any, are general or special; if special, they must
be set off against damages occasioned by taking. NRS 37.110, subd. 4.
OPINION
The State of Nevada through its Department of Highways commenced a condemnation
action against Arvo Haapanen and Sita Haapanen, owners of certain land in Las Vegas.
Through its right of eminent domain the state sought a portion of the land together with
access rights for use in connection with a downtown expressway. The parties had agreed that
the sum of $1.50 per square foot was reasonable compensation for the taking but contested
the severance damages. The jury awarded the Haapanens the total of $21,691, $2,641 for the
parcel actually taken, $550 for a temporary construction easement and $18,500 for severance.
On appeal the state assigned as error the refusal of the trial court to allow a jury view, the
admission of testimony that the landowner had an offer of purchase prior to the taking, and
the refusal of the trial court to allow the jury to consider site prominence and increase of
traffic as special benefits to be setoff against the severance damages.
[Headnotes 1, 2]
1. A jury view is discretionary with the trial court. NRS 16.100; Eikelberger v. State, 83
Nev. 306, 429 P.2d 555 (1967). Because maps, plats and ample testimony were presented to
give a clear understanding of the factual pattern needed for a determination of damages, the
denial of the jury view was not an abuse of discretion. 5 Nichols, Eminent Domain 18.3(3),
at 171 (Rev. 3d ed. 1962).
[Headnote 3]
2. A real estate agent testified that a prospective buyer of the property had indicated
interest in building a bowling alley, cocktail lounge, restaurant and a small group of
business buildings but became disenchanted when he learned of the state's contemplated
action.
cocktail lounge, restaurant and a small group of business buildings but became disenchanted
when he learned of the state's contemplated action. No price was expressed, but the evidence
was admissible to show a change in possible use of the property. We would allow such
evidence of change in use. Whitcomb v. City of Philadelphia, 107 A. 765 (Penn. 1919).
Compare State ex rel. Department of Highways v. Olsen, 76 Nev. 176, 351 P.2d 186 (1960),
in which the owner of condemned property was permitted to show departure of tenants
because the property was no longer suitable for their purposes after the condemnation.
[Headnotes 4, 5]
3. The trial court refused to allow evidence of benefits resulting from site prominence and
increased traffic after the taking of the property even though NRS 37.110(4) requires that
benefits accruing to the remaining property are deductible from the severance damages. Our
statute does not expressly distinguish between general benefits and special benefits. The
right to setoff is usually allowed if it is found that special benefits result to the property owner
after the construction, but the same does not follow if the benefits are merely general to the
entire area. Los Angeles County v. Marblehead Land Co., 273 P. 131 (Cal.App. 1928). See
also State v. Mouledous, 200 So.2d 384 (La.Ct.App. 1967); State v. Vesper, 419 S.W.2d 469
(Mo.App. 1967); Richardson v. Big Indian Creek Watershed Conservancy Dist., 151 N.W.2d
283 (Neb. 1967); Selbee v. Multnomah County, 430 P.2d 561 (Ore. 1967). A determination
must be made by the trier of fact whether site prominence, increased traffic and possible
change in use of the property after the taking, all or singularly, have increased the value of the
land after the taking. The trier of fact must then determine whether the benefits, if any, are
general or special. If special, they must be setoff against the damages occasioned by the
taking.
By refusing to allow evidence of site prominence or increased traffic, the trial court did not
give the jury the opportunity to determine either the existence or the type of possible benefits.
This is the function of the jury under appropriate instructions, not of the court. We cannot say
in this case that there are no special benefits as a matter of law. The construction of the
expressway on-ramp on the condemned property may have conferred a special benefit. The
question of benefits which is the burden of the condemner is essential to a full determination
of the damage issue.
of the damage issue. We reverse and remand for a new trial on the issue of benefits.
____________
84 Nev. 725, 725 (1968) Paramore v. Brown
JOSEPH T. PARAMORE, Appellant, v. HARRY K. BROWN,
County Clerk of Washoe County, State of Nevada, Respondent.
No. 5579
December 30, 1968 448 P.2d 699
Appeal from order of district court denying mandamus. Second Judicial District Court;
Thomas O. Craven, Judge.
Mandamus proceeding by minister seeking to force county clerk to issue him a certificate
of permission to perform marriages. The lower court sustained clerk's refusal to issue
certificate, and appeal was taken. The Supreme Court, Thompson, C. J., held, inter alia, that
in relation to statute directing county clerk to satisfy himself that ministry of applicant for
certificate of permission to perform marriages was primarily one of service of his
congregation or denomination, and that his performance of marriages would be incidental to
such service, absent information concerning, inter alia, the nature of applicant's services to his
congregation, time spent in rendering those services, where marriages were to be performed,
and of other information possessing relevancy to statutory standard to be applied, county
clerk was in no position to decide whether minister met the statutory standard for
certification.
Affirmed in part, reversed in part, and remanded for further proceedings in
accordance with opinion.
Martillaro and Bucchianeri, of Carson City, for Appellant.
Harvey Dickerson, Attorney General, Carson City, William J. Raggio, District Attorney,
and Paul F. Hamilton, Deputy District Attorney, Washoe County, for Respondent.
1. Statutes.
Statute directing county clerk to satisfy himself that ministry of applicant for certificate of permission to
perform marriages was primarily one of service to his congregation or denomination, and that his
performance of marriages will be incidental to such service, was a general law which
operated alike on all county clerks in all counties and on all ministers seeking
certificates of permission to marry, and was not constitutionally invalid on grounds
that it was a special law having application only to an individual or to a number of
individuals selected out of the class of persons to which the statute was directed.
that his performance of marriages will be incidental to such service, was a general law which operated alike
on all county clerks in all counties and on all ministers seeking certificates of permission to marry, and was
not constitutionally invalid on grounds that it was a special law having application only to an individual or
to a number of individuals selected out of the class of persons to which the statute was directed. NRS
122.064, subd. 3; Const. art. 4, 21.
2. Marriage; Statutes.
Fact that county clerks, under statute directing county clerk to satisfy himself that ministry of applicant
for certification of permission to perform marriages was primarily one of service to his congregation or
denomination, and that his performance of marriage would be incidental to such service, might exercise
their discretion in different ways did not convert the statute into an invalid special law; such discretionary
rulings are subject to court review for abuse, as are most administrative determinations. NRS 122.064,
subd. 3, 122.071; Const. art. 4, 21.
3. Statutes.
Statute directing county clerk to satisfy himself that ministry of applicant for certificate of permission to
perform marriages is primarily one of service to his congregation or denomination, and that his
performance of marriages would be incidental to such service, was not void for vagueness since the
minister's primary function was specified, that being service to his congregation or denomination, and thus
it follows that minister's performance of marriages would have to advance the spiritual or financial needs of
his church or faith if such activity was to be incidental to primary function of church service. NRS
122.064, subd. 3.
4. Marriage.
In relation to statute directing county clerk to satisfy himself that ministry of applicant for certificate of
permission to perform marriages was primarily one of service to his congregation or denomination, and that
his performance of marriages would be incidental to such service, absent information concerning, inter alia,
the nature of applicant's services to his congregation, time spent in rendering those services, where
marriages were to be performed, and of other information possessing relevancy to statutory standard to be
applied, county clerk was in no position to decide whether minister met the statutory standard for
certification. NRS 122.064, subd. 3.
OPINION
The Reverend Paramore commenced a mandamus proceeding in the district court to force
the Washoe County Clerk to issue him a certificate of permission to perform marriages. The
Clerk had declined to do so since he was not satisfied that the Reverend met the statutory
standard for certification. In the district court, the Reverend contended that the statute
governing certification is unconstitutional.
governing certification is unconstitutional. Alternatively, he urged that the Clerk overstepped
his authority when he refused certification. That court ruled against the Reverend on each
point and sustained the Clerk's determination. This appeal followed.
1. The particular statute with which we are concerned, NRS 122.064(3), directs the county
clerk to satisfy himself that the applicant's ministry is primarily one of service to his
congregation or denomination, and that his performance of marriages will be incidental to
such service.
The constitutional challenge rests upon two grounds. First, that the statute violates Nevada
Const. art. 4, 21, requiring that all laws (with certain exceptions) shall be general and of
uniform operation throughout the state. Second, that the statutory standard expressed is
unconstitutionally vague. Neither challenge has substance.
[Headnotes 1, 2]
The statute is a general law which operates alike on all county clerks in all counties, and
on all ministers seeking certificates of permission to marry. It is not a special law having
application only to an individual or a number of individuals selected out of the class of
persons to which the statute is directed. State v. California Mining Co., 15 Nev. 234 (1880).
The fact that county clerks may exercise their discretion in different ways does not convert
the statute into a special law. These discretionary rulings are subject to court review [NRS
122.071] for abuse, as are most administrative determinations.
[Headnote 3]
The Reverend's void for vagueness argument is directed to the use of the word
incidental. It is his contention that the word incidental without more, offers no
meaningful guide to The county clerks, with the result that they may exercise discretion
without discernible limitations. The contention is not accurate since the statute itself confines
the meaning to be accorded that word. It provides that the county clerk shall satisfy himself
that the applicant's ministry is primarily one of service to his congregation or denomination,
and that his performance of marriages will be incidental to such service * * *.
The minister's primary function is specifiedservice to his congregation or denomination;
and the performance of marriages must be incidental to that service. It follows that the
minister's performance of marriages must advance the spiritual or financial needs of his
church or faith if such activity is to be incidental to the primary function of church service.
incidental to the primary function of church service. As thus circumscribed the word carries a
clear meaning and the statutory standard for certification may be applied without difficulty.
[Headnote 4]
2. Reverend Paramore is part owner of the Golden Wedding Chapel in Reno, and pastor
of the Church of the Living God in Sparks, some four miles away. The factual determination
to be made by the County Clerk in this case is whether the applicant's performance of
marriages at the Golden Wedding Chapel promote the spiritual or financial needs of his
church in Sparks. That information was not secured. Indeed, the County Clerk stated that the
only information he sought from the minister was What church he represented, when they
held services, where it was located, and how many members were in the congregation. That
data was supplied. However, inquiry was not made about the nature of the applicant's services
to his congregation; the time spent in rendering those services; where the marriages were to
be performed; whether the major portion of his income was secured from his wedding chapel
business or from his church; his arrangement with co-owners of the wedding chapel for his
services as a and the identity of the co-owners; and other information possessing relevance to
the statutory standard to be applied, and not limited to the above specifics. Absent such
information, the County Clerk was not in a position to decide whether Reverend Paramore
met the statutory standard for certification.
Accordingly, we affirm the determination of the district court that the statute here under
consideration is constitutional. We reverse the determination that the County Clerk was
possessed of sufficient information upon which to exercise his discretion and that he acted
within the permissible limits of his discretion, and remand this matter to the Clerk for further
consideration and decision thereon consistent with the views herein expressed.
____________
84 Nev. 729, 729 (1968) Epperson v. State
CLIFFORD WADE EPPERSON, Appellant, v. THE
No. 5586
December 30, 1968 448 P.2d 705
Mendoza, Judge.
Defendant was convicted in the trial court of nighttime robbery and he appealed. The
Supreme Court, Thompson, C. J., held that where defense was permitted to introduce
independent evidence of cash shortages at store which was robbed, refusal of trial court to
permit defense counsel to thoroughly examine store manager concerning the shortages so as
to impeach him was harmless error.
Affirmed.
James D. Santini, Public Defender, and Anthony M. Earl, Deputy Public Defender, Clark
Attorney, and Jerry J. Kaufman, Deputy District Attorney, Clark County, for Respondent.
1. Witnesses.
Criminal defendant should have wide latitude in examination of witnesses testifying against him.
2. Criminal Law.
Where defense in robbery prosecution was permitted to introduce independent evidence of cash shortages
at store which was robbed, refusal of trial court to permit defense counsel to thoroughly examine store
manager concerning the shortages so as to impeach him was harmless error. NRS 178.598.
OPINION
A jury convicted Epperson of a nighttime robbery of the Stop and Go Market near Las
Vegas. His defense to the charge was an alibithat he was elsewhere playing pool. He so
testified and was corroborated by the testimony of his pool companion. The store manager
and his wife were on duty when the gun-point robbery occurred. Each positively identified
Epperson as one of four Negroes who, in concert, perpetrated the crime.
84 Nev. 729, 730 (1968) Epperson v. State
We are asked to set aside the conviction mainly because of a court ruling which blocked
cross-examination of the store manager respecting cash shortages at the store the month
before and the month after the robbery. Since the store manager was hired one month before
the robbery and was dismissed about one month after it occurred, defense counsel wished to
elicit information respecting those shortages to impeach the store manager, and to give
counsel a base from which to infer that the shortage claimed from the robbery was just
another shortage included during the brief tenure of the store manager.
[Headnote 1]
The store manager was the key witness for the prosecution. His credibility and that of his
wife, was to be weighed against the veracity of the defendant and his corroborating witness.
The outcome of the case depended upon that assessment, and defense counsel should have
been allowed to thoroughly cross-examine the manager on matters suggesting bias or motive.
This, of course, is in line with the general view recommending wide latitude in the
examination of witnesses against a defendant in a criminal case. Jennings v. Superior Court,
428 P.2d 304, 310 (Cal. 1967).
[Headnote 2]
In this case, however, the error was harmless since the defense was permitted to introduce
independent evidence of the shortages at the store through the field representative of the Stop
and Go Market. Thus, the information sought from the mouth of the store manager was
before the jury through another witness. The substantial rights of the accused were not
adversely affected. NRS 169.110; now NRS 178.598.
Other assigned errors are without substance.
Affirmed.
____________
84 Nev. 731, 731 (1968) State v. Wyatt
THE STATE OF NEVADA, Appellant, v.
THOMAS D. WYATT, Respondent.
No. 5509
December 31, 1968 448 P.2d 827
Appeal from Order of the First Judicial District Court, Ormsby County, granting petition
for habeas corpus; Richard L. Waters, Jr., Judge.
Habeas corpus proceeding brought by petitioner who was charged with producing abortion
in violation of statute. The lower court granted petition for habeas corpus on ground that
testimony given by abortee at preliminary hearing had not been corroborated, and State
appealed. The Supreme Court, Thompson, C. J., held that under statutory provision against
conviction upon testimony of abortee unless it is corroborated by other evidence, testimony of
abortee at preliminary hearing of alleged producer of abortion to establish probable cause for
holding him for trial was required to be corroborated by other evidence.
Affirmed.
Batjer and Mowbray, JJ., dissented.
Harvey Dickerson, Attorney General, of Carson City, and Robert List, District Attorney,
Ormsby County, for Appellant.
Martillaro and Bucchianeri, of Carson City, and Fry and Fry, of Reno, for Respondent.
1. Criminal Law.
Under statutory provision against conviction upon testimony of abortee unless it is corroborated by other
evidence, testimony of abortee at preliminary hearing of alleged producer of abortion to establish probable
cause for holding him for trial was required to be corroborated by other evidence. NRS 175.301,
201.120.
2. Criminal Law.
Underlying purpose of a statute requiring corroborative evidence is to prevent false accusations as well as
false convictions and one accused of producing abortion should be accorded as much protection at
preliminary hearing as one accused of some other crime on uncorroborated testimony of an accomplice.
NRS 175.301, 201.120.
OPINION
Wyatt was charged with producing an abortion in violation of NRS 201.120.
84 Nev. 731, 732 (1968) State v. Wyatt
of NRS 201.120. The abortee testified at the preliminary hearing, but her testimony was not
corroborated. For this reason the district court subsequently granted Wyatt's petition for
habeas corpus. The State has appealed from that ruling.
[Headnote 1]
The issue presented to us centers upon the meaning to be given NRS 175.250 (now
175.301) which precludes conviction following a trial unless the testimony of the woman is
corroborated by other evidence.
1
It is the State's contention that such corroborative evidence
is required only at trial, and need not be offered at a preliminary hearing in order to establish
probable cause to hold the accused for trial. The accused counters this contention by noting
that this court has thrice ruled that the testimony of an accomplice must be corroborated at a
preliminary hearing even though the statute requiring such corroboration (NRS 175.265, now
175.291) precludes only a conviction upon the uncorroborated testimony of an accomplice.
Ex parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960); Ex parte Sullivan, 71 Nev. 90, 280
P.2d 965 (1955); In re Oxley and Mulvaney, 38 Nev. 379, 149 P. 992 (1915). Thus, by a
parity of reasoning he suggests that we should construe NRS 175.250 in similar fashion. We
think that the analogy is sound.
[Headnote 2]
The underlying purpose of a statute requiring corroborative evidence is to prevent false
accusations as will as false convictions.
2
With this in mind, one accused of producing an
abortion should be accorded as much protection at a preliminary hearing as one accused of
some other crime on the uncorroborated testimony of an accomplice.
Affirmed.
Collins and Zenoff, JJ., concur.
I dissent. The opinion of the majority is a prime example of judicial legislation.
____________________

1
NRS 175.250 provides: Upon a trial for procuring or attempting to procure an abortion, or aiding or
assisting therein, or for inveigling, enticing or taking away any female of previous chaste character, for the
purpose of prostitution, or aiding or assisting therein, the defendant shall not be convicted upon the testimony of
the woman upon or with whom the offense shall have been committed, unless she is corroborated by other
evidence.

2
The quantum of corroborative evidence needed at a preliminary hearing is not before us and we express no
opinion in this regard.
84 Nev. 731, 733 (1968) State v. Wyatt
judicial legislation. The language of NRS 175.250 (now 175.301)
1
is clear and unambiguous
and is not susceptible to any judicial interpretation. That statute is a creature of the legislature
and if its scope should be extended to include testimony at a preliminary hearing it is the
prerogative of the legislature, not this court, to make the change.
The respondent was charged with the crime of abortion in violation of NRS 201.120. At
the preliminary hearing the abortee testified for the prosecution, but her testimony was not
corroborated. For that reason the district court granted the respondent's petition for habeas
corpus. The state has appealed from that ruling. It is here conceded that the other testimony
produced by the prosecution, at the preliminary hearing, did not corroborate the testimony of
the abortee. The majority opinion in this case perpetuates the error of the district court.
In this state it has been clearly established that a preliminary hearing is not a trial. In the
case of State v. Holt, 47 Nev. 233, 219 P. 557 (1923), this court said: A preliminary hearing
is not a trial. In the very nature of the situation it could not be. A justice of the peace has no
jurisdiction to try one charged with a felony; he can only hold a preliminary hearing and
determine if probable cause exists for holding defendant to answer. In Overton v. State, 78
Nev. 198 at 201, 370 P.2d 677 (1962), referring to preliminary hearings, it was stated: A
preliminary hearing is not a trial. The accused is neither convicted nor acquitted of the crime
with which he is charged. The magistrate before whom the examination is held, determines
only whether it appears that a public offense has been committed, and whether there is
sufficient cause to believe the accused guilty thereof.
In holding that an abortee's testimony, at a preliminary hearing, must be corroborated, the
district court relied on NRS 175.250 (now 175.301). The statute provides that upon a trial the
defendant shall not be convicted on the testimony of the woman upon whom the offense shall
have been committed unless she is corroborated by other evidence.
The intent of the legislature is clearly expressed in NRS 175.250 (now 175.301), when it
used the words: Upon a trial * * *."
____________________

1
NRS 175.250. Upon a trial for procuring or attempting to procure an abortion, or aiding or assisting
therein, or for inveigling, enticing or taking away any female of previous chaste character, for the purpose of
prostitution, or aiding or assisting therein, the defendant shall not be convicted upon the testimony of the woman
upon or with whom the offense shall have been committed, unless she is corroborated by other evidence.
84 Nev. 731, 734 (1968) State v. Wyatt
trial * * *. It could only refer to a trial and not to a preliminary hearing. The mention of one
thing implies the exclusion of another is a general principle of statutory construction;
expressio unis est exclusio alterius. State v. Baker, 8 Nev. 141 (1872); In re Bailey's Estate,
31 Nev. 377, 103 P. 232 (1909); Ex parte Arascada, 44 Nev. 30, 189 P. 619 (1920).
In support of their position the lower court and the majority of this court draw an analogy
between an abortee an accomplice and rely on Ex parte Hutchinson, 76 Nev. 478, 357 P.2d
589 (1960); Ex parte Sullivan, 71 Nev. 90, 280 P.2d 965 (1955); and In re Oxley and
Mulvaney, 38 Nev. 379, 149 P. 922 (1915).
Those cases in construing NRS 175.265 (now 175.291) specifically refer to the testimony
of an accomplice. They are not controlling, because here we are concerned with the
uncorroborated testimony of an abortee.
Almost without exception the courts in this country have held that a woman upon whom
an abortion has been produced is not an accomplice of the person performing the abortion.
People v. Buffum, 256 P.2d 317 (Cal. 1953); State v. Tennyson, 2 N.W.2d 833, 139 A.L.R.
987 (Minn. 1942); People v. Blank, 29 N.E.2d 73 (N.Y. I940).
This court is probably obligated under the rule of statutory construction and the doctrine of
stare decisis to follow Oxley and require that the testimony of an accomplice be corroborated
at a preliminary hearing, Snyder v. Garrett, 61 Nev. 85, 115 P.2d 769 (1941); Ex parte
Sullivan, supra; Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947). However, neither the
rule of statutory construction nor the doctrine of stare decisis compels us to extend the
questionable holding of Oxley to include the uncorroborated testimony of an abortee at a
preliminary hearing.
At common law the uncorroborated testimony of an accomplice, if it satisfied the trier of
facts of the guilt of the defendant beyond a reasonable doubt, was sufficient to support a
conviction. Without the statutory limitations the uncorroborated testimony of an abortee
would support a conviction for the crime of abortion. Fitch v. Commonwealth, 165 S.W.2d
558 (Ky. 1942); State v. Miller, 261 S.W.2d 103 (Mo. 1953); Smartt v. State, 80 S.W. 586
(Tenn. 1904).
When this court, in Oxley, adopted the holding in State v. Smith, 35 So. 42 (Ala. 1903), it
committed two errors. It indulged in judicial legislation and it adopted a legal principle which
had been erroneously applied.
Now the majority of this court compounds and extends those errors into a new field by
requiring that the testimony of an abortee must be corroborated at a preliminary hearing.
84 Nev. 731, 735 (1968) State v. Wyatt
errors into a new field by requiring that the testimony of an abortee must be corroborated at a
preliminary hearing.
In State v. Smith, supra, the Alabama court ruled that the testimony to hold the prisoner
must be sufficient to sustain a finding of guilt, stating: The whole theory of holding accused
persons to the grand jury is that the evidence before the examining magistrate or the judge on
habeas corpus is sufficient to sustain a finding of guilt by a petit jury when he shall be
indicted and brought to the bar of the court.
NRS 171.455 (now 171.206)
2
requires that the evidence show only probable cause to
believe that the defendant committed the crime. The difference between proof of the
defendant's guilt beyond a reasonable doubt and proof that there is sufficient cause to believe
the defendant guilty of having committed the offense is obvious.
The holding in State v. Smith, supra, on its face, appears to be a case of judicial
legislation, but whether the rule was correct or not under the statutes of Alabama it should not
have been followed in Oxley because our statute required proof only of probable cause to
believe the defendants had committed the offense, not proof of guilt beyond a reasonable
doubt.
The effect of Oxley and its progeny, in applying an erroneous principle of law, is to require
a higher degree of proof for holding a defendant upon a preliminary hearing than was ever
intended by the legislature.
I am not alone in questioning the wisdom of this Court's ruling in Oxley. In the case of Ex
parte Schwitalla, 172 P. 617 (Cal.App. 1918), that court said: We are not prepared to
concede, notwithstanding the holding made by the Supreme Court of Nevada in Ex parte
Oxley, 38 Nev. 379, 149 P. 992, that the uncorroborated testimony of an accomplice may not
be sufficient to establish probable cause. We think that it may be sufficient.
While a defendant cannot be convicted upon the uncorroborated testimony of an
accomplice, the testimony of an accomplice is admissible and is proper to be considered, and
we think is sufficient to make it appear that there is a 'probability' that a defendant has
been guilty of the offense charged against him."
____________________

2
NRS 171.455. If, however, it appears from the examination that a public offense has been committed, and
there is sufficient cause to believe the defendant guilty thereof, the magistrate must make or endorse on the
depositions and statement an order signed by him to the following effect: It appearing to me by the within
depositions and statement (if any) that the offense therein named (or any other offense according to the fact,
stating generally the nature thereof) has been committed, and that there is sufficient cause to believe the
within-named A. B. guilty thereof, I order that he be held to answer the same.'
84 Nev. 731, 736 (1968) State v. Wyatt
is sufficient to make it appear that there is a probability' that a defendant has been guilty of
the offense charged against him.
Unless the expedient of judicial legislation is invoked, it is abundantly clear that, the
applicable statutes do not require the testimony of an accomplice or an abortee to be
corroborated at a preliminary hearing.
In People v. McRae, 187 P.2d 741 (Cal. 1947), the court said: In restricting its prohibition
to a conviction, section 1111
3
is in harmony with the principle that less evidence is required
to support a determination of probable cause for a commitment than a determination of guilt
for a conviction. It is settled that in determining that there is probable cause to hold a
defendant, a magistrate is not bound by the rule that there must be no reasonable doubt as to
the guilt of a defendant, and that he may commit a defendant, even though there may be doubt
as to his guilt. See also Ex parte Schwitalla, 172 P. 617 (Cal.App. 1918); In re Tannenbaum,
252 P.2d 54 (Cal.App. 1953).
The principle of law enunciated in Ex parte Hutchinson, supra, that In Nevada the writ of
habeas corpus will issue to the end that petitioner will not be compelled to undertake the
burden of a trial where the evidence before the committing magistrate is legally insufficient to
indicate that he is guilty of any offense is likewise invalid. It erroneously elevates the
preliminary hearing to trial status and burdens the magistrate with the responsibility of
finding a defendant guilty at that level when the statute only requires proof of probable cause
to believe that the defendant has committed the offense charged.
The district court indicated that the abortee's testimony on direct, cross and redirect
examination clearly established probable cause. It was error for that court to require that the
abortee's testimony be corroborated at the preliminary hearing, and I would reverse its
decision.
____________________

3
The language of Section 1111 of the California Penal Code is substantially similar to NRS 175.265 (now
175.291).
____________
84 Nev. 737, 737 (1968) Alexander v. State
CHARLES LOUIS ALEXANDER, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 5551
December 31, 1968 449 P.2d 153
Appeal from judgment of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Defendant was convicted in the trial court of unlawful possession of narcotics, and appeal
was taken. The Supreme Court, Mowbray, J., held that defendant's self-serving statement that
his friend admitted to defendant that the friend was guilty of crime for which defendant was
charged was hearsay and inadmissible as a declaration against penal interest, and refusal of
friend, who took the witness stand, to testify on grounds that his answer might incriminate
him could not be interpreted as any inference of his guilt.
Affirmed.
James D. Santini, Public Defender, and Robert N. Peccole, Chief Deputy Public Defender,
Harvey Dickerson, Attorney General, George E. Franklin, Jr., District Attorney, and Jerry
J. Kaufman, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Reason for exception to hearsay rule relating to declarations against interest is that a statement asserting a
fact distinctly against one's interest is unlikely to be deliberately false or heedlessly incorrect and is thus
sufficiently sanctioned, though oath and cross-examination are wanting.
2. Criminal Law: Witnesses.
Defendant's self-serving statement that his friend admitted to defendant that the friend was guilty of crime
for which defendant was charged was hearsay and inadmissible as a declaration against penal interest, and
refusal of friend, who took the witness stand, to testify on grounds that his answer might incriminate him
could not be interpreted as any inference of his guilt. U.S.C.A.Const. Amend. 5.
OPINION
A jury found Charles Louis Alexander guilty of unlawful possession of narcotics
(marijuana). The trial judge rejected Alexander's testimony that his friend, Stephen Carl
Walston, had told Alexander a day and a half before his trial that he {Walston) was the
guilty culprit.
Alexander's testimony that his friend, Stephen Carl Walston, had told Alexander a day and a
half before his trial that he (Walston) was the guilty culprit. The trial judge ruled that the
testimony was hearsay and self serving. Appellant admits that the testimony is hearsay, but
argues that it is admissible because it is a declaration against the penal interest of Walston.
Alexander was observed by two police officers at the hour of 2:30 a.m. on May 26, 1967,
walking rapidly alone down a darkened alley which is one-half block north of and parallel
with the 1600 block of Fremont Street in Las Vegas. The officers followed Alexander and put
their regular car lights and spotlight on him. When they did so, Alexander threw a brown sack
and a leather wallet toward a fence which bordered the alley. The officers ordered Alexander
to stop and asked him for his identification. He replied that he had none. The officers then
asked him why he had thrown his wallet toward the fence. Alexander retrieved it, with the
statement that he had inadvertently dropped it. One of the officers picked up the brown sack.
He examined the bag. It contained a leafy substance which the officer believed was
marijuana. Alexander was then placed under arrest and given the full Miranda warning.
However, he elected to remain silent.
Alexander testified at his trial that at the time of his arrest he and his friend, Walston, were
attempting to locate Alexander's girl friend so that she might drive Alexander to the Las
Vegas airport to catch a 2:15 a.m. plane for Los Angeles, where his wife and baby were
living; that they had chosen to travel down the darkened alley rather than on well lighted
Fremont Street because he had two outstanding traffic citations, and he was fearful of being
recognized on lighted streets. He admitted at his trial that he had thrown down his wallet, but
he denied ever seeing the brown sack containing marijuana until his trial.
After Alexander testified, Walston was called by the defendant, and the following
occurred:
STEPHEN CARL WALSTON,
called as witness and was duly sworn.
DIRECT EXAMINATION
by Mr. Peccole [Chief Deputy Public Defender, Clark County, counsel for Defendant
Alexander]:
Q. Would you state your name?
A. Stephen Carl Walston.
Q. Mr. Walston, where do you presently reside?
A. 2001 East McWilliams, Las Vegas, Nevada.
Q. What is your present occupation? "A.
A. I'm in the United States Army.
Q. Mr. Walston, at this time, prior to asking you any question, I would ask Your Honor
that the Court admonish this witness as to his right not to testify in this case and direct the
Court's attention specifically to the Fifth Amendment of the United States Constitution and
would ask that you advise the witness of his rights.
Court: Is there any objection to that request?
Mr. Kaufman: No objection, Your Honor.
Court: The United States Constitution and the Constitution of the State of Nevada and
certain statutes of the State provide that a person cannot be compelled to testify against
himself in a criminal action. The term in a criminal action includes any possible action other
than the one in which the person is testifying. If you wish to exercise that constitutional and
statutory right, you, yourself must assert it by declining to testify on the grounds that the
answer might tend to incriminate you.
Mr. Peccole: Thank you, Your Honor.
Mr. Walston, prior to asking you any questions in this matter, I would ask you, was there
a conversation had in this court room this morning between the prosecutor, Mr. Kaufman, and
yourself?
A. Yes, there was.
Q. And in that conversation did he say that if you admitted anything from this stand, that
you would be held for a criminal action and that a complaint would be filed against you?
A. Yes, sir.
Q. Do you know the defendant in this case?
A. Yes, I do.
Q. Were you with Charles Louis Alexander on May 26th, 1967?
A. I refuse to answer that on the grounds it might incriminate me.
Q. Did you have the occasion to be with Mr. Alexander in an alleyway [where Alexander
was arrested] behind the Salvation Army on that date?
A. I refuse to answer that too on the grounds it might incriminate me.
Q. Did you have occasion to see a vehicle enter that evening?
Q. Are you here under subpoena, Mr. Walston?
A. Yes, sir; otherwise I wouldn't be here.
Q. Mr. Walston, did you, in fact, on May 26th, 1967, around two a.m. in the morning,
jump over a fence at the Salvation Army in the alley?
Q. Did you, in fact, throw down a packet which has been marked here in this court room
as State's Exhibit Number 2?
Q. Did you ever have possession of what has been marked as State's Exhibit 2?
Mr. Peccole: Your Honor, I have no further questions of this witness.
The defense called Clyde M. Willis, State of Nevada Parole and Probation officer, who
testified that he had received a telephone call from a person claiming to be Walston. He could
not identify the voice. The trial judge refused any further examination regarding the call until
a proper foundation was laid. Defense counsel failed completely to make any offer of proof as
to just what was the conversation. From the questions counsel asked which Willis was not
permitted to answer, it apparently concerned Walston's admission that he, rather than
Alexander, had thrown the sack containing the marijuana.
Next, Alexander was recalled to the stand, and he testified as follows:
CHARLES LOUIS ALEXANDER
recalled as a witness:
DIRECT EXAMINATION
by Mr. Peccole:
Q. Mr. Alexander, did you ever have a conversation with Steve Walston regarding this
case?
A. Yes, air.
Q. Did Steve Walston admit to you that he had the possession of the narcotics that night
and threw it down at the Salvation Army gate?
* * *
A. Yes.
* * *
Mr. Kaufman: Your Honor, I would object on the basis that this is just another avenue of
getting at this inadmissible information.
Mr. Peccole: Yes, Sir; but is it inadmissible?
* * *
Q. Did he, in fact, admit it?
Mr. Kaufman: May we have a ruling of the Court.
Court: I'm overruling your objection, anticipatory of the consequences.
Q. Did he, in fact
A. Yes, sir; he did.
Q. Did he ever admit to you that he called Mr. Willis of the Parole and Probation
Department and told him the story?
A. Yes, sir.
Mr. Peccole: I have no further questions.
The trial judge, on motion of the Deputy District Attorney, struck Alexander's testimony
on the grounds that it was hearsay, and thus we arrive at the precise issue presented for our
consideration on this appeal; namelyWas Walston's hearsay declaration against his penal
interest, admissible or not?
[Headnote 1]
Where hearsay evidence is admitted, it is usually because it has a high degree of
trustworthiness. Lane v. Pacific Greyhound Lines, 160 P.2d 21 (Cal. 1945); Mayfield v.
Fidelity & Cas. Co., 61 P.2d 83 (Cal.App. 1936); 5 Wigmore, Evidence 1420 (3d ed. 1940).
Thus, declarations against pecuniary or proprietary interest are admitted because they are
unlikely to be false. 5 Wigmore, supra, 1457-1475. The reason for the exception is the
principle of experience that a statement asserting a fact distinctly against ones interest is
unlikely to be deliberately false or heedlessly incorrect and is thus sufficiently sanctioned,
though oath and cross-examination are wanting.
Not so in the case of declarations against penal interest, where the traditional rule
excluding declarations against penal interest was first established by the House of Lords in
1844 in the Sussex Peerage case, 11 Clark & F. 85. Although vigorously criticized by legal
writers, the rule in Sussex has become the majority view in the United States. Donnelly v.
United States, 228 U.S. 243, 277 (1913).
1
In Donnelly, Mr. Justice Holmes dissented. His
dissent is quoted often in those jurisdictions adopting the minority rule, which admits penal
declaration against interest.
____________________

1
See also Wells v. State, 107 So. 31 (Ala.App. 1926); Tillman v. State, 166 S.W. 532 (Ark. 1914); Moya v.
People, 244 P. 69 (Colo. 1926); State v. Mosca, 97 A. 340 (Conn. 1916); Green v. State, 111 S.E. 916 (Ga.
1922); Siple v. State, 57 N.E. 544 (Ind. 1900); Weber v. Chicago, R. I. & P. Ry., 151 N.W. 852 (Iowa 1916);
State v. Bailey, 37 P. 139 (Kan. 1906); State v. Jones, 53 So. 959 (La. 1911); Commonwealth v. Sacco, 156
N.E. 57 (Mass. 1927); Mays v. State, 101 N.W. 979 (Neb. 1904); State v. Gonzales, 144 P. 1144 (N.M. 1914);
State v. English, 159 S.E. 318 (N.C. 1931); Factor v. State, 229 P. 154 (Okla. 1924). State v. Jennings, 87 P.
524 (Ore. 1906); Cox v. State, 22 S.W.2d 225 (Tenn. 1929); State v. Hunter, 52 P. 247 (Wash. 189Q); Buel v.
State, 80 N.W. 78 (Wis. 1899).
adopting the minority rule, which admits penal declaration against interest. He wrote in part:
The confession of Joe Dick, since deceased, that he committed the murder for which the
plaintiff in error was tried, coupled with circumstances pointing to its truth, would have a
very strong tendency to make any one outside of a court of justice believe that Donnelly did
not commit the crime. I say this, of course, on the supposition that it should be proved that
the confession really was made, and that there was no ground for connecting Donnelly with
Dick. (Emphasis added.)
The very factual situation which Justice Holmes describes in his dissent is present in this
case. There is not a scintilla of independent evidence, other than the defendant's statement,
placing Walston at the scene of the crime. Indeed, the officers testified that there was no one
other than the defendant, Alexander, near the crime scene. At the trial, Walston, Alexander's
friend, was called to the stand by Alexander's counsel. Defense counsel requested the trial
judge to advise Walston of his constitutional rights to refuse to testify. The trial judge did so.
A colloquy followed between defense counsel and Walston, and Walston admitted nothing,
invoking his constitutional rights under the Fifth Amendment. He was then excused from the
witness stand. Alexander was recalled to the stand and testified that Walston had told him he,
rather than Alexander, had possession of the narcotics. The record does not show when or
where this conversation occurred, as it is completely lacking in foundation, although on
cross-examination Alexander stated Walston had made his statement about a day and a half
before his trial.
We have found no case supporting the minority rule, which admitted a declaration against
penal interest solely through the mouth of the defendant. And understandably so. In such an
instance there is a total absence of the ingredient which sanctions the admissibility of
declarations against interest, namely, the strong likelihood that the declarant would not falsely
make an incriminating statement which jeopardized his own interest.
[Headnote 2]
Walston's refusal to testify on the grounds that his answer might incriminate him may not
be interpreted as any inference of his guilt. The record is void of any such evidence except the
self-serving statement of Alexander, which the trial judge ruled was hearsay and
inadmissible. We agree.
The judgment of conviction is affirmed.
Collins, J., and Craven, D. J., concur.
Thompson, C. J., with whom Zenoff, J. concurs, dissenting:
The majority opinion commits Nevada to an archaic rule of evidence established by the
House of Lords in 1884 in the Sussex Peerage Case, 11 Clark & P. 85, and characterized by
experts as an historical accident without reason to support it. See: 5 Wigmore, Evidence, 3d,
2477; McBain, California Evidence Manual 813. The law reviews question whether the
English rule ever had validity. See: 11 Kan.L.Rev. 275 (1962); Wash.&LeeL.Rev. 126
(1959); 61 W.Va.L.Rev. 149 (1959); 28 Journal of Criminal Law and Criminology 760
(1938); 21 Minn.L.Rev. 181 (1936); 10 N.C.L.Rev. 84 (1931). The Model Code of Evidence,
rule 509 (1942), rejects it. A significant body of state courts have proclaimed that they will
not follow it. People v. Spriggs, 389 P.2d 377 (Cal. 1964); People v. Lettrich, 108 N.E.2d 488
(Ill. 1952); Cameron v. State, 217 S.W.2d 23 (Tex.Cr. 1949); In re Forythes' Estate, 22
N.W.2d 19 (Minn. 1946); Sutter v. Easterly, 189 S.W.2d 284 (Mo. 1945); Brennan v. State,
134 A. 148 (Md.App. 1926). In People v. Spriggs, supra, Justice Traynor articulates the
persuasive reasons for California's break with the ancient English rule and those reasons need
not here be restated. Nevada should now announce that a declaration against penal interest is
admissible as an exception to the rule precluding hearsay evidence since such a declaration is
probably trustworthy and reliable.
The out-of-court declarations by Walston against his penal interest, first made to the
accused and later to the probation officer, bore directly upon the central issue of guilt and, if
believed, would demand an acquittal. Walston told the accused that he, Walston, possessed
the marijuana and that it was his. He subsequently telephoned the probation officer and once
more made that admission. According to the testimony of the accused, Walston was at the
crime scene and threw the package which the police retrieved.
The accused was not allowed to testify to Walston's out-of-court admission since it was
hearsay. Testimony from the probation officer also was precluded on that ground, and for the
additional reason that a sufficient foundation was not established to identify Walston as the
person using the telephone. In each instance the hearsay objection should have been overruled
and the testimony received as an admission against the declarant's penal interest. Walston's
election to invoke his Fifth Amendment privilege against self-incrimination rendered him
unavailable as a witness as surely as though he were dead.
Sutter v. Easterly, supra; Band's Refuse Removal, Inc. v. Borough of Fair Lawn, 163 A.2d
465 (N.J. 1960); Morgan, Declarations Against Interest, 5 Vand.L.Rev. 451.
The identification of the other party to a telephone conversation may be shown
circumstantially. Positive voice identification by the hearer is not required. King v. State, 80
Nev. 269, 271, 392 P.2d 310 (1964). The circumstances pointing to the identification of
Walston as the other party to the telephone conversation with the probation officer are strong.
The caller identified himself as Walston. He told the same story to the probation officer that
he had previously told the accused. When asked questions on the witness stand relating to his
earlier out-of-court declarations against penal interest, he declined to answer since his
answers might incriminate him. With these circumstances in the record one must press to
conclude that an adequate foundation for that conversation was not established. Indeed, such
a conclusion is tantamount to requiring positive voice identification by the hearera
requirement which Nevada has rejected.
The conviction should be set aside and a new trial ordered.
____________

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