Nevada Reports 1972 (88 Nev.) PDF

88 Nev.
1, 1 (1972)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
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Volume 88
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88 Nev. 1, 1 (1972) Memory Gardens v. Pet Ponderosa
MEMORY GARDENS OF LAS VEGAS, INC., a Nevada Corporation, Appellant, v. PET
PONDEROSA MEMORIAL GARDENS, INC., a Nevada Corporation, Respondent.
No. 6461
January 3, 1972 492 P.2d 123
Appeal from an order granting a preliminary injunction by the Eighth Judicial District
Court, Clark County; Clarence Sundean, Judge.
After defendant terminated water supply to plaintiff's pet cemetery, plaintiff commenced
lawsuit for injunctive relief and damages. The district court granted preliminary injunction,
and appeal was taken. The Supreme Court, Batjer, J., held that in light of status quo to be
maintained of growing lawn, plants and trees which could only be accomplished by restoring
water to the land and showing of irreparable injury in rendering pet cemetery barren and
devoid of grass and shrubbery and in keeping it in that condition and very definite possibility
of multiple lawsuits against plaintiff, granting preliminary injunction was proper.
Affirmed.
Wiener, Goldwater & Galatz and Herbert L. Waldman, of Las Vegas, for Appellant.
John Peter Lee, of Las Vegas, for Respondent.
1. Injunction.
Where defendant leased to plaintiff approximately ten acres of land to be used as pet cemetery and by
agreement allowed plaintiff to use all available water for two hours each evening in order to develop and
maintain landscaping at pet cemetery but subsequently defendant summarily terminated water supply,
status quo was growing lawn, plants and trees which could only have been accomplished by restoring water
to the land and granting of preliminary injunction against defendant would not be improper on ground that
drying up of grass and shrubbery had been accomplished and there remained no status quo to be
maintained.
2. Injunction.
Even if act causing injury has been completed before action is instituted, a mandatory injunction may be
granted to restore the status quo.
3. Injunction.
Where defendant leased to plaintiff approximately ten acres of land to be used as pet cemetery and agreed
that plaintiff be allowed to use all available water for two hours each evening but summarily thereafter
terminated water supply to plaintiff's property, rendering pet cemetery barren and devoid of grass and
shrubbery and keeping it in that condition was an irreparable physical change and there was a very definite
possibility of multiple lawsuits against plaintiff if pet cemetery continued in barren condition and plaintiffs
showed sufficient irreparable injury so as to support preliminary injunction against defendant.
4. Injunction.
Any act which destroys or results in substantial change in property, either physically or in character in
which it has been held or enjoyed, does irreparable injury which justifies injunctive relief.
5. Injunction.
Where there was nothing in record to show any prejudice to defendant, five-month delay between
termination of water supply to plaintiff under agreement between plaintiff and defendant and filing of
action by plaintiff did not amount to laches.
6. Equity.
Alleged prejudice so that a delay will amount to laches cannot be prospective or illusory.
OPINION
By the Court, Batjer, J.:
On September 2, 1967, the appellant leased to the respondent approximately ten acres of
land to be used as a pet cemetery. This land adjoined the appellant's human cemetery. By
agreement, the appellant allowed the respondent to use all available water for two hours
each evening in order to develop and maintain the landscaping at the pet cemetery.
agreement, the appellant allowed the respondent to use all available water for two hours each
evening in order to develop and maintain the landscaping at the pet cemetery.
The record indicates that over 300 pets were buried in the cemetery at the time this action
arose, and each individual who buried a pet paid an initial interment fee plus a fee of $2.50
per year for a period of up to ninety years to finance the maintenance of the property.
On February 1, 1970, the appellant summarily terminated the water supply to the
respondent's property. Within a short period of time the grass, shrubs and trees dried up and
died.
After the water supply had been cut off, the president of the respondent corporation
attempted to renegotiate the lease agreement with the appellant, but to no avail. Attempts
were also made to obtain the services of a water truck to haul water to the pet cemetery but
that proved too expensive. The respondent contacted other water users in the area in an effort
to purchase water from them but they were not able to spare any water from their wells.
On June 7, 1970, more than four months after the water supply had been terminated, the
respondent commenced this lawsuit seeking injunctive relief and damages. After a hearing on
the matter, the trial court entered its findings of fact and conclusions of law and granted a
preliminary injunction requiring the appellant to allow the respondent the use of the entire
water supply available at its cemetery for a period two hours each evening, seven days a
week. The trial court indicated that the preliminary injunction was granted because there was
no readily available source of water and no well could be drilled by the respondent without
the consent of the appellant. It also found that the condition of the pet cemetery was such at
the time of the hearing that many owners of pets interred therein could sue to enforce their
contract rights requiring upkeep of the property, and that such suits were inestimable and
could run into hundreds in number.
The appellant contends that the trial court erred in granting the preliminary injunction
because the drying up of the grass and shrubbery had been accomplished and there remained
no status quo to be maintained, and that the respondent had failed to show, at the time of the
hearing, any irreparable injury.
[Headnote 1]
Relying upon Sherman v. Clark, 4 Nev. 138 (1868) and Berryman v. Int'l. Bhd. Elec.
Workers, 82 Nev. 277, 416 P.2d 387 (1966), the appellant contends that inasmuch as the
grass and shrubbery were dead at the time of the hearing on the motion for a preliminary
injunction, the wrong, if any, had been completed, and if an injury has been completed a
mandatory injunction can have no effect for it cannot be applied correctively so as to
remove the wrong.
motion for a preliminary injunction, the wrong, if any, had been completed, and if an injury
has been completed a mandatory injunction can have no effect for it cannot be applied
correctively so as to remove the wrong. The law enunciated in those cases is inapposite for
here the injury was continuing because neither grass nor shrubbery will grow as long as water
is withheld. Furthermore, the respondent would have been subject to a multiplicity of lawsuits
by the owners of pets buried in its cemetery as long as the drought continued.
[Headnote 2]
Status quo in this case was the growing lawn, plants and trees and that could only have
been accomplished by restoring the water to the land. Unless the water was restored to the
land it would lie barren and the injury to the respondent and its lessees would continue. Even
if the act causing the injury has been completed before the action is instituted, a mandatory
injunction may be granted to restore the status quo. City of Reno v. Matley, 79 Nev. 49, 378
P.2d 256 (1963). Injunctions of this type have frequently been employed in cases involving
irrigation and water rights. Grosfield v. Johnson, 39 P.2d 660 (Mont. 1935). See also Sokel v.
Nickoli, 79 N.W.2d 485 (Mich. 1956) (garage had already been built when suit instituted);
Van De Carr v. Schloss, 101 N.Y.S.2d 48 (App. Div. 1950) (erection of boathouse); Harris v.
Pierce, 73 So.2d 330 (La.Ct.App. 1954) (erection of building); Texas Co. v. Watkins, 82
S.W.2d 1079 (Tex.Ct.Civ.App. 1935); Baltimore & P.S. Co. v. Ministers, Etc., Starr
M.P.Church, 130 A. 46 (Md.Ct.App. 1925).
[Headnote 3]
The appellant's contention that the respondent failed to show irreparable injury is also
without merit. Here the trial court found the irreparable injury to be the unavailability of other
sources of water, a continuing barren landscape, and the possibility of multitudinous
litigation.
[Headnote 4]
Any act which destroys or results in a substantial change in property, either physically or
in the character in which it has been held or enjoyed, does irreparable injury which justifies
injunctive relief. See Lackaff v. Bogue, 62 N.W.2d 889 (Neb. 1954); Viestenz v. Arthur Tp.,
54 N.W.2d 572 (N.D. 1952); Armbruster v. Stanton-Pilger Drainage District, 100 N.W.2d
781 (Neb. 1960); Faught v. Platte Valley Public Power & Irr. Dist., 25 N.W.2d 889 (Neb.
1947); Hood v. Foster, 13 So.2d 652 {Miss.
So.2d 652 (Miss. 1943); and Roseberg v. American Hotel & Garden Co., 121 A. 9 (N.J.Ch.
1923). Rendering the pet cemetery barren and devoid of grass and shrubbery and keeping it in
that condition was an irreparable physical change.
The avoidance of multiple lawsuits is also a justifiable basis for a mandatory injunction.
See Home Finance Co. v. Balcom, 61 Nev. 301, 127 P.2d 389 (1942). Here there was a very
definite possibility of multiple lawsuits against the respondent if the pet cemetery continued
in a barren condition.
[Headnotes 5, 6]
The appellant also claims that the respondent was guilty of laches because of the
five-month delay between termination of the water supply and filing of the action. Such a
delay not causing actual prejudice does not amount to laches. The alleged prejudice cannot be
prospective or illusory. Rheinberger v. Security Life Ins. Co. of America, 51 F.Supp. 188
(N.D.Ill. 1943); McCavic v. DeLuca, 46 N.W.2d 873 (Minn. 1951); Sullivan v. Balestrieri,
298 P.2d 688 (Cal.App. 1956); and Scioscia v. Iovieno, 63 N.E.2d 898 (Mass. 1945). There is
nothing in this record to show any prejudice whatsoever to the appellant, nor do we find any
specific allegation of prejudice by the appellant. As a matter of fact, it appears that the delay
was to appellant's benefit for during that period of time it had an extra volume of water to use
on its cemetery.
The order of the district court is affirmed.
Zenoff, C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
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88 Nev. 5, 5 (1972) Savini Constr. v. A & K Earthmovers
SAVINI CONSTRUCTION COMPANY, a Co-Partnership, Appellant, v. A & K
EARTHMOVERS, INC., a Nevada Corporation, Respondent.
No. 6572
January 3, 1972 492 P.2d 125
Appeal from a judgment of the First Judicial District Court, Churchill County; Richard L.
Waters, Jr., Judge.
Action by prime contractor for state highway construction project against subcontractor for
breach of contract. The district court entered judgment for defendant, and plaintiff appealed.
The Supreme Court held that evidence supported finding that defendant had fully
performed pursuant to oral subcontract, and that substantial evidence test is particularly
applicable where there is conflicting evidence and credibility of witnesses is in issue.
finding that defendant had fully performed pursuant to oral subcontract, and that substantial
evidence test is particularly applicable where there is conflicting evidence and credibility of
witnesses is in issue.
Affirmed.
Seymour H. Patt, of Reno, for Appellant.
Diehl, Recanzone, Evans & Smart, of Fallon, for Respondent.
1. Contracts.
Evidence, in action by prime contractor for state highway construction project against subcontractor for
breach of contract, supported finding that subcontractor had fully performed pursuant to oral subcontract
for moving earth from cut in proposed roadway to fills at bridge abutment.
2. Appeal and Error.
Substantial evidence test is particularly applicable where there is conflicting evidence and credibility of
witnesses is in issue.
3. Witnesses.
In absence of showing that resident state engineer had any personal knowledge of provisions of oral
subcontract, any testimony by him regarding terms of subcontract would have been conjecture and
therefore not admissible in action by prime contractor for state highway construction project against
subcontractor for breach of contract.
OPINION
Per Curiam:
The appellant was the prime contractor on the Pinion Hills Bridge, a state highway
construction project. The respondent submitted a bid offer of 35 cents a yard for moving
certain earth on the project from a cut in the proposed roadway to fills at the bridge abutments
and was awarded a subcontract at that price by the appellant. No written contract was ever
executed, but the parties orally agreed concerning the work to be performed under the
subcontract. On November 13, 1969, the respondent left the job claiming that the earth fills at
the bridge abutments had been completed and the contract had been fully performed. The
appellant claims that the roadway excavation had not been completed by the respondent
according to the master contract or the subcontract, and that it was required to do additional
excavation work to complete the project.
Thereafter the appellant filed a complaint against the respondent to recover $3,146.41 that
it alleged it had been required to spend to complete the excavation work left unfinished by
the respondent.
required to spend to complete the excavation work left unfinished by the respondent. After a
trial on the merits, the district court found that the appellant was not entitled to recover on its
complaint because the respondent had fully performed pursuant to the oral subcontract. In this
appeal the appellant contends that there was insufficient evidence to support that finding.
[Headnotes 1, 2]
We have reviewed the record and find substantial evidence to support the trial court's
judgment. Kenneth Hiatt, general manager for the respondent, testified that all of the roadway
excavation agreed to under the subcontract had been completed by the respondent at the time
it left the project. The trial judge chose to believe Hiatt's testimony. There is no showing by
the appellant that the judgment of the trial court was clearly erroneous or was not based upon
substantial evidence. Brandon v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970); Utley v.
Airoso, 86 Nev. 116, 464 P.2d 778 (1970). The substantial evidence test is particularly
applicable here where there is conflicting evidence and the credibility of the witnesses is in
issue. Douglas Spencer v. Las Vegas Sun, 84 Nev. 279, 439 P.2d 473 (1968); Briggs v.
Zamalloa, 83 Nev. 400, 432 P.2d 672 (1967).
[Headnote 3]
It is also asserted by the appellant that the trial court erred in refusing to allow the
testimony of the resident state engineer regarding the provisions of the subcontract. After a
timely objection, the trial court correctly ruled that inasmuch as there had been no showing
that the witness had any personal knowledge of the provisions of the subcontract, any
testimony by him would be merely conjecture and therefore inadmissible. See Deakyne v.
Lewes Anglers, Inc., 204 F.Supp. 415 (D.Del. 1962).
Affirmed.
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88 Nev. 7, 7 (1972) Johnston, Inc. v. Weinstein
JOHNSTON, INC. a Texas Corporation, Appellant, v. JACK WEINSTEIN and SANDRA
BANKSTON, dba PLAYMATES BY SAUNDRA, INC., Respondents.
No. 6559
January 11, 1972 492 P.2d 616
Appeal from order setting aside default judgment. Eighth Judicial District Court; William
R. Morse, Judge.
Action for money due from sale of merchandise and for punitive damages as result of
allegedly fraudulent representations. The Supreme Court held that where defendants' motion
to set aside default judgment, and affidavit and supporting document attached thereto,
containing factual assertions to show excusable neglect and what would be a meritorious
defense if proven, in that their business had been sold prior to time plaintiff's suit was filed,
supported defendants' assertions that debt was not theirs, setting aside default judgment was
not an abuse of discretion.
Affirmed.
[Rehearing denied February 23, 1972]
Emilie N. Wanderer, of Las Vegas, for Appellant.
James L. Buchanan II, of Las Vegas, for Respondents.
On appeal from order setting aside default judgment, issue is whether setting aside default was an abuse
of discretion, and in absence of clear showing of abuse, action in setting aside default will be affirmed.
2. Judgment.
Where defendants' motion to set aside default judgment, and affidavit and supporting document attached
thereto, containing factual assertions to show excusable neglect and what would be a meritorious defense if
proven, in that their business had been sold prior to time plaintiff's suit for money due from sale of
merchandise was filed, supported defendants' assertions that debt was not theirs, setting aside default
judgment was not an abuse of discretion.
OPINION
Per Curiam:
The appellant filed suit against the respondents for money due from the sale of
merchandise, and for punitive damages as a result of allegedly fraudulent representations.
After service of process upon the respondents and their failure to timely answer the appellant
took a default, and judgment was entered against the respondents on July 29, 1970.
On November 20, 1970, the respondents moved to set aside the judgment. Attached to
their motion was an affidavit containing factual assertions to show excusable neglect and
what would be a meritorious defense if proven. Also attached to the motion was a document
showing that the business of the respondents had been sold prior to the time the appellant's
suit was filed, in support of the assertions of the respondents that the debt was not
theirs.
suit was filed, in support of the assertions of the respondents that the debt was not theirs.
After the appellant's response in opposition to the motion to set aside judgment was filed,
and the parties were heard, the district court entered its order setting aside the judgment and
giving the respondents a time within which to plead further. It is from that order setting aside
the judgment that this appeal is taken.
[Headnote 1]
The sole appellate issue in these circumstances is whether or not the district court abused
its discretion in setting aside the default judgment. In the absence of a clear showing of abuse,
the action of the court below must be affirmed. Hotel Last Frontier v. Frontier Properties,
Inc., 79 Nev. 150, 380 P.2d 293 (1963); Minton v. Roliff, 86 Nev. 478, 471 P.2d 209 (1970).
[Headnote 2]
Upon review of the record on appeal we find that the motion of the respondents to set
aside the default judgment, and the affidavit and supporting document attached thereto, set
forth sufficient facts upon which the district judge could rule that excusable neglect had been
shown, and that they contain allegations which, if proven, would tend to establish a defense to
all or part of the asserted claim for relief. Thus we cannot find such a clear showing of abuse
of discretion as to warrant a reversal of the order setting aside the judgment. Howe v.
Coldren, 4 Nev. 662 (1868); Morris v. Morris, 86 Nev. 45, 464 P.2d 471 (1970).
Affirmed.
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88 Nev. 9, 9 (1972) Collins v. State
VARNER RAY COLLINS, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 6575
January 12, 1972 492 P.2d 991
Appeal from judgment of conviction of robbery by Eighth Judicial District Court, Clark
County; Clarence Sundean, Judge.
The Supreme Court, Mowbray, J., held, inter alia, that arrest at time when there were two
warrants outstanding for such arrest was lawful, and evidence obtained as result thereof was
admissible, though at the time of his arrest the warrants were not in the possession of the
arresting officers, where such officers knew the existence of the warrants.
was admissible, though at the time of his arrest the warrants were not in the possession of the
arresting officers, where such officers knew the existence of the warrants.
Affirmed.
Robert G. Legakes, Public Defender, and John C. Ohrenschall, Deputy Public Defender,
Clark County, for Appellant.
Robert List, Attorney General; Roy A. Woofter, District Attorney, and Charles L. Garner,
Chief Deputy of Appeals, Clark County, for Respondent.
1. Arrest; Criminal Law.
Arrest at time when there were two warrants outstanding for such arrest was lawful, and evidence
obtained as result thereof was admissible, though at the time of the arrest the warrants were not in the
possession of the arresting officers, where such officers knew of the existence of the warrants. NRS
171.122, subd, 1.
2. Criminal Law.
Amendment of information immediately prior to trial, at suggestion of the court, to correct misspelling of
defendant's name was not prejudicial. NRS 173.095.
3. Jury.
Absence of any member of defendant's race on petit jury was not error where there was no systematic
exclusion of members of a race or class.
4. Criminal Law.
Fact that witness testified that she believed defendant was the robber but that she was not sure went to the
weight of her testimony, not to its admissibility.
5. Witnesses.
In robbery prosecution, no abuse of discretion was shown in refusal to permit defendant, after the State
had rested its case, to recall officer for purpose of cross-examining him on method used in lifting
fingerprints.
6. Criminal Law.
There was no error in failure to grant defendant's motion for continuance to obtain legal authorities to
challenge the lawfulness of his arrest.
OPINION
By the Court, Mowbray, J.:
Appellant Varner Ray Collins was tried to a jury and convicted of robbery. He has
appealed from his judgment of conviction, and he has assigned numerous assignments of
error, which we reject as meritless and, therefore, affirm the jury's verdict.
1. The Facts.
A lone gunman on July 14, 1969, held up the barmaid, Lou Ella Beavers, in the Huddle
Bar located in Las Vegas. The gunman had a beer, minutes before the robbery. He then
produced his weapon and demanded at gunpoint from Lou Ella the contents of the cash
register, which she promptly handed to him. The robber left the premises. Lou Ella
telephoned the police. The Clark County Sheriff's office responded to the call within minutes.
The Sheriff's office had received an anonymous phone call that a late-model, light green
Cougar automobile was seen in the vicinity of the crime. This information was radioed to
Deputy Sheriff Alfred B. Leavitt while he was en route to the crime scene. When the sheriff's
deputies arrived at the Huddle Bar, Lou Ella gave them a description of the robber. Deputy
Sheriff Robert Roderick, in processing the scene of the crime, lifted latent fingerprints from
the beer bottle and glass used by the robber.
The following day, July 15, the sheriff's deputies went to Collins's residence to arrest him
on two pending felony charges (robbery and unlawful possession of narcotics) that had no
connection with the Huddle Bar robbery. As the deputies approached Collins's residence, they
noted in the driveway a vehicle that matched the description of the car that was reported in
the vicinity of the Huddle Bar at the time of the robbery. Upon confronting Collins, the
deputies also observed that his physical appearance matched Lou Ella's description of the
robber. The deputies then arrested Collins and removed him to the county jail, where he was
fingerprinted. The print from appellant's left index finger matched one of the prints taken by
Deputy Roderick at the scene of the crime. The next day, July 16, the officers, upon their
affidavit, obtained a warrant to search Collins's residence. They did so at once and found a
weapon resembling the one used in the robbery. Collins was thereupon charged by criminal
complaint with robbery and later, upon trial, was found guilty thereof.
2. The Arrest and the Search.
A. The Arrest.
[Headnote 1]
First, Collins claims that his arrest was unlawful. His contention is untenable. At the time
he was taken into custody, there were two outstanding warrants for Collins's arrest. It is true
that at the time of the arrest the warrants were not in the deputies' possession, but the deputies
knew of the existence of the warrants.
1
NRS 171.122, subsection 1, is controlling and
dispositive of the arrest issue in this case.

____________________

1
Collins has not attacked the validity of either warrant.
NRS 171.122, subsection 1, is controlling and dispositive of the arrest issue in this case. It
provides:
The warrant shall be executed by the arrest of the defendant. The officer need not have
the warrant in his possession at the time of the arrest, but upon request he shall show the
warrant to the defendant as soon as possible. If the officer does not have a warrant in his
possession at the time of the arrest, he shall then inform the defendant of his intention to
arrest him, of the offense charged, the authority to make it and of the fact that a warrant has or
has not been issued. The defendant must not be subjected to any more restraint than is
necessary for his arrest and detention, but if the defendant either flees or forcibly resists, the
officer may use all necessary means to effect the arrest.
B. The Search.
The deputies, in an effort to find the weapon used in the robbery, searched Collins's
residence after his arrest. They first obtained a warrant to do so, based on their affidavit that
Collins's fingerprint matched one found at the scene of the crime. They found a weapon
similar to the one used in the robbery, and it was introduced as evidence during the trial.
Collins challenges the constitutionality of the use of the weapon as evidence, on the ground
that the search was unlawful because his arrest that led to the taking of his fingerprints was
unlawful. Since we have ruled otherwise, i.e., that his arrest was lawful, Collins's contention
on this issue must fail. The weapon was properly received in evidence.
3. The Amendment of the Information.
[Headnote 2]
Immediately prior to trial, the learned trial judge noticed that Collins's name was
misspelled in the information.
2
The judge suggested that the error be corrected on motion by
the district attorney's office. This was done, and Collins claims that it resulted to his
prejudice. NRS 173.095 provides:
The court may permit an information to be amended at any time before verdict or finding
if no additional or different offense is charged and if substantial rights of the defendant are
not prejudiced.
There was no prejudice at all to Collins in this case, and we find this assignment of error
without merit. See Harris v. State, 86 Nev. 197, 466 P.2d 850 (1970).
____________________

2
The trial judge knew Collins and his true name.
4. The Composition of the Jury.
[Headnote 3]
Collins next complains that there was no member of his race on the jury that convicted
him and therefore his conviction must be overturned. This may happen in a case. The absence
of members of one's race on a petit jury may occur. If so, it is not error. It is the systematic
exclusion of members of a race or class that spoils the makeup of the jury. Since the record is
void of any such exclusion in this case, the error complained of is meritless. Swain v.
Alabama, 380 U.S. 202, 203-204 (1965); Martin v. Texas, 200 U.S. 316, 320-321 (1906).
5. Lou Ella's Testimony.
[Headnote 4]
Collins complains that, since Lou Ella could not positively identify him as the robber, the
trial judge should have excluded her testimony. Lou Ella testified that she believed Collins
was the robber but that she was not sure. Such an objection goes to the weight of the
testimony, but not to its admissibility. As the court said in People v. Houser, 193 P.2d 937,
941 (Cal. App. 1948):
In order to sustain a conviction it is not necessary that the identification of the defendant
as the perpetrator of the crime be made positively or in a manner free from inconsistencies. It
is the function of the jury to pass upon the strength or weakness of the identification and the
uncertainness of the witness in giving her testimony. [Citation omitted.] See also State v.
Brown, 456 P.2d 368, 370 (Ariz. 1969).
Lou Ella's testimony was properly received and presented to the jury.
6. The Recall of Deputy Roderick.
[Headnote 5]
After the State had rested its case, counsel for Collins sought to recall Deputy Roderick to
the stand for the purpose of cross-examining him on the method he used in lifting the
fingerprints from the beer bottle and glass. Counsel was not permitted to do so, and he asserts
that the trial judge committed reversible error in denying his request. We do not agree. As this
court recently ruled in Casey v. State, 87 Nev. 413, 416, 488 P.2d 546, 548 (1971).
. . . An accused may be permitted to recall a witness for cross-examination after the state
has closed its case. . . . It is, however, for the discretion of the court to disallow such
recross-examination when the party seeking it has had abundant opportunity to draw out
his case.' 3 Wharton's Crim. Ev., 900 {l2th Ed.
recross-examination when the party seeking it has had abundant opportunity to draw out his
case.' 3 Wharton's Crim. Ev., 900 (l2th Ed. 1955). On the record in this case, we could not
find that the lower court abused its discretion, even had it refused any additional
cross-examination whatever.
[Headnote 6]
The remaining assignments of error, namely, that the court failed to grant Collins's motion
for a continuance to obtain legal authorities to challenge the lawfulness of his arrest and that
the trial judge denied him a fair trial, are equally unfounded.
The judgment of conviction is affirmed.
Zenoff, C. J., and Batjer, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 14, 14 (1972) Downey v. Sheriff
JOAN ANN DOWNEY, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 6729
January 21, 1972 492 P.2d 989
Appeal from order denying pre-trial petition for writ of habeas corpus. Eighth Judicial
District Court, Clark County; Howard W. Babcock, Judge.
The Supreme Court held that although affidavit by means of which state secured
continuance of a scheduled preliminary examination contained inaccuracies and prosecutor
had been guilty of lack of diligence in preparation of affidavit, accused was not entitled to
writ of habeas corpus discharging her from restraint and prohibiting further prosecution.
Affirmed.
Robert G. Legakes, Public Defender, and Thomas D. Beatty, Deputy Public Defender,
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L. Garner,
Habeas Corpus.
Although affidavit by means of which state secured a scheduled preliminary examination contained
inaccuracies and prosecutor had been guilty of lack of diligence in preparation of affidavit,
accused was not entitled to writ of habeas corpus discharging her from restraint and
prohibiting further prosecution.
88 Nev. 14, 15 (1972) Downey v. Sheriff
had been guilty of lack of diligence in preparation of affidavit, accused was not entitled to writ of habeas
corpus discharging her from restraint and prohibiting further prosecution. DCR 21.
OPINION
Per Curiam:
The sole issue presented by this appeal is whether or not the appellant is entitled to a writ
of habeas corpus discharging her from restraint and prohibiting further prosecution when the
state secures a continuance of a scheduled preliminary examination by means of an affidavit
1
containing inaccurate statements of fact.
2
Upon the strength of the state's affidavit, the
magistrate granted a two week continuance. The appellant petitioned for a writ of habeas
corpus, which was denied, and this appeal followed.
The issue thus presented must be answered in the negative. While the prosecutor was
guilty of a lack of diligence in the preparation of the affidavit, this is not a case where a
continuance was sought without the required affidavit. Cf. Hill v. Sheriff, supra, and Stockton
v. Sheriff, 87 Nev. 94, 482 P.2d 285 (1971). Neither is it a case where the prosecutor willfully
disregarded important procedural rules. Cf. Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332
(1970). Nor is this a case where the prosecutor exhibited a conscious indifference to rules of
procedure affecting the accused's rights. Cf. State v. Austin, 87 Nev. 81, 482 P.2d 284 (1971).
While the affidavit contained inaccuracies, the record does not reveal that either the
prosecutor or counsel for the appellant were aware of them at the time the continuance was
sought. Because both the motion for a continuance and the supporting affidavit appeared
proper on their face, the magistrate was entitled to rely on them. Consequently, the two week
continuance which was granted upon the strength of the motion and supporting affidavit was
justified, and the district court did not err in denying habeas relief.
Affirmed.
____________________

1
As required by DCR 21 and Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969).

2
While no contention is made that the state intentionally set forth false statements or that the affidavit was
made in bad faith, it is conceded that the content of the affidavit was inaccurate due to a failure of the prosecutor
to examine all sources of information available to him.
____________
88 Nev. 16, 16 (1972) Las Vegas Ins. Adjusters v. Page
LAS VEGAS INSURANCE ADJUSTERS, a Nevada Corporation, Appellant, v. LEHMANN
M. PAGE, Respondent.
No. 6615
January 24, 1972 492 P.2d 616
Appeal from order of Eighth Judicial District Court, Clark County, granting summary
judgment; Joseph S. Pavlikowski, Judge.
Affirmed.
John Marshall, of Las Vegas, for Appellant.
Denton & Monsey, of Las Vegas, for Respondent.
OPINION
Per Curiam:
We affirm the summary judgment entered below since there is no genuine issue as to any
material fact. NRCP 56(c). The appellant's claim for money from the respondent was
compromised and settled by written agreement between them. The appellant's effort to avoid
the binding effect of that agreement is denied by the record which shows conclusively that the
agreement was entered into with full knowledge of all relevant facts.
Affirmed.
____________
88 Nev. 16, 16 (1972) Jasper v. Sheriff
MARJORIE JASPER, Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 6694
January 24, 1972 492 P.2d 1305
Appeal from an order denying a pre-trial petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Howard W. Babcock, Judge.
The district court denied petition, and petitioner appealed. The Supreme Court held that
finding of magistrate that affidavit in support of state's motion for continuance failed to show
exercise of due diligence to secure attendance of an absent witness did not operate to preclude
magistrate from granting a continuance and was not a basis for obtaining habeas corpus relief
on ground that magistrate was without power to order a continuance once finding was
made, where magistrate interrogated prosecutor, though not on oath, and ruled on oral
representations made by him that state had complied with requirements of rule; however,
in the future, magistrate must take supplementary testimony from prosecutor by means
of sworn testimony.
a continuance once finding was made, where magistrate interrogated prosecutor, though not
on oath, and ruled on oral representations made by him that state had complied with
requirements of rule; however, in the future, magistrate must take supplementary testimony
from prosecutor by means of sworn testimony.
Affirmed.
Robert G. Legakes, Public Defender, and Morgan D. Harris, Deputy Public Defender,
1. Criminal Law.
Where preliminary examination was scheduled for April 29, 1971, but on April 28, 1971 prosecutor filed
a motion for a continuance, supported by an affidavit, in which it was alleged that one of state's witnesses
would be out of town until May 15, 1971, and would not be able to testify, where, based on oral
representations made by prosecutor in response to magistrate's inquiry a continuance was ordered until
May 17, 1971, and where record did not reflect granting of any prior continuances, and no contention was
made below, or in appellate proceedings, that petitioner had been denied her right to a preliminary
examination within fifteen days, fifteen day rule was waived. NRS 200.070.
2. Habeas Corpus.
Finding of magistrate that affidavit in support of state's motion for continuance failed to show exercise of
due diligence to secure attendance of an absent witness did not operate to preclude magistrate from
granting a continuance and was not a basis for obtaining habeas corpus relief on ground that magistrate was
without power to order a continuance once finding was made, where magistrate interrogated prosecutor,
though not on oath, and ruled on oral representations made by him that state had complied with
requirements of rule. DCR 21.
3. Criminal Law.
Where, in determining existence of good cause, magistrate supplements information obtained from
affidavit in support of state's motion for continuance by oral representations made by prosecutor in
response to magistrate's inquiry, magistrate must in future take supplementary testimony from prosecutor
by means of sworn testimony. DCR 21.
OPINION
Per Curiam:
By criminal complaint the appellant was charged with two counts of involuntary
manslaughter under NRS 200.070, in that on November 17, 1970, she operated a motor
vehicle while under the influence of intoxicating liquor and failed to stop in obedience to a
traffic control device, colliding with another vehicle and killing two of its occupants.
that on November 17, 1970, she operated a motor vehicle while under the influence of
intoxicating liquor and failed to stop in obedience to a traffic control device, colliding with
another vehicle and killing two of its occupants.
[Headnote 1]
A preliminary examination was scheduled for April 29, 1971.
1
On April 28, 1971, the
prosecutor filed a motion for a continuance, supported by an affidavit,
2
in which it was
alleged that one of the state's witnesses was out of town until May 15, 1971, and not able to
testify. Neither the motion nor the supporting affidavit have been made a part of the record on
appeal, but from the transcript of the preliminary examination it is evident that no attempt had
been made to secure the attendance of the absent witness until the day before, when a
subpoena was issued but not served. The prosecutor, in response to the magistrate's inquiry,
stated that the reason for the delay in attempting to secure the attendance of the witness was
that the coroner's office did not supply him with the name of the witness
3
until the day
before the scheduled preliminary examination, although at least two prior requests were made
to the coroner's office for the information.
The magistrate denied the state's motion for a continuance upon his finding that the
supporting affidavit failed to show due diligence. However, based upon the oral
representations made by the prosecutor in response to the magistrate's inquiry, a continuance
was ordered until May 17, 1971. The appellant petitioned for a writ of habeas corpus on the
grounds that the magistrate was without power to order a continuance after a finding that
there was not a showing of due diligence in the supporting affidavit. The district court denied
the writ and the appellant appealed.
Without the benefit of the affidavit as part of the record on appeal we are not able to
determine whether or not it met the requirements of DCR 21. The magistrate ruled that it did
not, in that it failed to show the exercise of due diligence to secure the attendance of the
absent witness.
____________________

1
Since the record does not reflect the granting of any prior continuances, and no contention was made below,
or in these appellate proceedings, that the appellant had been denied her right to a preliminary examination
within fifteen days, it is apparent that there had been a waiver of the fifteen day rule under NRS 171.196(2).

2
As required by DCR 21 and Hill v. Sheriff, 85 Nev. 234, 452 p.2d 918 (1969).

3
The absent witness was a physician, apparently the only person available who could testify as to the cause of
death of the accident victims.
the attendance of the absent witness. However, the magistrate interrogated the prosecutor and
ruled that, upon the oral representations made by him, the state had complied with the
requirements of DCR 21.
While the prosecutor was not sworn by the magistrate, the procedure used by the
magistrate to ascertain facts in addition to those supplied by the affidavit was substantially as
suggested by our opinion in Bustos v. Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971). There we
said . . . [I]t is reasonably clear that the prosecutor could have shown good cause had the
magistrate required his sworn testimony in lieu of affidavit, and since this method of showing
cause has not heretofore been suggested we shall not fault the magistrate for granting a
continuance in this instance. . . .
[Headnotes 2, 3]
The thrust of the habeas petition below, and in these appellate proceedings, was not that
the prosecutor's oral representations failed to show good cause, but simply that upon a failure
of the affidavit to show good cause the magistrate was without power to grant a continuance.
We reject that contention and we approve the procedure used by the magistrate to supplement
the deficiencies of the affidavit.
4
Consequently, upon the record before us we cannot fault
either the magistrate's order for a short continuance, or the district court's denial of habeas.
Affirmed.
____________________

4
Hereafter, however, the magistrate must take supplementary testimony from the prosecutor by means of
sworn testimony.
____________
88 Nev. 19, 19 (1972) Moss v. State
LARRY MAURICE MOSS, Appellant, v. THE STATE
No. 6590
January 25, 1972 492 P.2d 1307
Appeal from judgments of conviction of the Second Judicial District Court, Washoe
County; Llewellyn A. Young, Judge.
The district court found defendant guilty of obtaining money by false pretenses and of
attempting to obtain money by false pretenses, and he appealed. The Supreme Court,
Thompson, J., held that the Sixth Amendment was not violated by on-the-scene identification
of defendant by 88-year-old widow (from whom defendant had on previous day obtained
money by false pretenses and who, when he was met by a police officer at victim's door,
was again attempting to obtain money by false pretenses) immediately following
apprehension of defendant by the police.
88 Nev. 19, 20 (1972) Moss v. State
pretenses and who, when he was met by a police officer at victim's door, was again
attempting to obtain money by false pretenses) immediately following apprehension of
defendant by the police.
Affirmed.
James F. Sloan, of Reno, for Appellant.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Kathleen M. Wall,
Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Sixth Amendment was not violated by on-the-scene identification of defendant by 88-year-old widow
(from whom defendant had on previous day obtained money by false pretenses and who, when he was met
by a police officer at victim's door, was again attempting to obtain money by false pretenses) immediately
following the apprehension of defendant by the police. NRS 205.380, 208.070; U.S.C.A.
Const.Amend. 6.
2. Criminal Law.
Although a pretrial photographic identification of defendant by two bank employees should not have been
conducted in the absence of his counsel, the in-court identification testimony by the bank employees was
properly received, where each employee testified explicitly that his in-court identification was wholly
independent of the photographic identification and was based upon observations of the defendant when he
was in the bank.
3. Criminal Law.
Where counsel for defendant, charged with obtaining money by false pretenses and with attempting to
obtain money by false pretenses, failed to object at trial to several telephone conversations which the victim
had had with Mr. Allen and which linked defendant with the acts constituting the crimes with which he
was charged, defense counsel could not on appeal question the admissibility of testimony relating to those
conversations.
4. Criminal Law.
Prosecutor's comment, during summation to the jury, that the State's evidence was uncontradicted did not
infringe upon defendant's Fifth Amendment privilege against self-incrimination. U.S.C.A.Const. Amend. 5.
OPINION
By the Court, Thompson, J.:
A jury convicted Moss of obtaining money by false pretenses [NRS 205.380], and
attempting to obtain money by false pretenses [NRS 208.070]. We affirm the convictions
since none of the assigned errors has merit.
88 Nev. 19, 21 (1972) Moss v. State
An 88-year-old widow, Alma Clarke, received a telephone call from a Mr. Allen who
represented himself to be a federal bank inspector. He informed Mrs. Clarke that someone at
the bank was tampering with her account and asked her to withdraw $4,800 to facilitate the
culprit's capture. She did so. Upon returning to her home the telephone rang. The call was
from Mr. Allen who said that his deputy Mr. Baggs would be by shortly to pick up the
money. Mr. Baggs soon arrived, received the money from Mrs. Clarke and departed. Mrs.
Clarke became suspicious, telephoned the bank, and was instructed to contact the police. The
officer requested her to let him know should she receive another call from Allen.
The next day Allen called and informed Mrs. Clarke that her money had been
redeposited, but that another withdrawal was necessary in order to catch the culprit. She
notified the police and her home was placed under surveillance. A sham transaction was
arranged with the bank whereby Mrs. Clarke would go through the motions of withdrawing
$4,500. The police were at her home when she returned from the bank. Within an hour they
observed an automobile drive in to the alley near her home. Two men were in the car. One of
them exited from the car and walked to the front door of Mrs. Clarke's home where he was
confronted by a police officer. Mrs. Clarke came to the door and identified that man, the
appellant here, as the man to whom she had delivered $4,800 the day before using the name
of Baggs. He was thereupon arrested and advised of his rights.
It is apparent that there exists substantial evidence to support each conviction and the
assigned error on that basis is dismissed out of hand. We turn briefly to consider the other
claimed errors.
[Headnote 1]
1. The on-the-scene identification of appellant by the victim, in the absence of counsel, is
challenged as violative of the doctrine announced in United States v. Wade, 388 U.S. 218
(1967), and its companion cases of Gilbert v. California, 388 U.S. 263 (1967), and Stovall v.
Denno, 388 U.S. 293 (1967). In Wade, the accused was exhibited to witnesses before trial at a
post-indictment lineup conducted for identification purposes without notice to and in the
absence of the accused's appointed counsel. In these circumstances the court ruled that the
lineup was a critical stage of the criminal proceeding and the accused had the right to the
assistance of counsel. In Gilbert, the Supreme Court applied the doctrine of Wade to state
court trials. And in Stovall, the court denied retroactivity to Wade and ruled that it would
only be applied to confrontations occurring after June 12, 1967.
88 Nev. 19, 22 (1972) Moss v. State
and ruled that it would only be applied to confrontations occurring after June 12, 1967. None
of those cases involved an on-the-scene identification of the suspect by the victim. In Nevada
we have extended the Wade doctrine to embrace a lineup which occurs before the filing of
formal charges if the prosecutorial process has shifted from the investigatory to the
accusatory stage and has focused upon the accused. Thompson v. State, 85 Nev. 134, 138,
451 P.2d 704 (1969); Lloyd v. State, 85 Nev. 576, 460 P.2d 111 (1969).
We have not, however, had occasion to consider an on-the-scene identification of the
suspect by the victim.
1
We hold that the Sixth Amendment is not violated when the
identification by the victim immediately follows apprehension of the suspect by the police.
Here, the appellant was attempting to commit a criminal act when apprehended and
immediately identified. The proximity of the time of the commission of the crime to the time
of confrontation of the appellant and victim was almost instantaneous. Cf. State v. Meeks,
469 P.2d 302 (Kan. 1970); State v. Jordan, 274 A.2d 605 (Sup.Ct.N.J. 1971). The
confrontation here was neither a lineup within the contemplation of Wade, nor a showup
within the intendment of Stovall. Nor can it realistically be said to be so unnecessarily
suggestive and conducive to irreparable mistaken identification as to deny due process.
Stovall v. Denno, supra; McCray v. State, 85 Nev. 597, 460 P.2d 160 (1969).
[Headnote 2]
2. Two employees of the bank made a pretrial photographic identification of the appellant
in the absence of his counsel, and later identified him in court. Each testified explicitly that
his in-court identification was wholly independent of the photographic identification, and was
based upon observation of the appellant when he was in the bank. The court, at the
conclusion of a hearing in the absence of the jury, found that the identification of each
witness had a solid origin independent of the photographs and that such independent origin
was established by clear and convincing evidence. Although the photographic lineup should
not have been conducted in the absence of counsel, Thompson v. State, 85 Nev. 134, 451
P.2d 704 (1969), the in-court identification testimony was properly received.
____________________

1
See: Riley v. State, 86 Nev. 244, 468 P.2d 11 (1970); Tucker v. State, 86 Nev. 354, 469 P.2d 62 (1970);
McCray v. State, 85 Nev. 597, 460 P.2d 160 (1969); Hamlet v. State, 85 Nev. 385, 455 P.2d 915 (1969);
Hampton v. State, 85 Nev. 720, 462 P.2d 760 (1969); Boone v. State, 85 Nev. 450, 456 P.2d 418 (1969).
88 Nev. 19, 23 (1972) Moss v. State
received. Hernandez v. State, 87 Nev. 553, 490 P.2d 1245 (1971); Corbin v. State, 87 Nev.
214, 484 P.2d 721 (1971); Ridley v. State, 86 Nev. 102, 464 P.2d 500 (1970); Wyand v.
State, 86 Nev. 500, 471 P.2d 216 (1970); Carmichel v. State, 86 Nev. 205, 467 P.2d 108
(1970); Lloyd v. State, 85 Nev. 576, 460 P.2d 111 (1969); Thompson v. State, supra.
[Headnote 3]
3. Defense counsel failed to object to several telephone conversations which the victim
had with Mr. Allen. These conversations linked appellant as Mr. Baggs with the acts
constituting the crimes with which he was charged. His effort to now object comes too late.
Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970).
[Headnote 4]
4. During summation to the jury the prosecutor commented that the State's evidence was
uncontradicted. The comments were within permissible limits. Fernandez v. State, 81 Nev.
276, 402 P.2d 38 (1965). His comments were factually correct, and did not refer to the
accused specifically. The State's case may be contradicted by witnesses other than the accused
if such witnesses exist. Consequently, we will not construe the comments here involved as an
infringement upon the accused's Fifth Amendment privilege against self-incrimination.
Affirmed.
Zenoff, C. J., and Batjer, Mowbray, and Gunderson, JJ., concur.
____________
88 Nev. 23, 23 (1972) State v. Pashos
STATE OF NEVADA, Appellant, v. MICHAEL PASHOS, NORRIS WAYNE
SANDERS, and CHESTER DAVIS SMITH, Respondents.
No. 6778
January 25, 1972 492 P.2d 1309
Appeal from an order dismissing petition for contempt. Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
Appeal by state from order of the district court dismissing petition for order to show cause
why officers of union should not be held in contempt for failing to appear before State
Gaming Control Board and testify concerning union activities in the gaming industry.
88 Nev. 23, 24 (1972) State v. Pashos
in the gaming industry. The Supreme Court held that State Gaming Control Board had power
to issue subpoenas to compel testimony regarding union activities in the gaming industry.
Reversed.
[Rehearing denied March 14, 1972]
Robert List, Attorney General, and David C. Polley, Deputy Attorney General, for
Appellant.
Peter L. Flangas, of Las Vegas, for Respondents.
States.
State Gaming Control Board had power to issue subpoenas to compel testimony regarding union
activities in the gaming industry. NRS 463.130, subd. 1, 463.140, subd. 5.
OPINION
Per Curiam:
The State Gaming Control Board issued subpoenas directing respondents, officers of the
Union of Gaming and Affiliated Casino Employees Union of America, Local 711, to appear
before the Board and testify concerning union activities in the gaming industry. Respondents
failed to present themselves at the time specified in the subpoenas. The appellant then filed a
petition for an order to show cause why the respondents should not be held in contempt. This
petition was dismissed. The trial judge was of the opinion that the Board was without
jurisdiction to compel testimony regarding union activities in the gaming industry. We
conclude that the Board did possess the power to issue these subpoenas and accordingly
reverse with directions to the trial court to enforce the subpoenas.
The State Gaming Control Board was created by legislative enactment in 1955. The state
public policy sought to be advanced by this agency is declared in the provisions of NRS
463.130(1). To carry out this expressed policy, the Board is given full authority to issue
subpoenas, compel attendance of witnesses, and require testimony under oath. NRS
463.140(5). The Board is not to be frustrated in its efforts to enforce that policy. The rights of
those subpoenaed may be asserted at the time of questioning.
Reversed.
____________
88 Nev. 25, 25 (1972) Meakin v. Meakin
FRANCIS HARDIE MEAKIN, Appellant, v. MARTHA
JANIS MEAKIN, Respondent.
No. 6609
January 26, 1972 492 P.2d 1304
Appeal from order denying reduction in child support, Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Proceeding on appeal from an order of the district court denying ex-husband's motion for
reduction of child support. The Supreme Court, Gunderson, J., held that affidavit, which was
offered in support of ex-husband's motion for reduction of child support, and in which
husband stated that deterioration of his health prevented his practice of dentistry, that he had
to file bankruptcy, and that he was constrained to work as a hospital orderly earning only
$400 per month and thus was unable to meet $750 monthly child support payments, was
legally insufficient, being a mere conclusion.
Affirmed.
George, Steffen & Simmons, of Las Vegas, for Appellant.
David Canter, of Las Vegas, for Respondent.
1. Divorce.
Affidavit, which was offered in support of ex-husband's motion for reduction of child support, and in
which husband stated that deterioration of his health prevented his practice of dentistry, that he had to file
bankruptcy, and that he was constrained to work as a hospital orderly earning only $400 per month and
thus was unable to meet $750 monthly child support payments, was legally insufficient, being a mere
conclusion.
Where appellant had not brought up hearing transcript, nor a substitute therefor, Supreme Court would
assume that evidence supported trial court's implicit determinations.
OPINION
By the Court, Gunderson, J.:
On May 8, 1970, appellant obtained a Nevada divorce which provided, among other
things, for child support payments of $750 per month. In January, 1971, our district court,
without stating its reasons, denied a motion by appellant for reduction of child support. This
appeal follows.
88 Nev. 25, 26 (1972) Meakin v. Meakin
[Headnote 1]
1. Appellant argues our district court's refusal to reduce the child support amounts to an
abuse of discretion, contending (a) the deterioration of his health prevents his practice of
dentistry, (b) he has had to file bankruptcy, and (c) he is now constrained to work as a
hospital orderly earning only $400 per month and thus is unable to meet the $750 monthly
child support payments. Except in his brief, the only place in the record where appellant's
contentions are found is in his affidavit of December 10, 1970. In Green v. Green, 75 Nev.
317, 340 P.2d 586 (1959), we held that a wife's affidavit which alleged that she had
insufficient funds was legally insufficient, being a mere conclusion. Appellant's affidavit
before us is within our holding in Green.
[Headnote 2]
2. As appellant has not brought up the hearing transcript [nor a substitute therefor] we
must assume the evidence supported the trial court's implicit determinations. Leeming v.
Leeming, 87 Nev. 530, 490 P.2d 342 (1971); City of Henderson v. Bentonite, Inc., 87 Nev.
188, 483 P.2d 1299 (1971).
Since the record does not establish that the trial court abused its discretion, the judgment is
affirmed.
Zenoff, C. J., and Batjer, Mowbray, and Thompson, JJ., concur.
____________
88 Nev. 26, 26 (1972) Maheu v. District Court
ROBERT A. MAHEU, Individually and Doing Business as ROBERT A. MAHEU
ASSOCIATES, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, DEPT. NO. 6, and
THE HONORABLE HOWARD W. BABCOCK, Judge Thereof, Respondent.
No. 6663
January 28, 1972 493 P.2d 709
Petition for writs of prohibition and mandamus to the Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
The Supreme Court, Gunderson, J., held that entry of ex parte orders staying depositions
noticed by defendant, thereafter denying defendant's motion to vacate order that stayed
deposition,
deposition, and then declining to consider any matter except plaintiff's Motion to Stay
pending its determination, all without motions for protective orders seasonably made by any
party or by the person to be examined and upon notice and for good cause shown, denied
defendant's right to take testimony of any person, including a party, by deposition upon oral
examination or written interrogatories, and entitled defendant to writ of mandamus
commanding vacation of order staying deposition of plaintiff through its managing agent.
Writs of prohibition and mandamus issued in accord with opinion.
Mowbray, J., dissented.
Morton Galane, of Las Vegas, for Petitioner.
Davis & Cox, of New York City; Morse, Foley and Wadsworth, of Las Vegas, for
Respondent.
1. Prohibition.
Prohibition will arrest proceedings in aid of an order that is not binding on the petitioner. NRS 34.320.
2. Appeal and Error; Prohibition.
Where defendant posted proper appeal bond in connection with his appeal from preliminary injunction
requiring defendant to return plaintiff 's business records, and moved for an order fixing supersedeas
bond necessary to obtain a stay during appeal, denial of motion was improper, and proceedings on plaintiff
's motion for stay of all proceedings by defendant until defendant complied with the prior order to return
records to plaintiff and for an extension of time to respond to pleadings until after defendant complied with
prior order were in excess of jurisdiction, entitling defendant to writ of prohibition with respect to such
proceedings. NRS 34.320; NRCP 73(d), (d)(2), (d)(4).
3. Motions.
Any special motion involving judicial discretion that affects rights of another, as contrasted to motions
of course, must be made on notice even where no rule expressly requires notice, except when
requirement is statutorily altered to meet extraordinary situations. NRCP 26(a), 65(b).
4. Discovery; Mandamus.
Entry of ex parte orders staying depositions noticed by defendant, thereafter denying defendant's
motion to vacate order that stayed deposition, and then declining to consider any matter except plaintiff's
Motion to Stay pending its determination, all without motions for protective orders seasonably made by
any party or by the person to be examined and upon notice and for good cause shown, denied defendant's
right to take testimony of any person,
any person, including a party, by deposition upon oral examination or written interrogatories, was
improper and entitled defendant to writ of mandamus commanding vacation of order staying deposition of
plaintiff through its managing agent. NRS 34.160; NRCP 6(d), 26(a), 30(b), 65(b).
OPINION
In these original proceedings, Robert A. Maheu seeks certain extraordinary writs directed
to the respondent court, in which litigation is pending that involves Maheu, Hughes Tool
Company (HTCo), Howard R. Hughes (HTCo's sole shareholder), and others. Specifically,
Maheu requests these writs:
(1) prohibition arresting proceedings on a Motion for a Stay and for an Extension of
Time, filed by HTCo;
(2) mandamus commanding respondent to vacate an ex parte order that purports to stay the
deposition of HTCo by its managing agent, Howard R. Hughes;
(3) mandamus commanding respondent to furnish Maheu opportunity to file and have
entertained a motion for the imposition of a conditional sanction to ensure the appearance of
Howard R. Hughes for the taking of his deposition; and
(4) mandamus commanding respondent to vacate that provision of an Order Sealing
Exhibit which curtails disclosure of the contents of certain documents.
Of these requests, we grant the first two for reasons stated in this Opinion. With those matters
determined by us, we are confident respondent will promptly consider and decide any motion
for a conditional sanction Maheu may address to it; thus, we believe Maheu will now have a
plain, speedy and adequate remedy concerning the matter involved in his third request;
therefore we deny it, without prejudice. While Maheu's counsel may have acquiesced in the
court's entry of an order precluding disclosure of his exhibit, we have no doubt that, subject to
appropriate safeguards, Maheu's counsel is nonetheless entitled to copies thereof to prepare
his case, and during deposition should be allowed to examine Hughes on the original
documents. However, again, we are confident the court will now allow such access upon
proper application; thus Maheu's fourth request for relief is also denied, without prejudice.
A complaint is pending in the respondent court by Robert A. Maheu, plaintiff, against
Chester C. Davis, Frank William Gay, and C. J. Collier, Jr., as defendants, claiming damages
for wrongful interference with Maheu's alleged right to control certain business properties.
certain business properties. Another complaint is pending in the name of HTCo, as plaintiff,
seeking an injunction and damages against Maheu, as defendant, for wrongful refusal to
surrender control of business properties and records. In addition to pleading defenses to
HTCo's complaint, Maheu has stated a counterclaim against Hughes and HTCo.
On December 12, 1970, while conducting combined hearings on motions for preliminary
injunction filed by Maheu and HTCo, the court entered an Order Sealing Exhibit, providing
that a documentary exhibit offered by Maheu be sealed in an envelope, which should not be
reopened except on application to the court, and that Maheu was prohibited from making
any further disclosure, dissemination or other use of the exhibit.
On December 24, 1970, the court entered a preliminary injunction from which Maheu has
taken an appeal, the merits of which are not before us. The injunction contains provisions
requiring Maheu to return records, with which Maheu claims to have complied to the extent
he understands the obligations created thereby.
1

On December 31, 1970, Maheu served HTCo's counsel with notice under NRCP 26(a),
advising them he would take the deposition of HTCo, by its managing agent, Howard R.
Hughes, at 10:00 a.m., January 11, 1971, at the office of Maheu's attorney. No one appeared
pursuant to the notice. Instead, at 10:33 a.m. on January 11, HTCo's counsel filed a paper
styled Motion to Vacate Notice to Take Deposition, asserting that (1) the discovery sought
was premature, (2) the discovery was not in conformity with applicable provisions of the
Nevada Rules of Civil Procedure nor with other applicable rules of law, and (3) HTCo may
not be compelled to produce Howard R. Hughes as its managing agent. The same day, at
10:35 a.m., HTCo's counsel procured an ex parte order, purporting to stay the deposition
until further order of the court following hearing and determination of said Motion. The
motion was never heard.
On January 11, Maheu applied for an order directing the amount of the supersedeas bond
to be posted by him to obtain a stay of the preliminary injunction pending his appeal.
____________________

1
Among other things, the preliminary injunction provides:
IT IS FURTHER ORDERED that defendants, their respective agents, servants, employees and attorneys,
and all persons in active concert and participation with any of them, shall forthwith return or cause the return to
plaintiff of all books, documents, records and communications of plaintiff or pertaining directly or indirectly to
the business operations or affairs of plaintiff, including all copies or other reproductions [sic] of same, and all
other property belonging to plaintiff, as may be in the possession, custody or control of defendants directly or
indirectly.
amount of the supersedeas bond to be posted by him to obtain a stay of the preliminary
injunction pending his appeal. January 14, the court denied this application.
On January 19, at 5:14 p.m., counsel purporting to act only for HTCo filed the Motion for
a Stay and for an Extension of Time that is the subject of Maheu's application for a writ of
prohibition. This motion asked the court: (1) for a stay of all actions, proceedings,
processes and other activities by or on behalf of Robert A. Maheu. . . other than for
compliance with the prior orders of this court dated December 12 and 24, 1970, relating to
certain documents and other property to be returned to HTCO, until MAHEU has fully
complied with and satisfied the Court as to his compliance with said prior orders of this
court; and (2) for an extension of time for any party to move, answer or otherwise respond
to pleadings until after Maheu shall have fully complied and satisfied the court as to his
compliance with said prior orders of this Court.
2
By ex parte order filed at 5:19 p.m., the
court extended the time of any party to plead, as requested by the motion, and stayed
depositions of Frank W. Gay and Chester C. Davis (respectively noticed by Maheu for
January 25 and February 1) until further order of this Court following hearing and
determination of the Motion to Stay.
On February 5, Maheu served another notice to depose Hughes, and moved the court to
vacate its ex parte stay order of January 11. March 3, the court denied Maheu's motion
without prejudice.
April 1, the court conducted a conference to schedule the order in which pending matters
would be heard. The court decided, over protests by Maheu's counsel, that it would not
consider any other matters until such time as it had heard and determined HTCo's "Motion for
a Stay and for an Extension of Time."
____________________

2
The grounds for this Motion for Stay were:
1. MAHEU has failed and refused to comply with the prior orders of this Court;
2. substantial rights of HTCO in the above cases are materially and adversely affected so long as MAHEU
fails to comply with the prior orders of this Court relating to the return of documents and property belonging to
HTCO;
3. MAHEU is not entitled to the use or protection of the rules, procedures or processes of this Court in
connection with the above cases so long as he is defying the prior orders of this Court; and
4. the conduct of MAHEU is contumacious and tends to make a mockery of the rules, procedures and
orders of this Court. It is not only inequitable but prejudicial to HTCO to require the parties involved in the
above cases to proceed with the litigation of the issues raised by MAHEU so long as MAHEU fails and refuses
to comply with the outstanding orders of this Court.
determined HTCo's Motion for a Stay and for an Extension of Time. Thereafter, the court
held hearings at which it permitted HTCo's counsel to call numerous persons to interrogate
them concerning the nature and quantity of records removed from premises of HTCo, where
Maheu and his company had conducted business (including managerial services for HTCo)
until HTCo undertook to terminate its relationship with Maheu. These proceedings continued
from time to time until June 12, when our court stayed them to consider the petition now
before us.
I
[Headnotes 1, 2]
Under NRS 34.320, the writ of prohibition arrests the proceedings of any tribunal,
corporation, board or person exercising judicial functions, when such proceedings are without
or in excess of jurisdiction. As a corollary, prohibition will arrest proceedings in aid of an
order that is not binding on the petitioner. See: State ex rel. Friedman v. Dist. Ct., 81 Nev.
131, 399 P.2d 632 (1965), and Culinary Workers v. Court, 66 Nev. 166, 207 P.2d 990 (1949),
both granting prohibition against proceedings in aid of a restraining order improperly issued
without a bond. Thus, if the injunction's provisions requiring Maheu to return records failed
for any reason to bind him, then prohibition lies against proceedings instituted to enforce
those provisions.
Maheu contends that proceedings predicated upon mandatory provisions of the preliminary
injunction are therefore in excess of the district court's jurisdiction because although he
appealed, posted a proper appeal bond, and moved for an order fixing the supersedeas bond
necessary to obtain a stay during appeal, the district court unlawfully denied his motion. If the
injunction's mandatory provisions are deemed to direct the assignment or delivery of
documents or personal property within the meaning of NRCP 73(d)(2), Maheu urges, then
under that rule he had an absolute right to enter a bond [i]n lieu of assignment and delivery.
However, if NRCP 73(d) does not require a supersedeas bond, Maheu argues, his appeal itself
effected an automatic stay, because NRCP 73(d)(4) states [i]n cases not provided for. . . the
giving of an appeal bond . . . shall stay proceedings in the court below upon the judgment or
order appealed from. As Maheu in fact sought to have the court fix the supersedeas required
of him, we may assume the case is governed by NRCP 73(d)(2).
The pertinent part of that rule was derived from Section 407 of our 1911 Civil Practice
Act, and is in substantially the same form today as when this court decided State ex rel.
form today as when this court decided State ex rel. Pacific Reclamation Co. v. Ducker, 35
Nev. 214, 127 P. 990 (1912). There we said: On an appeal from a mandatory injunction
requiring defendants to deliver property to plaintiffs, as in this case, an appeal from the order
entitled the defendants, as a matter of right, upon the filing of a proper stay bond, to a stay of
proceedings under the injunction. In such a case, the fixing of the amount of the stay bond is
not a matter of discretion with the trial court. 35 Nev., at 227; 127 P., at 994; accord, Dodge
Bros. v. General Petroleum Corp., 54 Nev. 245, 10 P.2d 341 (1932). We can hardly depart
from our prior rulings, for they not only appear correct, but have been part of our practice for
more than half a century; the statute they interpreted was re-adopted by our legislature as part
of our 1937 new trials and appeals act (Stat. of Nev. 1937, ch. 32, p. 53, at p. 59); this court
itself adopted those provisions without material change, upon recommendation of our
Advisory Committee, when we promulgated NRCP; and our prior decisions, as well as our
decision today, are in accord with those in California, upon whose code our practice is based.
3

It should be noticed that the cases we have cited involved proceedings contemplating
punishment for contempt; whereas, HTCo's motion asked a stay of all actions, proceedings
processes and other activities by or on behalf of Maheu. If anything, this difference only
renders proceedings on HTCo's motion more dubious; for where a tribunal has refused to let
counsel proceed because it deemed him in contempt, this court has granted mandamus,
saying: If the alleged conduct of the relator was contemptuous, our statute provides ample
penalty for it. Cf. State ex rel. Huffaker v. Crosby, 24 Nev. 115, 123, 50 P.127, 128 (1897).
Thus, proceedings on HTCo's Motion for a Stay and for an Extension of Time are patently
in excess of jurisdiction, and as to all such proceedings a writ of prohibition must issue.
4
The
respondent court having extended the time for any party to move, answer or otherwise
respond to pleadings in the causes before it, until five days after determination of HTCo's
Motion for Stay; and proceedings on that motion now being terminated; any party under
obligation to move, answer, or otherwise respond to pleadings in the causes before the
respondent court shall do so, within five days after entry of our Notice in Lieu of
Remittitur.

____________________

3
In Clute v. Superior Court, 99 P. 362 (Cal. 1908), the Supreme Court of California arrested proceedings to
enforce a preliminary injunction directing the manager of a corporation to return books and property where,
although the petitioner has not posted a supersedeas bond, he had requested the court below to fix the amount
of an undertaking to stay proceedings. Id., at 364. See also: Kettenhofen v. Superior Court, 358 P.2d 684 (Cal.
1961); Schwarz v. Superior Court, 43 P. 580 (Cal. 1896); Dewey v. Superior Court, 22 P.333 (Cal. 1889).

4
Accordingly, while Maheu has raised other forceful arguments to support the writ's issuance, it is
unnecessary to decide them.
If the proceedings be considered as discovery into Maheu's defenses
The respondent court having extended the time for any party to move, answer or otherwise
respond to pleadings in the causes before it, until five days after determination of HTCo's
Motion for Stay; and proceedings on that motion now being terminated; any party under
obligation to move, answer, or otherwise respond to pleadings in the causes before the
respondent court shall do so, within five days after entry of our Notice in Lieu of Remittitur.
II.
Under NRS 34.160, mandamus lies to compel the admission of a party to the use and
enjoyment of a right or office to which he is entitled and from which he is unlawfully
precluded. Through NRCP 26(a), this court has declared the right of any party to take the
testimony of any person, including a party, by deposition upon oral examination or written
interrogatories for the purpose of discovery or for use as evidence in the action or for both
purposes. Maheu contends respondent unlawfully precluded his rights under NRCP 26(a)
when, without motions for protective orders seasonably made by any party or by the person
to be examined and upon notice and for good cause shown, as required by NRCP 30(b),
respondent first entered ex parte orders staying depositions noticed by Maheu, thereafter
denied Maheu's motion to vacate the order that stayed the deposition of HTCo through
Hughes, and then declined to consider any matter except HTCo's Motion to Stay pending
its determination.
____________________
and counterclaim, as counsel for HTCo sometimes appears to suggest, the court is equally without jurisdiction to
entertain them; for they clearly are contrary to numerous provisions of the practice we have promulgated, e.g.
NRCP 30(a)(b)(c)(e). It would be strange indeed were we to hold that respondents could allow HTCo to conduct
its discovery in court, without the slightest compliance with our rules, while denying Maheu all right to proceed
with discovery outside of court, in compliance with those rules.
Again, HTCo's motion cannot be considered as one for a protective order, in part for reasons indicated in
Point II of this Opinion.
Rasbury v. Bainum, 387 P.2d 239 (Utah 1963), upon which HTCo principally relies in justification of the
proceedings, has little or nothing in common with the case at hand. There, the court entered a pre-trial order, the
propriety and binding character of which plaintiff did not question, requiring him to produce books and records
for trial. The plaintiff failed to produce them, offering no excuse except the suggestion that possibly they had
been stolen from his office. The court held this excuse not worthy of consideration and dismissed his cause of
action; the appellate court affirmed.
[Headnote 3]
For a century, our settled law has been that any special motion involving judicial
discretion that affects the rights of another, as contrasted to motions of course, must be
made on notice even where no rule expressly requires notice to obtain the particular order
sought, except only when this requirement is altered to meet extraordinary situations such as
those concerned in NRCP 65(b). Pratt v. Rice, 7 Nev. 123 (1871); NRCP 6(d). It is also
fundamental that although an order's subject matter would lie within the court's jurisdiction if
properly applied for, it is void if entered without required notice. Our authorities establishing
this principle are as old as Wilde v. Wilde, 2 Nev. 306 (1866), and as recent as Reno
Raceway, Inc. v. Sierra Paving, Inc., 87 Nev. 619, 492 P.2d 127 (1971). It makes no
difference that a void order may concern a matter committed to the court's discretion, such as
discovery, regarding which the court might have granted protective orders had a proper
application been made. Cf. Checker, Inc. v. Public Serv. Commn., 84 Nev. 623, 446 P.2d 981
(1968); cf. Ray v. Stecher, 79 Nev. 304, 383 P.2d 372 (1963); cf. Whitney v. District Court,
68 Nev. 176, 227 P.2d 960 (1951); cf. Abell v. District Court, 58 Nev. 89, 71 P.2d 111
(1937).
State ex rel. Jurich v. McFadden, 43 Nev. 140, 182 P. 745 (1919), is particularly
noteworthy in view of suggestions that various acts of the district court are to be justified as
housekeeping matters. In McFadden, this court recognized that when a district court
undertook to change a trial date without a motion properly before it on notice, as required by
a general rule of practice like NRCP 6(d), extraordinary relief by certiorari was available from
this court. There, we said: Attempt is made to maintain the action of the court upon the
ground that courts have inherent power to regulate their own docket and control their own
business. This position is not tenable in face of the explicit and unconditional direction of the
statute and said rule of court. 43 Nev., at 147.
[Headnote 4]
The authorities cited leave no doubt that orders void for want of notice may be reviewed
by certiorari, although we have sometimes refused to issue the writ where it appears the
district court, on application, might vacate the offending order. Here, although Maheu's
counsel afforded the court an opportunity to correct its own error, it refused to do so and
continued to preclude Maheu's right. Mandamus lies to gain admission to a precluded right to
proceed. Cf. Swisco, Inc. v. District Court, 79 Nev. 414
79 Nev. 414, 385 P.2d 772 (1963); cf. LaGue v. District Court, 68 Nev. 131, 227 P.2d 436
(1951); cf. Roberts v. District Court, 43 Nev. 332, 185 P. 1067 (1920); cf. State ex rel. Howe
v. Moran, 37 Nev. 404, 142 P. 534 (1914); cf. Floyd v. District Court, 36 Nev. 349, 135 P.
922 (1913).
It is no answer to say the court has not denied, but has merely postponed, Maheu's right to
take desired depositions; for with exceptions not applicable here, NRCP 26(a) expressly
grants the right to depose witnesses without leave of court. The right to prepare one's case
in this manner is continuing and ever present, subject to discretionary control by the court
only in conformity with NRCP.
Since the court's ex parte orders staying depositions were entered without any
jurisdiction we can perceive, either under NRCP 30(b) or otherwise, and since we believe
such a jurisdictional deficiency does not become a calendar problem merely because
problems concerning it have been interjected into the court's calendar, it is our order that a
writ of mandamus issue commanding the lower court to vacate its order of January 11 staying
the deposition of HTCo through Hughes.
5

The view we take of this matter makes it unnecessary to consider the extent to which this
court may, by extraordinary writ, review merely erroneous or arbitrary orders of a district
court that decide some properly presented issue concerning discovery.
Batjer and Thompson, JJ., concur.
Zenoff, C. J., concurring:
I concur with the result reached by the majority that the extraordinary writs must issue, but
in particular, base my concurrence that mandamus lies to compel the discovery right to
depose Howard R. Hughes on the following rationale.
____________________

5
It is arguable that when a court is without time to hear a proper motion for a protective order, it may
postpone the deposition until the motion can be heard. Cf. Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d
257, 269 (9th Cir. 1964). Here, however, the court's ex parte stay order cannot thus be justified; for assuming,
out of favor to HTCo, that its Motion to Vacate Notice to Take Deposition can be considered a motion for a
protective order, it was neither seasonably made nor made upon good cause shown. See: Millholland v.
Oglesby, 155 S.E.2d 672 (Ga.App. 1967); Wieneke v. Chalmers, 385 P.2d 65 (N.M. 1963); Stevens v. Sioux
City and New Orleans Barge Lines, Inc., 30 F. R. D. 397 (W.D. Mo., W.D. 1962); Loosley v. Stone, 15 F. R. D.
373 (S.D. Ill., N.D. 1954); Dictograph Products v. Kentworth Corporation, 7 F. R. D. 543 (W.D. Ky. 1947).
Our discovery rules are patterned on the Federal Rules of Civil Procedure.
I. On January 11, 1971 Judge Babcock stayed the taking of the deposition of Hughes Tool
Company noticed for January 11, 1971 until further order of the court. The motion on which
the stay was predicated set forth the grounds, in addition to testimony and evidence
theretofore received, to be:
1. The discovery sought is premature.
2. The discovery sought is not in conformity with applicable provisions of the Nevada
Rules of Civil Procedure nor with other applicable rules of law.
3. Hughes Tool Company may not be compelled to produce Howard R. Hughes for
deposition as its managing agent.
Upon motion for a stay and for an extension of time, on January 19, 1971, Judge Babcock
stayed all proceedings including the taking of Howard Hughes' deposition until he would
conduct a hearing on whether or not Maheu had complied with the court's previous order to
return all papers that Maheu had taken from Hughes Tool Company and Hughes Nevada
Operations. The judge's position is that the court has the inherent power to see to it that its
orders are complied with. I maintain he was in excess of his jurisdiction and that it was not
mere error, that (1) the order to turn over all papers was stayed by the stay bond request, (2)
he has rules relating to contempt to enforce his orders, if valid, (3) that the Hughes people
have the right according to rules provided to amend their pleadings at any time that new
information is discovered (NRCP Rule 15, Amended & Supplemental Pleadings), thus, their
claim that they cannot proceed to file an answer to the counterclaim because, allegedly,
Maheu had some of their papers, is without merit, and (4) that they have the benefit of
protective orders provided in the rules on the taking of depositions and none of those
protective orders includes a stay order of all proceedings such as Judge Babcock imposed.
II. Mandamus is appropriate.
My first assignment of error has been treated by the majority. As the second and third are
self-explanatory, I will discuss more fully the fourth.
A. Rule 30 of the Nevada Rules of Civil Procedure grants the right after commencement
of the action for any party to take the testimony of any person, including a party, by
deposition upon oral examination. When this right is denied or infringed upon without lawful
authority interlocutory review may be had by use of an extraordinary writ, in this instance the
writ of mandate. Texaco, Inc. v. Borda, 383 F.2d 607 (3rd Cir. 1967). NRS 34.160 provides
in pertinent part: "The writ may be issued by the supreme court. . . to compel the
admission of a party to the use and enjoyment of a right or office to which he is entitled
and from which he is unlawfully precluded by such inferior tribunal, . . . [Emphasis
supplied.]."
The writ may be issued by the supreme court. . . to compel the admission of a party to the
use and enjoyment of a right or office to which he is entitled and from which he is unlawfully
precluded by such inferior tribunal, . . . [Emphasis supplied.].
There is the further requirement of NRS 34.170 that:
This writ shall be issued in all cases where there is not plain, speedy and adequate remedy
in the ordinary course of law. It shall be issued upon affidavit, on the application of the party
beneficially interested.
In Harabedian v. Superior Court, County of Los Angeles, 195 Cal.App.2d 26, 15 Cal.Rptr.
420, 422 (1961), it was held that a writ of mandamus may issue not only to enforce a proper
discovery right (Dowell v. Superior Court, 47 Cal.2d 483, 304 P.2d 1009 (1956); Powell v.
Superior Court, 48 Cal.2d 704, 312 P.2d 698 (1957); Walker v. Superior Court, 155
Cal.App.2d 134, 317 P.2d 130 (1957); Jorgensen v. Superior Court, 163 Cal.App.2d 513, 329
P.2d 550 (1958)), but also to prevent improper discovery proceedings including physical
examinations. Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896, 64 A.L.R.2d 494
(1955); Gonzi v. Superior Court, 51 Cal.2d 586, 335 P.2d 97 (1959).
Statutes relating to discovery procedures should be liberally construed in favor of
disclosure. Harabedian, supra; Hauk v. Superior Court of Los Angeles County, 38 Cal.Rptr.
345, 391 P.2d 825 (1964).
Chief Judge Lumbard in Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 614 (1964),
said:
We think it clear beyond any question, in light of all the circumstances here presented,
that the deposition of Hughes was necessary to all aspects of this litigation, and his willful
and deliberate default constituted a sufficient basis under Rule 37 for the dismissal of the
counterclaims with prejudice. Hughes has at all times been the sole owner of Toolco and the
guiding light behind all the transactions between Toolco and TWA. Both TWA and the
additional defendants had the right to depose Hughes.
For the purposes of this litigation, I subscribe to those views.
The notice on December 31, 1970 to Hughes Tool Company and Howard R. Hughes was
proper and in conformance with the Nevada Rules of Civil Procedure. NRCP 30(c); Deros v.
Stern, 87 Nev. 148, 483 P.2d 648 (1971). Therefore, it is clear that there is a right under the
Nevada discovery rules to take the deposition, that this right has been infringed upon, and per
the mandamus statute, the writ of mandate will lie to compel the enjoyment of the right to
which Maheu is entitled.
B. An appeal is not an adequate remedy in this instance. As a condition precedent to
mandamus, NRS 34.170 requires that there be no plain, speedy and adequate remedy in law.
In Annot., Availability of mandamus or prohibition to compel or to prevent discovery
proceedings, 95 A.L.R.2d 1229, 1237 (1964), it is stated:
In accordance with the general principle that the availability of other legal remedies does
not preclude proceedings in prohibition where such other remedies are not adequate, it was
held in the following cases that a writ of prohibition to review the granting of a discovery
order was available to the aggrieved party on the ground that the remedy by appeal from the
final judgment of the action wherein discovery was granted was inadequate. [California and
Arizona cases then are cited.]
In McClatchy Newspapers v. Superior Court of Sacramento County, 26 Cal.2d 386, 159
P.2d 944, 948 (1945), the California Supreme Court, in considering an interlocutory review
of pretrial discovery proceedings, stated, [m]andamus is the appropriate remedy to secure the
enforcement of a litigant's statutory right to take depositions, and an appeal from a final
judgment is neither speedy nor adequate where a trial court improperly refuses to order that a
deposition be taken [citations omitted].
The Arizona Court of Appeals had occasion in Phelps Dodge Corp. v. Superior Court, 7
Ariz.App. 277, 438 P.2d 424 (1968), to consider a writ of certiorari seeking review of pretrial
discovery order entered in a civil action. The court stated, at 427, [w]e agree with California
that appeal is not an adequate remedy for denial of discovery because a litigant has a right to:
. . . the means of obtaining in advance of the trial information concerning the issues and the
means of producing at the trial the evidence necessary to sustain his action or defense.'
McClatchy, [supra,] 159 P.2d at 948-49.
Consequently the requirements of NRS 34.170 are satisfied in this case.
III. The general rule in Nevada is that mandamus will not lie to review the discretionary
acts of a trial judge. This has been the inflexible rule as exemplified by the following citations
of its application. Only a relatively small handful of exceptions have been made even in light
of the extensive changes which have occurred in criminal and civil discovery. Those cases
which recite the rule include:
1. Mears v. State, 83 Nev. 3, 7, 422 P.2d 230 (1967) (mandamus and
prohibitioncriminal discovery).
2. Jowers v. Compton, 82 Nev. 95, 96, 411 P.2d 479 (1966) (mandamuscivilwill
contest).
3. Wilmurth v. District Court, 80 Nev. 337, 340, 393 P.2d 302 (1964)
(mandamuscivilrequest to vacate pretrial order).
4. Marshall v. District Court, 79 Nev. 280, 283, 382 P.2d 214 (1963) (certioraricriminal
discovery).
5. Franklin v. District Court, 85 Nev. 401, 402, 455 P.2d 919 (1969) (certioraricriminal
discovery).
6. Pinana v. District Court, 75 Nev. 74, 75, 334 P.2d 843 (1959) (mandamuscriminal
discovery).
7. State v. McFadden, 46 Nev. 1, 6, 205 P. 594 (1922) (mandamuscivilto expunge
grand jury report).
8. State v. District Court, 40 Nev. 163, 166, 161 P. 510 (1916)
(mandamuscivilremoval of administrator).
9. State v. Curler, 26 Nev. 347, 356, 67 P. 1075 (1902) (mandamuscivilrefusal to
appoint appraisers).
10. Hoole v. Kinkead, 16 Nev. 217, 222 (1881) (mandamuscivilcommissioners'
determination of best bid).
11. State ex rel. Hetzel v. Board of Commissioners of Eureka County, 8 Nev. 309, 310
(1873) (mandamuscivilelection of county officers).
12. State v. Curler, 4 Nev. 445, 447 (1869) (mandamusciviltransfer of cause).
The Nevada Supreme Court has recognized that mandamus will lie in the following class
of cases.
A. Proceedings which are not within jurisdiction of district court.
Culinary Workers v. District Court, 66 Nev. 166, 207 P.2d 990 (1949).
Gaming Control Bd. v. District Court, 82 Nev. 38, 409 P.2d 974 (1966).
B. Court's declination to use jurisdiction it possessed.
Roberts et al. v. Second Judicial District Court, 43 Nev. 332, 185 P. 1067 (1920),
Swisco, Inc. v. District Court, 79 Nev. 414, 385 P.2d 772 (1963),
Floyd v. District Court, 36 Nev. 349, 135 P. 922 (1913).
C. Noncompliance with statutory provisions.
State ex rel. Friedman v. District Court, 81 Nev. 131, 399 P.2d 632 (1965), and Shelton v.
District Court, 64 Nev. 487, 185 P.2d 320 (1947). (Here the legal principle is the same
although these cases arose under the rubric prohibition.)
State ex rel. Cooper v. Reese, 57 Nev. 125, 59 P.2d 647 (1936).
D. Where the court erred as a matter of law.
Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964).
Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964).
I conclude that a trial court which so abuses its discretion relative to pretrial discovery
matters to such an extent as to exceed its jurisdiction is subject to interlocutory review by writ
of mandamus to an appellate court.
IV. Law of other jurisdictions.
The application is recognized in other jurisdictions. In Arizona, after the courts had
struggled with the problem of extraordinary writs for a number of years, the Arizona Supreme
Court adopted Rules of Procedure for Special Actions[Extraordinary WritsCertiorari,
Mandamus, Prohibition] 17 ARS Annot., 1969-70 Supp. (effective January 1, 1970). Rule 3
thereof is as follows:
Rule 3. Questions Raised
The only questions that may be raised in a special action are:
(a) Whether the defendant has failed to exercise discretion which he has a duty to exercise;
or to perform a duty required by law as to which he has no discretion; or
(b) Whether the defendant has proceeded or is threatening to proceed without or in excess
of jurisdiction or legal authority; or
(c) Whether a determination was arbitrary and capricious or an abuse of discretion.
[Emphasis supplied.]
In commenting upon and explaining Rule 3, John Nelson, in The Rules of Procedure for
Special Actions: Long Awaited Reform of Extraordinary Writ Practice in Arizona, 11 Ariz.
L.Rev. 413, 423-24 (1969), said:
There is no question that the more recent cases have tended to broaden the traditional
scope of mandamus. The fact that discretion may have been exercised is no longer a complete
bar to relief by mandamus since the courts have held that, although they normally will not
control the exercise of discretion, they may do so if the respondent has acted arbitrarily or has
abused his discretion. This does not mean that the petitioner must establish bad
motivationhe need only show conduct which the court deems unreasonable or ultra vires.
. . .
Rule 3(c)
Whether a determination was arbitrary and capricious or an abuse of discretion.
In the past it was often said by Arizona courts that prohibition would not lie merely to
correct error, irregularity, or mistake in the proceedings of an inferior tribunal. Similarly,
[c]ertiorari issues only to test jurisdiction, and not to determine whether it was erroneously
exercised.' Although these principles have never been expressly repudiated, recent cases
indicate that they are no longer binding standards, and that the court will see that essential
justice is done.' For example, in discussing certiorari, the Supreme Court of Arizona in State
ex rel. Ronan v. Superior Court [95 Ariz. 319, 390 P.2d 109 (1964)], stated:
[I]f the court abused its discretion, or failed regularly to pursue its authority, which has
the same meaning, the reviewing court might examine the evidence bearing on jurisdiction or
abuse of discretion, but not with a view to determine facts or draw conclusions therefrom
respecting guilt. [Footnotes omitted.]
New York has adopted a special action rule merging the three remedies, N.Y.Civ.Prac.
Laws and Rules 7801 (McKinney's 1963) ( 7803(3) dealing with abuse of discretion), and
Colorado has to a considerable extent done the same, Colo.R.Civil Proc. 106 (1964).
As already noted, in California the trial court's discretion relative to discovery matters has
long been subject to review by special writs.
In Daum v. Superior Court, Sutter County, 228 Cal.App.2d 283, 39 Cal.Rptr. 443, 445
(1964), an original proceeding to compel the Superior Court to permit petitioners to file a
second amended complaint, the court stated:
Section 1086 of the Code of Civil Procedure provides that the writ of mandamus will
issue in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary
course of law.' (Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896, 64 A.L.R.2d 494.)
Case law has established that mandate will lie, inter alia, to control judicial discretion when
that discretion is abused; and that [i]n a legal sense discretion is abused whenever in the
exercise of its discretion the court exceeds the bounds of reason, all of the circumstances
before it being considered.' (State Farm Mutual Automobile Ins. Co. v. Superior Court, 47
Cal.2d 428, 432, 304 P.2d 13, 15; Hays v. Superior Court, 16 Cal.2d 260, 105 P.2d 975.)
In Sharff v. Superior Court, 44 Cal.2d 508, 282 P.2d 896 (1955), the California Supreme
Court held that plaintiff in a personal injury action who was ordered to undergo a physical
examination by defendant's doctor was entitled to have the assistance and protection of
her attorney during the examination, and the denial of this right imposed an unlawful
condition upon plaintiff's right to proceed to trial.
examination by defendant's doctor was entitled to have the assistance and protection of her
attorney during the examination, and the denial of this right imposed an unlawful condition
upon plaintiff's right to proceed to trial. Mandamus was held to be a proper remedy. The court
summarized its holding, at 897, We are of the view that the respondent court, in staying all
proceedings until plaintiff should comply with the order directing her to submit to an oral and
physical examination without the presence of her attorney, imposed an unwarranted condition
on her right to have the case proceed to trial.
V. The trial court abused its discretion.
A. Referring back to the mandamus statute, NRS 34.160, all that is required to be shown
is that the petitioner is unlawfully precluded by such inferior tribunal from a right to which
he is entitled. . . . The trial court abused its discretion on three grounds:
1. The petitioner only must show that the district judge acted unlawfully. NRCP 26-37
grant broad powers to litigants promoting and expediting the trial of civil matters by allowing
those litigants an adequate means of discovery during the period of trial preparation. To
prevent abuse of this expanded discovery process, the district court has been granted
discretion in the granting of protective orders under NRCP 26(c) and 30(d). Rule 30(d) is
inapplicable as it focuses on the time during the taking of the deposition.
Rule 26(c) provides:
(c) Protective Orders. Upon motion by a party or by the person from whom discovery is
sought, and for good cause shown, the court in which the action is pending may make any
order which justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or more of the following [sanctions].
None of the grounds stated in the motion to vacate notice to take deposition relied upon by
the lower court in its stay order of January 11, 1971 is allowed for by Rule 26(c) and
therefore the district judge unlawfully stayed the deposition. In this light it may appear that
the district court exceeded its jurisdiction. The case of Dzack v. Marshall, 80 Nev. 345, 393
P.2d 610 (1964), held that the district court had a duty to grant a 56(e) summary judgment
under the facts of the case, that there was no remaining discretion left in the court.
Conceptually, the same result could have been reached by stating that the lower court abused
its discretion in not granting the judgment when the defendant had a legal right to it. Here,
the trial court either exceeded its jurisdiction or abused its discretion, both of which
amount to the same.
the trial court either exceeded its jurisdiction or abused its discretion, both of which amount
to the same.
2. The district court relied on the motion to vacate, the first ground stated therein being
that The discovery sought is premature. In this matter the discovery was not premature. It is
difficult to predict if and when Howard R. Hughes will be available for deposition. His
vagaries are common knowledge. In De Wagenknecht v. Stinnes, 102 U.S.App.D.C. 89, 250
F.2d 414 (1957), the Court of Appeals affirmed the district court's order, under F.R.Civ.P. 27,
authorizing the taking of the deposition of a 74-year-old witness, saying at 417, Mrs. Stinnes
seeks by this proceeding to perpetuate the testimony of a person who has knowledge of
certain events and transactions, many of which took place years ago. There can be no
certainty that this testimony will still be available when the controversy is ready for litigation,
since the witness is at present seventy-four years of age.
In Texaco, Inc. v. Borda, 383 F.2d 607 (3rd Cir. 1967), the appellate court held that the
denial to the petitioner of leave to take the deposition from an individual whose civil antitrust
action against the company had been stayed until determination of a related criminal antitrust
action in which the company has been named co-conspirator was an abuse of discretion,
where the individual was 71 years old, and the alleged conspiracy had occurred 11 years
previously. See also, Martin v. Reynolds Metals Corporation, 297 F.2d 49 (9th Cir. 1961),
and Block v. Superior Court of Los Angeles County, 219 Cal.App.2d 469, 33 Cal.Rptr. 205
(1963), both of which illustrate the policy of allowing liberal discovery by deposition to
perpetuate testimony.
3. The stay order of January 19, 1971 staying all proceedings until Maheu showed
compliance with the turnover orders of December 12 and 24, 1970 and the motion in support
of the stay order clearly show that this stay order was imposed as a sanction to force
compliance with the court's prior order. As pointed out in the foregoing analysis, Maheu has a
right to depose Howard R. Hughes (NRCP 30), that certain designated grounds are set out in
NRCP 26(c) for the protection of any person from whom discovery is sought, namely,
protection from annoyance, embarrassment, oppression, or undue burden or expense and that
none of these grounds includes a stay to force or precipitate compliance with a court order.
Other rules in the nature of contempt proceedings are provided for that purpose. The district
judge abused his discretion and in effect acted without jurisdiction.
his discretion and in effect acted without jurisdiction. See Hauk v. Superior Court of Los
Angeles County, 38 Cal.Rptr. 345, 391 P.2d 825 (1964).
I concur in the result reached by the majority and trust that discovery, including the
deposition of Howard R. Hughes, will now proceed forthwith to the end that the merits of the
action will be resolved.
Mowbray, J., dissenting:
Respectfully, I must object to the issuance of the writs of prohibition and mandamus
ordered by the court in its opinion filed today. Nevada precedent, in my opinion, does not
support the ruling of the court.
The background of this litigation may be summarized as follows: Petitioner Maheu was
the chief executive of Hughes Nevada Operations, which comprised all of Hughes Tool
Company's business activities in Nevada. On December 4, 1970, Maheu was relieved of that
position. Immediately, he sought and obtained a temporary restraining order prohibiting those
seeking his ouster from taking any further action to do so.
1
At this time, many of the papers,
files, and records of Hughes Tool Company were removed from the offices of Hughes
Nevada Operations. Hughes Tool Company then filed a complaint in the district court to
enjoin Maheu from asserting any control or authority over Hughes Nevada Operations.
2
The
two actions were consolidated. Evidentiary hearings were held before Judge Babcock, who on
December 24, 1970, dissolved the temporary restraining order previously obtained by Maheu
and granted the preliminary injunction sought by Hughes Tool Company, which enjoined
Maheu from interfering with or exercising any control over the activities of Hughes Nevada
Operations.
Maheu on December 31, 1970, filed a $50 million counterclaim against Hughes Tool
Company, seeking damages for breach of his employment contract. With the filing of the
counterclaim, Maheu gave notice of the taking of Hughes's deposition, scheduled for January
11, 1971.
3
Judge Babcock, however, on motion of Hughes Tool Company, vacated the
January 11 date and stayed the taking of the Hughes deposition until further order of the
court.
____________________

1
Maheu v. Davis, District Court Case No. 84241, designated No. 6598 on appeal.

2
Hughes Tool Co. v. Maheu, District Court Case No. 84259, designated No. 6597 on appeal.

3
Hughes is the sole stockholder of Hughes Tool Company.
until further order of the court. Thereafter, on January 19, 1971, Hughes Tool Company filed
a motion to stay any further action on behalf of Maheu's $50 million counterclaim until
Maheu had returned all the books, records, and files of Hughes Tool Company. On January
21, 1971, Petitioner Maheu filed a motion to disqualify Judge Babcock on the ground of
actual prejudice. Recognizing that the motion to disqualify presented an impediment to
further proceedings, the court, on February 3, 1971, ordered a stay of all proceedings until the
motion could be heard and ruled upon by another judge. District Judge Thomas O. Craven of
the Second Judicial District was assigned to hear the motion. He did so, and after hearing the
motion he denied it on March 16, 1971.
Judge Babcock then called a calendar conference of all parties for April 1, 1971, for the
purpose of determining and scheduling the order in which the pending matters connected with
the litigation would be heard. The transcript of the proceedings of April 1, 1971, reflects the
purpose of the conference:
The Court: As the Court noted in its decision and order of March 3, 1971, the law is well
settled that the trial court has broad case discretion to manage discovery proceedings. The
parties are now underway on this apparent rocky venture to discover facts and evidence in
support of and in opposition to respective claims.
It occurs to the Court that before there can be true discovery, and in the conservation of
the Court's timeand this time I am not concerned with the litigants' time, but with the
Court's timethere should be and there must be a resolution of the matter of books and
records. We are not concerned about matters of contempt.
I am only examining the posture of these proceedings with a view of giving some
expedition, because already there has been a delay of two months by reason of the filing of a
motion to change the presiding judge.
I wish to assure the parties that there will be no delay practiced in this Court on that issue.
I expect the parties to be forthwith, forthright to the Court, so that there can be a real search
for the truth of the matters. And certainly a search for the truth would require, and does
require, that the books and records, which relate to matters material to this cause, be before
the Court and be available to the parties.
This does not interminably delay the taking of any depositions. Because this Court will
give expedition to the proceedings as it relates to the matter of records, a resolution of those
motions, and will not countenance from the parties any delaying tactics, which has been
suggested by counsel for Maheu, should this Court undertake a resolution of the matter of
records."
motions, and will not countenance from the parties any delaying tactics, which has been
suggested by counsel for Maheu, should this Court undertake a resolution of the matter of
records.
It was decided that the court would first hear and consider Hughes Tool Company's motion
filed January 19, 1971, seeking a stay order on Maheu's counterclaim.
4
The evidentiary
hearings followed at the convenience of the court's and counsel's calendars, on April 19-20,
May 3-4, and June 21-22, 1971, until they were halted by this court on July 12, 1971, after
Maheu filed this petition on June 14, 1971, seeking the extraordinary writs.
____________________

4
Counsel for Maheu objected to the scheduling given the evidentiary hearings. The following colloquy
occurred between Judge Babcock and counsel for petitioner at the calendar meeting:
The Court: Counsel, I wish to assure you that Mr. Maheu, nor the Hughes Tool Company, is not going to
manage the proceedings that are before this Court. I assure you of that fact.
Mr. Galane: Well, I would like to answer the Court, why they will accomplish everything that they want
through priority of hearing.
Now, your Honor, I would like to be heard. I am not suggesting either litigant will control the Court. What I
am saying is the Court, once it starts
The Court: Are you suggesting that this Court does not have sense enough to terminate a hearing when it
has determined that it has heard enough evidence?
Mr. Galane: Sometimes a Court cannot terminate a hearing without violating due process. I am not
speaking of the Court's sense. Does your Honor think that I would suggest that this Court lacks the perception
and intelligence not to analyze a proceeding? But a Court sometimes doesn't have the power to terminate a
hearing.
The Court: You are suggesting, Mr. Galane, that if we go to the matter of records, that Hughes Tool
Company can keep this Court on the bench day after day after day, or hearing after hearing after hearing, ad
infinitum?
Mr. Galane: Look at the motion.
The Court: And I can assure you that if that is your representation or belief, that this, sir, will not be the
fact, depending upon the matter upon which this Court determines.
Mr. Galane: If I can avoid it, I don't argue with the Judge. But I will show you how skillfully they can
manipulate it, with ease. May I remind the Court that I was the one who said to the Court that they may have in
the back of their mindand Miss Lea was the spokesman, and as long as I live I will never forget itI said they
will try to manipulate this record to file some motion to block proceedings, and she stood up and said, Mr.
Galane is overanticipating. And I live to see the truth of my prediction.
So if your Honor will bear with me.
The Court: I will bear with you, Mr. Galane. But I just want you to understand that this Court is the
manager of this Court, not the litigants.
1. Maheu in this proceeding seeks a writ of prohibition enjoining Judge Babcock from
taking any further action on the January 19 stay motion of Hughes Tool Company. Hughes
Tool Company's principal reason in seeking the stay is that the company is unable to respond
to Maheu's claims while Maheu retains possession of the Company's records. Maheu asserts
that he has returned all the Company's records. The Company claims that he has not done so.
Cf. Rasbury v. Bainum, 387 P.2d 239 (Utah 1963). Judge Babcock was conducting
evidentiary hearings to determine this very issue when our court stayed all proceedings below
on July 12, 1971. In my opinion, Judge Babcock as the trial judge should be permitted to
resolve the question. By the ruling announced by this court today, he is now barred from
doing so. Writs of mandamus and prohibition are extraordinary writs and are traditionally
never granted unless the court is acting without jurisdiction. They may not be utilized as a
substitute for an appeal. The reason for the rule is obvious, as this case demonstrates. To
utilize the writs as a substitute for an appeal delays the processing of the case and can
conceivably emasculate the orderly administration of justice. That is the basis for the rule that
writs of prohibition and mandamus are available only if the lower court's actions are in excess
of its jurisdiction or if there is no plain, speedy, and adequate remedy in the ordinary course
of the law. Both the Nevada statutes and Nevada case law have so held. NRS 34.170
provides:
This writ [of mandate] shall be issued in all cases where there is not a plain, speedy and
adequate remedy in the ordinary course of law. It shall be issued upon affidavit, on the
application of the party beneficially interested.
NRS 34.320 provides:
The writ of prohibition is the counterpart of the writ of mandate. It arrests the
proceedings of any tribunal, corporation, board or person exercising judicial functions, when
such proceedings are without or in excess of the jurisdiction of such tribunal, corporation,
board or person.
And, finally, NRS 34.330 provides:
The writ [of prohibition] may be issued only by the supreme court to an inferior tribunal,
or to a corporation, board or person, in all cases where there is not a plain, speedy and
adequate remedy in the ordinary course of law. It is issued upon affidavit, on the application
of the person beneficially interested.
This court ruled in Pinana v. District Court, 75 Nev. 74, 75, 334 P.2d 843 (1959): "It is
the settled law of this state that mandamus will not lie to control judicial discretion or to
review the propriety of judicial action.
It is the settled law of this state that mandamus will not lie to control judicial discretion or
to review the propriety of judicial action. State ex rel. Phillips v. District Court, 46 Nev. 25,
207 P. 80; State ex rel. Webber [sic] v. McFadden, 46 Nev. 1, 205 P. 594; State v. Ninth
Judicial District Court, 40 Nev. 163, 161 P. 510.
The concurring majority opinion states:
The general rule in Nevada is that mandamus will not lie to review the discretionary acts
of a trial judge. This has been the inflexible rule as exemplified by the following citations of
its application. Only a relatively small handful of exceptions have been made even in light of
the extensive changes which have occurred in criminal and civil discovery. Those cases
which recite the rule include:
1. Mears v. State, 83 Nev. 3, 7, 422 P.2d 230 (1967) (mandamus and
prohibitioncriminal discovery).
2. Jowers v. Compton, 82 Nev. 95, 96, 411 P.2d 479 (1966) (mandamuscivilwill
contest).
3. Wilmurth v. District Court, 80 Nev. 337, 340, 393 P.2d 302 (1964)
(mandamuscivilrequest to vacate pretrial order).
4. Marshall v. District Court, 79 Nev. 280, 283, 382 P.2d 214 (1963)
(certioraricriminal discovery).
5. Franklin v. District Court, 85 Nev. 401, 402, 455 P.2d 919 (1969)
(certioraricriminal discovery).
6. Pinana v. District Court, 75 Nev. 74, 75, 334 P.2d 843 (1959) (mandamuscriminal
discovery).
7. State v. McFadden, 46 Nev. 1, 6, 205 P. 594 (1922) (mandamuscivilto expunge
grand jury report).
8. State v. District Court, 40 Nev. 163, 166, 161 P. 510 (1916)
(mandamuscivilremoval of administrator).
9. State v. Curler, 26 Nev. 347, 356, 67 P. 1075 (1902) (mandamuscivilrefusal to
appoint appraisers).
10. Hoole v. Kinkead, 16 Nev. 217, 222 (1881) (mandamuscivilcommissioners'
determination of best bid).
11. State ex rel. Hetzel v. Board of Commissioners of Eureka County, 8 Nev. 309, 310
(1873) (mandamuscivilelection of county officers).
12. State v. Curler, 4 Nev. 445, 447 (1869) (mandamusciviltransfer of cause).
I agree with that part of the concurring majority opinion.
2. In Hughes Tool Co. v. Maheu, District Court Case No. 84259, designated No. 6597 on
appeal, the court granted a preliminary injunction on December 24, 1970, enjoining Maheu
from interfering with or exercising any control over the activities of Hughes Nevada
Operations, from which preliminary injunction Maheu has taken appeal, the merits of
which are not before us in this proceeding.
the activities of Hughes Nevada Operations, from which preliminary injunction Maheu has
taken appeal, the merits of which are not before us in this proceeding. The order granting the
injunction also provided:
IT IS FURTHER ORDERED that defendants, their respective agents, servants,
employees and attorneys, and all persons in active concert and participation with any of them,
shall forthwith return or cause the return to plaintiff of all books, documents, records and
communications of plaintiff or pertaining directly or indirectly to the business operations or
affairs of plaintiff, including all copies or other reproductions [sic] of same, and all other
property belonging to plaintiff, as may be in the possession, custody or control of defendants
directly or indirectly.
On December 31, 1970, Maheu filed his $50 million counterclaim in the Hughes Tool
Company action for damages resulting from the breach of an alleged oral contract of lifetime
employment. It was on this day, December 31, 1970, that Maheu gave notice to take Hughes's
deposition for 10:00 a.m., January 11, 1971. On January 11, 1971, Maheu also filed formal
notice of appeal from the order of December 24, 1970, granting the preliminary injunction.
He also sought an order under the provisions of NRCP 73(d) directing the filing of a
supersedeas bond, as he claimed he had a right to have bond set and thereby obtain a stay of
the preliminary injunction pending appeal to this court. Judge Babcock denied the application
for an order setting the amount of supersedeas bond and refused, thereby, to stay the
preliminary injunction. It is this action, as I understand the majority opinion, that is the
predicate for their finding that Judge Babcock has exceeded his jurisdiction in entertaining
the evidentiary hearings on the Hughes Tool Company motion to stay further action on
Maheu's counterclaim.
On January 15, 1971, Maheu filed an unsworn statement in which he represented that he
had fully complied with the provisions of the preliminary injunction directing him to return
all the books, records, and files of Hughes Nevada Operations. A miniscule amount of
material was returned by Maheu; yet Hughes Tool Company alleges that some 24 four-drawer
file cabinets were left completely empty after Maheu's departure. Hughes Tool Company then
filed, on January 19, 1971, its motion to stay further proceedings on Maheu's counterclaim
until the court could determine the status of the alleged missing records.
The majority have ruled that prohibition will issue to bar Judge Babcock from concluding
the evidentiary hearings because the hearings are nothing more than an attempt to
enforce the mandatory provisions of the preliminary injunction that Judge Babcock
refused to stay pending appeal to this court, by not fixing a supersedeas bond.
Judge Babcock from concluding the evidentiary hearings because the hearings are nothing
more than an attempt to enforce the mandatory provisions of the preliminary injunction that
Judge Babcock refused to stay pending appeal to this court, by not fixing a supersedeas bond.
In support of their ruling that prohibition will lie, the majority have cited Clute v. Superior
Court, 99 P. 362 (Cal. 1908); Kettenhofen v. Superior Court, 358 P.2d 684 (Cal. 1961);
Schwarz v. Superior Court, 43 P. 580 (Cal. 1896); and Dewey v. Superior Court, 22 P. 333
(Cal. 1889). All of these cases involved contempt proceedings. The petitioners seeking the
extraordinary writs had been found guilty of contempt of court and ordered punished therefor.
They sought review of the orders finding them in contempt of court and a stay of their
punishment pending appeal therefrom. The appellate court in each case properly granted the
writ staying the enforcement of the contempt order until it was reviewed; otherwise, the
appeal would have been moot. Not so in the instant proceedings. The hearings on Hughes
Tool Company's stay order are not contempt proceedings. They arise out of Maheu's
counterclaim for alleged breach of contract of employment, and they are totally independent
of the preliminary injunction proceedings.
5
Therefore, I would rule that Hughes Tool
Company's motion to stay is merely an evidentiary proceeding that arises out of Maheu's
counterclaim for breach of contract and that the hearing is not in the nature of a contempt
proceeding and that Judge Babcock did not act in excess of his jurisdiction.
3. Judge Babcock has never denied petitioner the right to take the deposition of Howard
R. Hughes. He has merely postponed the scheduling of the Hughes deposition. The cases
cited by the majority as a basis for the issuance of the writ mandating Judge Babcock to set
aside the order staying Hughes's deposition are, in my opinion, not relevant in these
proceedings. Those cases all involved a factual situation where a trial judge had flatly denied
the petitioner a clear legal right and from which petitioner had no redress but to seek the relief
of an extraordinary writ, or they involved direct appeals to the appellate courts from final
judgments. For example, in Texaco, Inc. v. Borda, 383 F.2d 607 (3d Cir. 1967), cited by the
majority, the trial judge had denied the petitioner's right to take a 71-year-old woman's
deposition, and he would not entertain petitioner's motion to depose the witness until
after the termination of certain criminal proceedings that conceivably would not be
concluded for several years.
____________________

5
Maheu testified in the court below that he did remove certain Hughes Tool Company records. He
represented that he returned all the documents. Yet in his present argument he urges that he had no duty to
release the documents and that the order requiring him to do so should be stayed pending appeal. It would be
quite anomalous if petitioner had a right to a stay of the injunction requiring him to do acts that he concedes
should have been done and that he claims were done.
majority, the trial judge had denied the petitioner's right to take a 71-year-old woman's
deposition, and he would not entertain petitioner's motion to depose the witness until after the
termination of certain criminal proceedings that conceivably would not be concluded for
several years. Even in the Borda case, the court said, at 608:
We do not agree that Judge Augelli [the trial judge] abused his discretion in staying all
other proceedings in Borda's case pending determination of the Government's criminal action.
On the latter score it is settled law that * * * the power to stay proceedings is incidental
to the power inherent in every court to control the disposition of the causes on its docket with
the economy of time and effort for itself, for counsel, and for litigants. How this can best be
done calls for the exercise of judgment, which must weigh competing interests and maintain
an even balance.' Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 166,
81 L.Ed. 153 (1936).
Judge Babcock was attempting to do this very thing until this court interrupted and stayed
all pending proceedings in July 1971.
The concurring majority opinion cites as authority for the granting of the writ of mandate
Trans World Airlines, Inc. v. Hughes, 332 F.2d 602, 614 (1964). This case is not applicable,
because it was an appeal from a final default judgment.
6

For these reasons, I would deny the petition for the writs. Judge Babcock has not exceeded
his jurisdiction. His scheduling of the stay motion before the other pending motions was a
discretionary act inherent in his power to control the disposition of the motions on his docket.
He has not denied petitioner the right to depose Hughes. Petitioner may not complain about
delays in these proceedings. He delayed the proceedings with his motion for a new judge. A
reading of the transcripts of the April, May, and June hearings reveals multiple delays. I can
foresee, by the pronouncement made by the court today, the filing of unlimited petitions for
extraordinary relief from litigants who feel aggrieved by the management of their cases,
which petitions will result in further continuances and frustrations in the already painful delay
in the disposition of litigation.
____________________

6
Likewise, the Arizona authorities cited by the majority are not the law of Nevada.
____________
88 Nev. 52, 52 (1972) DuFrane v. Sheriff
JOSEPH P. DuFRANE, Appellant, v. SHERIFF,
WASHOE COUNTY, NEVADA, Respondent.
No. 6718
February 2, 1972 495 P.2d 611
Appeal from order denying pre-trial petition for writ of habeas corpus. Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
Accused petitioned for writ of habeas corpus on ground that his confinement was unlawful
because of want of sufficient evidence to constitute probable cause to believe that a crime had
been committed and that accused committed it and because of a violation of his constitutional
rights. The district court entered an order denying relief and the petitioner appealed. The
Supreme Court held that testimony before grand jury of police informer relating to his contact
with accused for purchase of heroin and corroborating testimony of police officer who
observed the transaction and listened to conversation between informer and accused by means
of a receiving device was sufficient to constitute probable cause for indictment of accused for
sale of narcotics, notwithstanding claim that there was no proof that the substance sold was in
fact a narcotic; necessary implication from terminology used by accused to describe the
substance was that the substance was a narcotic.
Affirmed.
H. Dale Murphy, Public Defender, and William N. Dunseath, Deputy Public Defender,
Washoe County, for Appellant.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Keith L. Lee, Deputy
District Attorney, Washoe County, for Respondent.
1. Indictment and Information.
Testimony before grand jury of police informer relating to his contact with accused for purchase of
heroin and corroborating testimony of police officer who observed the transaction and listened to
conversation between informer and accused by means of a receiving device was sufficient to constitute
probable cause for indictment of accused for sale of narcotics, notwithstanding claim that there was no
proof that the substance sold was in fact a narcotic; necessary implication from terminology used by
accused to describe the substance was that the substance was a narcotic. NRS 453.030.
2. Habeas Corpus.
Testimony was sufficient to support representation by state that a reasonable pre-arrest delay
was necessary due to continuing investigation of narcotics sale charge against
accused or of other charges.
a reasonable pre-arrest delay was necessary due to continuing investigation of narcotics sale charge against
accused or of other charges. U.S.C.A.Const. Amends. 5, 6.
3. Constitutional Law.
There was no showing of a due process violation with respect to accused because of a pre-arrest delay
caused by a continuing investigation of accused who presented a wholly unconvincing claim of prejudice
by delay. U.S.C.A.Const. Amends. 5, 6.
OPINION
Per Curiam:
The appellant petitioned for a writ of habeas corpus, contending that his confinement was
unlawful, first for want of sufficient evidence to constitute probable cause to believe that a
crime had been committed and that he committed it, and second, for violation of his
constitutional rights due to a prejudicial pre-arrest delay.
He had been charged by indictment with sale of narcotics in violation of NRS 453.030.
The grand jury heard the testimony of a police informer that he contacted the appellant for the
purpose of purchasing narcotics; that on October 12, 1970, after being searched by a police
officer to determine that he had no narcotics on his person, he and an officer went to the
prearranged location to make the purchase; that when the appellant objected to the presence
of a third person the officer returned to his car; that the informer and the appellant discussed
the transaction, during which discussion the appellant referred to the substance
interchangeably as heroin, smack and stuff, he described it as good stuff, and that the
heroin was brown in color; that the informer gave the appellant $50.00 for a quantity of the
substance; that the appellant then walked to a nearby telephone booth where he left the
substance; that when the informer retrieved the substance the appellant returned to see if any
of it was being pinched because he wanted some for himself; that on his way back to the
car where the officer was waiting the informer saw a person believed to be the appellant's
main supplier; and that the informer had been talking with the appellant previously about
making a big deal with him. The informer also testified that he had been equipped with a
radio transmitter which he wore under his clothes.
That testimony was corroborated by another police officer whose assignment was to
observe the transaction between the informer and the appellant. He testified that he had
searched the informer to ascertain that he had no narcotics, that he observed the
informer's meeting with the appellant and listened to their conversation by means of a
receiver he had for the transmitter carried by the informer.
the informer to ascertain that he had no narcotics, that he observed the informer's meeting
with the appellant and listened to their conversation by means of a receiver he had for the
transmitter carried by the informer.
On the proof thus presented to them, the grand jury returned an indictment against the
appellant on May 13, 1971, some seven months after the transaction between the informer
and the appellant. The appellant had been arrested on April 1, 1971.
[Headnote 1]
The appellant's first assignment of error, which is directed to the sufficiency of the
evidence to constitute probable cause, is without merit. While proof that the substance sold
was in fact a narcotic is required to be shown beyond a reasonable doubt at trial, that quantum
of proof is not required before a grand jury. Glosen v. Sheriff, 85 Nev. 145, 451 P.2d 841
(1969). In that case we said [T]he standard of probable cause is satisfied if the person
against whom an indictment is sought either directly, or by necessary implication, represents
that the substance he is selling is [a narcotic]. In this case the testimony of the informer,
previously described, was corroborated by the testimony of a police officer who observed the
transaction and who listened to the conversation between the informer and the appellant by
means of a receiving device. The terminology used by the appellant to describe the substance
in question is generally known to refer to heroin. Its necessary implication was that the
substance in question was a narcotic.
Under the total circumstances revealed by this grand jury transcript, including the
controlled and fully supervised nature of the transaction, which was observed and heard by a
qualified police officer including the appellant's representations to the informer, the
informer's resulting knowledge was the knowledge of the police officer. Such proof in these
circumstances is sufficient to constitute probable cause.
[Headnote 2]
With regard to the appellant's second assignment of error, he attempted to demonstrate that
he had been prejudiced by the pre-arrest delay by testifying that after his arrest neither he nor
any members of his family were able to recall his actions or his whereabouts on the date in
question, and that he was thus unable to prepare and present a proper defense to the charge.
The state replied that the pre-arrest delay was due to a continuing investigation of the charge
against the appellant or of other charges. The testimony of the informer at the grand jury
hearing made reference to his discussions with the appellant concerning "some big deal
with him."
jury hearing made reference to his discussions with the appellant concerning some big deal
with him. He also testified that after the transaction with the appellant he observed a person
believed to be the main supplier near the scene. Thus the state's representation that a
reasonable pre-arrest delay was necessary to enable a continuing investigation to be
conducted is supported by the record. Moreover, the district judge characterized the
appellant's effort to show prejudice by the pre-arrest delay as wholly unconvincing. Scott v.
State, 84 Nev. 530, 444 P.2d 902 (1968).
[Headnote 3]
Klopfer v. North Carolina, 386 U.S. 213 (1967), extended the Sixth Amendment speedy
trial provision to state criminal cases. On December 20, 1971, the United States Supreme
Court decided United States v. Marion, 404 U.S. 307. The issue was whether dismissal of a
federal indictment was constitutionally required by reason of a period of three years between
occurrence of the alleged criminal acts and the filing of the indictment. Four members of that
Court expressed themselves to the effect that the Sixth Amendment speedy trial provision has
no application until the putative defendant in some way becomes an accused, and declined to
extend the reach of the Sixth Amendment to the period prior to arrest. They noted that the
applicable statute of limitations is the primary guarantee against bringing overly stale charges.
All seven members participating in that case agreed that the Due Process Clause of the Fifth
Amendment may be relevant to pre-indictment delay if it is shown that substantial prejudice
to a fair trial resulted. On the record before us, and at this stage of the proceeding, we do not
find a due process violation.
Affirmed.
____________
88 Nev. 55, 55 (1972) Lighthouse v. Great W. Land & Cattle
CONSTANCE M. LIGHTHOUSE, Appellant, v. GREAT WESTERN LAND
& CATTLE CORPORATION, a Nevada Corporation, Respondent.
No. 6553
February 3, 1972 493 P.2d 296
Appeal from order of the Second Judicial District Court, Washoe County, granting
summary judgment; John W. Barrett, Judge.
The district court granted summary judgment to defendant, and plaintiff appealed. The
Supreme Court, Thompson, J., held that where Sixth Judicial District Court, in a prior related
action, dismissed counterclaim without prejudice under rule compelling dismissal of an
action not brought to trial within five years, and where no appeal was taken testing that
court's exercise of its discretion to dismiss without prejudice, the subsequent action, which
asserted the identical claim for relief and which was brought before the statute of limitations
had run, was not barred by the holding in the prior case.
Reversed.
Stewart, Horton & McKissick, of Reno, for Appellant.
Robert R. Herz, of Reno, for Respondent.
1. Judgment.
Where a district court, in a prior related action, dismissed counterclaim without prejudice under rule
compelling dismissal of an action not brought to trial within five years, and where no appeal was taken
testing that court's exercise of its discretion to dismiss without prejudice, subsequent action, which
asserted the identical claim for relief and which was brought before the statute of limitations had run, was
not barred by the holding in the prior case. NRCP 41(e).
2. Dismissal and Nonsuit.
Dismissal of an action or counterclaim not brought to trial within five years is mandatory, but the district
court retains discretion to decide whether the dismissal shall bar another action upon the same claim.
NRCP 41(e).
OPINION
[Headnote 1]
This appeal is from a summary judgment in favor of the respondent. The district court
believed that our holding in Great W. Land & Cattle v. District Ct., 86 Nev. 282, 467 P.2d
1019 (1970), barred the prosecution of this case. We there held that NRCP 41(e) compelling
the dismissal of an action not brought to trial within five years applies to a counterclaim as
well, and prohibited the district court from proceeding to trial upon such a counterclaim. That
court honored our writ, dismissed the counterclaim, but without prejudice. Its exercise of
discretion in dismissing without prejudice was not challenged by appeal in that case. Cf.
Lindauer v. Allen, S5 Nev. 430
of discretion in dismissing without prejudice was not challenged by appeal in that case. Cf.
Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969). Since the statute of limitations had not
run against the claim for relief asserted in the counterclaim, the successor in interest of the
counterclaimant commenced the present action in the Second Judicial District Court asserting
the identical claim.
[Headnote 2]
Rule 41(e) was amended in 1964 to provide that a dismissal thereunder is a bar to another
action upon the same claim for relief. . . unless the court otherwise provides. The
amendment applies to all dismissals for want of prosecution and apparently was in response
to Dubin v. Harrell, 79 Nev. 467, 386 P.2d 729 (1963), where we held that a discretionary
two-year dismissal barred a subsequent action upon the same claim. It is now clear that the
dismissal of an action or counterclaim not brought to trial within five years is mandatory, but
that the district court retains discretion to decide whether the dismissal shall bar another
action upon the same claim. Indeed, this precise point was decided in Lindauer v. Allen, 85
Nev. 430, 456 P.2d 851 (1969). There, the district court dismissed an action not brought to
trial within five years and the dismissal was with prejudice. In affirming, we noted although
the district court might have ruled otherwise, it was within its discretion to dismiss the
complaint with prejudice and we find no abuse of that discretion. Id. at 437.
By appeal, the respondent could have tested the exercise of discretion by the Sixth Judicial
District Court in dismissing the counterclaim without prejudice. Lindauer v. Allen, supra. It
did not do so. The present action asserting the identical claim for relief is not barred.
Reversed.
Zenoff, C. J., and Batjer and Gunderson, JJ., concur.
I dissent.
The narrow issue presented in this case is whether a writ of prohibition issued by this court
ordering the Sixth Judicial District Court not to try a case 5 years after it had been filed may
be circumvented by refiling the case in another district.
The respondent, Great Western Land & Cattle Corporation, commenced an action in the
Sixth Judicial District Court against Appellant Constance M. Lighthouse's late husband, Noel
McElhaney. Mr. McElhaney filed a counterclaim. The case was never tried within the
5-year period prescribed in NRCP 41{e).1 After the 5-year period had run, McElhaney's
counsel set the case down for trial.
case was never tried within the 5-year period prescribed in NRCP 41(e).
1
After the 5-year
period had run, McElhaney's counsel set the case down for trial. Upon petition to this court, a
writ of prohibition was issued enjoining the Sixth Judicial District Court from going to trial.
See Great W. Land & Cattle Corp. v. District Court, 86 Nev. 282, 467 P.2d 1019 (1970). The
district judge thereupon dismissed Great Western's complaint with prejudice and the
McElhaney counterclaim without prejudice, relying, apparently, upon the final sentence in
Rule 41(e): A dismissal under this subdivision (e) is a bar to another action upon the same
claim for relief against the same defendants unless the court otherwise provides. (Emphasis
added.) This sentence was added to Rule 41(e) effective March 16, 1964.
The appellant in this case, Constance M. Lighthouse, as successor in interest to her late
husband, Noel McElhaney, then filed this action, which in essence was McElhaney's
counterclaim, in the Second Judicial District Court. The district judge, upon motion, granted
summary judgment in favor of Respondent Great Western Land & Cattle Corporation and
against Appellant Lighthouse. Lighthouse has appealed, claiming that the judge of the Second
Judicial District erred in not permitting her to proceed, since the judge of the Sixth Judicial
District had dismissed McElhaney's counterclaim without prejudice.
____________________

1
NRCP 41(e):
The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and
after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such
action to trial. Any action heretofore or hereafter commenced shall be dismissed by the court in which the same
shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to
plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the
plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended.
When, in any action after judgment, a motion for a new trial has been made and a new trial granted, such action
shall be dismissed on motion of defendant after due notice to plaintiff, or by the court of its own motion, if no
appeal has been taken, unless such action is brought to trial within three years after the entry of the order
granting a new trial, except when the parties have stipulated in writing that the time may be extended. When in
an action after judgment, an appeal has been taken and judgment reversed with cause remanded for a new trial
(or when an appeal has been taken from an order granting a new trial and such order is affirmed on appeal), the
action must be dismissed by the trial court on motion of defendant after due notice to plaintiff, or of its own
motion, unless brought to trial within three years from the date upon which remittitur is filed by the clerk of the
trial court. A dismissal under this subdivision (e) is a bar to another action upon the same claim for relief against
the same defendants unless the court otherwise provides.
her to proceed, since the judge of the Sixth Judicial District had dismissed McElhaney's
counterclaim without prejudice.
It is the law of this jurisdiction that dismissal is mandatory if a case has not been brought
to trial within 5 years of its filing date. See Bank of Nev. v. Friedman, 86 Nev. 747, 476 P.2d
172 (1970); Faye v. Hotel Riviera, Inc., 81 Nev. 350, 403 P.2d 201 (1965).
Counsel for Appellant Lighthouse argues that the sentence added to Rule 41(e) in 1964,
which provides that a dismissal under subdivision (e) is a bar unless the court otherwise
provides, gave the judge of the Sixth Judicial District the power to dismiss the complaint with
prejudice and the counterclaim without prejudice. Not so, in my opinion, under the posture of
this case. A writ of prohibition means precisely what it says, and while it may be directed to
one district judge, it becomes the law of the case. The intendment of the writ of prohibition
was to terminate the litigation. To hold otherwise is eminently unfair. For instance, it means
in this case that the party who initiated the litigation is out of court, while the party who was
brought into the litigation is permitted to continue, and that, because Great Western's
complaint was dismissed with prejudice, it has perhaps been precluded from asserting any
defenses it may have to the second complaint.
I would rule, therefore, that the district judge had no discretion in this case but to follow
the mandate of the writ of prohibition and terminate the litigation. The judgment of the lower
court, in my opinion, should be affirmed.
____________
88 Nev. 59, 59 (1972) Miranti v. Advance Management Corp.
LOUIS MIRANTI and PEARL MIRANTI, Appellants, v. ADVANCE MANAGEMENT
CORPORATION, a Nevada Corporation, WENDELL TOBLER, GOLDA S. TOBLER and
LEAVITT, FELGAR & BRIARE INSURANCE AGENCY, Respondents.
No. 6510
February 7, 1972 493 P.2d 707
Appeal from order granting summary judgment. Eighth Judicial District Court, Clark
County; Thomas J. O'Donnell, Judge.
Action for reconveyance of property which had been conveyed by bonding company to
defendants. The district court granted summary judgment and the plaintiffs appealed.
granted summary judgment and the plaintiffs appealed. The Supreme Court, Guinan, D. J.,
held, inter alia, that where grantors, who had entered an indemnity agreement with bonding
company which was writing bonds in connection with construction projects undertaken by
grantors, executed a grant, bargain and sale deed to company for purpose of securing
payments required to be made pursuant to indemnity agreement, company had right to sell the
property at any time, subject only to right of grantors to have proceeds applied in accordance
with the agreement, and even if such construction were incorrect, subsequent quitclaim deed
from grantors to company transferred any interest in property which grantors might have
retained.
Affirmed.
Gordon L. Hawkins, of Las Vegas, for Appellants.
Lionel Sawyer Collins & Wartman, of Las Vegas, for Respondents.
1. Deeds.
Where grantors, who had entered an indemnity agreement with bonding company which was writing
bonds in connection with construction projects undertaken by grantors, executed a grant, bargain and sale
deed to company for purpose of securing payments required to be made pursuant to indemnity agreement,
company had right to sell the property at any time, subject only to right of grantors to have proceeds
applied in accordance with the agreement, and even if such construction were incorrect, subsequent
quitclaim deed from grantors to company transferred any interest in property which grantors might have
retained.
2. Deeds.
Where grantors, who had entered an indemnity agreement with bonding company which was writing
bonds in connection with construction projects undertaken by grantors, executed a grant, bargain and sale
deed to company and thereafter executed a quitclaim deed for purpose of securing payments required to be
made pursuant to indemnity agreement, no further consideration was necessary since deeds were given
pursuant to obligations of grantors under the agreement.
3. Estoppel; Evidence.
In absence of fraud, undue influence or mistake, grantors who had executed grant, bargain and sale deed
and quitclaim deed to bonding company for purpose of securing the payments required to be made pursuant
to indemnity agreement between grantors and company were estopped to deny lack of consideration for the
deeds for purpose of defeating their operation, and parol evidence of lack of consideration
would not have been admissible at trial for that purpose.
parol evidence of lack of consideration would not have been admissible at trial for that purpose.
OPINION
By the Court, Guinan, D. J.:
This is an appeal from an order granting summary judgment in favor of respondents.
Appellants, Louis and Pearl Miranti, husband and wife, hereinafter referred to as the
Mirantis, were the owners of real property in Clark County, Nevada. They were engaged in
the construction business through two corporations which they controlled. United Bonding
Insurance Company, an Indiana Corporation, wrote bonds in connection with construction
projects undertaken by the Mirantis and, on April 6, 1966, the Mirantis entered an indemnity
agreement with the bonding company.
On October 10, 1967, the Mirantis executed a grant, bargain and sale deed to the bonding
company of property owned by them. The property was encumbered by a first deed of trust
securing a note in an amount in excess of $300,000. The deed was intended to secure the
obligations of the Mirantis under the indemnity agreement and contained the following
language:
The real property conveyed herein is for the purpose of securing payments required to be
made pursuant to a certain indemnity agreement of the grantee herein.
An agreement between the Mirantis and the bonding company executed on the same date
as the grant, bargain and sale deed contained the following language in regard to the
paragraph quoted above:
It is understood by the parties thereto that such paragraph is intended to provide that in
the event the real property described therein is subsequently sold for more than the
indebtedness against the same and the payments made on behalf of Nevcon, Inc., and Miranti
Construction Company, that any excess thereof shall be paid to Louis and Pearl Miranti; and
It is further understood and agreed that in the event that Louis Miranti obtains a sale for
said property in excess of said amounts, the United Bonding Insurance Company will
co-operate to consummate said transactions.
On November 14, 1967, the Mirantis executed a quitclaim deed to the bonding company
of all their right, title and interest in the same property.
in the same property. The bonding company sold the property, and the respondents were the
record owners thereof at the time this action was commenced.
The Mirantis sought two types of relief. They prayed for an accounting from the bonding
company and its agent for monies received and expended by them on behalf of the Mirantis in
connection with the construction contracts. That aspect of the case is not before us on this
appeal. They also sought reconveyance of the property to the bonding company, and the
respondents were joined as defendants for that purpose only.
[Headnote 1]
As we construe the grant, bargain and sale deed, the bonding company had the right to sell
the property at any time, subject only to the right of the Mirantis to have the proceeds applied
in accordance with the indemnity agreement. Their action for an accounting is pending in the
district court. Even if this construction were incorrect, the quitclaim deed transferred any
interest in the property which the Mirantis might have retained. Brophy M. Co. v. B. & D. M.
Co., 15 Nev. 101 (1880).
[Headnotes 2, 3]
Appellants contend that there was no consideration for either deed. The deeds were given
pursuant to the obligations of the Mirantis under the indemnity agreement, and no further
consideration was necessary. Furthermore, in the absence of fraud, undue influence or
mistake, appellants are estopped to deny lack of consideration for the deeds for the purpose of
defeating their operation, and parol evidence of lack of consideration would not have been
admissible at the trial for that purpose. Dalton v. Dalton, 14 Nev. 419 (1880), Feeney v.
Howard, 21 P. 984 (Cal. 1889), Russell v. Robbins, 93 N.E. 324 (Ill. 1910). There is no
allegation of fraud, undue influence or mistake in the complaint.
The order of the district court granting respondents' motion for summary judgment is
affirmed.
____________
88 Nev. 63, 63 (1972) In re Kellar
In the Matter of CHARLES L. KELLAR, Attorney at Law.
No. 6583
February 14, 1972 493 P.2d 1039
Petition for review of the Recommendation of the Board of Governors for the State Bar of
Nevada for the suspension of Petitioner.
The Supreme Court held that under record showing that attorney violated Supreme Court
Rule prohibiting an attorney from purchasing any interest in subject matter of litigation which
he is conducting attorney would be publicly reprimanded for his conduct and would be
cautioned to refrain from such conduct in the future and would be ordered to pay the costs
and fees incurred in connection with hearing before local administrative committee but would
not be suspended from practice in view of considerable evidence indicating that attorney was
misled by his client and was acting in good faith.
Recommendation modified.
Harry E. Claiborne, of Las Vegas, for Petitioner.
Richard W. Blakey, First Vice President; Robert R. Herz, Executive Secretary, State Bar of
Nevada; George E. Holt, Special Prosecutor, of Las Vegas, for Respondent.
William M. Lyons and James L. Long, of Sacramento, California, as Amici Curiae.
1. Attorney and Client.
Disciplinary proceedings against attorney were not defective because complaint did not specifically cite
Supreme Court Rule providing that an attorney shall not acquire an interest adverse to a client since all that
was required in complaint was a concise statement in simple language of misconduct which was claimed
constituted ground for his disbarment, suspension or reproval. SCR 138, 139, 166.
The findings and recommendations of local administrative committee and the board of Governors of the
State Bar regarding disciplining of attorney are persuasive, but they are not binding upon the Supreme
Court. SCR 111.
A member of the State Bar who knowingly or consciously, as distinguished from negligently or
inadvertently, engages in conduct prohibited by Supreme Court Rules is subject to sanctions of Supreme
Court Rule; it is not necessary that his conduct be accompanied by malice or an evil motive, but
good faith may be considered in mitigation of punishment.
88 Nev. 63, 64 (1972) In re Kellar
accompanied by malice or an evil motive, but good faith may be considered in mitigation of punishment.
SCR 163-204.
Under record showing that attorney violated Supreme Court Rule prohibiting an attorney from purchasing
any interest in subject matter of litigation which he is conducting attorney would be publicly reprimanded
for his conduct and would be cautioned to refrain from such conduct in the future and would be ordered to
pay the costs and fees incurred in connection with hearing before the local administrative committee but
would not be suspended from practice in view of considerable evidence indicating that attorney was misled
by his client and was acting in good faith. SCR 163-204.
OPINION
Per Curiam:
This matter is before us on an application filed pursuant to Supreme Court Rule 111 for
review of a recommendation of the Board of Governors of the State Bar of Nevada that the
applicant, Charles L. Kellar, be suspended from the practice of law for one year and assessed
the costs of his hearing before the Local Administrative Committee, District No. 1, Clark
County.
In September 1967, Kellar agreed to defend one Sara Sims in an eviction action in the
Justice's Court of Las Vegas Township. Sims represented to Kellar that she and her family
had occupied the premises for many years under a contract of sale and had acquired an equity
in the property. Kellar moved to dismiss the eviction action on the ground that an interest in
real property was involved and that, therefore, the justice's court was without jurisdiction. The
action was continued.
Sims was unable to produce any documentation of her claim to an interest in the property,
nor was there any record in the office of the County Recorder of Clark County of such an
interest. We conclude that Sims never had an interest in the property other than as a tenant for
a term of less than one year. In November, Kellar advised Sims that in his opinion the only
way she could retain possession of the property was to purchase it.
There is a conflict in the testimony as to what transpired thereafter, and as to how much
Sims knew about what transpired. It is clear that Kellar made arrangements with the owner of
the property for its purchase by Sims, and opened an escrow in Sims's name; that Charmicor,
Inc., which was owned by Kellar and his wife, was substituted as purchaser on January 22,
1968, and made a deposit of $500 as required by the escrow instructions; and that
Charmicor, Inc., completed the purchase on February 21, 196S, for $S,000, took an
assignment of overdue rents from the former owner of the property, and evicted Sims in
April 196S. It is also clear that Charmicor, Inc., offered to sell the property to Sims for
$S,000, plus attorneys fees and costs, and continued such offer until Sims was evicted
after her refusal either to purchase the property or to pay rent.
88 Nev. 63, 65 (1972) In re Kellar
by the escrow instructions; and that Charmicor, Inc., completed the purchase on February 21,
1968, for $8,000, took an assignment of overdue rents from the former owner of the property,
and evicted Sims in April 1968. It is also clear that Charmicor, Inc., offered to sell the
property to Sims for $8,000, plus attorneys fees and costs, and continued such offer until
Sims was evicted after her refusal either to purchase the property or to pay rent.
Kellar contended that he made the $500 down payment, through Charmicor, Inc., at the
request of Sims, and on her behalf, because she was unable to raise the money, and that he
caused the purchase to be completed on her behalf, as indicated by his willingness to cause
Charmicor, Inc., to convey the property to her upon payment of the purchase price.
Sims contended that she had no contact with Kellar from some time in November until
February when she was informed Charmicor, Inc., had purchased the property. There is some
evidence in the record to contradict that contention.
Upon the complaint of Sara Sims, the local administrative committee found that Kellar
had violated Supreme Court Rule 166, which provides: A member of the state bar shall not
acquire an interest adverse to a client. The committee recommended that he be suspended
from the practice of law for three years and be required to pay the costs of the hearings. The
Board of Governors concurred, except as to the length of the suspension.
[Headnote 1]
Kellar contends that the proceedings against him were defective because the complaint did
not specifically cite Supreme Court Rule 166. All that was required in the complaint was . . .
a concise statement in simple language of the misconduct of the accused which it is claimed
constitutes ground for his disbarment, suspension or reproval. Supreme Court Rules 138 and
139. It was not necessary to include in the complaint anything more than the alleged facts
upon which the complaint was based.
[Headnote 2]
The findings and recommendations of the committee and the board are persuasive, but
they are not binding upon this court. In re Miller, 87 Nev. 65, 482 P.2d 326 (1971).
At the time of the occurrences here involved, Canon 10 of the Canons of Professional
Ethics of the American Bar Association, which were adopted by reference and made
additional rules of professional conduct of the State Bar of Nevada by Supreme Court Rule
203, provided: "The lawyer should not purchase any interest in the subject matter of the
litigation which he is conducting."
88 Nev. 63, 66 (1972) In re Kellar
Supreme Court Rule 203, provided: The lawyer should not purchase any interest in the
subject matter of the litigation which he is conducting.
[Headnote 3]
Supreme Court Rule 163 provides, among other things: The willful breach of any of
Rules 163 to 204, inclusive, shall be punished by reprimand, public or private, or by
suspension from practice, or by disbarment. A member of the State Bar of Nevada who
knowingly or consciously, as distinguished from negligently or inadvertently, engages in
conduct which is prohibited by Supreme Court Rules 163 to 204, inclusive, is subject to the
sanctions of Supreme Court Rule 163. It is not necessary that his conduct be accompanied by
malice or an evil motive. Good faith may, however, be considered in mitigation of
punishment.
[Headnote 4]
From the time Kellar caused Charmicor, Inc., to deposit $500 toward purchase of the
property, and changed the name in the escrow instructions from Sara Sims to Charmicor, Inc.,
he was in violation of Canon 10. His conduct in causing Charmicor, Inc., to complete the
transaction served only to increase the magnitude of the offense. If, after committing the
initial violation, he discovered for the first time that Sims could not arrange financing for
purchase of the property, as he contends, he should have withdrawn from the transaction,
even though forfeiture of the deposit would have resulted.
Kellar was also in violation of Supreme Court Rule 166. Even if his testimony is accepted,
i.e., that he made the down payment and subsequently completed the purchase on behalf of
Sims, and was always ready to convey the property to her upon her payment of the purchase
price, he also took an assignment of the overdue rent from the owner of the property and
attempted to collect it from Sims. Acquisition of that claim was certainly acquisition of an
interest adverse to Sims. It was part of the claim he was engaged to defend against. It has
been contended that because Sims had no interest in the property in the form of an estate in
land, Kellar could not have acquired an interest adverse to her interest. That is too narrow an
interpretation of the word interest. Sims's desire was to retain possession of the property.
Whether or not that desire was realistic is irrelevant. It was Kellar's function to assist her, if
legal means were available, to accomplish that desire, or to inform her that he could not.
Kellar's acquisition of the property through Charmicor, Inc., eventually resulted in Sims's
eviction by him.
88 Nev. 63, 67 (1972) In re Kellar
of the property through Charmicor, Inc., eventually resulted in Sims's eviction by him. This
was the result he was engaged to prevent, and was obviously an interest adverse to her
interest.
There is considerable evidence in the record to indicate that Kellar was misled by his client
and was acting in good faith, at least until he made the decision to cause Charmicor, Inc., to
complete the purchase of the property after having made the initial deposit. These mitigating
circumstances do not excuse Kellar's conduct, but they convince us that the penalties
recommended by the local administrative committee and the Board of Governors are too
severe.
It is therefore ordered that Charles L. Kellar is hereby publicly reprimanded for his
conduct in violating the Supreme Court Rules referred to in this opinion, and is hereby
cautioned to refrain from such conduct in the future; and
It is further ordered that he pay to the State Bar of Nevada the costs and fees incurred in
connection with his hearing before the local administrative committee in the total amount of
$3,774.90.
____________
88 Nev. 67, 67 (1972) Zeldin v. Agricultural Dist. No. 4
BERNARD ZELDIN, FRANK COBERT and MEYER ROVINSKY,
Appellants, v. AGRICULTURAL DISTRICT NO. 4, COUNTY OF ELKO,
STATE OF NEVADA, Respondent.
No. 6599
February 15, 1972 495 P.2d 366
Appeal from orders of the Fourth Judicial District Court, Elko County, denying motions
for change of venue; George F. Wright and Joseph O. McDaniel, Judges.
Affirmed.
Edwin J. Dotson, of Las Vegas, for Appellants.
Mark C. Scott, Jr., of Elko, for Respondent.
OPINION
Per Curiam:
This appeal is from orders denying a change of venue from Elko County to Clark County.
NRCP 72(b)(2). We can find no error in the district court's determination that
respondent's action is predicated upon obligations appellants contracted to perform in
Elko County.
88 Nev. 67, 68 (1972) Zeldin v. Agricultural Dist. No. 4
find no error in the district court's determination that respondent's action is predicated upon
obligations appellants contracted to perform in Elko County. NRS 13.010(1).
Affirmed.
____________
88 Nev. 68, 68 (1972) Julian v. City of Las Vegas
CHARLES JULIAN, dba BOOK BAR, and MINI MOVIES, INC., dba
FUN CITY, Appellants, v. CITY OF LAS VEGAS, NEVADA,
a Municipal Corporation, Respondent.
No. 6592
February 15, 1972 493 P.2d 1037
Appeal from judgment of the Eighth Judicial District Court, Clark County; William R.
Morse, Judge.
Action for injunctive relief against sale and distribution of allegedly obscene materials.
The district court entered a final judgment granting injunctive relief and an appeal was taken.
The Supreme Court, Thompson, J., held that seizure of allegedly obscene materials in
advance of an adversary hearing on issue of obscenity was violative of First Amendment
protection of free speech, even though materials were seized under a search warrant.
Reversed.
Harry E. Claiborne, of Las Vegas, for Appellants.
Earl P. Gripentrog, City Attorney, and Joan D. Buckley, Deputy City Attorney, Las Vegas,
for Respondent.
Seizure of allegedly obscene materials in advance of an adversary hearing on issue of obscenity was
violative of First Amendment protection of free speech, even though materials were seized under a search
warrant. U.S.C.A.Const. Amend. 1.
Proper respect to First Amendment protection of free speech requires an adversary hearing on issue of
obscenity prior to seizure of items believed to be obscene in either criminal proceedings or proceedings for
a civil injunction. U.S.C.A.Const. Amend. 1.
3. Obscenity.
Under statute providing that if a final order or judgment of injunction is entered such order or
judgment shall contain a provision directing seizure and destruction of obscene prints
and articles, seizure and destruction may only be ordered after an adversary hearing
and judicial determination of obscenity.
injunction is entered such order or judgment shall contain a provision directing seizure and destruction of
obscene prints and articles, seizure and destruction may only be ordered after an adversary hearing and
judicial determination of obscenity. NRS 201.250, subd. 4.
OPINION
[Headnote 1]
This appeal is from a final judgment enjoining the sale and distribution of certain
mini-movie films, books and pamphlets found by the district court to be hard core
pornography and subject to suppression under NRS 201.250(4). We have concluded that the
judgment must be set aside since the items were unconstitutionally seized in advance of an
adversary hearing on the issue of obscenity. Glass v. Eighth Judicial District Court, 87 Nev.
321, 486 P.2d 1180 (1971).
1

Fun City and Book Bar are businesses licensed by the City of Las Vegas. Each possessed
several mini-movie machines and films therefor which one could view by depositing 25 cents
for each two-minute segment of the film seen. The Book Bar also had books and pamphlets
for sale.
On separate occasions a Las Vegas police officer entered each establishment, viewed the
films, and when in the Book Bar also looked at a pamphlet. He did not purchase the pamphlet
or any others available for purchase. Search warrants were thereafter issued ex parte by a
magistrate on the basis of affidavits prepared by the officer who had viewed the films and the
pamphlet. The warrants were served, the films seized at each establishment, and eleven
pamphlets from the Book Bar as well.
2

[Headnotes 2, 3]
In Glass v. Eighth Judicial District Court, supra, we held that appropriate deference to the
First Amendment protection of free speech requires that a hearing "designed to focus
searchingly on the issue of obscenity" occur prior to seizure of the items believed to be
obscene.
____________________

1
Glass, supra, was decided after the district court ruling, and while the instant matter was pending appeal.

2
Of the 12 films seized at Fun City, only two were later received in evidence. The record does not tell us
whether the 10 films not received in evidence were lost, considered not to be obscene, returned to the proprietor,
or what. The eleven pamphlets which were received in evidence (some were duplicates) were not purchased by
the officer, and it is clear that almost all of them were not viewed by him prior to seizure. These circumstances
point up the wisdom and need for a judicial adversary hearing on the issue of obscenity prior to seizure.
of free speech requires that a hearing designed to focus searchingly on the issue of
obscenity occur prior to seizure of the items believed to be obscene. Compliance with the
proscriptions of the Fourth Amendment is not sufficient. Glass involved the criminal portions
of our obscenity law. The instant matter was a civil injunction proceeding. This difference
between the two cases is irrelevant to the prior adversary hearing requirement. Proper respect
to First Amendment protections must be given in either instance. Indeed, NRS 201.250(4)
under which the present action for injunction was instituted, itself contemplates an adversary
hearing prior to seizure. A part of that statute provides that if a final order or judgment of
injunction is entered. . . such final order or judgment shall contain a provision directing. . .
surrender to the sheriff. . . and of the matter described. . . and such sheriff shall be directed to
seize and destroy such obscene prints and articles. It is apparent that seizure and destruction
may only be ordered after an adversary hearing and judicial determination of obscenity.
The unconstitutional seizure in advance of an adversary hearing on the issue of obscenity
is dispositive of this appeal. Accordingly, other issues presented will not be considered.
Reversed.
Zenoff, C. J., and Gunderson, J., concur.
Batjer, J., concurring:
I agree that the judgment of the trial court must be set aside, not because of the holding of
this court in Glass v. Eighth Judicial District Court, 87 Nev. 321, 486 P.2d 1180 (1971), but
because the alleged obscene material was seized at the outset pursuant to a search warrant
issued ex parte by a magistrate on the basis of affidavits prepared by the police officer who
viewed the material. Such a procedure is not authorized under NRS 201.250(4), NRCP 65 or
NRCP 45. There is no provision under NRS 201.250(4) for the seizure of allegedly obscene
material until after the hearing as provided for in NRS 201.250(4) and a finding that the
material is obscene. See City of Phoenix v. Fine, 420 P.2d 26 (Ariz. 1966).
If the respondent had adhered to the clearly defined procedures found in NRS 201.250 and
NRCP 65, had taken advantage of the opportunity to take depositions and make discoveries
under NRCP 26 to 37, inclusive, and had enlisted the aid of NRCP 45, I am convinced that all
the pitfalls encountered in this case would have been avoided. If in the future, law
enforcement officers and city or district attorneys carefully follow the procedures set out
in the statute and rules above mentioned, I believe they will be successful in maintaining
any action they might bring to enjoin the further publication or sale of obscene material.
law enforcement officers and city or district attorneys carefully follow the procedures set out
in the statute and rules above mentioned, I believe they will be successful in maintaining any
action they might bring to enjoin the further publication or sale of obscene material.
I dissent.
My views on the requirement of a prior adversary hearing in processing these obscenity
cases have been set forth in Glass v. Eighth Judicial District Court, 87 Nev. 321, 486 P.2d
1180 (1971), and it would serve no purpose to reiterate them in this case. I would only add in
this dissent that, after Glass was decided on July 2, 1971, the United States Court of Appeals
for the District of Columbia on October 7, 1971, joined those jurisdictions that have refused
to hold unconstitutional a seizure of obscene materials under a search warrant without a prior
adversary hearing. See Huffman v. United States, 10 CrL 2076 (D.C.Cir. Oct. 7, 1971).
____________
88 Nev. 71, 71 (1972) Crescent v. White
RALPH J. CRESCENT, Appellant, v. GILL WHITE, Also Known as
GARLAND WHITE, and DOROTHY E. WHITE, Also Known as
DOROTHY E. NORD, Respondents.
No. 6625
February 17, 1972 493 P.2d 1323
Appeal from judgment of the First Judicial District Court, in and for the County of
Churchill; Richard L. Waters, Jr., Judge.
Action to set aside fraudulent conveyance. The district court dismissed the action and
plaintiff appealed. The Supreme Court held that recordation of debtor's deed was not
constructive notice to creditors so as to commence running of limitations on action to set
aside fraudulent conveyance.
Reversed and remanded.
James F. Sloan, of Reno, for Appellant.
Diehl, Recanzone, Evans & Smart, of Fallon, for Respondents.
88 Nev. 71, 72 (1972) Crescent v. White
Limitation of Actions.
Recordation of debtor's deed was not constructive notice to creditors so as to commence running of
limitations on action to set aside fraudulent conveyance. NRS 11.190, subd. 3(d), 111.320, 112.010 et
seq.
OPINION
Per Curiam:
At pre-trial conference, the district court dismissed plaintiff's action, which seeks to have a
deed from defendant husband to defendant wife declared void under the Uniform Fraudulent
Conveyance Act, NRS 112.010 et seq. The court evidently believed recording the deed
constituted constructive notice to creditors, as well as to subsequent purchasers and
mortgagees, NRS 111.320, thus conclusively establishing an affirmative defense based on
the statute of limitations, NRS 11.190(3)(d).
1

It is not our understanding, however, that the statute gives notice to all persons in all
situations. As was said by this court in the case of Wilson v. Wilson, 23 Nev. 267, 45 P.
1009, 1010, We are satisfied, however, that the statute of this state concerning records
(section 2594, Gen.St.) is not intended to impart notice other than to subsequent purchasers
and mortgagees. . . .' In Re Wilson's Estate, 56 Nev. 500, 501-502, 56 P.2d 1207, 1208
(1936); cf. Allen v. Webb, 87 Nev. 261, 485 P.2d 677 (1971).
____________________

1
NRS 111.320 provides: 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.
NRS 11.190(3)(d) allows 3 years to commence [a]n action for relief on the ground of fraud or mistake,
providing further that the cause of action in such case is not to be deemed to have accrued until the discovery
by the aggrieved party of the facts constituting the fraud or mistake.
____________
88 Nev. 73, 73 (1972) In re Wilson
In the Matter of the Petition of LEONARD ALBERT WILSON
for Admission to the State Bar of Nevada.
No. 6330
February 17, 1972 493 P.2d 1036
Petition for admission to the State Bar of Nevada.
The Supreme Court held that rule providing that, as condition to admission to practice in
state, person, who has been disbarred in another jurisdiction, must have been restored to
practice in such jurisdiction and must have practiced in such state for at least one year after
restoration was inapplicable to petitioner, who reestablished his residence in Nevada and
passed bar examination before adoption of the rule.
Petition granted.
Wiener, Goldwater, Galatz & Raggio, Ltd., of Las Vegas, for Petitioner.
Howard L. Cunningham, of Reno, for Respondent Board of Bar Examiners.
Attorney and Client.
Rule providing that, as condition to admission to practice in state, person, who has been disbarred in
another jurisdiction, must have been restored to practice in such jurisdiction and must have practiced in
such state for at least one year after restoration was inapplicable to petitioner, who reestablished his
residence in Nevada and passed bar examination before adoption of the rule. SCR 101.
OPINION
Per Curiam:
Having passed the bar examination administered by our board of bar examiners, and
having removed the one impediment to his admission that the board mentioned when it first
recommended he be denied the right to practice law, petitioner has applied for admission to
the State Bar of Nevada. The board's Answer opposes petitioner's admission because he has
not complied with SCR 101, by residing and actively practicing law in California for not less
than one year after his restoration to practice there. However, we deem SCR 101 inapplicable
to petitioner, who reestablished his residence in Nevada, and passed the bar examination,
long before we adopted SCR 101.
88 Nev. 73, 74 (1972) In re Wilson
It is therefore the decision and order of the court that petitioner be admitted to the State
Bar of Nevada, upon taking the oath of office.
____________
88 Nev. 74, 74 (1972) Moore v. State
ARTHUR J. MOORE, Appellant, v. STATE OF
NEVADA, Respondent.
No. 6626
February 18, 1972 493 P.2d 1035
Appeal from a conviction of murder in the first degree and attempted murder in the first
degree, Second Judicial District Court, Washoe County; John W. Barrett, Judge.
The Supreme Court held that the assignment that the statute defining the degrees of
murder was unconstitutional would not be considered, where the appellant cited no authority
to support such position and no error or violation of due process presented itself, and that
even if Supreme Court would consider the charge, the statute would not be unconstitutional
on ground that the jury knowing penalty for first degree murder but being kept in ignorance as
to penalty for second degree murder were more likely to convict of first degree.
Affirmed.
Samuel B. Francovich, of Reno, for Appellant.
Robert List, Attorney General, and Robert E. Rose, District Attorney of Washoe County,
for Respondent.
1. Criminal Law.
Assignment of error that statute in directing jury to set the degree and to decide penalty if they find
defendant guilty of first degree murder is unconstitutional on ground that the jury knowing penalty for first
degree murder but being kept in ignorance as to penalty for second degree murder are more likely to
convict of first degree would not be considered, where appellant cited no authorities in support of such
position and no error or violation of due process clearly presented itself. NRS 200.030.
2. Criminal Law.
Even it Supreme Court would consider the charge, the statute defining degrees of murder, in directing
jury to set degree and to decide penalty if they find defendant guilty of first degree murder would not be
held unconstitutional on ground that the jury, knowing penalty of first degree murder, but being kept in
ignorance as to penalty for second degree murder were more likely to convict of first degree. NRS
200.030.
88 Nev. 74, 75 (1972) Moore v. State
3. Homicide.
In prosecution for first degree murder and attempted murder in the first degree, instruction that except in
offense of murder in the first degree punishment provided by law for all other offenses charged in
indictment was not to be considered by jury in arriving at an impartial verdict as to guilt or innocence of
the defendant was proper. NRS 200.030.
OPINION
Per Curiam:
The appellant contends that his conviction for first degree murder and attempted murder in
the first degree must be set aside because the statute under which he was sentenced is
unconstitutional.
NRS 200.030 defines degrees of murder, directs the jury to set the degree and to decide the
penalty if they find the defendant guilty of first degree murder. The appellant contends that
this statute is unconstitutional because the members of a jury, knowing the penalty for first
degree murder, but being kept in complete ignorance as to the penalty for second degree
murder, are more likely to convict of first degree.
[Headnote 1]
The appellant has cited no authorities in support of his position. Therefore, since no
error or violation of due process clearly presents itself, this court will not consider the
assignment of error. Howarth v. El Sobrante Mining Corp., 87 Nev. 492, 489 P.2d 89 (1971);
Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334 (1971); Smithart v. State, 86 Nev. 925, 478
P.2d 576 (1970).
[Headnotes 2, 3]
Even if this court were willing to indulge in the speculation that there is a tendency to
convict of first degree murder merely because the penalty for second degree is unknown to
the jury, the statute under consideration would not be the proper vehicle to effect a change in
this alleged unfair procedure. NRS 200.030 does not direct that the penalty for second degree
shall not be revealed to the jury. It was the standard instruction given in this case which
provided that except in the offense of Murder in the First Degree, the punishment provided
by law for all other offenses charged in this Indictment is not to be considered by the jury in
arriving at an impartial verdict as to the guilt or innocence of the accused. An instruction of
this type directing the jury not to involve the question of guilt with a consideration of the
penalty is proper.
88 Nev. 74, 76 (1972) Moore v. State
of guilt with a consideration of the penalty is proper. People v. Shannon, 305 P.2d 101
(Cal.App. 1956).
Affirmed.
____________
88 Nev. 76, 76 (1972) Gurschke v. Sovereign Broadcast, Inc.
DORIS L. GURSCHKE, Appellant, v. SOVEREIGN BROADCAST, INC.,
a Corporation, and ROBERT D. HANNA, Respondents.
No. 6666
February 18, 1972 493 P.2d 707
Appeal from order setting aside default judgment, Eighth Judicial District Court, Clark
County; Thomas J. O'Donnell, Judge.
Affirmed.
Perry & Clary, of Las Vegas, for Appellant.
Earle W. White, Jr., of Las Vegas, for Respondents.
OPINION
Per Curiam:
We determine appellant's various contentions, to the effect that the district court abused its
discretion when it set aside a default judgment against respondents, to be without merit.
Affirmed.
____________
88 Nev. 76, 76 (1972) United States v. State ex rel. Beko
UNITED STATES OF AMERICA: AEROJET GENERAL CORP., an Ohio Corporation;
PAN AMERICAN WORLD AIRWAYS, INC., a New York Corporation; CATALYTIC
CONSTRUCTION CO., a Delaware Corporation; REYNOLDS ELECTRICAL AND
ENGINEERING CO. INC., a Texas Corporation; SHAFT DRILLER, INC., a Texas
Corporation; and E. G. & G., INC., a Massachusetts Corporation, Appellants, v. THE STATE
OF NEVADA, Ex Rel. WILLIAM P. BEKO, District Attorney of
Nye County, Nevada, Respondent.
No. 6552
February 18, 1972 493 P.2d 1324
Appeal from findings of fact, conclusions of law and decision sustaining ad valorem tax
assessments made pursuant to Nevada taxing statutes against six corporate contractors
utilizing otherwise exempt property in the performance of their contracts with the United
States.
Nevada taxing statutes against six corporate contractors utilizing otherwise exempt property
in the performance of their contracts with the United States. Fifth Judicial District Court, Nye
County, Kenneth L. Mann, Judge.
Taxpayer's suit challenging validity of taxing statutes designed to place on county tax rolls
property, otherwise exempt, utilized in connection with a business conducted for profit. The
district court entered a decision sustaining the assessments and the validity of the statutes, and
an appeal was taken. The Supreme Court, Zenoff, C. J., held that statutes and assessments
made pursuant thereto against contractors utilizing otherwise exempt property in performance
of their contracts with the United States were valid.
Affirmed.
Fred B. Ugast, Acting Assistant Attorney General; Meyer Rothwacks, William Massar,
Daniel B. Rosenbaum, Department of Justice, Washington, D.C.; Bart M. Schouweiler,
United States Attorney; John L. Endicott, Thomas B. Pitcher, of Los Angeles, California, for
Appellant United States of America.
Robert W. Austin, John L. Thorndal, of Las Vegas, for Appellants Aerojet General Corp.,
Pan American World Airways, Inc., Catalytic Construction Co., Reynolds Electrical and
Engineering Co., Inc., Shaft Drillers, Inc., and E. G. & G., Inc.
Robert List, Attorney General; William P. Beko, District Attorney, and Peter L. Knight,
Deputy District Attorney, Nye County, for Respondent.
1. Statutes.
A statute adopted from another state will be presumed to have been adopted with the construction placed
upon it by courts of that state before its adoption.
2. Taxation.
Real and personal property of the Federal Government utilized by contractors in performance of their
contracts with the Federal Government was taxable under Nevada statutes designed to place on county tax
rolls property, otherwise exempt, utilized in connection with a business conducted for profit. NRS
361.157, 361.159.
3. Taxation.
Revenue statutes designed to place on county tax rolls property, otherwise exempt, utilized in connection
with a business conducted for profit were applicable to contractors engaged in a for-profit business and ad
valorem taxes were properly assessed against such contractors based on their utilization of real and
personal property owned by the United States in the carrying out of their contracts.
personal property owned by the United States in the carrying out of their contracts. NRS 361.157,
361.159.
4. Constitutional Law; Taxation.
Statutes designed to place on county tax rolls property, otherwise exempt, utilized in connection with a
business conducted for profit were not unconstitutional as a denial of equal protection even though it was
shown that there were approximately 125 uses of exempt property that could have been taxed, but that
other than contractors challenging the statute only two other uses in the state were taxed, where there was
no showing of intentional deletion of taxable exempt property. NRS 361.157, 361.159.
5. Taxation.
Statutes designed to place on county tax rolls property, otherwise exempt, utilized in connection with a
business conducted for profit were not invalid as applied to taxation of contractors using real and personal
property owned by the Federal Government on theory final incidence of such tax fell upon Federal
Government and thus conflicted with supremacy clause, in view of fact constitutional immunity does not
extend to contractors of the Federal Government but is limited to taxes imposed directly on the United
States. NRS 361.157, 361.159.
6. Taxation.
Ad valorem tax assessments against corporate contractors utilizing otherwise exempt property in
performance of their contracts with United States were not improper on theory of violation of section of
constitution requiring a uniform and equal rate of assessment and taxation where in fact a uniform rate of
assessment was present. Const. art. 10, 1.
7. Taxation.
Statute designed to place on county tax rolls property otherwise exempt, utilized in connection with
business conducted for profit was not unconstitutional on theory it operated to discriminate against the
United States and users of its real property, even though by its terms it was inapplicable to certain state and
public property. NRS 361.157, 361.159.
OPINION
By the Court, Zenoff, C. J.:
This is a taxpayer's suit challenging two taxing statutes, appellants' intention being to
recover taxes paid under protest.
In 1965 the Nevada Legislature enacted two revenue statutes, NRS 361.157 and 361.159
(1965 Nev. Stats., ch. 432), which were designed to place on the county tax rolls property,
otherwise exempt, utilized in connection with a business conducted for profit. Pursuant to this
statute, the Nye County Assessor levied taxes against the appellant contractors, each of whom
is a private corporation engaged in a for-profit business and qualified to conduct that business
in Nevada.
Under contracts with the Atomic Energy Commission real and personal property owned by
the United States at the Nevada Test Site in Nye County, Nevada, is utilized in the conduct of
appellants' businesses. These businesses are basically similar in nature.
Reynolds Electrical and Engineering Co., Inc., provided general support services including
construction and maintenance services, technical support services and special or related
service. E. G. & G., Inc., provided scientific services at the Test Site for the AEC. Shaft
Drillers, Inc., provided drilling services in connection with the nuclear tests conducted at the
Test Site. This is the only contractor in the present suit which does not operate on a
cost-plus-fixed-fees basis.
The remaining appellant contractors used exempt property in connection with their
for-profit businesses relating to work at the Test Site's Nuclear Rocket Development Station.
The employment of exempt property under the above contracts was in all relevant respects
substantially similar to the uses under the Reynolds and E. G. & G., contracts.
The Nye County Assessor's office sought real and personal property declarations from all
persons or other entities in the county who were thought to be using otherwise tax exempt
property in a profit-motivated business manner. After time extensions and substantial delay
the government contractors filed under protest their declarations upon which the assessments
were made. The time period wherein assessments were made under review by this appeal is
from the act's effective date (April 13, 1965) through June 30, 1967. None of the assessments
exceed the rate of 35 percent of full cash value of the real and personal property used by
appellants. Taxes levied under NRS 361.159 for the time interval aggregated $553,198.64.
Taxes levied under NRS 361.157 aggregated $240,585.17.
Relative to the assessment practices of the various assessors' offices throughout the State
of Nevada the evidence indicated that the assessors and their respective staffs had not been
instructed or directed by anyone having or purporting to have authority to treat property
owned by the Federal Government or any of its entities any differently than property owned
by the state or any of its political subdivisions. No policy of separate treatment existed or
prevailed. If and when property thought to be taxable was discovered to be escaping proper
levies, it was immediately enrolled and assessed to the proper party. The assessors had no
knowledge or information indicating that property owned by the State of Nevada or its
political subdivisions was escaping taxation.
political subdivisions was escaping taxation. For the purpose of enrolling or changing the
status of enrolled property the assessors relied on information from the county recorders'
offices. Furthermore, the evidence indicated that any failure to assess under the statutes in
question resulted directly from a lack of knowledge and information of a taxable use and not
from any deliberate, intentional and systematic plan to treat federal property differently than
property owned by the state or its political subdivisions.
The trial court found and the evidence indicated that in the entire state, other than the Nye
County Assessor, only one county assessor assessed taxes during the period in question under
NRS 361.157 and 361.159. Other than the six Test Site contractors two companies were
taxed.
The Federal Government was granted leave to intervene because it will have to stand the
financial burden of taxes found to be due and owing. There is an unresolved dispute between
the government and Shaft Drillers, Inc., whether the government is required to reimburse
Shaft Drillers, Inc., for any taxes found to be due from it. The trial court found that all
administrative remedies had been exhausted.
The statutes around which this litigation revolves are as follows:
361.157 Exempt real estate subject to taxation when leased to, used in business conducted
for profit; exceptions.
1. When any real estate which for any reason is exempt from taxation is leased, loaned or
otherwise made available to and used by a private individual, association, partnership or
corporation in connection with a business conducted for profit, it shall be subject to taxation
in the same amount and to the same extent as though the lessee or user were the owner of
such real estate. This section does not apply to:
(a) Property located upon or within the limits of a public airport, park, market, fairground
or upon similar property which is available to the use of the general public; or
(b) Federal property for which payments are made in lieu of taxes in amounts equivalent to
taxes which might otherwise be lawfully assessed; or
(c) Property of any state-supported educational institution; or
(d) Property leased or otherwise made available to and used by a private individual,
association, corporation, municipal corporation, quasi-municipal corporation or a political
subdivision under the provisions of the Taylor Grazing Act or by the United States Forest
Service, the Bureau of Reclamation of the United States Department of the Interior or
other federal agency.
by the United States Forest Service, the Bureau of Reclamation of the United States
Department of the Interior or other federal agency.
(e) Property of any Indian or of any Indian tribe, band or community which is held in trust
by the United States or subject to a restriction against alienation by the United States.
2. Taxes shall be assessed to such lessees or users of real estate and collected in the same
manner as taxes assessed to owners of real estate, except that such taxes shall not become a
lien against the property. When due, such taxes shall constitute a debt due from the lessee or
user to the county for which such taxes were assessed and if unpaid shall be recoverable by
the county in the proper court of such county.
361.159 Exempt personal property subject to taxation when leased to, used in business
conducted for profit.
1. Personal property exempt from taxation which is leased, loaned or otherwise made
available to and used by a private individual, association or corporation in connection with a
business conducted for profit is subject to taxation in the same amount and to the same extent
as though the lessee or user were the owner of such property.
2. Taxes shall be assessed to such lessees or users of such personal property and collected
in the same manner as taxes assessed to owners of personal property, except that such taxes
shall not become a lien against such personal property. When due, such taxes constitute a
debt due from the lessee or user to the county for which such taxes were assessed and if
unpaid shall be recoverable by the county in the proper court of such county.
This legislation has been amended once, 1967 Nev. Stats., ch. 88 (approved March 6,
1967), wherein NRS 361.157(1)(d) was shortened by deleting the last three words.
The issues presented to this court are:
1. Whether the contractor's utilization of government property in the performance of their
contracts with the government is taxable under NRS 361.157 and 361.159.
2. Whether during the period in issue NRS 361.157 and 361.159 were administered (a) in
violation of the 14th Amendment and the supremacy clause of the Federal Constitution, and
(b) in violation of the uniformity provision, Article 10, 1 of the Nevada Constitution.
3. Whether NRS 361.157, as applied, operated to unconstitutionally discriminate against
the government or the users of its real property.
1.A. The appellants contend that the Nevada Legislature did not intend these tax statutes
to be applied to the fact situation presented in this appeal citing a statement in United States
v. City of Detroit, 355 U.S. 466, 470 (1958), that the purpose of the Michigan statute there
upheld and allegedly the source of the instant Nevada statutes was to equalize the annual tax
burden carried by private businesses using exempt property with that of similar businesses
using nonexempt property.
[Headnote 1]
No Nevada authority is cited for their proposition that this court will presume such
intendment by the legislature to adopt another state's construction. Although it is not
absolutely binding upon courts, it is the general rule and the rule in Nevada that a statute
adopted from another state will be presumed to have been adopted from another with the
construction placed upon it by courts of that state before its adoption. Kramer v. State, 60
Nev. 262, 108 P.2d 304 (1940); Cooper v. Liebert, 81 Nev. 341, 344, 402 P.2d 989 (1965). If
we were to adopt the construction the Michigan Supreme Court places on these statutes, this
court would be obliged to uphold them because the Michigan court ruled that the tax was
neither discriminatory nor on the property of the United States but instead was a tax on the
lessee's privilege of using the property in a private business conducted for profit. United
States v. City of Detroit, 345 Mich. 601, 77 N.W.2d 79 (1956).
[Headnote 2]
There is no evidence of legislative intendment that the statutes should not be applied
where the contractual services were provided to the government as opposed to being provided
to some other private entity, or that in any other respects these statutes were not applied in the
instant case as intended.
In upholding a use tax upon a federal contractor the Utah Supreme Court in Thiokol
Chemical Corporation v. Peterson, 15 Utah 2d 355, 393 P.2d 391, 395 (1964), emphasized
that the tax statute was an attempt to close gaps in the tax structure by placing a tax upon the
privilege of possessing and using in a business for profit any property which is otherwise
exempt. . . .
[Headnote 3]
1.B. The appellants next contend that NRS 361.157 and 361.159 are not applicable to
them under the standards formulated and applied by the trial court.
In an attempt to categorize, classify and tabulate the numerous private uses of exempt
property throughout the state the trial judge thought it his duty to formulate a test. Appellants
contend that by comparing exemptions given by the trial court to certain medical specialists
and other casual and incidental uses with the Test Site contractors' use an inconsistent
application becomes evident.
There are two answers to this contention. First, we are dealing in an area or province set
aside to the trial court's discretion and function. Unless it is clearly wrong or erroneous the
appellate court should not upset its decision. The trial court conscientiously set out a standard
and classified the various exempt uses. We cannot see that it misapplied the test it created.
Second, even if the trial court erred in its classification, that there may be a few more exempt
uses which are taxable, this does not advance appellants' case. As will be set out, the
appellants must prove an intentional, deliberate and systematic discrimination against them
before relief is granted. To claim that certain exempt uses are taxable but not taxed changes
appellants' position little relative to their taxation.
Specifically the appellants contend that the Test Site contractors did not utilize the
government's property in the conduct of their own business.
The appellants agree with the trial court that the contractors were independent and were
not agencies or instrumentalities of the government, thus this issue is removed. As to the
balance, this court is aided substantially by the United States Supreme Court's decision in
United States v. Boyd, 378 U.S. 39 (1964), wherein the Court concluded that the private
contractors who operated the AEC plant at Oak Ridge, Tennessee, were subject to state
taxation. Specifically, the Court said at 44, 45:
The use by the contractor for his own private endsin connection with commercial
activities carried on for profitis a separate and distinct taxable activity.
. . . .
The vital thing is that Carbide, as well as Ferguson, was using the property in
connection with its own commercial activities. United States v. Township of Muskegon, 355
U.S. 484, 486. [Footnotes omitted.]
[Headnote 4]
2.A. If the statutes are deemed applicable, as we so hold, the appellants claim that the
statutes are unconstitutional. The trial court found that during the time period under
consideration, there were approximately 125 uses of exempt property that could have been
taxed, and that other than the AEC contractors taxed here, only two other uses in the
state were taxed.
that could have been taxed, and that other than the AEC contractors taxed here, only two
other uses in the state were taxed. Appellants contend that this fact without an additional
showing of intentional deletion is clearly violative of the Fourteenth Amendment to the
Federal Constitution.
We are unpersuaded. The trial court found that in no instance was there an intentional
deletion of taxable exempt property. Appellants have cited not one case where unintentional
deletion of taxable property from the rolls has been ground for relief to the complaining
taxpayer under the equal protection clause. The U.S. Supreme Court on numerous instances
has had this question presented to it and has uniformly denied relief.
In Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 353 (1918), the Court said:
It is also clear that mere errors of judgment by officials will not support a claim of
discrimination. There must be something moresomething which in effect amounts to an
intentional violation of the essential principle of practical uniformity. The good faith of such
officers and the validity of their actions are presumed; when assailed, the burden of proof is
upon the complaining party.
In Sioux City Bridge v. Dakota County, 260 U.S. 441 (1923), wherein a railroad bridge
was assessed at 100 percent of its estimated value while property in the county averaged
55.70 percent for acreage and 49.29 percent for improved real estate, Chief Justice Taft said,
at 445, 447:
The purpose of the equal protection clause of the Fourteenth Amendment is to secure
every person within the State's jurisdiction against intentional and arbitrary discrimination,
whether occasioned by express terms of a statute or by its improper execution through duly
constituted agents. And it must be settled that intentional systematic undervaluation by state
officials of other taxable property in the same class contravenes the constitutional right of one
taxed upon the full value of his property.
. . . .
It is therefore just that upon reversal we should remand the case for a further hearing upon
the issue of discrimination, inviting attention of the well established rule in the decisions of
this Court, cited above, that mere errors of judgment do not support a claim of discrimination,
but that there must be something moresomething which in effect amounts to an intentional
violation of the essential principle of practical uniformity.
These authorities have been followed consistently, Hillsborough v. Cromwell, 326 U.S.
620, 623 (1946); Iowa-Des Moines Bank v. Bennet, 284 U.S. 239 (1931); Cumberland Coal
Co. v. Board, 284 U.S. 23, 25 (1931); Charleston Assn. v. Alderson, 324 U.S. 182 (1945),
and particularly in several cases which have construed statutes similar to NRS 361.157 and
361.159 taxing otherwise exempt property, Marquardt Corp. v. Weber County, 360 F.2d 168,
173 (1966), and Thiokol Chemical Corp. v. Peterson, 15 Utah 2d 355, 393 P.2d 391 (1964).
Further, the courts require the complaining taxpayer to prove the assessor's state of mind to
intentionally discriminate before relief is granted. In Southland Mall, Inc. v. Garner, 324
F.Supp. 674 (W.D.Tenn. 1971), the court held that a taxpayer may make out a case of
intentional discrimination if he establishes that state taxing authorities deliberately or
systematically disregarded factors which affect value of taxable property. The court stated, at
676:
We would agree, of course, that a Court may, from evidence of a failure to consider, or
even from evidence of a failure to give proper weight to, relevant appraisal factors, infer
intentional discrimination, but such state of mind must be found to have existed before a
denial of equal protection can be found. [Emphasis supplied.]
The court can also notice that these statutes were new in scope and effect. Until there was
a legal opinion or a court adjudication on the matter the assessors were rightly hesitant to
enroll previously exempt property. This hesitation does not demonstrate a disposition to
intentionally or designedly discriminate against these taxpayers. On the other hand, it is
evident that whatever failure of proper and uniform application of the statute there was,
stemmed from lack of knowledge and/or misunderstanding of the new law. Thiokol
Chemical Corp. v. Peterson, supra, at 396.
[Headnote 5]
2.B. The appellants assert that because the final incidence of the tax falls upon the Federal
Government the tax is voided by the supremacy clause.
Beginning with M'Culloch v. Maryland, 4 Wheat 316 (1817), the United States Supreme
Court has struck down taxes where the direct incidence was on the Federal Government or an
instrumentality thereof. As recently as 1968 the Court in Agricultural Bank v. Tax Comm'n,
392 U.S. 339 (1968), invalidated a sales tax imposed by Massachusetts on a National Bank.
"There can be no doubt from the clear wording of the statute that the Massachusetts
Legislature intended that this sales tax be passed on to the purchaser [here a National
Bank]."
a National Bank. There can be no doubt from the clear wording of the statute that the
Massachusetts Legislature intended that this sales tax be passed on to the purchaser [here a
National Bank]. 392 U.S. 348. Closer to home, the Federal District Court of Nevada,
Thompson, D. J., invalidated the Nevada Sales and Use Tax which had direct incidence upon
the Nevada AEC operation on purchase of goods through independent contractors. United
States v. Nevada Tax Comm'n, 291 F.Supp. 530 (D. Nev. 1968).
However this may be, the U.S. Supreme Court most recently in Boyd, supra, upheld taxes
imposed upon AEC contractors. The Court said at 49-51:
It is undoubtedly true, as the Government points out, that subjection of government
property used by AEC contractors to state use taxes will result in a substantial future tax
liability. But this result was brought to the attention of Congress in the debates on the repeal
of 9(b), which exempted the activities of AEC contractors from state taxation; indeed the
AEC argued that the repeal would substantially increase the cost of the atomic energy
program by subjecting AEC contractors to state sales and use taxes and business and
occupation taxes. Nonetheless, Congress, well aware of the principle that constitutional
immunity does not extend to cost-plus-fixed-fee contractors of the Federal Government, but
is limited to taxes imposed directly on the United States, S. Rep. No. 694, 83rd Cong., 1st
Sess., 2, repealed the statutory exemption for the declared purpose of placing AEC
contractors in the same position as all other government contractors. Act of August 13, 1953,
c. 432, 67 Stat. 575. The principles laid down in King & Boozer, Curry, Esso, and Muskegon,
we think, strike a proper judicial accommodation between the interests of the States' power to
tax and the concerns of the Nation, they are workable, and we adhere to them. If they unduly
intrude upon the business of the Nation, it is for Congress, in the valid exercise of its proper
powers, not this Court, to make the desirable adjustment. [Footnotes omitted.]
[Headnote 6]
2.C. Appellants contend that the Test Site contractors are entitled to relief under Article
10, 1 of the Nevada Constitution which requires a uniform and equal rate of assessment
and taxation.
The meaning of this clause has been construed by several early Nevada cases. In State v.
Eastabrook, 3 Nev. 173 (1867), holding that a tax on the net proceeds of mines at a rate
either higher or lower than other ad valorem taxes violates Nevada Constitution Article
10, 1, the court said, at 177:
rate either higher or lower than other ad valorem taxes violates Nevada Constitution Article
10, 1, the court said, at 177:
We have no hesitation in saying that the constitutional convention, in using the language
last quoted, meant to provide for at least one thing in regard to taxation: that is, that all ad
valorem taxes should be a uniform rate or percentage. That one species of taxable property
should not pay a higher rate of taxes than other kinds of property.
This case has been cited with approval in Sawyer v. Dooley, 21 Nev. 390, 397, 32 P. 437
(1893) (All that is required is a uniformity of taxes, and not a uniformity in the manner of
assessing or collecting them.), State v. Kruttschnitt, 4 Nev. 178 (1868), and Boyne v. State
ex rel. Dickerson, 80 Nev. 160, 166, 390 P.2d 225 (1964).
The trial court found that all assessments do not exceed 35 percent of full cash value of the
real and personal property used by defendants. Cf. NRS 361.225. Furthermore, the parties
stipulated that all assessments were properly made.
Article 10 requires a uniform rate, which was present in the instant case.
[Headnote 7]
3.A. Appellants' final contention is that NRS 361.157 is unconstitutional because it
operates so as to discriminate against the United States and the users of its real property. NRS
361.157, by its terms, is inapplicable to (1) Property of any state-supported educational
institution, and (2) Property located upon or within the limits of a public airport, park,
market, fairground or upon similar property which is available to the use of the general
public. Appellants argue that because of those exemptions NRS 361.157 operates so as to
discriminate against the United States and users of its real property and is unconstitutional
because, as the Supreme Court said in City of Detroit, supra, at 473:
It still remains true, as it has from the beginning, that a tax may be invalid even though it
does not fall directly on the United States if it operates so as to discriminate against the
Government or those with whom it deals.
Since NRS 361.157 does not provide for the taxation of private users of real property
owned by state-supported educational institutions, but does provide for the taxation of private
users of real property owned by federally supported educational institutions, the statute
allegedly discriminates against the United States and the users of its real property.
The trial court did not reach the merits of appellants' present contention, but rejected it for
(1) lack of proof that the exemption gave rise to any discrimination in fact (2) lack of
standing to urge the unconstitutionality of the exemption of real property owned by
state-supported educational institutions (NRS 361.157(1)(c)) since the Test Site contractors
were not adversely affected, and (3) because the exemption, if unconstitutional, was severable
and did not invalidate the entire statute.
In defining the term discriminate it seems clear that the legal concept here is the same as
the Fourteenth Amendment's equal protection clause. The case which most favorably supports
appellant, Phillips Co. v. Dumas School Dist., 361 U.S. 376 (1960), does not require a higher
level of equal protection than is prescribed by the Fourteenth Amendment. In Phillips,
supra, the appellant was taxed under a Texas statute on the full value of the real property
which it leases from the Federal Government, while business with similar leases, using
exempt property owned by the state and its political subdivisions, are not taxed on their
leaseholds at all. Chief Justice Warren stated there the applicable test to be that [t]he
imposition of a heavier tax burden on lessees of federal property than is imposed on other
exempt public property must be justified by significant differences between the two classes.
361 U.S. at 383.
In considering the identical exemption here challenged the court in Chrysler Corp. v.
Township of Sterling, Macomb County, M., 410 F.2d 62 (6th Cir. 1969), upheld the statute
under a similar attack as now presented on two grounds, first, that the exemption in its
practical operation did not discriminate against the United States and its lessees because the
amount of property of state-supported educational institutions is infinitesimal when compared
to the total value of taxable and exempt property in the state. Here, the evidence indicated that
only an exempt warehouse and a caterer for the dining commons at the University of Nevada
at Las Vegas escaped taxation because of the exemptions. The harm to the government
contractors would be de minimus. One who is not injured by an ordinance cannot attack its
constitutionality. Ex Parte Noyd, 48 Nev. 120, 129, 227 P. 1020 (1924); Ex Parte Sloan, 47
Nev. 109, 120, 217 P. 233 (1923). Secondly, the circuit court held that the exemption of the
lessees of property of state-supported educational institutions is reasonable and valid because
it is founded upon the well-recognized policy of both the United States and the State of
Michigan to protect, promote and support education, including colleges and universities.
protect, promote and support education, including colleges and universities. Chrysler Corp. v.
Township of Sterling, Macomb County, M., 410 F.2d 62, 70 (6th Cir. 1969). We subscribe to
these views.
3.B. Relative to the exemption of NRS 361.157(1)(a) the circuit court in Chrysler Corp.,
supra, agreed with the lower court that the concession exemption standing alone does not
result in unconstitutional discrimination to the Federal Government or its contractors in
respect to this exemption.
Other subsidiary issues raised by appellants have been carefully reviewed and are found to
be without merit.
We hold that the statutes are constitutional as applied and that the taxes levied thereunder
were proper.
Affirmed.
Batjer, Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 89, 89 (1972) Cannon v. Taylor
IVAN CANNON, DARYL B. GARNER, and FORREST PURDY, Appellants, v. WILLIAM
L. TAYLOR, C. R. CLELAND, and JOHN MYERS, Respondents.
No. 6367
February 23, 1972 493 P.2d 1313
Appeal from order granting defendant-respondents' motion for summary judgment and
from order denying plaintiff-appellants' motion for summary judgment; Eighth Judicial
District Court, Clark County; William R. Morse, Judge.
Class action by taxpayer seeking repayment to the city of all sums paid the mayor and
councilmen in excess of salary as it existed before salary increases established by the city
council. The district court granted defendants' motion for summary judgment, and plaintiffs
appealed. The Supreme Court reversed with direction, 87 Nev. 285, 486 P.2d 493 (1971). On
rehearing, the Supreme Court held that where an Attorney General's opinion told city officials
that salaries established in accordance with certain legislation were retroactive to April 15,
1967, city officials were entitled to retain the increase even if some increased salary payments
were accepted before issuance of the Attorney General's opinion and even though the opinion
was not upheld.
Affirmed, on rehearing.
[See Cannon v. Taylor, 87 Nev. 285, 486 P.2d 493 (1971)]
L. Earl Hawley and Edward G. Marshall, of Las Vegas, for Appellants.
Carl E. Lovell, Jr., of North Las Vegas, for Respondents.
1. Municipal Corporations.
Though opinion of Attorney General was not addressed directly to officials of particular city, officials of
such city were entitled to rely upon it. NRS 228.150.
Generally, where government officials are entitled to rely on opinions of state's Attorney General, and do
rely in good faith, they are not responsible in damages to governmental body they serve if Attorney General
is mistaken.
Where Attorney General's opinion told city officials that salaries established in accordance with certain
legislation were retroactive to April 15, 1967, city officials were entitled to retain increase even if some
increased salary payments were accepted before issuance of Attorney General's opinion and even though
opinion was not upheld. NRS 228.150, 404.010 et seq.
Established practice does not allow litigant to raise new legal points for first time on rehearing in
Supreme Court.
Rule that litigant may not raise new legal points for first time on rehearing did not require Supreme Court
to ignore Attorney General's opinion to which no counsel for any party had called court's attention.
OPINION ON REHEARING
Per Curiam:
When this appeal was briefed and argued, counsel did not mention, thus this court was
unaware, that the state's Attorney General had, on June 14, 1967, issued his Opinion No. 422,
discussing the enactment here concerned, and concluding:
It is therefore the opinion of this office that:
1. Chapters 400 and 404 of the 1967 Statutes of Nevada, repealed and wiped out the
salaries of named city officials in effect as of the date of the passage and approval of said
acts, to-wit, April 15, 1967.
2. The acts established the procedure for the setting of new salaries by the City Council
of North Las Vegas and the City Commissioners of Las Vegas, and such salaries once
established were retroactive to April 15, 1967.
3. That the provision against diminishing or increasing salaries of the officials named in
the acts designated above referred to the salaries established under the new bills, and did not
refer to salaries previously paid the named city officials. Op. Att'y Gen. No. 422 (June 14,
1967).
While the Attorney General's opinions are not binding on us, and the members of the court
adhere to their respective views concerning the interpretation of Chapter 400 of the 1967
Statutes, all members of the court agree that the issuance of the Attorney General's opinion,
and the council members' reliance thereon, must alter the result we originally reached. See:
Cannon v. Taylor, 87 Nev. 285, 486 P.2d 493 (1971).
One of the duties of the Attorney General is to issue written opinions upon questions of
law to guide public officials, which in this case he properly did at the request of the City
Attorney of Las Vegas. NRS 228.150. It appears clear the Attorney General intended also to
advise the City Attorney of North Las Vegas, whose City Council faced the same problem;
for his Opinion covered both cities, reaching the same conclusion as to each. We must
assume that the City Attorney of North Las Vegas relied on this advice at least to some
degree, when he permitted respondents to believe accepting a salary increase had been and
would be proper.
[Headnote 1]
However indirectly conveyed, the city fathers were entitled to rely on the Attorney
General's advice, to-wit: that they must enact a new salary structure; that they might properly
increase their salaries when doing so; that such salaries and any increases in them were to be
retroactive to April 15, 1967; and that state law did not preclude this, but indeed required
action by them if they were legally to be paid at all. As our prior opinion reflects, a majority
of this court believe the Attorney General was incorrect, but as said in State v. Fidelity &
Deposit Co. of Maryland, 58 S.W.2d 696 (Ark. 1933), which involved mistaken payment of
living expenses approved by the state's Attorney General: It does not follow, however, that
the commissioners are liable for the erroneous payments. Id., at 698.
[Headnote 2]
A case of this kind must stand on its own facts, but as a general proposition where
government officials are entitled to rely on opinions of the state's Attorney General, and do
rely in good faith, they are not responsible in damages to the governmental body they
serve if the Attorney General is mistaken.
in good faith, they are not responsible in damages to the governmental body they serve if the
Attorney General is mistaken. State v. Fidelity & Deposit Co. of Maryland, supra; State v.
Broadaway, 93 S.W.2d 1248 (Ark. 1936); Standard Surety & Casualty Co. v. State of
Oklahoma, 145 F.2d 605 (10th Cir. 1944); cf. State v. Meier, 115 N.W.2d 574 (N.D. 1962).
Were the rule otherwise, few persons of responsibility would be found willing to serve
the public in that large capacity of offices, which requires a sacrifice of time and perhaps
money, but affords neither honor nor profit to the incumbent. State v. Fidelity & Deposit Co.
of Maryland, supra, at 699.
[Headnote 3]
We believe the facts of this case warrant application of the rule just enunciated. If the city
fathers accepted some increased salary payments before issuance of the Attorney General's
opinion, they could not have been many, nor is this material; for that opinion told them such
salaries once established were retroactive to April 15, 1967, and therefore theirs to keep and
to utilize in their personal and civic activities.
[Headnotes 4, 5]
As appellants contend, our established practice does not allow a litigant to raise new legal
points for the first time on rehearing. Cf. In Re Lorring, 75 Nev. 330, 340 P.2d 589 (1959);
rehearing denied, 75 Nev. 334, 349 P.2d 156 (1960). Here, however, we consider that
respondents' counsel has merely directed our attention to an incontrovertible fact, verifiable
from records in the building where we sit. Our precedents do not require us to ignore it, in
favor of appellants, who lost in the court below. Were we to accept their contention that such
a fact must be shown by the record, the result reached by our prior opinion would still be
incorrect. A gap in the record, a factual question, would stand revealed, on which respondents
would be entitled to a trial. Since there is no genuine issue as to this material fact, there is no
need of a trial to resolve it. NRCP 56.
The respective members of the court adhere to their views, exactly as stated in our prior
opinion. That opinion is withdrawn only insofar as it ordered reversal of the judgment entered
by the lower court. The summary judgment in favor of respondents must be, and hereby is,
affirmed in all respects.
Compton, D. J., concurring:
I concur in the result reached by the Court today but for different reasons.
In my view, the reasoning as set forth in the Court's prior decision is based on a sound
analysis of the facts, and the rules of law therein enunciated properly interpret the legislature's
statutory intent. See: Cannon v. Taylor, 87 Nev. 285, 486 P.2d 493 (1971).
The majority places undue weight upon facts brought before this Court for the first time by
respondents at their requested rehearing. The fact that respondents may have relied on oral
representations by the Attorney General's office prior to the publication of its opinion is not
sufficient to overturn this Court's earlier determination. It should be pointed out that in
respondents' points and authorities on rehearing, notably submitted by the City Attorney of
North Las Vegas as attorney for respondents, a chronological breakdown of facts is set out as
an aid to the Court. This chronology indicates that respondents raised their salary from its
former level 14 days following the adoption of Senate Bills 450 and 451, while the Attorney
General's Opinion No. 422 was not issued until June 14, 1967, some sixty days following
adoption, and 46 days after the respondents had fixed a new salary level. To me, reliance on
these facts is tenuous, at best.
However, I am in agreement with the rule as stated by the majority that a case of this kind
must stand on its own facts. As a general proposition where government officials are entitled
to rely on opinions of the state's Attorney General, and do rely in good faith, they are not
responsible in damages to the governmental body they serve if the Attorney General is
mistaken. Although this is not a case wherein talk of damages is appropriate; rather it is one
for the repayment of improper compensation.
In my judgment, if there is a sound basis for overturning our earlier determination, it is
respondents' argument on rehearing that appellants are estopped by the doctrine of laches
from asserting a taxpayer's claim against respondents.
The fact is that on April 29, 1967, respondents established salary levels above those set at
the time of their election to office. Subsequently on May 13, 1969, and after a period of
almost two years, appellants filed their complaint. And as was noted by the Court in its prior
decision, this class action suit was instituted by the appellants, as taxpayers, on the day
before the expiration of the respondents' term of office.
Expenditures of municipal funds, as well as other actions taken by city councils, are
regularly published in local newspapers. In fact, by law, proposed and final budgets compiled
by city councils must be published. NRS 354. Knowledge or notice on the part of appellants
of the alleged wrong is a important factor in determining whether delay in bringing a
taxpayers' action constitutes laches.
notice on the part of appellants of the alleged wrong is an important factor in determining
whether delay in bringing a taxpayers' action constitutes laches. Johnson v. Black, 49 S.E.
633, insufficient notice; Torgeson v. Connelly, 348 P.2d 63.
And delay in bringing a taxpayers' action, where the complainants have express or implied
knowledge or notice of the situation, may constitute such laches as to bar relief. Conners v.
Lowell, 140 N.E. 742; See generally 27 Am.Jur.2d 710, Equity 167.
After reviewing pertinent sections of the record of the case at bar, I can discern no valid
reason why appellants delayed filing suit for nearly two years. Appellants, as reasonably
diligent taxpayers, are charged with knowledge of public notices required to be published for
their benefit. Of course, a delay however long, by itself, does not constitute laches. There
must also be prejudice to the respondents resulting therefrom. As the majority has indicated,
the respondents acted in good faith, and to require them, at this late date, to return funds
which they had in good faith believed they had earned (and at which rates their successors in
office are paid) is not justified under the circumstances.
The record reflects a void as to when appellants discovered respondents had established an
improper salary level, however, the requirement of reasonable diligence on the part of
appellants cannot be disregarded. Thus, in my judgment, a delay of this magnitude under the
facts and circumstances as this record presents, was fatal to appellants.
I would affirm the trial court's order granting summary judgment.
____________
88 Nev. 94, 94 (1972) Pollard v. Gibbs
LEE A. POLLARD, Appellant, v. FRANK ROLLA
GIBBS and BUTLER CRANE SERVICE, Respondents.
No. 6644
February 23, 1972 493 P.2d 1317
Appeal from judgment upon jury verdict and denial of post-judgment motions. Eighth
Judicial District Court, Clark County; Clarence Sundean, Judge.
Action was brought for injuries alleged to have been negligently inflicted. A jury in the
district court denied recovery, and the plaintiff appealed. The Supreme Court, Thompson, J.,
held that use of the words however slight in an instruction concerning the defense of
contributory negligence was error, but without a trial transcript or narrative statement of
testimony, it was necessary to presume that the error was harmless.
concerning the defense of contributory negligence was error, but without a trial transcript or
narrative statement of testimony, it was necessary to presume that the error was harmless.
Affirmed.
[Rehearing denied April 5, 1972]
Charles L. Kellar, of Las Vegas, for Appellant.
Leavitt, Edwards & Gladstone, of Las Vegas, for Respondents.
Use of words however slight in instruction concerning defense of contributory negligence was error,
but without trial transcript or narrative statement of testimony, it was necessary to presume that error was
harmless. NRCP 61.
Under rule, grounds of objection to offensive instruction should have been expressed at trial. NRCP 51.
OPINION
[Headnotes 1, 2]
This appeal, presented without a trial transcript or a narrative statement of the testimony,
asks us to set aside a judgment entered upon a jury verdict denying the appellant damages for
injuries alleged to have been negligently inflicted. The main claim of error is that the court
used the words however slight with regard to one of the instructions concerning the defense
of contributory negligencewords, the use of which we condemned in Driscoll v. Erreguible,
87 Nev. 97, 482 P.2d 291 (1971). As we noted in Driscoll, however, this error does not
automatically mandate a reversal, for usually, without a trial transcript or a statement of the
evidence, the record will contain no substantial indicia that an error in instructing the jury has
had a prejudicial effect. Id. at 100. We found reversible error in that case because the record
revealed the deadlocked deliberations of the jury, its subsequent question in open court
whether any negligence would bar the plaintiff's recovery, and its rapid verdict following
the court's erroneous responsecircumstances which are not disclosed in the record now
before us. Since a prima facie showing of prejudice is not shown, we must, absent a trial
transcript or a narrative statement of the testimony, deem the offensive instruction to be
harmless error.
a narrative statement of the testimony, deem the offensive instruction to be harmless error.
Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952); NRCP 61. Moreover, we note, as did
the district court in denying the appellant's motion for a new trial, that the grounds of
objection to the offensive instruction were not expressed as required by NRCP 51. Lathrop v.
Smith, 71 Nev. 274, 288 P.2d 212 (1955).
Other claims of error are either without substance or are incapable of appropriate
evaluation on the scanty record before us.
Affirmed.
____________
88 Nev. 96, 96 (1972) Ring v. Walker
ROBERT A. RING, III, a Minor, By and Through his Guardian Ad Litem,
ROBERT A. RING, Jr., Appellants, v. WILLIAM F. WALKER and
CHARLES MAPES, Respondents.
No. 6648
February 23, 1972 493 P.2d 1037
Appeal from order of the Second Judicial District Court, Washoe County, granting
summary judgment; John E. Gabrielli, Judge.
Affirmed.
Bradley & Drendel, Ltd., of Reno, for Appellants.
Wait & Shamberger & Georgeson and Robert A. McOuaid, Jr., of Reno, for Respondent
Walker.
Erickson & Thorpe and C. Nicholas Pereos, of Reno, for Respondent Mapes.
OPINION
Per Curiam:
We believe that in the instant case the district court correctly determined that there was no
genuine issue as to any material fact, and that defendants were entitled to judgment as a
matter of law. Summary judgment was properly entered. NRCP 56(c).
____________
88 Nev. 97, 97 (1972) Sinclair v. Holt
PHILLIP SINCLAIR, Appellant, v. ROY E.
HOLT, Respondent.
No. 6600
February 23, 1972 493 P.2d 1316
Appeal from judgment of the Eighth Judicial District Court, Clark County; George F.
Wright, Judge.
Action to recover balance due on purchase price of chattels. The district court found for
seller and buyer appealed. The Supreme Court, Mowbray, J., held that where seller sold
goods which had been security for note which seller as guarantor paid to bank and received
assignment of note, buyer could not avoid liability for selling price on basis that seller lacked
legal title in goods.
Affirmed.
Lee and Beasey, of Las Vegas, for Appellant.
Pomeranz, Cochrane, Lehman & Nelson, of Las Vegas, for Respondent.
1. Chattel Mortgages.
Statutory procedure for effecting formal assignment of mortgage rights was not only means for
transferring rights of mortgagee.
2. Chattel Mortgages.
Where guarantor of note secured by chattel mortgage paid balance due on debt to bank which transferred
to guarantor all of bank's right, title, and interest in note, the security followed the note and conveyed to
guarantor the rights of a mortgagee.
3. Sales.
Where seller sold goods which had been security for note which seller as guarantor paid to bank and
received assignment of note, buyer could not avoid liability for selling price on basis that seller lacked legal
title in goods.
OPINION
On September 21, 1962, the Vegas Development Corporation of Nevada, through its
officers, signed a $35,400 corporate installment note payable to the order of the First National
Bank of Nevada. The note was secured by a chattel mortgage covering apartment furniture
owned by the corporation.
On September 24, 1963, Respondent Roy E. Holt became guarantor of the note. Later the
corporation encountered financial difficulties. In September 1964 the corporation filed a
voluntary petition in bankruptcy in the United States District Court for the District of
Nevada.
88 Nev. 97, 98 (1972) Sinclair v. Holt
a voluntary petition in bankruptcy in the United States District Court for the District of
Nevada. The bank, upon receipt from Holt of the balance due on the corporate note,
transferred to Holt all of the right, title, and interest in the note. After the corporation was
adjudicated a bankrupt, the furniture covered by the chattel mortgage note was abandoned to
Holt by order of the Referee in Bankruptcy. Holt sold the furniture to Appellant Phillip
Sinclair, who in turn has sold the furniture for value to a third party.
Holt has sued Sinclair in the lower court for the balance due on the purchase price of the
furniture. Sinclair defended the suit on the ground that Holt did not have legal title in the
furniture when he sold it to Sinclair. The district judge found in favor of Holt and against
Sinclair. We affirm the judgment.
[Headnotes 1-3]
Sinclair, in attacking Holt's title to the furniture, claims that the chattel mortgage covering
the furniture was not formally assigned to Holt. While chapter 106 of NRS then in effect did
prescribe the means of effecting formal assignment of mortgage rights,
1
the statutory
procedure set forth therein was not the only means for transferring the rights of a mortgagee.
In this case the security followed the note, thus conveying to respondent Holt the rights of a
mortgagee. 4 Corbin, Contracts 907 (1951); 3 Williston, Contracts 432A (3d ed. 1960).
Under the express terms of the mortgage, the mortgagee had the right of private sale. That is,
upon default, the mortgagee was empowered to take possession of the mortgaged property
and later by private sale convey good title to a third party. See Cram v. Wells Cargo, Inc., 70
Nev. 19, 253 P.2d 200 (1953). This was done in the instant case. At the time the bank
assigned the note to Holt, he acquired by virtue of the assignment the bank's interest in the
security. The property was abandoned to him by the Referee in Bankruptcy. Sinclair then
purchased the property, and he later sold it for value to a third party. Sinclair may not renege
on his purchase agreement, and he must therefore pay the remainder of the purchase price due
thereunder as ordered by the district court.
The judgment is affirmed.
____________________

1
The Uniform Commercial Code was not then in effect.
____________
88 Nev. 99, 99 (1972) Collins v. Warden
ALFRED JOSEPH COLLINS, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 6483
February 23, 1972 493 P.2d 1335
Appeal from order denying post-conviction petition for habeas relief, Second Judicial
District Court, Washoe County; Grant L. Bowen, Judge.
The district court denied relief, and prisoner appealed. The Supreme Court, Gunderson, J.,
held that under statute, defendant who was sentenced to three consecutive sentences and who
had been convicted of prior felonies was precluded from parole only outside prison's
buildings and enclosures, and defendant, against whom habitual criminal charges were
dismissed by trial judge who expressed belief and intent that defendant would be allowed to
earn early parole consideration, was not precluded from being paroled from one sentence to
another so long as he remained within prison.
Affirmed.
H. Dale Murphy, Washoe County Public Defender, for Appellant.
Robert List, Attorney General, of Carson City; Robert Rose, District Attorney, and
Kathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Where defendant's guilty pleas were accepted before United States Supreme Court decision requiring
inquiry to establish that pleas are intelligent and voluntary before acceptance of pleas, defendant seeking
habeas corpus relief through post-conviction petition was not entitled to plead anew because of acceptance
of his pleas without the requisite inquiry.
2. Pardon and Parole.
Statute concerning concurrent and consecutive sentences merely recited rules to determine intent of
sentencing judge, and did not limit his power or that of parole board and did not preclude inmate serving
the first of two or more consecutive sentences from being paroled from that sentence to begin serving a
subsequent sentence. NRS 176.035, 176.035, subd. 2.
3. Pardon and Parole.
Under statute, defendant who was sentenced to three consecutive sentences and who had been convicted
of prior felonies was precluded from parole only outside prison's buildings and enclosures, and defendant,
against whom habitual criminal charges were dismissed by trial judge who expressed belief and intent that
defendant would be allowed to earn early parole consideration, was not precluded from being
paroled from one sentence to another so long as he remained within prison.
was not precluded from being paroled from one sentence to another so long as he remained within prison.
NRS 213.110.
4. Habeas Corpus.
Prisoner who, because of prior felony convictions, was eligible for parole only inside prison could
challenge constitutional validity of prior convictions and thereby seek eligibility for outside parole. NRS
213.110.
OPINION
April 22, 1968, appellant withdrew his prior not guilty plea, and pleaded guilty to an
information charging robbery. April 23, he withdrew his not guilty plea and pleaded guilty
to an information concerning a later incident, charging attempted robbery and assault with a
deadly weapon. Simultaneously the State, obviously as the result of plea bargaining, moved
for dismissal of habitual criminal charges alleging prior felonies in enhancement of penalty.
The court dismissed the habitual charges, and subsequently imposed consecutive sentences
of 10, 3 and 6 years on the principal charges, expressing belief and intent that appellant would
be allowed to earn early parole consideration.
1
Counsel for the State at no time suggested
that the court misunderstood the effect contemplated by dismissal of the habitual charges.
Prison authorities thereafter advised appellant that he is ineligible for parole; he then sought
post-conviction relief, which a different judge of the district court denied; hence, this appeal.
[Headnote 1]
1. Appellant contends he is entitled to plead anew, simply because the court accepted his
pleas without requisite inquiry to establish them intelligent and voluntary. Boykin v.
Alabama, 395 U.S. 238 (1969); Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970). This
contention has no merit, for appellant's pleas were accepted before the U.S. Supreme Court
announced the doctrine of Boykin, which in our view is not retroactive. Mathis v. Warden, 86
Nev. 439, 471 P.2d 233 {1970); Anushevitz v. Warden, S6 Nev. 191
____________________

1
When sentencing appellant, Judge Craven stated: Now, the sentences I intend to impose will be
consecutive; but as a practical matter, it isn't going to make any difference because it is going to be entirely up to
the parole board. . . . While a psychiatric evaluation tendered as part of the pre-sentence report suggested
appellant be allowed to earn early parole consideration, Judge Craven clearly chose to impose consecutive rather
than concurrent sentences, to vest the parole board with maximum future control.
(1970); Anushevitz v. Warden, 86 Nev. 191, 467 P.2d 115 (1970).
[Headnote 2]
2. Appellant further seeks the right to re-plead, or to be resentenced, because the
sentencing judge supposedly was unaware that under NRS 176.035 an inmate serving the first
of two or more consecutive sentences cannot be paroled from it to begin serving a subsequent
sentence.
2
In support of the premise that NRS 176.035 precludes such paroles, appellant
cites an opinion of our Attorney General (Op. Att'y Gen. No. 578, 1969); however, we
believe Judge Craven, rather than the Attorney General's deputy, has correctly construed NRS
176.035(2), which merely recites rules to determine the intent of the sentencing judge, and
does not limit his power or that of the parole board.
[Headnotes 3, 4]
3. Appellant further seeks the right to re-plead, or to be resentenced, because the court
assertedly was unaware NRS 213.110 precludes parole to persons who have previously been
more than three times convicted of a felony and served a term in a penal institution. Again,
we disagree with appellant's premise. By the express terms of NRS 213.110, only paroles
outside the prison's buildings and enclosures are precluded to persons stigmatized by that
statute.
____________________

2
NRS 176.035 Conviction of two or more offenses; concurrent and consecutive sentences.
1. Whenever a person shall be convicted of two or more offenses, and sentence has been pronounced for one
offense, the court in imposing any subsequent sentence may, in its discretion, provide that the sentences
subsequently pronounced shall run either concurrently or consecutively with the sentence first imposed.
2. If the court shall make no order with reference thereto, all sentences shall run concurrently; but whenever
a person under sentence of imprisonment shall commit another crime and be sentenced to another term of
imprisonment, such latter term shall not begin until the expiration of all prior terms.
Our former Attorney General's interpretation of this statute, discussed herein, has led to bizarre results. For
example, one convicted of a misdemeanor in prison necessarily suffers, not merely the usual penalties for that
crime, but the loss of all parole possibilities on his original sentence, i.e. an indiscriminate additional sanction
fortuitously dependent upon the length of his original sentence and the time his second sentence is imposed. To
avoid such purely arbitrary results, which our prison authorities find inimical to their prospects for control and
rehabilitation of prisoners, our trial judges have sometimes felt constrained to grant probation for offenses
committed while in prison. As the instant case illustrates, the Attorney General's view would also tend to deter
judges from imposing consecutive sentences in cases like the instant one, a result hardly consistent with allowing
the parole board maximum control over criminal offenders.
paroles outside the prison's buildings and enclosures are precluded to persons stigmatized by
that statute. The sentencing judge apparently recognized that appellant might properly be
paroled from one sentence to another, so long as he remained within the prison, and his
advice to petitioner in this regard was correct.
3

We affirm the order denying appellant post-conviction relief, with the expectation that
appellant will be allowed parole consideration in conformity with law, as the sentencing court
apparently contemplated.
4

____________________

3
Petitioner may, of course, challenge the constitutional validity of his prior convictions as suggested in
Eisentrager v. State Bd. Parole, 85 Nev. 672, 462 P.2d 40 (1969), and thereby seek eligibility for outside parole.

4
In its Answering Brief, the State says it would concur in our resolving this case by assuming the
sentencing judge was ignorant of NRS 213.110, and adjusting appellant's sentences to run concurrently. Respect
for the sentencing court, and for its determination that consecutive sentences will best enable the parole board to
protect the public, impels us to decide the court correctly interpreted the intended effect of the dismissals sought
by the State.
____________
88 Nev. 102, 102 (1972) Dean v. Kimbrough
CHARLECY E. DEAN, Appellant, v. RUBY
KIMBROUGH and BEN W. KIMBROUGH, Respondents.
No. 6664
February 24, 1972 492 P.2d 988
Appeal from order granting a petition for writ of habeas corpus involving custody of two
minor children. Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
Habeas corpus proceeding by father and grandmother to obtain custody of children in
possession of mother. The district court granted the writ and mother appealed. The Supreme
Court, Zenoff, C. J., held that grant or denial of writ of habeas corpus in child custody
proceeding is final judgment and appealable, and that where full hearing on mother's
application for order modifying custody agreement had been held 13 days prior to filing of
habeas corpus proceeding by father and grandmother, to whom agreement gave custody, to
obtain children from mother, court's refusal to make habeas corpus proceeding a full scale
custody hearing was not a abuse of discretion.
children from mother, court's refusal to make habeas corpus proceeding a full scale custody
hearing was not an abuse of discretion.
Affirmed.
Greenman & Goldberg, of Las Vegas, for Appellant.
Leavitt, Edwards & Gladstone, of Las Vegas, for Respondents.
1. Habeas Corpus.
Grant or denial of writ of habeas corpus in child custody proceeding is final judgment and appealable.
NRCP 72(b)(1).
2. Habeas Corpus.
Child custody habeas corpus proceeding partakes in its nature that of private suit in which state is not
party as in criminal action.
3. Habeas Corpus.
Child custody may be modified on showing of change of circumstances but court need not have full
custody hearing in habeas corpus proceeding involving child custody.
4. Habeas Corpus.
Where full hearing on mother's application for order modifying custody agreement had been held 13 days
prior to filing of habeas corpus proceeding by father and grandmother, to whom agreement gave custody,
to obtain children from mother, court's refusal to make habeas corpus proceeding a full scale custody
hearing was not an abuse of discretion.
OPINION
Charlecy E. Dean was granted a divorce from Ben W. Kimbrough in the state of Alabama
on August 15, 1969. In those proceedings she was awarded the care, custody and control of
the two minor children of their marriage. Later, she signed an agreement ratified by her
former husband and father of the children that the children would be under the care and
custody of their paternal grandmother, Ruby Kimbrough.
In November of 1970 Charlecy gained possession of the children by pretext and brought
them to Las Vegas where she sought to modify again the Alabama custody award which had
been modified by the agreement with the grandmother. After a hearing her action was
dismissed by the trial judge.
While her petition for a rehearing of that motion was pending Ben Kimbrough, father of
the children, and Ruby Kimbrough the grandmother, approximately 13 days after the
dismissal of the motion to modify petitioned a different judge for a writ of habeas corpus
seeking custody of the children.
dismissal of the motion to modify petitioned a different judge for a writ of habeas corpus
seeking custody of the children. Because he was scheduled to leave the country for an
extended overseas military tour he stipulated with Charlecy that the habeas corpus hearing be
a full-blown custody hearing, but the trial court refused to convert the habeas hearing into a
custody hearing principally on the ground that there was no showing that a change in custody
was essential or vital or necessary.
From what we can glean from the record Charlecy's only claim of changed circumstances
was that she was again married. She appeals from the granting of the writ.
Two issues are presented: (1) is the granting of a habeas corpus writ in connection with
child custody an appealable judgment, and (2) if it is appealable, nevertheless, did the trial
court abuse its discretion in not conducting a full custody hearing at the time set for the
habeas hearing when 13 days prior in another judicial department a motion to modify the
child custody award was dismissed.
1. The specific issue whether the granting of a child custody habeas corpus writ is an
appealable judgment has not heretofore been decided by this court, although the court has
heard appeals in the past from child custody habeas corpus proceedings. McGlone v.
McGlone, 86 Nev. 14, 18, 646 P.2d 27 (1970); Ferguson v. Krepper, 83 Nev. 408, 432 P.2d
668 (1967); Welfare Division v. Maynard, 84 Nev. 525, 445 P.2d 153 (1968); In the Matter
of Schultz, 64 Nev. 264, 181 P.2d 585 (1947); In the Matter of Swall, 36 Nev. 171, 134 P. 96
(1913); Tiedemann v. Tiedemann, 35 Nev. 259, 129 P. 313 (1913).
[Headnote 1]
Traditionally, habeas corpus as applied to child custody matters has been considered to be
civil in nature. Evens v. Keller, 35 N.M. 659, 6 P.2d 200 (1931); Tillman v. Walters, 214 Ala.
71, 108 So. 62 (1925); and so too by some states in habeas proceedings arising from the
criminal context, Little v. Rhay, 413 P.2d 15, 19 (Wash. 1966). As such, its granting or denial
is a final judgment and appealable under NRCP 72(b)(1).
[Headnote 2]
A child custody contest partakes in its nature that of a private suit in which the state is not
a party as in a criminal action. The rights of the parties are decided as in any civil action and
the judgment rendered is a final adjudication on the facts and circumstances existing at the
time of the judgment. Cf. Ex parte Bruegger, 267 P.
parte Bruegger, 267 P. 101 (Cal. 1928); Application of Croze, 145 Cal.App.2d 492, 302 P.2d
595 (1956).
[Headnote 3]
2. Nevada law holds that child custody may be modified upon the showing of change of
circumstances, but that does not mean that the Nevada court must have a full custody hearing
in a habeas corpus proceedings. Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d 623 (1966);
Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968); Ferguson v. Krepper, 83 Nev. 408,
432 P.2d 668 (1967); Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961); Osmun v. Osmun,
73 Nev. 112, 310 P.2d 407 (1957).
[Headnote 4]
Considering that a hearing to modify having been had but 13 days prior and a failure in the
instant proceedings to show that a change in custody was essential or vital or necessary, under
these circumstances the trial judge did not abuse his discretion.
Affirmed.
____________
88 Nev. 105, 105 (1972) Miller v. West
GEORGE E. MILLER, State Welfare Administrator, MEMBERS OF THE NEVADA
STATE WELFARE BOARD, Individually, and NEVADA STATE WELFARE BOARD,
Appellants, v. HENRY A. WEST (PAT WEST), Respondent.
No. 6500
February 24, 1972 493 P.2d 1332
Appeal from a judgment of the Eighth Judicial District Court; Thomas J. O'Donnell,
Judge.
The district court upheld aid to blind recipient's claim that Welfare Division's changes in
payments made to him were improper and appeal was taken. The Supreme Court, Batjer, J.,
held that action of Welfare Division in changing allocation of shelter needs between aid to
blind program and aid to dependent children program and thereby reducing aid to blind
recipient was proper.
88 Nev. 105, 106 (1972) Miller v. West
Robert List, Attorney General, Margie Ann Richards, Deputy Attorney General, for
Appellants.
B. Mahlon Brown, III, Clark County Legal Aid Society, for Respondent.
1. Social Security and Public Welfare.
Applicant for aid to blind, if he is aggrieved by decision of Welfare Division and seeks judicial review,
must comply with statutory requirements and petition district court to review such decision. NRS
426.450.
Complaint for injunction was not a proper vehicle for seeking redress of Welfare Division's change in
allocation of aid to blind person. NRS 426.450, 426.450, subd. 3.
Action of Welfare Division in changing allocation of shelter needs between aid to blind program and aid
to dependent children program and thereby reducing amount received by aid to blind recipient was proper.
NRS 426.030, subd. 2, 426.040, 426.040, subd. 2.
Statement in notification to aid to blind recipient that decrease in grant was due to new budgetary policy
prorating shelter with ADC companion case did not constitute improper reference to indigency or
pauperism. NRS 426.030, subd. 1.
OPINION
The respondent is and for several years has been a recipient of financial aid to the blind
under NRS 426.010426.500. His wife and four children are recipients of financial aid from
the Nevada Welfare Division's aid to dependent children program.
In December of 1969 the respondent was receiving $229.00 per month from the aid to the
blind program, and his wife and four children were receiving $81.00 per month from the aid
to dependent children program. On December 18, 1969, the appellants notified the respondent
that his aid to the blind grant was being reduced to a total of $10.00 per month, and that his
family's aid to dependent children grant was being increased to $160.00 per month. The
overall net effect of these changes resulted in a decrease in aid to the respondent and his
family of $140.00 per month.
In an effort to have the original monthly grants restored, the respondent filed a request
for a hearing with the Nevada State Welfare Board.
88 Nev. 105, 107 (1972) Miller v. West
the respondent filed a request for a hearing with the Nevada State Welfare Board. An
administrative hearing was held, and the respondent was informed of the reasons for the
changes and that the original grants would not be restored. The major reason for the
budgetary changes was that the Welfare Division had adopted a shelter-splitting policy
whereby the respondent's shelter needs would be allocated to his aid to the blind budget, and
those of his family would be allocated to the aid to dependent children budget. Prior to this
time the shelter needs of all six members of the family were included in the respondent's aid
to the blind budget. The total shelter needs remained constant, but the total aid received was
decreased because the aid to dependent children program compensates at a lower percent of
total need than does the aid to the blind program. The remaining decrease in the budget was
due to the Welfare Division's decision to disallow the respondent the privilege of diverting
his social security income to meet the needs of his family. Since this income could no
longer be diverted it was included in the respondent's own-resources section of his aid to the
blind budget, and his needs, according to the Welfare Division's tables, were calculated to be
only $10.00 per month.
In an effort to obtain judicial relief, the respondent filed a complaint for injunction with
the district court. This complaint was answered but no hearing was held nor was any action
taken on the matter. The parties then entered into a stipulation which provided for resumption
of the pre-December aid until the legal issues were resolved, and for the filing of amended
pleadings. The respondent did file an amended complaint and the district court found for him
on all of the issues raised therein. The appellants contend that this procedure did not properly
confer jurisdiction upon the lower court and that as a consequence its judgment is void.
[Headnotes 1, 2]
An applicant for aid to the blind, if he is aggrieved by a decision of the Welfare Division
and seeks judicial review, must comply with the provisions of NRS 426.450 which require
one to petition the district court to review such decision.
1
The complaint for injunction first
filed by the respondent was not a proper vehicle for seeking redress through the courts.
____________________

1
NRS 426.450(3): If such individual feels himself aggrieved by the decision of the welfare division in
respect to his case he shall have the right, at any time within 90 days after the mailing to him of written notice of
the decision, to petition the district court of the judicial district in which he resides to review such decision and
the
88 Nev. 105, 108 (1972) Miller v. West
See Villa v. Arrizabalaga, 86 Nev. 137, 139, 466 P.2d 663 (1970). If the amended complaint
meets the statutory requirements it confers jurisdiction upon the district court. Las Vegas
Network v. B. Shawcross, 80 Nev. 405, 407, 395 P.2d 520 (1964); McFadden v. Ellsworth
Mill and Mining Company, 8 Nev. 57, 60 (1872). However, as the appellant contends, the
respondent failed to proceed pursuant to NRS 426.450(3) and only through his self-serving
declaration in the amended complaint to the effect that he had exhausted his administrative
remedies in accordance with NRS 426.450 and that he was correctly seeking relief in the
district court can it possibly be construed that the district court had jurisdiction. Nevertheless,
the district court proceeded to review the decision of the Welfare Division and entered a
judgment against the appellants. Although we commend to the respondent and the district
court a much closer adherence to the provisions of NRS 426.450(3), we will, for the purpose
of this appeal and to secure a just, speedy and inexpensive determination of this action
(NRCP 1) consider that the trial court did have jurisdiction to enter judgment.
In reviewing the decision of the Welfare Division, this court is limited to the same scope
of review as the district court. It is the function of this court as well as the lower court to
review the evidence presented to the board to determine if the board's decision was supported
by the evidence, and to ascertain whether that body acted arbitrarily, capriciously or contrary
to the law. NRS 426.450(3); Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968); Bd.
Chiropractic Exam'rs v. Babtkis, 83 Nev. 385, 432 P.2d 498 (1967).
[Headnote 3]
The major change in the grants to the respondent and his family was due to the Welfare
Division's new policy of allocating five-sixths of the family's shelter needs to the aid to
dependent children program, and one-sixth to the aid to the blind program. The lower court
ruled that this new policy of prorating shelter needs was an improper combination of the
aid to the blind program with other Welfare Division programs.
____________________
district court shall have jurisdiction to review the decision on the record of the case before the welfare division, a
copy of which shall be certified as correct by the state welfare administrator and filed by the welfare division
with the clerk of the court as part of its answer to any such petition for review. The district court shall either
affirm the decision of the welfare division, or, if it concludes that the findings of the welfare division are not
supported by evidence or that the welfare division's decision is arbitrary, capricious or otherwise contrary to law,
reverse the decision and remand the case to the welfare division for further proceedings in conformity with the
decision of the court.
88 Nev. 105, 109 (1972) Miller v. West
prorating shelter needs was an improper combination of the aid to the blind program with
other Welfare Division programs. The lower court erred in this decision inasmuch as NRS
426.040(2) specifically provides that all aid to a blind recipient is intended to help him meet
his individual needs and is not for the benefit of any other person, unless that other individual
is a needy essential person as defined by the State Welfare Board.
2
The respondent's wife
and children were not needy essential persons because their needs were met by the aid to
dependent children program. The policy of the Welfare Division in prorating shelter needs is
consistent with NRS 426.040 because such a policy provides aid to meet the individual needs
of the blind recipient. The respondent asserts that his individual needs include the needs of
his family, but the legislature has clearly determined that the aid to the blind budget is to be
used to provide for the individual needs of the blind recipient, and that other programs be
used to satisfy the needs of others. NRS 426.040(2); see NRS 426.030(2).
At the time the appellants decided to withhold from the respondent the privilege of
diverting his social security income from the own-resources section of his aid to the blind
budget he was a student at the University of Nevada at Las Vegas. As a student, he was
engaged in a state-approved plan for achieving self support and special regulations within 42
U.S.C. 1202,
3
pertaining to the diversion of income, applied. However, the respondent has
since graduated from the university and is no longer participating in a plan for achieving self
support. Since he no longer comes within the provisions of 42 U.S.C. 1202 there is no
judicable controversy presented nor can effective relief be granted, and it is the duty of this
court to dismiss this issue as moot. We have repeatedly refused to render opinions on moot
questions or abstract propositions.
____________________

2
NRS 426.040(2): All money paid to a recipient under NRS 426.010 to 426.500, inclusive, is intended to
help him meet his individual needs and is not for the benefit of any other person, except that money may be
included in such payment to meet the needs of a needy essential person. The criteria of a needy essential person'
shall be defined by the state welfare board.

3
The relevant portions of 42 U.S.C. 1202 (State Plans for Aid to Blind) read as follows: (a) A State plan
for aid to the blind must . . . (8) provide that the State agency shall, in determining need, take into consideration
any other income and resources of the individual claiming aid to the blind, . . . except that, in making such
determination, the State agency. . . (B) shall. . . disregard such additional amounts of other income and
resources, in the case of an individual who has a plan for achieving self-support approved by the State agency as
may be necessary for the fulfillment of such plan. . . .
88 Nev. 105, 110 (1972) Miller v. West
Morrow v. Morrow, 62 Nev. 492, 156 P.2d 827 (1945); City of Reno v. District Court, 58
Nev. 325, 78 P.2d 101 (1938); State v. Cohen, 45 Nev. 266, 210 P. 1027 (1921); Edwards v.
City of Reno, 45 Nev. 135, 198 P. 1090 (1921); Ex Parte Moriarity, 44 Nev. 164, 191 P. 360
(1920); Ex Parte Ming, 42 Nev. 472, 181 P. 319 (1919); Earl v. Morrison, 39 Nev. 120, 154
P. 75 (1915); Pac. L. Co. v. Mason Val. M. Co., 39 Nev. 105, 153 P. 431 (1915); Foster v.
Jones, 35 Nev. 248, 128 P. 986 (1912); State v. Pray, 30 Nev. 206, 94 P. 218 (1908);
Wedekind v. Bell, 26 Nev. 395, 69 P. 612 (1902); Haley v. Eureka Co. Bank, 21 Nev. 127, 26
P. 64 (1891); State v. McCullough, 20 Nev. 154, 18 P. 756 (1888). In State v. Pray, supra at
220; City of Reno v. District Court, supra at 328; and in Morrow v. Morrow, supra at 497,
this court quoted with approval from Mills v. Green, 159 U.S. 651, 653 (1895): The duty of
this court, as of every other judicial tribunal, is to decide actual controversies by a judgment
which can be carried into effect, and not to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the matter in issue in
the case before it. The facts presented in this issue do not afford any reason or justification
for this court to take a position contrary to the rule announced in earlier Nevada decisions and
give an opinion on a moot question.
[Headnote 4]
In the notification to the respondent dated December 17, 1969, the appellants stated that
the decrease in the grant was due to a New budgetary policy prorating shelter with ADC
companion case. The respondent asserted and the lower court held that this was an improper
reference to indigency or pauperism in contravention of the provisions of NRS 426.030 (1).
4
This explanatory statement contained in the letter did not refer to the respondent as a pauper
or a indigent, and no fair reading of it can produce the conclusion that any attempt at
demeaning the dignity of this blind individual was intended.
The judgment of the district court is reversed and the case is remanded with instructions
to the district court to enter an order affirming the decision of the Welfare Division.
____________________

4
NRS 426.030(1): No blind person shall be deemed or designated a pauper, an indigent or a public charge
because be receives aid or services under this chapter, and no reference to pauperism, indigency or public charge
shall be made on any application or other document relating to aid or services to the blind or on any warrant
drawn by the state in payment of aid or services to the blind.
88 Nev. 105, 111 (1972) Miller v. West
is remanded with instructions to the district court to enter an order affirming the decision of
the Welfare Division.
____________
88 Nev. 111, 111 (1972) El Ranco, Inc. v. New York Meat & Prov.
EL RANCO, INC., a Nevada Corporation, Appellant, v. NEW YORK MEAT
AND PROVISION CO., a Nevada Corporation, Respondent.
No. 6588
February 24, 1972 493 P.2d 1318
Appeal from a money judgment. Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
Action to recover balance due on sales of merchandise. The district court granted
judgment for seller and buyer appealed. The Supreme Court, Zenoff, C. J., held that where
buyer signed sale receipts which showed on their faces both liability to pay and obligation to
pay, obligation to pay was founded on instrument in writing within statute of limitations
applicable to action based on instruments in writing.
Affirmed.
Thompson, J., dissented.
Lionel Sawyer Collins & Wartman and Steve Morris, of Las Vegas, for Appellant.
Morton Galane, of Las Vegas, for Respondent.
1. Statutes.
In adopting practice act of California, act must be presumed to have been adopted as interpreted by
highest court of judicature of that state. NRS 11.190, subd. 1(b).
2. Limitation of Actions.
Where limitation statute contains provision for obligations founded on writing, strict construction should
not be applied by courts in determining what does and what does not constitute contract in writing. NRS
11.190, subd. 1(b).
Where buyer signed sale receipts which showed on their faces both liability to pay and obligation to pay,
obligation to pay was founded on instrument in writing within statute of limitations applicable to action
based on instruments in writing. NRS 11.190, subd.1(b).
Where buyer signed sale receipts which showed on their faces both liability to pay and obligation to pay
action to recover balance due was not an action on an open account for goods sold and delivered within
statute of limitations provision relating to actions on an open account. NRS 11.190, subd. 2(a).
Under Nevada statute of limitations applicable to actions based on instrument in writing, all that is
required is that there be writing which fairly imports obligation to pay. NRS 11.190, subd. 1(b).
6. Courts.
Party bringing action to recover balance due on series of sales could aggregate separate claims so that
jurisdictional amount for district court would be obtained.
OPINION
This suit was brought by New York Meat and Provision Co. to recover the sale price of
meat and meat products sold to El Rancho Hotel. Judgment was rendered in favor of New
York Meat and Provision Co. in the sum of $5,000, plus interest. We affirm.
Between June 3, 1960 and June 16, 1960 New York Meat and Provision Co. sold meat
items to appellant in twenty-six separate transactions. The purchasing agent or the chef would
check prices of various meat companies and telephone the orders. New York Meat used
three-copy sale receipts designating the goods ordered and the prices thereof. These receipts
bore at the heading the words Sold to............ The products were checked and weighed upon
delivery by either the purchasing agent, his assistant, or their secretary who signed or
receipted the sale slip, retaining one copy for the hotel accounting department. New York
Meat retained two copies, sending one to the El Rancho with its monthly billing and retaining
one in its permanent records. These transactions had been going on for a rather extended
period of time.
The hotel burned in the summer of 1960. On December 15, 1960 the hotel made a partial
payment on its account, leaving a balance due of $5,000, covering the twenty-six purchases
made between June 3, 1960 and June 16, 1960.
Suit was filed August 25, 1965. The question on appeal is whether it was barred by the
statute of limitations, NRS 11.190, those sections applicable being as follows: "1.
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 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 an instrument in
writing.
1. The peculiar language of NRS 11.190(1)(b) is derived from a California statute adopted
in 1850, allowing four years for: An action upon any contract, obligation, or liability,
founded upon an instrument of writing. 1850 Calif. Stats., Ch. 127 (Ch. III 17). It should
be noted that the statute is not limited to actions upon contracts in writing, but relates to
any obligation or liability founded upon an instrument of writing. In 1855, before the statute
was adopted in Nevada, the California Supreme Court placed a broad interpretation on the
words founded upon an instrument in writing. In Sannickson v. Brown, 5 Cal. 57 (1855),
the California court held accounts the defendant had marked audited and approved and
certified to be correct were sufficient to constitute instruments in writing within the
meaning of the statute, so that an action founded or based upon them was entitled to a
longer statute of limitations than an action brought upon a mere account not evidenced in
such a way.
[Headnote 1]
In 1861, Nevada adopted the California statute with its judicial gloss. Laws of the
Territory of Nevada, First Regular Session, ch. XII, 16 (1861). In adopting the practice act
of California, it must be presumed to have been adopted as interpreted by the highest court of
judicature of that state. Williams v. Glasgow, 1 Nev. 533, 538 (1865); Harris v. Harris, 65
Nev. 342, 346, 196 P.2d 402 (1948); Astorga v. Ishimatsu, 77 Nev. 30, 32, 359 P.2d 83
(1961). The statute has been carried forward with the only substantial change being that the
limitation period was extended to six years. (1867 Nev. Stats., ch. XLIX 5; 1869 Nev.
Stats., ch. 196, tit. I; 1911 Civil Practice Act 25; Revised Laws of Nevada 4967 (1912);
NCL 8524 (1929).)
In Stephens v. McCormack, 50 Nev. 383, 263 P. 774 (1928), this court interpreted Revised
Laws of Nevada 4967 (NRS 11.190) as barring a suit by the representative of a cosurety
against the other cosurety. The statute was held to run against the claim for contribution when
the common debt was discharged. The action was based upon a contract which the law
implies from the equitable obligation imposed upon cosureties to proportionately share a
common loss and not upon any written instrument. Here the situation is different and is a case
provided for where the court in Stephens, supra, at 390, quoting a California case with
approval, stated that In order to be founded upon an instrument in writing, the instrument
must itself contain a contract [obligation or liability] to do the thing for the nonperformance
of which the action is brought.' Whatever dicta there is to the contrary in Stephens, supra,
should be ignored.
Subsequent California authorities interpreting the statute are consistent with our result,
e.g., Tagus Ranch Co. v. Hughes, 148 P.2d 79 (Cal.App. 1944); Ashley v. Vischer, 24 Cal.
322, 85 Am.Dec. 65 (1864); Lawrence Barker, Inc. v. Briggs, 248 P.2d 897 (Cal. 1952);
Nomellini Construction Co. v. Harris, 77 Cal.Rptr. 361 (Cal.App. 1969). It may be noted that
Ashley, supra, retreated somewhat from Sannickson, supra, but under all of the pertinent
California authorities it would appear that an instrument like that here concerned would be
deemed sufficient.
In construing what is meant by An action upon a contract, obligation or liability founded
upon an instrument in writing, the Supreme Court of Utah in Bracklein v. Realty Ins. Co., 80
P.2d 471, 476 (Utah 1938), considering their statute which was also derived from the
California Code of Civil Procedure 336, 337, stated:
Chipman v. Morrill, 20 Cal. 130, 131, 7 Pac.St.Rep. 130that a cause of action is
founded upon an instrument of writing' when the contract, obligation, or liability grows out
of written instruments, not remotely or ultimately, but immediately.' O'Brien v. King, 174
Cal. 769, 164 P. 631, 632; Chipman v. Morrill, supra; Ashley v. Vischer; Cal. 322, 85
Am.Dec. 65, 8 Pac.St.Rep. 322; Louvall v. Gridley, 70 Cal. 507, 11 P. 777; Scrivner v.
Woodward, 139 Cal. 314, 73 P. 863; that if the fact of liability arises or is assumed or
imposed from the instrument itself, or its recitals, the liability is founded upon an instrument
in writing. If the instrument acknowledges or states a fact from which the law implies an
obligation to pay, such obligation is founded upon a written instrument within the statute.
within the statute. If the writing upon its face shows a liability to pay, such liability is on a
written instrument within the statute of limitations.
[Headnote 2]
Where the limitation statute contains provision for obligations founded upon a writing,
the authorities support the proposition that a strict construction should not be applied by the
courts in determining what does and what does not constitute a contract in writing. In
Texas, for instance, Tex.Civ. Stats., art. 5527, provides that actions on an indebtedness
evidenced by or founded upon any contract in writing shall be commenced and prosecuted
within four years after the action accrues. That state has concluded in Jackson v. Paulsel
Lumber Company, 461 S.W.2d 161, 167 (Tex.Civ.App. 1970), that signed writings, such as
appear in this case, unquestionably acknowledged the existence of a set of facts from which
the law implies an obligation to pay, and that being true, the obligation sued on is founded
upon a written contract within the meaning of the Texas limitation statute. Where, however,
the statute specifically provides for a contract, absent founded, the result is otherwise.
Rudolph Bros. v. Husat, 187 N.E.2d 190 (Ohio App. 1961).
At the time these transactions occurred NRS 96.720(1) provided:
Where, under a contract to sell or a sale, the property in the goods has passed to the
buyer, and the buyer wrongfully neglects or refuses to pay for the goods according to the
terms of the contract or the sale, the seller may maintain an action against him for the price of
the goods.
[Headnote 3]
It is apparent that at the time appellant's agents signed the sale receipts, the sales became
consummated and the receipts showed upon their faces both a liability to pay and an
obligation to pay. Such obligation is founded upon written instruments within our statute.
[Headnote 4]
2. This is not an action on an open account for goods sold and delivered to which NRS
11.190(2)(a) is applicable. One selling upon an open account may properly protect himself
by obtaining written evidence of the sales he makes, and if a seller does obtain a sufficient
instrument in writing, there is no reason why he should be precluded from enjoyment of the
longer limitations statute. This court has long recognized that separate sections of the
statute of limitations can be applicable to a given business transaction.
separate sections of the statute of limitations can be applicable to a given business
transaction. See: Henry v. Confidence Mining Co., 1 Nev. 619 (1866), holding that although a
debt secured by a mortgage was extinguished by the statute of limitations, the mortgage was
not extinguished; Mackie v. Lansing, 2 Nev. 302 (1866), holding that although the principal
debt was barred by the statute of limitations a right to foreclose the mortgage securing the
debt was not barred until lapse of the longer statute of limitations; cf. Cookes v. Culbertson, 9
Nev. 199 (1874); Shoecraft v. Beard, 20 Nev. 182 (1888); State v. Murphy, 23 Nev. 390
(1897), holding that although the two-year statute for forfeitures and penalties had expired, an
action upon the bail bond itself was an action upon an obligation founded upon an instrument
in writing, so that the six-year statute applied.
[Headnote 5]
Under our statute, as interpreted by authorities that have concerned themselves with the
same language, all that is required is that there be a writing which fairly imports the
obligation to pay. This is a fair construction of the statute, consistent with its language and
with the legislative purpose to allow a longer time to commence an action for which there is
solid written proof. In the absence of signed documentation, our ruling may be different, and
such situation will be considered when it arises.
3. Because several of the sales slips were for an amount less than $300, a question is
presented whether the district court had jurisdiction as to these items. NRS 4.370(1)(a)
provides that the justice court shall have jurisdiction in actions arising on contract for the
recovery of money only if the sum claimed does not exceed $300.
[Headnote 6]
The respondent is entitled to aggregate the separate claims so that the jurisdictional
amount for the district court is obtained. Hartford M. Co. v. H. L. & C. Co., 61 Nev. 19, 114
P.2d 1093 (1941); cf. 13 Cal.Jur.2d 578, Courts 75 (1954).
The lower court must be affirmed.
Batjer, Mowbray, and Gunderson, JJ., concur.
Thompson, J., dissenting.
From June 3, 1960, to June 16, 1960, in twenty-six separate transactions, New York Meat
sold goods in the form of meat and meat products to El Ranco for which there was a
balance due of $5,000.
and meat products to El Ranco for which there was a balance due of $5,000. An employee of
the buyer would place a verbal order with the seller. When the goods arrived at the buyer's
hotel an employee would sign an invoice provided by the seller indicating that the goods had
been received as ordered. Each invoice was posted to a ledger maintained by the seller, and at
the end of the month a statement was sent to the buyer. The seller's ledger cards in evidence
reflect an open account running from August 31, 1959, to December 12, 1960. The complaint
was filed August 25, 1965.
This appears to be a common open account transaction for goods sold and delivered
subject to the bar of limitations if action thereon is not commenced within four years. NRS
11.190(2)(a). In Stephens v. McCormack, 50 Nev. 383, 263 P. 774 (1928), this court
considered the meaning of what is now NRS 11.190(1)(b) and approved the following
language: But a cause of action is not upon a contract founded upon an instrument in
writing, within the meaning of the code, merely because it is in some way remotely or
indirectly connected with such an instrument, or because the instrument would be a link in
the chain of evidence establishing the cause of action. In order to be founded upon an
instrument in writing, the instrument must itself contain a contract to do the thing for the
nonperformance of which the action is brought. Id. at 390. The invoices here involved are
links in the chain of evidence establishing the cause of action and cannot qualify as
instruments containing a contract to do the thing for the nonperformance of which the action
is brought. Moreover, the Stephens decision flatly rejected the giving of any significance to
the word founded as used in the statute. Id. at 389. I perceive no reason why the reasoning
of Stephens should not control the disposition of the instant matter. See also: Rudolph Bros.
v. Husat, 187 N.E.2d 190 (C.A. Ohio 1961). In my view, today's opinion in large measure
nullifies NRS 11.190(2)(a). I would reverse.
____________
88 Nev. 118, 118 (1972) Weaks v. Mounter
P. F. WEAKS, dba WEAKS CONSTRUCTION COMPANY, Appellant, v. GERALD E.
MOUNTER and E. RUTH MOUNTER, ................, an infant,
1
by JOHN TOM ROSS, her
Guardian ad Litem, Respondents.
No. 6509
February 25, 1972 493 P.2d 1307
Appeal from verdicts favoring the parents and infant daughter of deceased in a wrongful
death action; First Judicial District Court, Storey County; Richard L. Waters, Jr., Judge.
The district court rendered judgment in favor of decedent's parents and infant daughter and
defendants appealed. The Supreme Court, Zenoff, C. J., held that posthumous illegitimate
child could sue for death of her father although father had not acknowledged paternity, but
that Dead Man Statute did not justify exclusion of eyewitness testimony by defendants'
employee.
Thompson and Batjer, JJ., concurred in part, dissented in part.
Wait, Shamberger & Georgeson, of Reno, for Appellant.
Martillaro & Bucchianeri, of Carson City, for Respondents Gerald E. Mounter and E.
Ruth Mounter.
Ross & Crow, of Carson City, for Respondent............, an infant.
1. Infants.
Unborn child is a person for purpose of remedies given for personal injuries, and child may sue after
his birth.
2. Bastards.
Illegitimate children are humans and have their being.
3. Death.
Heirs for purpose of wrongful death suit include illegitimate child whose identity has been established
regardless of lack of formal acknowledgment. NRS 12.080, 12.090, 41.080, 41.090, 134.170.
4. Death.
Posthumous illegitimate child could sue for death of her father although father had not acknowledged
paternity. NRS 12.080, 41.090.
____________________

1
It is the practice of this court to omit the minor's proper name where there may be an unwarranted reflection.
5. Death.
Infant could sue for death of minor father through infant's guardian ad litem, without appointment of
guardian for father. NRS 12.080.
6. Witnesses.
Purpose of Dead Man Statute is to prohibit fraudulent claims against estate to deceased. NRS 48.010.
7. Witnesses.
Eyewitness testimony of defendant's employee was admissible in action for death arising out of
automobile accident, despite Dead Man Statute, particularly since plaintiffs also produced eyewitness
testimony. NRS 48.010.
On new trial after remand, new evidentiary statute, replacing repealed Dead Man Statute, should be
utilized. NRS 48.010.
9. Death.
Verdict for decedent's parents and decedent's child in wrongful death action properly allocated amounts
between parents and child, rather than awarding lump sum on which attorneys' fees could not have been
awarded. NRS 12.080, 18.010, subd. 3(a), 41.080, 41.090.
OPINION
A truck-motorcycle collision occurred on August 31, 1966, at the intersection of U.S. 50
and State Route 17, near Virginia City, instantly killing James E. Mounter, a minor aged 19.
Two principal questions are presented on appeal. One is the standing of an illegitimate
minor child to sue for the death of its father who was also a minor. The original plaintiffs
were the natural mother and father of Mounter, but upon motion to intervene the illegitimate
and posthumous daughter of the deceased was allowed as an additional plaintiff.
A second issue concerns the trial court's application of NRS 48.010, the Dead Man Statute,
as excluding the testimony of eyewitness William Goldson, the driver of the truck with which
the deceased collided. He was in the employ of P. F. Weaks, the truck's owner and doing
business as Weaks Construction Company, and was a witness testifying on Weaks' behalf.
While he was relating the germane facts of the accident the trial court prevented further
testimony on the assertion of the statute. This exclusion from testifying was in the face of the
plaintiffs having been permitted already to put on eyewitness testimony of Andrew Minister,
a passenger in another car who claimed he saw the accident.
saw the accident. Nevertheless, Goldson was stopped at the point where the trial court felt
that the facts would be within the knowledge of the deceased, and therefore, under the Dead
Man Statute, the agent-employee would be prevented from telling his version.
Verdicts were rendered in favor of the natural parents for $10,000, plus $4,000 attorneys'
fees, and in favor of the minor daughter for $20,000. Appellant also contests the division of
the verdicts claiming they should be one verdict, if at all, and that their total prohibited the
assessment of attorneys' fees.
1. NRS 41.080 provides for the survivability of wrongful death actions and NRS 12.080
and NRS 12.090 specify who has the right to sue in such actions. Whatever standing
plaintiffs have. . . must be found in the statutes of Nevada. The remedy [in wrongful death
cases], being wholly statutory, is exclusive. The statute provides the only measure of
damages, and designates the only persons who can maintain such action. Wells, Inc. v.
Shoemake, 64 Nev. 57, 66, 177 P.2d 451 (1947); Perry v. Tonopah Mining Co., 13 F.2d 865
(D. Nev. 1915).
At the time of the accident no statute specifically designated a right of action for the child
of a minor. Respondents justify this suit on the ground that NRS 41.090 allows a child to sue
for the death of its parent.
2
NRS 12.080 sets out the right of the parents of the deceased
minor to sue, but further adds, a guardian may maintain an action for the injury or death of
his ward, when such injury or death is caused by the wrongful act or neglect of another, the
action by the guardian to be prosecuted for the benefit of the heirs of the ward. (Emphasis
supplied.)
It readily becomes apparent therefore that we must decide whether the right of a child of
NRS 41.090 includes an
____________________

2
41.090 Proceeds or judgment not liable for debt of deceased; damages.
1. The proceeds of any judgment obtained in any action brought under the provisions of NRS 41.080 and this
section shall not be liable for any debt of the deceased, provided he or she shall have left a husband, wife, child,
father, mother, brother, sister, or child or children of a deceased child.
2. The court or jury, as the case may be, in every such action may give such damages, pecuniary and
exemplary, as shall be deemed fair and just. Every person entitled to maintain such action, and every person for
whose benefit such action is brought, may prove his respective damages, and the court or jury may award such
person that amount of damages to which it considers such person entitled, including damages for loss of
probable future companionship, society and comfort.
illegitimate child, and under NRS 12.080, whether the posthumous illegitimate child is an
heir within the statute or at all.
3

The child's mother testified that she became pregnant by James E. Mounter and together
they made plans to marry, that he went to the doctor with her, that the child had already been
given his surname, that further evidence showed that the deceased boy's parents were
apprised by their son and future daughter-in-law of the pregnancy, that they accepted the child
as his and later aided the mother in the expenses of the birth. Throughout the litigation no
doubt was thrown upon the child's paternity, only appellant claims that because the deceased
never signed a declaration acknowledging the child as required by NRS 134.170 the child is
not an heir within the contemplation of NRS 12.080 and cannot bring this lawsuit for the
wrongful death of its father.
4

In this regard there has been a remarkable departure in the law. Indeed, fortune appears to
smile upon the lot of the illegitimate who in times past was saddled with life's infirmities but
could not always reap its benefits.
[Headnote 1]
First, as to the standing of a posthumous child it is well established, as enumerated and
enunciated in La Blue v. Specker, 100 N.W.2d 445 (Mich. 1960), that an unborn child is a
"person" in those situations where remedies are given for personal injuries inflicted thus
permitting the child after her birth to bring her own action against the alleged
wrongdoer.5 The court in La Blue held that an illegitimate child born after her putative
father was killed in an automobile accident and who had been acknowledged by the
father is a posthumous child entitled to support by that father, and when the means of
support is wrongfully taken from the child a cause of action lies.
____________________

3
12.080 Parent and guardian may maintain action for death, injury of minor child. The father and mother
jointly, or the father or the mother, without preference to either, may maintain an action for the death or injury of
a minor child, when such injury or death is caused by the wrongful act or neglect of another; and a guardian may
maintain an action for the injury or death of his ward, when such injury or death is caused by the wrongful act or
neglect of another, the action by the guardian to be prosecuted for the benefit of the heirs of the ward. Any such
action may be maintained against the person causing the injury or death, or, if such person be employed by
another person who is responsible for his conduct, also against such other person.

4
134.170 Illegitimate child.
1. Every illegitimate child shall be considered as an heir of the person who shall acknowledge himself to be
the father of such child by signing in writing a declaration to that effect in the presence of one credible witness,
who shall sign the declaration also as a witness, and shall in all cases be considered as heir of the mother, and
shall inherit in whole or in part, as the case may be, in the same manner as if born in lawful wedlock. Illegitimate
children shall be legitimatized by the intermarriage of the parents with each other. Children, so acknowledged or
so legitimatized, shall have all the rights of inheritance of legitimate children.
2. The issue of all marriages, deemed null in law or dissolved by divorce, shall be legitimate.
is a person in those situations where remedies are given for personal injuries inflicted thus
permitting the child after her birth to bring her own action against the alleged wrongdoer.
5
The court in La Blue held that an illegitimate child born after her putative father was killed in
an automobile accident and who had been acknowledged by the father is a posthumous child
entitled to support by that father, and when the means of support is wrongfully taken from the
child a cause of action lies.
The question then becomesis the legitimacy of the child a prerequisite to that right of
action? In Levy v. Louisiana, 391 U.S. 68 (1968), the United States Supreme Court struck
down a statute construed to deny wrongful death action by illegitimate children as creating an
invidious discrimination which contravened the 14th Amendment's equal protection clause
because legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly
inflicted. See also Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73 (1968).
The next roadblock to recovery is the statute requiring a written acknowledgment of
paternity by the father. That impediment was resolved by Armijo v. Wesselius, 440 P.2d 471
(Wash. 1968), and Schmoll v. Creecy, 254 A.2d 525 (N.J. 1969). In the former, a baby girl
was born illegitimate, her father had freely and publicly acknowledged his parentage of the
impending child before his accidental death but he had not complied with the written
acknowledgment of paternity requirements of the Washington statutes. Common-sense
humanity, that court concluded, requires that the child of a decedent have a remedy for lost
support, and further, that the child or children recited in the statute encompassed all natural
or adopted children of the decedent who were dependent upon him regardless of their
legitimacy. To the protest that such a holding would place decedents' estates at the mercy of
unscrupulous charlatans posing as illegitimate children intending to reap undeserved benefits
the court replied that upon those who would assert their right as a child of deceased would lie
the burden of proof to establish their contention and the burden was a heavy one.
[Headnote 2]
Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly
inflicted. Illegitimate children are humans and have their being.
____________________

5
The Legislature has provided in another connection that Posthumous children are considered as living at
the death of their parents. NRS 134.140.
humans and have their being. When the child's claim of damage for loss of his mother or
father is in issue there is no sound reason why the tort feasor should go free merely because
the child is illegitimate. Our paternity statute would create an open season on illegitimates in
the area of automobile accidents by giving a windfall to tort feasors. Glona, supra, at 75. An
obvious, possible extension of Levy and Glona would be to permit a recovery in a father-child
relationship in which the identity of the father has been legally determined but the child has
not been legitimatized.
[Headnote 3]
An illegitimate child is subject to all the responsibilities of a citizen including the payment
of taxes and conscription under the Selective Service Act. The illegitimate, after all, doesn't
ask to be born. For the sole purpose of this wrongful death suit against the wrongdoers
responsible for the loss of the father's obligation of financial support to the child, the heirs
as provided in NRS 12.080 should include the illegitimate child whose identity has been
established to the court regardless of the lack of a formal acknowledgment. In re Estate of
Ross, 323 N.Y.S.2d 770 (N.Y.Sur.Ct. 1971).
[Headnote 4]
For the purposes of NRS 12.080 this child is an heir entitled to bring a wrongful death
suit but is adorned with that classification for the sole purpose of this action only and does not
meet the requirements of the acknowledgment statute to permit it necessarily to participate in
descent and distribution if its father has left an estate. Bower v. Landa, 78 Nev. 246, 253, 371
P.2d 657 (1962); cf. In re Hendrix Estate, 326 N.Y.S.2d 646 (N.Y.Sur.Ct. 1971).
Progressively, society is becoming more aware that children deserve proper care, comfort
and protection even if they are illegitimate. The illegitimate child suffers serious pecuniary
loss because the right of support from the deceased father is denied. Removing the obstacle of
the acknowledgment statute and relegating it to its proper place within the legalities of
inheritance of estates solves at the same time the invidious discrimination that would punish
the child and inflict problems upon the community, consequences that arise solely from the
father's inability to get to the marriage bureau before he was killed.
[Headnote 5]
2. As noted, the statute recites that a guardian may maintain an action for the death of his
ward to be prosecuted for the benefit of the heirs of the ward.
benefit of the heirs of the ward. A guardian ad litem brought the action on behalf of the child
but he was not the guardian of the deceased minor father. The primary concern is for the
bereaved infant and the defect in not designating a guardian for the minor father to bring the
action is infinitesimal. In re Estate of Ross, supra, at 773.
[Headnote 6]
3. The trial court erroneously excluded the testimony of William Goldson, driver of the
truck, concerning the immediate details that led to the accident. The purpose of the Dead Man
Statute was to prohibit fraudulent claims being made against the estate of the deceased. No
one should have an unfair advantage over the deceased, but in this case it is not the estate of
the deceased that is being attacked, rather representatives are suing in their own right for
injuries to themselves against the live defendant. Matusik v. Large, 85 Nev. 202, 452 P.2d
457 (1969); see also C. Coker, Competency of a Defendant to Testify when Sued under the
Wrongful Death Statute, 29 Miss.L.J. 258 (1958).
Further, at the time of trial NRS 48.010(1)(b) provided that when a representative of a
deceased person, respondents here, produced testifying witnesses of their own claiming to
have been present when the transaction took place then the other party could also testify. The
eyewitness, Minister, being respondents' witness opened the door to allow Goldson's
testimony on behalf of his employer. Carswell v. Greene, 116 S.E.2d 801 (N.C. 1960).
[Headnotes 7, 8]
We conclude therefore that the testimony should have been admitted and its omission was
error sufficiently important to cause reversal for a new trial.
6

4. Because this matter may again result in recovery we will decide for guideline purposes
the third point raised on appeal, that is, was it error to separate the judgments for purposes of
allowing attorneys' fees to the parents?
[Headnote 9]
Under current statute, NRS 18.010(3)(a), the court may make allowance for attorneys' fees
if the prevailing party has not recovered in excess of $10,000. This court decided in Wells,
Inc. v. Shoemake, supra, at 73, that a single lump sum finding on damages suffered by heirs
from wrongful death is the only proper method of assessing damages, and whether it is
divided among them after recovery or how it is divided are matters of no concern to
defendants.
____________________

6
NRS 48.010 to 48.320 were repealed effective July 1, 1971 by 1971 Nev. Stats., ch. 402. On remand, the
trial court should utilize the new evidentiary statute. Staudter v. Elter, 166 A.2d 394 (N.J. 1960).
finding on damages suffered by heirs from wrongful death is the only proper method of
assessing damages, and whether it is divided among them after recovery or how it is divided
are matters of no concern to defendants. Yet, the statutory language pertaining to Nevada's
Wrongful Death Act does not require the separate causes of action to be joined in one suit.
While appellant claims that there is only one cause of action, NRS 12.080 allows the parents
a cause of action for their loss. Walker v. Burkham, 63 Nev. 75, 83, 165 P.2d 161 (1946);
Pardini v. City of Reno, 50 Nev. 392, 404, 263 P.2d 768 (1928); Armstrong v. Onufrock, 75
Nev. 342, 341 P.2d 105 (1959); cf. NRS 41.080 and NRS 41.090.
We agree that the trial court was correct in recognizing two separate claims.
Mowbray and Gunderson, JJ., concur.
Thompson, J., with whom Batjer, J., agrees, concurring in part and dissenting in part:
The majority properly orders another trial because of prejudicial error in precluding the
eyewitness testimony of Goldson. NRS 48.010(1)(b). Otherwise, I do not agree with the
opinion.
1. This is an action to recover damages for the wrongful death of a minor. The plaintiffs
are the father and mother of the decedent and his alleged illegitimate daughter who was born
after his death.
1
Death occurred in 1966. At that time NRS 12.080 gave only the father and
mother a right of action for the death of their minor child. Perry v. Tonopah Mining Co., 13
F.2d 865 (D. Nev. 1915); L. A. & S. L. R. Co. v. Umbaugh, 61 Nev. 214, 123 P.2d 224
(1942). And, of course, NRS 12.090, as it then read, granted a cause of action to heirs of a
person not a minor. The statutory scheme then effective simply did not grant a right of action
to a minor child for the death of her minor parent. Since the cause of action for wrongful
death is created and circumscribed by statute, we necessarily are confined to the statutory
authorization. Wells, Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947). That portion of
NRS 12.080 utilized by the majority granting a guardian the right to maintain an action for
the injury or death of his ward, has nothing whatever to do with this case since the
decedent was not the ward of anyone.
____________________

1
I agree with the majority that a child conceived, but not yet born, should be deemed an existing person for
the purposes of a wrongful death action in the event of its subsequent birth. La Blue v. Specker, 100 N.W.2d 445
(Mich. 1960).
nothing whatever to do with this case since the decedent was not the ward of anyone.
Even if the decedent was of age when accidentally killed (he was not) the illegitimate child
would not qualify as his heir invested with a right of action for wrongful death under NRS
12.090. An heir is one entitled to inherit the estate of the decedent under our law of
succession. Bower v. Landa, 78 Nev. 246, 371 P.2d 657 (1962). Before a illegitimate child
may be considered an heir of an alleged male parent, that parent must either have given his
written acknowledgment of paternity or subsequently have married the child's mother. NRS
134.170.
2
Neither event happened in this case. A cause of action for wrongful death is not
given to the illegitimate child in the narrow circumstances before us. The majority has
judicially created a cause of action where none existed either at common law or by statute.
2. Today's opinion stresses the need to treat legitimate and illegitimate children
equallya proposition with which I fully agree. To do otherwise is invidious discrimination
against a class in violation of the Equal Protection Clause of the Federal Constitution. Levy v.
Louisiana, 391 U.S. 68 (1968); Glona v. American Guarantee Co., 391 U.S. 73 (1968);
Schmoll v. Creecy, 254 A.2d 525 (N.J. 1969). However, that doctrine does not become
operative until it is legally established that the deceased male is in fact the father of the
illegitimate child. In Nevada, the relationship of parent and illegitimate child may be
established judicially pursuant to NRS ch. 126, the Uniform Illegitimacy Act, pursuant to
NRS 41.530, or by the father's written acknowledgment of paternity in accordance with NRS
134.170.
____________________

2
NRS 134.170: Every illegitimate child shall be considered as an heir of the person who shall acknowledge
himself to be the father of such child by signing in writing a declaration to that effect in the presence of one
credible witness, who shall sign the declaration also as a witness, and shall in all cases be considered as heir of
the mother, and shall inherit in whole or in part, as the case may be, in the same manner as if born in lawful
wedlock. Illegitimate children shall be legitimatized by the intermarriage of the parents with each other.
Children, so acknowledged or so legitimatized shall have all the rights of inheritance of legitimate children.
See also:
NRS 122.140: Illegitimate children shall become legitimatized by the subsequent marriage of their parents
with each other.
Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964), where summary judgment was granted to the putative
father who had paid hospital and medical expenses incident to the birth of an illegitimate child, but who had not
acknowledged paternity in writing.
134.170. When the relationship is established in this manner the illegitimate child becomes
entitled to treatment equal to that afforded a legitimate child.
I do not read the United States Supreme Court cases cited by the majority to mean that a
State may not prescribe how the relationship of the putative father and illegitimate child is to
be established. When the status of mother and child is involved, as in Levy, supra, and Glona,
supra, their relationship is easily established. Proof of maternity does not give rise to the same
problems that proof of paternity spawns. In the case of a male decedent charged with
parenthood there is a legitimate fear of spurious claims against which the tort-feasor is unable
to defend. For this reason, and others, our legislature has prescribed how paternity is to be
established. When the legislative direction is not met, the claims of an illegitimate child to the
benefits of paternity are not cognizable.
Therefore, I conclude that the child does not possess a cause of action for the wrongful
death of James E. Mounter. The jury verdict and judgment for her should be set aside and the
new trial should be limited to the claims of the parents of the decedent.
____________
88 Nev. 127, 127 (1972) Wiener v. City of Reno
LOUIS WIENER, JR., Appellant, v. THE CITY OF RENO and
MAPES ENTERPRISES, INC., Respondents.
No. 6546
February 28, 1972 494 P.2d 277
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Bidder for airport concessions brought action to enjoin city and concessionaire from
formalizing concession agreement. The district court refused relief and the bidder appealed.
The Supreme Court, Thompson, J., held that action of city in putting airport concessions out
to bid but granting existing concessionaire right to meet or improve upon highest bid was not
improper where bidders were notified of existing concessionaire's right of first refusal.
Affirmed.
Mowbray, J., and Zenoff, C. J., dissented.
[Rehearing denied March 29, 1972] Lohse and Lohse, of Reno, and Wiener, Goldwater,
Galatz & Raggio, of Las Vegas, for Appellant.
Lohse and Lohse, of Reno, and Wiener, Goldwater, Galatz & Raggio, of Las Vegas, for
Appellant.
Robert L. Van Wagoner, Reno City Attorney, for Respondent City of Reno.
Cooke & Roberts, of Reno, for Respondent Mapes Enterprises, Inc.
1. Injunction.
Even if amendment to concession agreement giving existing city airport concessionaire right of first
refusal when concessions were put out to bid was unenforceable as between city and concessionaire, where
city and concessionaire considered amendment to be enforceable and no dispute existed between those
parties, alleged invalidity of the amendment had no bearing on high bidder's right to enjoin city and
concessionaire, which had met bidder's bid, from formalizing concession agreement.
Under statutes, city, once having decided to put airport concessions out to bid, was entitled to impose
thereon such terms and conditions as would be most advantageous to city. NRS 496.010 et seq.,
496.090, subd. 3.
Action of city in putting airport concessions out to bid but granting existing concessionaire right to meet
or improve upon best bid was not improper where bidders were notified of existing concessionaire's right
of first refusal; formalizing concession agreement with existing concessionaire which met highest bid was
not improper. NRS 496.010 et seq., 496.090, subd. 3.
OPINION
The appellant unsuccessfully sought to enjoin the City of Reno and Mapes Enterprises,
Inc., from formalizing a concession agreement for specified concessions at the Reno
International Airport, and has appealed to this court for relief.
Mapes Enterprises has been the concessionaire at the airport since 1959. In 1962 the base
agreement was amended to allow Mapes, during a specified period in 1970, to give the City
written notice of its desire to extend the lease for another ten years upon terms mutually to be
agreed upon. If agreement was not reached, the City was to request bids from other parties,
granting to Mapes, however, the right of first refusal and the right to meet the terms of such
bids or offers by making the same or a higher or better offer. If Mapes made the same or a
higher or better offer, the City agreed to grant the concession contract to Mapes.
or a higher or better offer, the City agreed to grant the concession contract to Mapes.
Negotiations for an extension of the lease failed, and the City, faithful to its agreement,
advertised for bids. The published notice to bidders explicitly advised that the existing
concessionaire has the right of first refusal and the right to meet the terms of the bid
determined by the City as the best bid by making the same or a higher or better offer.
Concessionaire has a reasonable time limit to meet the best offer and the City will permit the
present concessionaire to 12:00 o'clock (noon) on December 21, 1970 to exercise that right. If
the best offer is not met by the present concessionaire, the City Council will award a contract
agreement to the party submitting the best proposal, or may reject all proposals as determined
by the City Council.
Several bids were submitted to the City, and on December 14, 1970, the Council
determined that the bid of Louis Wiener, Jr., was the best bid, but withheld action thereon
until December 21 to allow the existing concessionaire to meet or improve upon Wiener's
bid. On December 18, Mapes Enterprises submitted its proposal meeting the bid of Wiener
and increasing the annual minimum guarantee to the City by approximately $1,000. On
December 21 the City Council unanimously accepted the proposal of Mapes Enterprises.
1. Wiener's complaint for injunctive relief does not charge bad faith, fraud or collusion.
Cf. Clark Sanitation, Inc. v. Sun Valley Disposal Co., 87 Nev. 338, 487 P.2d 337 (1971). It
does not assert that the bidding process itself was unlawful, nor suggest that Wiener's bid was
better than the proposal submitted by Mapes. Cf. Douglas Co. Board v. Pederson, 78 Nev.
106, 369 P.2d 669 (1962). There is not the slightest hint that the action of the City in granting
the airport concessions to Mapes worked to the disadvantage of the City and the public
interest. None of these claims is made.
[Headnote 1]
The thrust of the complaint is that the 1962 amendment to the base agreement was invalid
and unenforceable as between the parties thereto, and that such invalidity somehow nullified
everything that followed. This contention rests upon the decision of City of Reno v. Silver
State Flying Serv., 84 Nev. 170, 438 P.2d 257 (1968), where we held that a lease covenant
granting the lessee the right of first refusal to extend the lease on the same terms offered to
any other person was unenforceable as between the parties and irrelevant to the determination
of damages in an action by the lessee for breach of the lease.
That decision is inapposite to this case. Here, there exists no dispute between the contracting
parties. Neither of them considered the 1962 amendment to the base lease to be
unenforceable. Each of them honored that agreement and fully performed according to its
terms and are prepared to execute a formal concession agreement in the form supplied by the
City. Cf. Harmon v. Tanner Motor Tours, 79 Nev. 4, 14, 377 P.2d 622 (1963). The district
court correctly found that the City of Reno v. Silver State case, supra, has no bearing upon the
merits of this litigation.
[Headnotes 2, 3]
2. The City need not put airport concessions out to bid. NRS ch. 496, Municipal Airports
Act; Reno, Nev., Municipal Code ch. 9.04.010-9.04.020. It may enter into private agreements
for such concessions upon such terms and conditions as the governing body deems proper
[NRS 496.090(3)], and under such terms and conditions as are most advantageous to the
city, Reno, Nev., Municipal Code, supra. This is the declared public policy. Accordingly, it
must follow that the City, once having decided to bid, may impose thereon such terms and
conditions as are most advantageous to the city.
Although the bid form here used admittedly gave an advantage to the existing
concessionaire, Mapes Enterprises, this manner of handling it also produced an advantage to
the City. The bidding process was not chilled. Eight bids were received. All bidders knew that
Mapes had the right to meet or improve upon the best bid and submitted their bids
notwithstanding this knowledge. The entire procedure was open and above-board. The result
of the procedure was to produce a higher return for the City and also to avoid disruption of
the airport operation attendant upon a change of the concessionaire. In awarding the
concession contract to Mapes, the Council apparently had in mind the municipal code
direction to do so on terms most advantageous to the city. This was proper. Clark
Sanitation, Inc. v. Sun Valley Disposal Co., supra.
3. Our disposition of this appeal avoids any need to decide whether Wiener has standing
to question the validity of right of first refusal contractually granted to Mapes by the City, or
whether he is estopped to deny the validity of that contract provision, the notice to bidders
and the bidding procedures employed, by reason of having submitted his bid with full notice
and knowledge thereof.
Affirmed.
Batjer and Gunderson, JJ., concur.
I dissent.
On September 11, 1959, the City of Reno and Mapes Enterprises, Inc., signed a lease
agreement covering certain concessions at the Reno Municipal Airport. The parties later
amended their agreement, both as to the length of the lease and as to the procedures to be
followed if the lessee, Mapes, elected to renew the lease. Under the terms of the amendment,
the period of the lease was adjusted to run from January 1, 1960, to December 31, 1970. The
renewal clause specified that if Mapes wished to renew the lease, notice of intention to do so
had to be given in writing to the City within 180 days following January 1, 1970. The renewal
clause further provided that in the event the City and Mapes could not reach an agreement
prior to October 1, 1970, regarding the new rent to be paid the City for the renewal of the
lease, then the City had the right to advertise for and accept bids for the lease of the
concessions. Mapes notified the City on January 12, 1970, that it elected to renew the lease.
The City and Mapes could not, from January 12, 1970, to September 29, 1970, reach any
agreement on the amount of rent to be paid by Mapes for the new term of the lease. On
September 29, 1970, the City voted to grant Mapes an additional period to negotiate the rent,
to and including October 12, 1970. The parties failed to reach an agreement within the
extended period. On October 12, 1970, the City denied an additional request by Mapes to
extend the negotiation period. The City then decided that it was necessary to go to open
bidding.
On November 9, 1970, the City approved the specifications and bid documents to be made
available to public bidders. The Notice to Bidders, which was published in the Reno
newspapers, stated that the sealed proposals to be submitted would be opened and read
publicly on December 10, 1970, and that the City would make a determination no later than
December 14, 1970, as to the best bid submitted. The notice further stated that Mapes would
have the right to meet the terms of that best bid, by making the same or a higher or better
offer. In the event that Mapes did not meet the designated best offer, the City could award the
lease agreement to the party who had submitted the best proposal, or could reject all bids.
On December 14, 1970, as provided in the Notice to Bidders, the City determined that the
bid of Appellant Louis Wiener, Jr., was the best bid. Thereafter, on December 18, 1970,
Mapes submitted to the City a bid that it designated a first offer. The first offer also contained
an alternate bid that was to be considered by the City if Mapes's first proposal was
rejected.1
was to be considered by the City if Mapes's first proposal was rejected.
1

The Reno City Council met on December 21, 1970, pursuant to the terms set forth in the
Notice to Bidders, to award the contract. The Mapes and Wiener bids were the only proposals
under discussion. The City decided that Mapes's first bid was not a better offer than the bid
previously submitted by Wiener. The City then accepted Mapes's alternate bid. The effect of
this procedure was to give Mapes two bids, while all other bidders were limited to a single
bid.
Wiener then sought in the district court a preliminary injunction to prevent the City and
Mapes from finalizing the lease agreement. After a hearing on the motion, the district judge
denied it. Hence, this appeal.
With regard to the propriety of judicial review, it is generally agreed that the courts will
not interfere with the discretionary actions of city officials absent fraud, corruption, or abuse
of discretion. 10 E. McQuillin, The Law of Municipal Corporations 29.83 (3d ed. 1966). In
my opinion, that principle is not applicable on the facts of this case, since the court is
reviewing the actions of the City in an area where there is no room for discretion in the face
of overriding public policy considerations.
When the City, of its own volition, decides to award a municipal contract or lease
agreement after seeking public bids, the courts should not hesitate to intercede where it is
apparent that the bidding process established by the governmental agency, albeit in good
faith, destroys the very principles of public policy that form the underlying basis of
competitive bidding. The courts should scrutinize the conduct of the bidding process by any
governmental agency when it appears that a violation of the public trust may be involved.
The principal issue on this appeal is addressed to the propriety of allowing a right of first
refusal in a competitive bidding situation, where that right allows one bidding party to obtain
an unfair advantage over the remaining bidders. It is a generally recognized principle of law
that the purpose of public bidding is to protect the public interest, i.e., to invite
competition; to guard against possible favoritism, fraud, or extravagance; and to insure
that the public is fully protected.
____________________

1
ALTERNATE BID
In the event the above proposal is rejected by the City, Mapes Enterprises, Inc. offers to meet the
percentages bid by Louis Wiener, Jr. and to increase the minimum annual guarantee to $251,000 per year.
If the bid of Louis Wiener, Jr. is, for any reason, withdrawn or disqualified, this bid and alternate bid are
withdrawn and Mapes Enterprises, Inc. reserves its contract rights in regard to any other bid the City might
determine to be the best bid.
generally recognized principle of law that the purpose of public bidding is to protect the
public interest, i.e., to invite competition; to guard against possible favoritism, fraud, or
extravagance; and to insure that the public is fully protected. McQuillin, supra, 29.29.
On August 17, 1962, when the City and Mapes agreed upon the terms of the renewal
procedure, the City was not required to invite public bids on the concession rights at the
airport. See NRS 496.090 in the form in which it was in effect on August 17, 1962, and
through April 3, 1967. Nor was the City required to invite public bids on such contracts under
the current provisions of NRS 496.090, which became effective April 4, 1967. Nevertheless,
the express terms of the lease renewal clause provided that such bidding would be required if
the parties could not reach a new agreement within the time specified. Whether competitive
bidding enters the picture by statutory requirement or by voluntary agreement, the bidding
procedure used must be conducted reasonably and fairly and in such a way as to insure
protection of the public interest. In my opinion, allowing Mapes to submit the same or a
higher or better offer after publication of all bids and designation of the best bid rendered the
competitive bidding process a sham.
2

The right of first refusal is a valid and useful concept of contract law when it is applied in
the appropriate context. But when such a right is given to a single party in competitive
bidding for governmental contract awards, that procedure, in my opinion, should be held
void, as being against the interests of the group to be protectedthe public. When public
bidding is deemed to be necessary, all prospective bidders must stand in the same position.
Consequently, the bidding procedure in this case should be amended and then performed in a
manner that conforms to the principles of public policy, as set forth herein.
No award should be given on the basis of the prior bidding procedure. To hold otherwise
would result in the elimination of Mapes by judicial fiat. Strict adherence to the dictates of
public policy requires that bids should be called for anew and the bidding process be
completed in a proper manner, with all prospective bidders participating on an equal footing.
I would therefore reverse and remand the case to the district court with instructions to enter
an order directing the City to submit the lease agreement to open bidding in accordance
with the views just expressed.
____________________

2
What contractor bidding on a public project would spend the time, money, and effort to submit a valid, bona
fide bid, knowing that another bidder would have the right to outbid him even after his bid was accepted as the
best bid?
instructions to enter an order directing the City to submit the lease agreement to open bidding
in accordance with the views just expressed.
Zenoff, C. J., concurs.
____________
88 Nev. 134, 134 (1972) Rodela v. Rodela
DALE A. RODELA, Appellant, v. CAROLE L.
RODELA, Respondent.
No. 6653
March 1, 1972 494 P.2d 277
Appeal from nunc pro tunc order correcting a divorce decree. Eighth Judicial District
Court, Clark County; Thomas J. O'Donnell, Judge.
The Supreme Court held that failure of trial court to be aware of the provisions of marital
settlement agreement which it approved did not qualify as clerical mistake arising from
oversight or omission, and thus agreement was not subject to correction by nunc pro tunc
deletion of a provision thereof.
Raymond E. Sutton, of Las Vegas, for Appellant.
Beckley, DeLanoy & Jemison, of Las Vegas, for Respondent.
Divorce.
Failure of trial court to be aware of the provisions of a marital settlement agreement which it approved
did not qualify as clerical mistake arising from oversight or omission, and thus agreement was not subject
to correction by nunc pro tunc deletion of a provision thereof. NRCP 60(a).
OPINION
Per Curiam:
In this divorce action neither the pleadings nor the proposed decree apprised the district
judge of a agreement granting Dale the right to visit a minor child whom he had neither sired
nor adopted, but who was the issue of Carole's prior marriage. At a later date the district
judge, on his own motion, deleted that provision nunc pro tunc since, in his view, his prior
approval thereof could not reasonably be attributed to an exercise of judicial discretion,
but was in truth, an oversight or omission.
88 Nev. 134, 135 (1972) Rodela v. Rodela
thereof could not reasonably be attributed to an exercise of judicial discretion, but was in
truth, an oversight or omission. NRCP 60(a); Alamo Irrigation Co. v. United States, 81 Nev.
390, 404 P.2d 5 (1965); Smith v. Epperson, 72 Nev. 66, 294 P.2d 362 (1956). We do not
believe that the failure of a judge to be aware of the provisions of a marital settlement
agreement which he has approved qualifies as a clerical mistake arising from oversight or
omission within the meaning of NRCP 60(a) and subject, therefore, to correction nunc pro
tunc. Cf. State ex rel. Friedman v. Dist. Ct., 81 Nev. 131, 399 P.2d 632 (1965); Finley v.
Finley, 65 Nev. 113, 189 P.2d 334 (1948). Accordingly, we set aside the nunc pro tunc order
and remand this matter with instructions to rule upon the merits of the mother's pending
motion to modify the agreement and approving decree to delete therefrom the provisions
regarding visitation granted Dale of the child in question.
____________
88 Nev. 135, 135 (1972) Schoultz v. Warden
ROBERT K. SCHOULTZ, Appellant, v. WARDEN,
No. 6527
March 1, 1972 494 P.2d 274
Appeal from order dismissing petition for post-conviction habeas relief, Second Judicial
District Court, Washoe County; Grant L. Bowen, Judge.
Proceeding on petition by prison inmate for post-conviction habeas corpus relief. The
district court dismissed the petition without an evidentiary hearing and the inmate appealed.
The Supreme Court, Gunderson, J., held that where both defense counsel and sentencing
judge informed defendant in open court that penalty for robbery was between 1 and 15
years, sentencing judge's inquiry satisfied requirements of statute pertaining to acceptance of
guilty pleas.
Affirmed.
H. Dale Murphy, Washoe County Public Defender, of Reno, for Appellant.
Robert List, Attorney General, of Carson City; Robert E. Rose, District Attorney, and
1. Courts.
Nevada court was free to place its own construction upon meaning to be given Nevada statute pertaining
to acceptance of guilty pleas and was not required to place same construction on statute as federal courts
had placed on federal rule on which Nevada statute was patterned. NRS 174.035, 174.035, subd. 1,
177.355; Fed.R.Crim.P. 11, 18 U.S.C.A.
2. Criminal Law.
Where both defense counsel and sentencing judge informed defendant in open court that penalty for
robbery was between 1 and 15 years, sentencing judge's inquiry satisfied requirements of statute
pertaining to acceptance of guilty pleas. NRS 174.035, subd. 1, 200.380, subd. 2.
3. Criminal Law.
Where there was no contention that defendant was psychotic or unfit to stand trial, information that he
was mentally slow and had undergone psychotherapy treatments while previously imprisoned in
California was not critical to the acceptance of plea of guilty and defense counsel's failure to so inform the
court did not deny defendant effective assistance of counsel. NRS 174.035, subd. 1.
4. Criminal Law.
Guilty plea is not coerced merely because motivated by desire to avoid possibility of higher penalty.
5. Criminal Law.
Guilty plea to robbery charge was not coerced because plea was entered to avoid prosecution as habitual
criminal. NRS 174.035, subd. 1, 200.380, subd. 2.
6. Habeas Corpus.
Order which dismissed petition for habeas corpus without an evidentiary hearing was not a nullity
because the State's motion to dismiss petition was filed late. NRS 177.355.
OPINION
Appealing from an order that dismissed his petition for post-conviction relief without an
evidentiary hearing, appellant asks relief from the 10-year sentence he is serving because:
(1) the sentencing judge accepted Appellant's plea in violation of N. R. S. 174.035;
1
{2)
his counsel was "derelict in not advising Appellant of the nature and consequences of his
plea," and in not advising the court of appellant's "mental deficiency";

____________________

1
Patterned on Fed.R.Crim.P. 11, NRS 174.035(1) provides, inter alia: A defendant may plead not guilty,
guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and
shall not accept such plea or a plea to nolo contendere without first addressing the defendant personally and
determining that the plea is made voluntarily with understanding of the nature of the charge and consequences of
the plea. Our statute does not contain language of the 1966 amendment to Fed.R.Crim.P. 11, to which the U.S.
Supreme Court specifically referred in deciding McCarthy v. United States, 394 U.S. 459 (1969). See 394 U.S.,
at 462, n. 4.
(2) his counsel was derelict in not advising Appellant of the nature and consequences of
his plea, and in not advising the court of appellant's mental deficiency;
(3) the State coerced his plea; and
(4) the Court erred in issuing an Order dismissing Appellant's petition one day after the
State's Motion to Dismiss, in violation of N. R. S. 177.355.
2

[Headnote 1]
1. Appellant apparently realizes that the constitutional doctrine of Boykin v. Alabama,
395 U.S. 238 (1969), which we applied in Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959
(1970), has no application to appellant, who pleaded guilty and was sentenced before Boykin
was decided. Stocks v. Warden, 86 Nev. 758, 476 P.2d 469 (1970); Mathis v. Warden, 86
Nev. 439, 471 P.2d 233 (1970); Anushevitz v. Warden, 86 Nev. 191, 467 P.2d 115 (1970).
Still, appellant urges that NRS 174.035(1), enacted before appellant's plea, should be
construed to impose similar obligations on Nevada courts, as Fed.R.Crim.P. 11 was construed
to do in the case of federal courts. McCarthy v. United States, 394 U.S. 459 (1969). In Stocks
v. Warden, cited above, we heretofore rejected this contention, deciding we are free to place
our own construction upon the meaning to be given our statute. 86 Nev., at 762; 476 P.2d, at
471.
[Headnote 2]
As appellant states his grievance, he contends that he had a right to know exactly the
penalty that could be imposed before entry of plea and that due to the failure of counsel and
the court to so inform Appellant, the plea was therefore involuntary, uninformed and void.
However, the record shows appellant's counsel quite clearly and correctly told appellant in
open court that the penalty for robbery is between 1 and 15 years. See: NRS 200.380(2). In
our view, the sentencing judge's inquiry satisfied NRS 174.035(1).
3
[Headnote 3]

____________________

2
That section of our post-conviction relief act provides, inter alia: Within 30 days after the docketing of the
petition, or within any further time the court may fix, the state shall respond by motion or answer. . . .

3
Before accepting appellant's guilty plea, the court interrogated him and his counsel as follows:
The Court: Mr. Schoultz, to the amended information which charges you with having committed a felony:
to wit, robbery, what is your plea? The Defendant: Guilty. The Court: Guilty? The Defendant: Yes, sir, guilty,
your Honor. The Court: Have you been talking with Mr. Ferguson, Mr. Schoultz, about this case? The
Defendant: Just what my rights were, sir. The Court: Did he
[Headnote 3]
2. Aside from his unfounded assertion that he was not told what penalty the court could
impose, appellant's contention that he was denied effective assistance of counsel rests on the
claim counsel knew of the mental deficiency of his client, yet failed to so inform the court.
Regarding this, appellant cites Evans v. Kropp, 254 F.Supp. 218 (E.D.Mich., S.D. 1966), in
which counsel pleaded his client guilty of murder without revealing his client had been
determined psychotic and unfit to stand trial by the Chief of Psychiatry of the Detroit General
Hospital. In the Evans case, the court held [t]he failure on the part of the prosecutor or
petitioner's counsel to disclose to the court this extremely critical information prevented the
court from making an adequate determination of petitioner's competency to offer a guilty
plea. Id., at 220. In the instant case, appellant does not contend he was psychotic or unfit to
stand trial, but merely that he is mentally slow and underwent extensive psychotherapy
treatments while previously imprisoned in California. As this information concerning
appellant's past does not appear critical to the sentencing court's function under NRS
174.035(1), we reject the contention that his counsel was incompetent in failing to reveal it.
4
[Headnotes 4, 5]

____________________
advise you of your Constitutional rights? The Defendant: Yes, sir. The Court: Have you been in trouble before?
The Defendant: Yes, sir. The Court: Did we have any kind of an examination made of the defendant here? Mr.
Freitag: None yet, your Honor. The Court: Mr. Ferguson, have you talked with him about the effect of a plea of
guilty in a case of this kind? Mr. Ferguson: Yes, I have, your Honor. I have informed him of his rights and the
effect of a plea of guilty. The Court: Have you told him what the pleaI mean, what the felony would be? Mr.
Ferguson: Yes, I have, your Honor. The Court: Do you understand that the sentencing is entirely up to me, and I
can give you whatever sentence that I think is proper. What is it, between 1 and 15? Mr. Ferguson: 1 to 15. Mr.
Freitag: That's correct. The Court: Do you understand that, even if you ask for probation, I may or may not grant
it, depending upon the results of the report? Do you understand that? The Defendant: Yes, sir. The Court: How
far did you go in school? The Defendant: I got my high school diploma. The Court: Where was that? The
Defendant: In D. V. I. The Court: Where? The Defendant: Dore Vocational Institution, in Tracy, California. The
Court: Well, all right. I will accept your plea of guilty, but I think I will refer this to the probation officer.

4
We do not know whether the sentencing court considered records of petitioner's California confinement.
However, they establish that if petitioner told his counsel of his supposed mental deficiency, investigation would
have established his claims to be groundless. Particularly, they show he finished high school while confined,
holds an aircraft mechanic's license, and participated but two months in group therapy
[Headnotes 4, 5]
3. Appellant's contention that the State coerced his plea seems partially grounded on the
theory that, by the Information first filed against appellant, the prosecutor threatened
prosecution under Nevada's habitual criminal act. NRS 207.010. Of course, a guilty plea is
not coerced merely because motivated by desire to avoid the possibility of a higher penalty,
Brady v. United States, 397 U.S. 742 (1970); and in Stocks v. Warden, supra, we applied this
principle to a plea entered to avoid prosecution as an habitual criminal.
5

Appellant's contention that his plea was coerced also seems partially based on the claim
that [w]hen negotiations began, counsel advised Appellant the Habitual Criminal charge
would be dismissed and he would be given a term of from five to seven years if he would
plead guilty. The record seems to negate any plausible assertion that such advice induced
appellant's plea; thus, we believe, the district court properly dismissed appellant's petition
without conducting an evidentiary hearing on the issue. Cf. United States v. Follette, 268
F.Supp. 674 (S.D.N.Y. 1967).
[Headnote 6]
4. We reject as frivolous appellant's fourth contention, to wit: that because the State's
motion to dismiss his petition was late, the order dismissing his petition must be declared a
nullity.
Affirmed.
____________________
while remaining in the general prison population. His psychiatric evaluation recited he does not show evidence
of organicity and is not psychotic.

5
Brady v. United States does intimate coercion may occur if the defendant's will is overborne by threats of, or
promises to discontinue, improper harassment (397 U.S., at 755, and 751, n. 8); and appellant does suggest the
habitual criminal charge against him was unfounded because one of his prior convictions, which the State
alleged as a felony, was merely a misdemeanor since he was sentenced to custody of the California Youth
Authority rather than to prison. However, if appellant contends this possible error in pleading constituted
prosecutorial harassment of such magnitude as to coerce his plea, we reject the claim as frivolous. Assuming the
habitual criminal charge could have been successfully challenged as appellant claims, we cannot perceive how
the State's insistence on litigating the issue, if the case was to be tried, could constitute improper coercion.
____________
88 Nev. 140, 140 (1972) Leggett v. Estate of Leggett
FREDA LEGGETT, Appellant, v. THE ESTATE OF SIDNEY LEGGETT, and
J. BRICE LEGGETT, the Executor Thereof, Respondents.
No. 6549
FREDA LEGGETT, Appellant, v. J. BRICE LEGGETT, Executor of the
Estate of SIDNEY LEGGETT, Deceased, J. BRICE LEGGETT and
LESLIE A. LEGGETT, Respondents.
No. 6627
March 1, 1972 494 P.2d 554
Appeal from an order declaring that a will was not revoked by a subsequent marriage and
that all of the decedent's property was his sole and separate property, and from an order
granting summary judgment, both entered by the Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
The Supreme Court, Batjer, J., held that where widow was mentioned specifically by name
and status in distributive clause of testator's will which disposed of all his property to his two
sons by former marriage, will, executed by testator while divorce action against widow was
pending and before parties' remarriage, was not revoked by the remarriage, under statute
providing for presumption of revocation if testator marries after execution of will and spouse
survives him, unless he has provided for surviving spouse by marriage contract, by provision
in the will, or has mentioned her in such way as to show an intention not to provide for her.
Affirmed.
Sylvia J. Thompson, Joseph J. Kay, Jr., of Reno; Cartwright, Saroyan, Martin &
Sucherman, Inc., of San Francisco, California, for Appellant.
Leslie A. Leggett, of Reno, for Respondents.
1. Wills.
To prevent revocation of a will by subsequent marriage, a spouse must merely be mentioned in such a
way as to show testator's intention not to make a provision for spouse. NRS 133.110.
2. Wills.
Where widow was mentioned specifically by name and status in distributive clause of testator's will
which disposed of all his property to his two sons by former marriage, will, executed by
testator while divorce action against widow was pending and before parties'
remarriage, was not revoked by the remarriage, under statute.
property to his two sons by former marriage, will, executed by testator while divorce action against widow
was pending and before parties' remarriage, was not revoked by the remarriage, under statute. NRS
133.110.
3. Declaratory Judgment.
Where order entered by district court that will executed while divorce action was pending was not
revoked by subsequent remarriage and that all of testator's property was his sole and separate property
made it clear that court relied solely upon will itself and not upon any extrinsic evidence when determining
that will upon its face showed an intentional disinheritance of widow, receiving evidence regarding terms
and conditions of divorce decree, manner in which parties treated their own property subsequent to
remarriage and alleged intent of testator in not executing a new will after parties were remarried was not
error. NRS 133.110.
4. Declaratory Judgment.
Where widow did not present any evidence as to what property held by testator at his death could be
characterized as community property, widow was not entitled to declaration as to whether any community
property existed in testator's estate at date of testator's death.
5. Judgment.
Although all inferences must be drawn in favor of party against whom order of summary judgment is
entered, nevertheless such party is required to point out something indicating existence of a triable issue of
fact and is not entitled to have motion for summary judgment denied on mere hope that at trial he may be
able to discredit movant's evidence.
OPINION
These two cases were consolidated for the purpose of appeal because the same legal issues
are involved in each.
Freda Leggett, appellant, and Sidney Leggett were married in Virginia City, Nevada in
1930. At the time of the marriage Sidney Leggett had two children by a previous marriage, J.
Brice Leggett and Leslie A. Leggett, who are the respondents in this action. Early in 1964
Sidney Leggett filed an action for divorce. On July 1, 1964, while that divorce action was
pending he executed a will devising and bequeathing all of his separate property and his share
of the community property to the respondents. Four months after the will was executed a final
judgment and decree of divorce was entered granting a divorce and dividing the property
between the parties. The appellant was awarded a motel and a trailer park, and Sidney Leggett
was awarded two motels, an industrial lot and the family residence. The divorced parties
executed the documents necessary for compliance with the judgment of the court, each
taking title to the property awarded as his and her sole and separate property.
necessary for compliance with the judgment of the court, each taking title to the property
awarded as his and her sole and separate property.
On December 31, 1964, approximately one month after the decree of divorce was entered,
the parties remarried. The appellant and Sidney Leggett then remained married until Sidney
Leggett's death on July 2, 1969.
Respondent J. Brice Leggett filed a petition for probate of the decedent's will on August 1,
1969, and the will was admitted to probate two weeks later. The appellant then filed a petition
in that probate proceeding asserting that the decedent's will had been revoked as to her by
their subsequent marriage and that she was entitled to take from the decedent's estate
according the laws of intestacy, and that the property owned by the decedent at his death was
community in nature. The district court entered an order finding that the will was valid
inasmuch as the appellant had been mentioned and intentionally disinherited by the
decedent, and that the property possessed by the decedent at his death was his sole and
separate property.
The appellant, apparently questioning the jurisdiction of the district court to make the
above determination regarding the validity of the will and the character of decedent's property
within the probate proceedings, filed an action for declaratory relief in the district court
before the order in the probate proceeding was entered. This action for declaratory relief
requested the district court to determine whether the decedent's will was revoked by his
subsequent remarriage, and whether or not any community property existed in the decedent's
estate. The appellant subsequently filed a motion for summary judgment alleging that no
triable issues of fact existed regarding the validity of the decedent's will. This motion was
denied and, upon the court's invitation, the respondents filed a motion for summary judgment
alleging that no triable issues of fact existed regarding the validity of the will and the nature
of the decedent's property. The respondents' motion for summary judgment was granted, and
this appeal is taken from that order and the one entered in the probate proceeding.
The decedent, in the distributive clause of his will, provided: I give, devise and bequeath
all my separate property and my proportionate part of and interest in the community property
of myself and my wife, Freda Leggett, to my two sons, J. Brice Leggett and Leslie A. Leggett,
share and share alike. The appellant admits that she was mentioned in the will, but she urges
this court to adopt the rule announced in In Re Poisl's Estate, 2S0 P.2d 7S9 {Cal.
Poisl's Estate, 280 P.2d 789 (Cal. 1955), which provides for revocation in situations where an
after-acquired spouse is mentioned in the will but the testator has failed to indicate on the
face of his will that he contemplates a relationship of marriage with the after-acquired spouse.
In construing a statute nearly identical to NRS 133.110, the California Supreme Court has
reasoned that public policy requires a testator to bear in mind the possibility of a subsequent
marriage and the serious changes in domestic relations resulting therefrom. In Re Poisl's
Estate, supra; In Re Axelrod's Estate, 147 P.2d 1 (Cal. 1944). On the other hand, the
respondents contend that the appellant was not only mentioned in the will but was mentioned
in such a way as to show an intention not to make any provision for her and, as a consequence
the will is valid as to her.
At common law, a revocation of a will, because of a subsequent change in the marital
status of a person making the will, was based upon an implied intention. See 2 Page on Wills
(Bowe-Parker Revision, 21.86 et seq.). In Nevada the doctrine of implied revocation has
been superseded by a statutory presumption of revocation. NRS 133.110 provides for the
presumptive revocation of a will if the testator marries after executing his will and his spouse
survives him, unless he has provided for the surviving spouse by marriage contract, by
provision in the will, or has mentioned her in such a way as to show an intention not to
provide for her.
1
Although recognizing that the policy underlying the California rule of
social disfavor toward a testator's failure to provide for his surviving spouse is sound, we will
not engraft, by judicial legislation, additional requirements upon the clear and unambiguous
provisions of NRS 133.110. The sole purpose of that statute is to guard against the
unintentional disinheritance of the surviving spouse.
[Headnotes 1, 2]
Here the appellant was mentioned specifically by name and status in the distributive clause
of Sidney Leggett's will that disposed of all of his property to his two sons. The testator had
her in mind and did not forget her or overlook her. At the time he executed the will he did not
unintentionally disinherit her for he intended to give her nothing. See In Re Drown's Estate,
372 P.2d 196 (Wash. 1962); In Re Steele's Estate, 273 P.2d 235 {Wash.
____________________

1
NRS 133.110: If a person marries after making a will and the spouse survives the maker, the will is
revoked as to the spouse, unless provision has been made for the spouse by marriage contract, or unless the
spouse is provided for in the will, or in such a way mentioned therein as to show an intention not to make such
provision; and no other evidence to rebut the presumption of revocation shall be received.
235 (Wash. 1954); cf. Perkins v. Brown, 27 So.2d 521 (Fla. 1946).
Until such time as our legislature deems it advisable to revise NRS 133.110, we hold that
to prevent revocation a spouse must merely be mentioned in such a way as to show an
intention not to make any provision for that person.
The rule of In Re Poisl's Estate, supra, requiring that contemplation of future marriage
must appear on the face of the will to prevent revocation as to the person mentioned cannot
logically be applied to the facts in this case. It would be ridiculous to hold that Sidney
Leggett, in order to insure against revocation of his will, was required not only to mention
Freda Leggett in such a way as to show an intention not to make provision for her, but also to
provide, on the face of the will, that he contemplated a future marriage with her although he
was in the process of obtaining a divorce from her.
[Headnote 3]
Pursuant to the provisions of NRS 133.110, the only evidence admissible to rebut the
presumption of revocation is evidence showing that (1) provision has been made for the
spouse by marriage contract, (2) a provision for the spouse has been made in the will, or (3)
the spouse has been mentioned in the will in such a way as to show an intention not to make
such provision. The appellant claims that the trial court erred in receiving evidence regarding
the terms and conditions of the divorce decree, the manner in which the parties treated their
own property subsequent to the remarriage and the alleged intent of the testator in not
executing a new will after the divorced parties were remarried. It is also asserted by the
appellant that the trial court erred in refusing to allow her to introduce evidence regarding the
decedent's lack of communication with his sons, which evidence might tend to show that she
was unintentionally disinherited. Much of the extrinsic evidence admitted into evidence bore
upon the question of the existence of community property and for that purpose it is
admissible. Furthermore, the order entered by the district judge makes it clear that he relied
solely upon the will itself and not upon any extrinsic evidence when determining that the will
upon its face showed an intentional disinheritance of the appellant. In any event the district
court reached the correct result. Wyatt v. State, 86 Nev. 294, 468 P.2d 338 (1970).
[Headnotes 4, 5]
The lower court granted the respondents' motion for summary judgment and held that the
will was not revoked and that no community property was owned by the decedent at his
death.
no community property was owned by the decedent at his death. Appellant contends that the
granting of summary judgment was improper because genuine issues of fact remained
undecided, among which were the legal characterization of the assets held by the decedent at
his death, and whether or not any community property existed by reason of the labors and
efforts of the parties during the remarriage. After receiving oral and documentary evidence,
the trial court determined that the property awarded each spouse by the divorce decree
became the separate property of each, that separate accounts relative to these properties were
maintained during the subsequent marriage and that these properties and the rents, issues and
profits therefrom were readily identifiable at the date of decedent's death. Throughout all of
the proceedings in the lower court the appellant failed to give any indication of what property
held by the decedent at his death must be characterized as community property. Although all
inferences must be drawn in favor of Freda Leggett, against whom the order was entered,
nevertheless she was required to point out to the district court something indicating the
existence of a triable issue of fact. This she failed to do. She was not entitled to have the
motion for summary judgment denied on the mere hope that at trial she might be able to
discredit the movants' evidence. Bair v. Berry, 86 Nev. 26, 464 P.2d 469 (1970); Thomas v.
Bokelman, 86 Nev. 10, 462 P.2d 1020 (1970). Nothing appears in the record to indicate the
existence of a genuine issue of material fact, and for that reason the trial court acted properly
in granting summary judgment. Polk v. MacMillan, 87 Nev. 526, 490 P.2d 218 (1971).
Affirmed.
Mowbray and Thompson, JJ., concur.
Gunderson, J., concurring:
This was not a case involving a deceased who simply marries after making a will, as
NRS 133.110 envisions. Here, the deceased made a will while obtaining a divorce that settled
the parties' property rights, then remarried the same woman. It seems evident to me that our
legislature did not intend to deal with such a situation when it promulgated NRS 133.110;
thus, I would simply hold the statute inapplicable to the case at bar. Cf. Perkins v. Brown, 27
So.2d 521 (Fla. 1946).
The assumption that NRS 133.110 applies mechanically to any situation where a testator
marries, including any where he divorces and remarries, requires the majority to avoid
injustice in this case by concluding that to prevent revocation a spouse must merely be
mentioned in such a way as to show an intention not to make any provision for that
person," even in situations where the will is not made in contemplation of marriage.
spouse must merely be mentioned in such a way as to show an intention not to make any
provision for that person, even in situations where the will is not made in contemplation of
marriage. These departures from what I conceive to be sound law may, I believe, cause
injustice in future cases.
For example, in the case before us, were it not for the fortuitous fact that the majority is
able to determine Freda Leggett was mentioned in such a way as to show an intention not to
make any provision for her, the majority's pronouncements would allow her recovery
although Mrs. Leggett received a property settlement in the divorce, and remarriage left her
situated as she was when the will was executed. Again, under the majority's pronouncements,
NRS 133.110 will not operate, as it should, to protect pretermitted wives I believe our
legislature must surely have intended to protect, e.g. women who, before any marriage, are
mentioned but not substantially provided for in wills executed by men they later marry. Cf. In
Re Poisl's Estate, 280 P.2d 789 (Cal. 1955).
Zenoff, C. J., concurs.
____________
88 Nev. 146, 146 (1972) Tupper v. Kroc
LLOYD G. TUPPER, aka LLOYD G. TUPPER, Trustee, LLOYD G. TUPPER, as Trustee,
GERALD K. SHEPARD and SHEPARD & TUPPER, INC., a Nevada Corporation,
Appellants, v. RAY A. KROC and JANE E. KROC, Respondents.
No. 6513
LLOYD G. TUPPER, LLOYD G. TUPPER, as Trustee, LLOYD G. TUPPER, as General
Partner of T & K Enterprises Number 1, a Nevada Limited Partnership, LLOYD G. TUPPER,
as General Partner of T & K Enterprises Number 3, a Nevada Limited Partnership, LLOYD
G. TUPPER, as General Partner of T & K Enterprises Number 4, a Nevada Limited
Partnership, T & K ENTERPRISES NUMBER 3, a Nevada Limited Partnership, T & K
ENTERPRISES NUMBER 4, a Nevada Limited Partnership, and SHEPARD & TUPPER,
INC., a Nevada Corporation, Appellants, v. RAY A. KROC, Respondent.
No. 6517
March 2, 1972 494 P.2d 1275
Appeal from an order denying a motion to set aside an execution sale, and from an order
terminating a receivership, both entered by the Eighth Judicial District Court, Clark County;
Howard W.
88 Nev. 146, 147 (1972) Tupper v. Kroc
entered by the Eighth Judicial District Court, Clark County; Howard W. Babcock, Judge.
Proceedings on general partner's motion to set aside judicial sale of his interest in three
limited partnerships, conducted pursuant to charging order, and sole limited partner's motion
to terminate receivership and discharge receiver who had been appointed to manage the
partnerships pending separate actions by limited partner against general partner. The district
court entered orders denying the motion to set the sale aside and terminating the receivership,
and general partner appealed. The Supreme Court, Batjer, J., held that general partner was
estopped to question propriety of the charging order, that limited partner who purchased
general partner's interest at the judicial sale was not obligated to justify sale price, and entire
burden was rather upon general partner to prove its inadequacy, and that limited partner was
entitled to all of profits and surplus, and general partner had no immediate or future rights or
surplus or any equity whatever in partnership property and thus could not insist on
continuation of the receivership.
Affirmed.
George, Steffen & Simmons, of Las Vegas; Fulop, Rolston, Burns & McKittrick, of
Beverly Hills, California, for Appellants.
Lionel Sawyer Collins & Wartman, of Las Vegas; Sonnenschein, Levinson, Carlin, Nath &
Rosenthal, and Frederick Lane, of Chicago, Illinois, for Respondents.
Issue, whether sole limited partner, who had been awarded judgment on notes executed by general
partner, was required to affirmatively prove that judicial sale of general partner's interest in three limited
partnerships was necessary before ordering of such sale for purpose of applying proceeds against
unsatisfied amount of the judgment, could not, under theory that a party on appeal cannot assume an
attitude or accept a theory inconsistent with or different from that at hearing below, be raised for first time
on appeal from order denying general partner's motion to set the sale aside. NRS 87.280.
2. Partnership.
Charging order, directing sheriff to sell all of general partner's interest in three limited partnerships and to
apply proceeds against unsatisfied amount of judgment against such partner in favor of sole limited partner,
could properly be entered against general partner's interest in the partnerships. NRS 87.280.
88 Nev. 146, 148 (1972) Tupper v. Kroc
3. Partnership.
General partner who was given notice that sole limited partner was, as judgment creditor under statute
authorizing order charging interest of a debtor-partner, seeking judicial sale of general partner's interest in
three partnerships, who was given opportunity, by notice to him and his attorneys and by limited partner's
application for charging order, to take whatever steps he deemed necessary to either limit the charging
order or prevent the sale, and who was allowed 30 days to file an appeal from order charging his interest in
the partnerships and ordering the sale, but did not appeal from such order and instead waited nearly a year
after the sale was made before filing motion to set it aside was estopped to question propriety of the
charging order. NRS 87.280; NRCP 73.
4. Partnership.
Accounting to determine nature and extent of interest to be sold was not required prior to judicial sale,
pursuant to charging order, of general partner's interest in three limited partnerships in order to satisfy
judgment against general partner in favor of sole limited partner. NRS 87.280.
5. Partnership.
Where anyone reading or relying on notice of judicial sale, conducted pursuant to charging order, of
general partner's interest in three limited partnerships was deemed to understand that by statute the sale
consisted of a sale of partner's share of profits and surplus and no more, such sale was not void on ground
partner's interest in the partnerships was inadequately described. NRS 87.240, 87.260.
6. Partnership.
Judicial sale conducted pursuant to order charging general partner's interest in three limited partnerships
was not void on ground it was conducted 14 days after notice of sale was posted by sheriff rather than in
compliance with statute governing notice of sale under execution. NRS 21.130, subd. 2, 87.280, subd.
1.
7. Partnership.
Sole limited partner who brought application for charging order to direct sheriff to sell general partner's
interest in three limited partnerships and to apply proceeds against unsatisfied amount of judgment against
general partner in favor of limited partner and who purchased general partner's interest at judicial sale
conducted pursuant to the charging order was not obligated to justify sale price, and entire burden was
rather upon general partner to prove its inadequacy.
8. Partnership.
In proceedings on general partner's motion to set aside judicial sale of his interest in three limited
partnerships, conducted pursuant to charging order, and sole limited partner's motion to terminate
receivership and discharge receiver who had been appointed to manage the three partnerships pending
separate actions by him against general partner, question whether price paid at the sale by limited partner
for general partner's interest in the partnerships was adequate was for trier of facts.
9. Partnership.
Sale made pursuant to charging order of partner's interest in partnership did not constitute
assignment of interest in partnership.
88 Nev. 146, 149 (1972) Tupper v. Kroc
partnership did not constitute assignment of interest in partnership. NRS 87.270, 87.280.
10. Partnership.
Partnership agreements could not divest district court of its powers, provided by statute governing
charging order with respect to a partner's interest, to charge and sell interest of partner in partnership. NRS
87.280.
11. Partnership.
Sole limited partner who bought at judicial sale all of general partner's interest in three limited
partnerships was entitled to all of profits and surplus, and general partner had no immediate or future rights
to any profits or surplus or any equity whatever in partnership property and thus could not insist on
continuation of receivership which had been set up to manage the partnerships pending final outcome of
separate action by limited partner against general partner for alleged mismanagement and misappropriation
of funds from the partnerships. NRS 87.260, 87.280.
12. Partnership.
Surplus is excess of assets over liabilities.
OPINION
These two cases were consolidated for the purpose of appeal because the same legal issues
are involved in each.
Lloyd G. Tupper, appellant, and Ray A. Kroc, respondent, entered into three limited
partnerships for the purpose of holding title to and leasing parcels of real estate. Tupper was
the general partner, Kroc was the limited partner and each held a fifty percent interest.
Kroc filed an action alleging that Tupper had mismanaged and misappropriated funds from
these partnerships and requested that they be dissolved and that a receiver be appointed.
Pending the final outcome of that action the trial court appointed a receiver to manage the
three business organizations. Prior to the date on which the complaint for dissolution had
been filed, Tupper had on several occasions been unable to pay his share of the partnerships'
obligations. Kroc on those occasions personally contributed the total amounts owed by the
partnerships, and in return accepted interest bearing notes from Tupper in amounts equal to
one-half of the partnerships' debts paid by him. Kroc thereafter filed an action against Tupper
to recover on those notes and was awarded a summary judgment in the amount of $54,609.02.
In a effort to collect on that judgment, Kroc filed a motion pursuant to NRS S7.2S01
requesting the district court to charge Tupper's interest in the partnerships with payment
of the judgment and for the sale of Tupper's interest to satisfy the judgment.
88 Nev. 146, 150 (1972) Tupper v. Kroc
pursuant to NRS 87.280
1
requesting the district court to charge Tupper's interest in the
partnerships with payment of the judgment and for the sale of Tupper's interest to satisfy the
judgment. On June 12, 1969, a charging order was entered directing the sheriff to sell all of
Tupper's right, title and interest in the three partnerships and to apply the proceeds against
the unsatisfied amount of the judgment. Tupper was served with notice of the sale, but he
took no action to redeem his interest. The sale was held on June 27, 1969, and Kroc
purchased Tupper's interest for $2,500.
Kroc filed a motion to terminate the receivership on March 12, 1970, contending that he
was the sole owner of the partnerships and that the need for a receiver had ceased. On May
18, 1970, the appellants filed an objection to the respondents' motion to terminate the
receivership, and a motion to set aside the sale conducted pursuant to the charging order. The
trial court denied the appellants' motion to set aside the sale, and granted the respondents'
motion to terminate the receivership and discharge the receiver. It is from these two orders
that this appeal is taken.
The appellants contend that the trial court erred when it confirmed the sale of Tupper's
interest in the three partnerships because (1) Kroc failed to affirmatively show that a sale of
Tupper's interest in the partnerships was necessary; (2) a partner's interest in a partnership is
not subject to a sale in satisfaction of a judgment; (3) it was improper to nominate the sheriff
to conduct the sale which was irregularly and improperly held; (4) the sheriff's sale was
inequitable in that the price paid for Tupper's partnership interest was grossly inadequate; (5)
it was impermissible to conduct the sale of Tupper's interest in the partnerships while
they were in receivership; and {6) the sale was in violation of the partnerships'
agreements.
____________________

1
NRS 87.280: 1. On due application to a competent court by any judgment creditor of a partner, the court
which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner
with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later
appoint a receiver of his share of the profits, and of any other money due or to fall due to him in respect of the
partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have
made, or which the circumstances of the case may require.
2. The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed
by the court may be purchased without thereby causing a dissolution:
(a) With separate property, by any one or more of the partners, or,
(b) With partnership property, by any one or more of the partners with the consent of all the partners whose
interests are not so charged or sold.
3. Nothing in this chapter shall be held to deprive a partner of his right, if any, under the exemption laws, as
regards his interest in the partnership.
88 Nev. 146, 151 (1972) Tupper v. Kroc
was impermissible to conduct the sale of Tupper's interest in the partnerships while they were
in receivership; and (6) the sale was in violation of the partnerships' agreements. Furthermore,
the appellants contend that it was improper to discharge the receiver because Tupper retained
such an equity in the partnership business and assets as to compel continuation of the
receivership.
[Headnote 1]
The appellant's contention that Kroc was required to affirmatively prove that a sale of
Tupper's interest in the partnerships was necessary before a sale could be ordered was not
raised in the court below, but raised for the first time in this appeal. Upon the rule announced
in Cottonwood Cove Corp. v. Bates, 86 Nev. 751, 476 P.2d 171 (1970) and Clark County v.
State, 65 Nev. 490, 199 P.2d 137 (1948), that a party on appeal cannot assume an attitude or
accept a theory inconsistent with or different from that at the hearing below, we will not
consider that issue. Also, this issue amounts to an attack upon the validity of the charging
order and the appellants concede that the charging order is not under attack.
[Headnotes 2, 3]
The charging order was properly entered by the district court against Tupper's interest in
the three partnerships. NRS 87.280; Balaban v. Bank of Nevada, 86 Nev. 862, 477 P.2d 860
(1970); State v. Elsbury, 63 Nev. 463, 175 P.2d 430 (1946). The district court also was
authorized, in aid of the charging order, to make all orders and directions as the case required.
NRS 87.280(1). Pursuant to the provisions of this statute the district court was authorized to
appoint a receiver to act as a repository for Tupper's share of the profits and surplus for the
benefit of Kroc, or as the court did here, order the sale of Tupper's interest. NRS
87.280(1)(2); Frankil v. Frankil, 15 D. & C. 103 (Phila. Co. 1928); see also 87.320(2). In
Kroc's application for the order charging Tupper's interest in the partnerships he requested an
order directing a sale of that interest. Likewise in the notice to Tupper and his attorneys they
were advised that Kroc was seeking a sale of Tupper's interest. The application and notice
afforded Tupper an opportunity to take whatever steps he deemed necessary to either limit the
charging order or prevent the sale.
2
Tupper was allowed 30 days to file an appeal from the
order charging his interest in the partnerships and ordering the sale.
____________________

2
If only a charging order had been entered or had the court in the charging order appointed a receiver under
NRS 87.280, to receive Tupper's share of the partnerships' profits or upon dissolution his share of the surplus
instead of ordering a sale, then upon receipt by Kroc of
88 Nev. 146, 152 (1972) Tupper v. Kroc
an appeal from the order charging his interest in the partnerships and ordering the sale. NRCP
73. He did not appeal from that order, but instead waited nearly a year after the sale was made
before filing a motion to set it aside. The appellants are now estopped to question the
propriety of the charging order.
[Headnote 4]
Although the appellants concede that the charging order is not under attack they continue a
collateral attack by insisting that the sale of Tupper's interest in the partnerships authorized by
the charging order was void. One of those contentions of irregularity is based upon the fact
that an accounting to determine the nature and extent of the interest to be sold was not
required by the district court before it entered its order authorizing the sale. In support of this
contention the appellants rely upon Balaban v. Bank of Nevada, supra. Although we declared
the sale in that case to be void and ordered an accounting, it is inapposite to support a claim
that the sale in this case is void. In Balaban the notice of sale advised that said sale will
include all physical assets. This was impermissible and for that reason we set the sale aside.
Furthermore, Balaban concerned a dissolution of a partnership by death, its winding up and
the interplay of the Uniform Partnership Act (NRS Ch. 87) and the probate code (NRS Chs.
143 and 148). Within those chapters are found special provisions and requirements for an
accounting (NRS 143.040; NRS 87.430; NRS 148.210) which are not found in the statute
authorizing the charging order (NRS 87.280). An accounting prior to the sale of Tupper's
interest was not compelled in this case.
[Headnote 5]
The appellants also contend that Tupper's interest in the partnership was inadequately
described. Anyone reading or relying on the notice of sale was, as a matter of law, deemed to
understand that by statute the sale of Tupper's interest in the partnerships consisted of a sale
of his share of the profits and surplus and no more. NRS 87.240; NRS 87.260; NRS 87.280.
Any further or more extensive description would have been confusing or redundant. An
accounting might have revealed the amount of current profits, if any, or the estimated
value of the surplus, if any, but it would not have added anything to the description of
Tupper's interest beyond that found in NRS S7.260.
____________________
an amount sufficient to satisfy the judgment against Tupper entered on April 30, 1969, Tupper would have been
restored to his right to receive his share of the profits or upon dissolution his share of the surplus; however, when
his interest in the partnerships was sold he was forever foreclosed from receiving any profits or surplus from the
three partnerships.
88 Nev. 146, 153 (1972) Tupper v. Kroc
the amount of current profits, if any, or the estimated value of the surplus, if any, but it would
not have added anything to the description of Tupper's interest beyond that found in NRS
87.260.
[Headnote 6]
Pursuant to NRS 87.280(1) the district court was authorized to make any order which the
circumstances of the case required. That statute authorized the appointment of the sheriff of
Clark County to sell Tupper's interest in the partnerships, and authorized Tupper's interest to
be sold in accordance with the provisions of NRS 21.130(2)
3
at a time certain on June 27,
1969. Because this was a judicial sale authorized by NRS Ch. 87, and not an execution sale,
the district court was not bound to have Tupper's partnership interest sold in strict compliance
with NRS 21.130(2) but the court was free, pursuant to NRS 87.280(1), to order any notice
procedure that it deemed reasonable. Therefore, it was authorized to modify the notice
requirements of NRS 21.130(2) by requiring that Tupper's interest be sold at 9:00 a.m. on
June 27, 1969. The fact that the sale was conducted fourteen days after the notice of sale was
posted by the sheriff has no effect upon the validity of the sale and can be construed to have
inured to the benefit of Tupper.
[Headnotes 7, 8]
The appellants' contention that the price paid by Kroc for Tupper's interest in the three
partnerships is inadequate, is without merit. The mode for determining the value of Tupper's
interest in the partnerships was by a public sale. See McMillan v. United Mortgage Co., 82
Nev. 117, 412 P.2d 604 (1966). The fair market value of $2,500 was established by Kroc's
bid at the sheriff's sale. The respondents were under no duty or obligation to support or justify
that price and the entire burden was upon the appellants to prove its inadequacy. Thus it
became a question of fact to be determined by the trial judge who heard the testimony and
observed the witnesses. Douglas Spencer and Associates v. Las Vegas Sun, Inc., 84 Nev. 279,
439 P.2d 473 {196S).
____________________

3
NRS 21.130(2): In case of other personal property, by posting a similar notice in 3 public places of the
township or city where the sale is to take place, not less than 5 nor more than 10 days before sale, and, in case of
sale on execution issuing out of a district court, by the publication of a copy of the notice in a newspaper, if there
be one in the county, at least twice, the first publication being not less than 10 days before date of sale.
88 Nev. 146, 154 (1972) Tupper v. Kroc
439 P.2d 473 (1968). We will not substitute our judgment for that of the trial judge as to the
weight given to evidence. Richfield Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 188, 452 P.2d
462 (1969).
The appellants seek to enlist the aid of the doctrine of custodia legis
4
to support their
claim that it was impermissible to conduct the sale of Tupper's interest in the partnerships'
assets and business but not the interest of a partner in the partnerships. Tupper's interest in the
partnerships, i.e. his right and title in the profits and surplus, were his personal property and
not partnership property in the custody of the receiver. NRS 87.260.
5

[Headnotes 9, 10]
The appellants contend that the sale amounted to an involuntary assignment of Tupper's
interest in the partnerships and is in violation of the partnership agreements which preclude a
partner from assigning his interest. We do not agree. A sale made pursuant to a charging
order (NRS 87.180) of a partner's interest in a partnership is not an assignment of an interest
in a partnership. See NRS 87.270. Furthermore, the partnership agreements could not divest
the district court of its powers provided by statute to charge and sell an interest of a partner in
a partnership.
[Headnotes 11, 12]
Finally the appellants contend that because Tupper retained an equity in the partnerships'
business and assets, the district court erred when it discharged the receiver. Unfortunately for
the appellants this is not true. After Kroc bought all of Tupper's interest in the partnerships,
i.e. all of his right and title to the profits and surplus, Kroc was entitled to all of the profits
and all of the surplus. Surplus is the excess of assets over liabilities. Balaban v. Bank of
Nevada, supra; State v. Elsbury, supra; Anderson v. United States, 131 F.Supp. 501 (S.D.Cal.
1954). After the sale Tupper had no immediate or future rights to any profits or surplus or any
equity whatever in the partnership property, and therefore he had no valid reason to insist on a
continuation of the receivership.
Although as a matter of law the respondents were entitled to have the receivership
terminated and the receiver discharged, the wisdom of that request, short of the dissolution
of the partnerships, is questionable, for as soon as the receiver was discharged Tupper
had the authority under NRS Ch.
____________________

4
The phrase custodia legis means in the custody of the law. Hopping v. Hopping, 10 N.W.2d 87 (Iowa
1943); Stockwell v. Robinson, 32 A. 528 (Del. 1892).

5
NRS 87.260: A partner's interest in the partnership is his share of the profits and surplus, and the same is
personal property.
88 Nev. 146, 155 (1972) Tupper v. Kroc
the wisdom of that request, short of the dissolution of the partnerships, is questionable, for as
soon as the receiver was discharged Tupper had the authority under NRS Ch. 87, as well as
the partnerships' agreements, to assert his right to participate in the management. By
purchasing Tupper's interest in the partnerships Kroc did not divest Tupper of his other
property rights. (NRS 87.240.)
The receiver was appointed at the request of Kroc, now Tupper wants the receiver to be
reappointed to protect Tupper as a general partner from liability that might be incurred
through excessive partnership debts. At a glance it might seem that Tupper's fears have some
merit. However, as a matter of law, at the moment the receiver was discharged Tupper's right
to participate in the management of the partnerships (NRS 87.240) was restored, and as the
general partner he would, at least theoretically, be able to prevent the partnerships from
incurring liabilities in excess of assets.
The orders of the district court from which these appeals have been taken are affirmed.
Zenoff, C. J., and Mowbray, Thompson, and Gunderson JJ., concur.
____________
88 Nev. 155, 155 (1972) United States Fidelity v. Fisher
UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland Corporation,
Appellant, v. DAVID R. FISHER, JAMES BOND, and
NORMA BOND, Respondents.
No. 6611
March 2, 1972 494 P.2d 549
Appeal from judgment of the Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Insurer brought action for declaratory judgment to determine whether omnibus clause
coverage of automobile liability policy extended to driver of insured's automobile. The
district court rendered judgment adverse to insurer and it appealed. The Supreme Court,
Mowbray, J., held that under initial permission rule, where named insured had asked driver
to drive her in her automobile to airport, had told driver to park automobile in driveway at his
residence during her absence and to move automobile in case of an emergency and named
insured, on prior occasions, had given driver permission to use her automobile to go to and
from his place of employment and on shopping tours, omnibus clause coverage extended
to driver who used automobile approximately one week after having taken insured to
airport and became involved in accident.
use her automobile to go to and from his place of employment and on shopping tours,
omnibus clause coverage extended to driver who used automobile approximately one week
after having taken insured to airport and became involved in accident.
Affirmed.
Cromer and Barker, of Las Vegas, for Appellant.
Wiener, Goldwater, Galatz & Raggio, Ltd., and J. Charles Thompson, of Las Vegas, for
Respondents.
1. Insurance.
Under initial permission rule, where named insured had asked driver to take her to airport in her
automobile, had told driver to park automobile in driveway at his residence during her absence and to
move automobile in case of emergency and named insured, on prior occasions, had given driver permission
to use her automobile to go to and from his place of employment and on shopping tours, omnibus clause
coverage of insured's automobile liability policy extended to driver who used automobile about one week
after he had taken insured to airport and became involved in accident. NRS 485.3091, subd. 2(b).
2. Insurance.
If person is given permission by an insured owner to use motor vehicle in first instance, any subsequent
use while vehicle remains in person's possession is a permissive use within terms of standard automobile
liability policy. NRS 485.3091, subd. 2(b).
OPINION
The United States Fidelity and Guaranty Company commenced this action in the district
court by filing a complaint for a declaratory judgment to determine whether the omnibus
clause coverage contained in an insurance policy issued to one Zelda Link extended to
Respondent David R. Fisher, who, while driving Zelda's car, was involved in an accident with
a vehicle owned by Respondents James and Norma Bond. The district judge ruled that David
was insured under the omnibus clause, as he had Zelda's permission to operate the vehicle.
We affirm that ruling.
1. The Facts.
They are substantially undisputed and they are as follows. The Company issued to Zelda
Link its customary motor vehicle liability insurance policy. The policy contained an omnibus
clause naming those persons insured thereunder, as prescribed by NRS 4S5.3091,
subsection 2.1 The policy issued to Zelda, in naming those insured, included "any other
person using such automobile with the permission of the Named Insured, provided his
actual operation or {if he is not operating) his other actual use thereof is within the scope
of such permission."
clause naming those persons insured thereunder, as prescribed by NRS 485.3091, subsection
2.
1
The policy issued to Zelda, in naming those insured, included any other person using
such automobile with the permission of the Named Insured, provided his actual operation or
(if he is not operating) his other actual use thereof is within the scope of such permission.
On June 30, 1968, Zelda asked David, a next-door neighbor, to drive her in her car to
McCarran Airport in Clark County, as she was leaving town on vacation. Zelda told David to
park the car in the driveway at his residence during her absence and to move the car in case of
an emergency. Zelda had on several prior occasions given David permission to use the car in
going to and from his place of employment and also on shopping tours.
On July 7, 1968, while Zelda was still on holiday, David used the car and had an accident
involving the Bond vehicle. The Bonds have sued Zelda and David and were about to default
David when the Company stepped into this present litigation and asked the court below to
decide whether its liability insurance coverage extended to David. This is the sole issue
presented on appeal.
2. The Omnibus Clause Coverage.
The Company's liability insurance coverage may extend to David if he was operating
Zelda's car with her permission at the time of the accident. The courts have adopted one of
three views in determining whether a person who has received initial permission from an
owner to drive his vehicle and then later deviates therefrom is covered by the omnibus
liability insurance clause. These views have been well summarized in Matits v. Nationwide
Mut. Ins. Co., 166 A.2d 345, 347 (N.J. 1960), as follows: ". . . {1) The liberal or so-called
'initial permission' rule that if a person has permission to use an automobile in the first
instance, any subsequent use while it remains in his possession though not within the
contemplation of the parties is a permissive use within the terms of the omnibus clause;
for cases so holding, see Annotations, 72 A.L.R. 1375, 1405-09 {1931); 106 A.L.R. 1251,
1262 {1937); 126 A.L.R. 544, 553-55 {1940); 5 A.L.R.2d 600, 629-36 {1949); {2) the
moderate or 'minor deviation' rule that the permittee is covered under the omnibus clause
so long as his deviation from the permissive use is minor in nature; Annotations 72 A.L.R.,
supra, at pp.
____________________

1
NRS 485.3091, subsection 2:
2. Such owner's policy of liability insurance shall:
(a) Designate by explicit description or by appropriate reference all motor vehicles with respect to which
coverage is thereby to be granted; and
(b) Insure the person named therein and any other person, as insured, using any such motor vehicle or motor
vehicles with the express or implied permission of such named insured, against loss from liability imposed by
law for damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within
the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with
respect to each such motor vehicle, as follows: $15,000 because of bodily injury to or death of one person in any
one accident, and, subject to such limit for one person, $30,000 because of bodily injury to or death of two or
more persons in any one accident, and $5,000 because of injury to or destruction of property of others in any one
accident.
. . . (1) The liberal or so-called initial permission' rule that if a person has permission to
use an automobile in the first instance, any subsequent use while it remains in his possession
though not within the contemplation of the parties is a permissive use within the terms of the
omnibus clause; for cases so holding, see Annotations, 72 A.L.R. 1375, 1405-09 (1931); 106
A.L.R. 1251, 1262 (1937); 126 A.L.R. 544, 553-55 (1940); 5 A.L.R.2d 600, 629-36 (1949);
(2) the moderate or minor deviation' rule that the permittee is covered under the omnibus
clause so long as his deviation from the permissive use is minor in nature; Annotations 72
A.L.R., supra, at pp. 1401-03; 106 A.L.R., supra, at p. 1259; 126 A.L.R., supra, at p. 552; 5
A.L.R.2d, supra, at pp. 636-43; and (3) the strict or conversion' rule that any deviation from
the time, place or purpose specified by the person granting permission is sufficient to take the
permittee outside the coverage of the omnibus clause; Annotations 72 A.L.R., supra, at pp.
1403-05; 106 A.L.R., supra, at pp. 1260-62; 126 A.L.R., supra, at pp. 552-53; 5 A.L.R.2d,
supra, 626-29. For additional authorities discussing these rules, see 7 Appleman, Insurance
169-181 (1942); Putman, The Standard Automobile Policy: What Persons and Which
Vehicles are Covered,' 11 Ark.L.Rev. 20 (1956-57); Ashlock, Automobile Liability
Insurance: The Omnibus Clause,' 46 Iowa L.Rev. 84, 102-118 (1960).
[Headnote 1]
A reading of the findings of fact and conclusions of law filed by the learned trial judge
leads us to believe that the court adopted the initial permission rule in finding that David at
the time the accident occurred had Zelda's permission to use her car. For the reasons
expressed in this opinion, we adopt the initial permission rule as controlling.
As Chief Justice Weintraub wrote in his dissent in Baesler v. Globe Indem. Co., 162 A.2d
854, 859 (N.J. 1960), which dissent was cited in part, with approval, in the later case of
Odolecki v. Hartford Accident & Indem. Co., 264 A.2d 38 (N.J. 1970):
People contract for results, presumably sensible ones. Words are mere vehicles to convey
their intention. Perfect expression is rare, particularly in the composition of a general
covenant when the draftsman can not foresee all cases which may call it into play.
Zelda, as the named insured, was covered by the liability policy, and the omnibus clause
extended coverage to any other person using such automobile with the permission of the
Named Insured, provided his actual operation. . . is within the scope of such permission."
Named Insured, provided his actual operation. . . is within the scope of such permission.
Nevada's motor vehicle liability policy, defined in NRS 485.3091, subsection 2(b), of
the Safety Responsibility Act, declares in part that every such insurance policy shall [i]nsure
the person named therein and any other person, as insured, using any such motor vehicle or
motor vehicles with the express or implied permission of such named insured.
Keeping in mind the policy announced by our Legislature, we turn to examine the omnibus
clause coverage in this case.
We know that contracting parties cannot contemplate every possible situation and spell out
in advance their understanding as to each situation that might develop. If we are to interpret
the intention of the parties, we must seek the reason for the extended coverage and be guided
by that reason.
Zelda bought and paid for the protection of others who might drive her car. Conspicuous is
the fact that she was vested with plenary authority to determine who should be the beneficiary
of the contract. Whether she permitted one or a hundred to drive her car, the premium
remained the same. The Company was paid for a policy under which Zelda as the named
insured could extend the liability coverage to whomever she pleased.
Zelda on numerous occasions had given David permission to drive the car. The car in a
sense was entrusted to David while Zelda was away on vacation. He had instructions to move
the car if in his judgment it was necessary, and it is reasonable to assume, under the factual
posture presented in this case, that when he drove the car on July 7, 1968, he had Zelda's
implied permission to do so. Surely, it would not have been Zelda's intention to restrict
insurance coverage to moving the car on the driveway. Applying the initial permission rule
in the instant case, we rule that David was covered by the liability policy under the terms of
the omnibus clause contained therein. Many reasons have been advanced that favor the
adoption of the initial permission rule. As the court said in Odolecki v. Hartford Accident
& Indem. Co., supra, 264 A.2d at 42:
. . . [A]s Chief Justice Weintraub pointed out in his dissent in Baesler: A named insured
untutored in law and fearful that his consent might lead to his own liability for damages in
excess of the policy limits (indeed by statute in some jurisdictions he would be so liable) may
well be tempted to invent a claim that he prohibited others to drive or to convert a precatory
request into a binding prohibition.'. . . We add that the fear of insurance policy
cancellations might well have the same effect."
into a binding prohibition.'. . . We add that the fear of insurance policy cancellations might
well have the same effect.
An even more powerful argument in favor of the initial permission rule is the important
policy of assuring that all persons wrongfully injured have financially responsible persons to
look to for damages. In other words, a liability insurance policy is for the benefit of the public
as well as for the benefit of the named insured. Our Legislature has spoken on the issue, as
evidenced by NRS 485.3091, subsection 2, of the Safety Responsibility Act, supra. Once an
owner voluntarily hands over the keys to his car, the extent of permission he actually grants is
irrelevant. Making coverage turn on the scope of permission given in the first instance
renders coverage uncertain in many cases. Such practice fosters litigation regarding the
existence or extent of any possible deviation, and it obstructs achievement of the policy
declared by the Legislature. As the court said in Matits v. Nationwide Mut. Ins. Co., supra,
166 A.2d at 349:
. . . We think that the initial permission' rule best effectuates the legislative policy of
providing certain and maximum coverage, and is consistent with the language of the standard
omnibus clause in automobile liability insurance policies.
[Headnote 2]
We therefore rule that if a person is given permission by an insured owner to use a motor
vehicle in the first instance, any subsequent use while the vehicle remains in the person's
possession is a permissive use within the terms of a standard automobile liability insurance
policy.
____________
88 Nev. 160, 160 (1972) State Farm Mut. Auto. v. Christensen
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant,
v. ANN KATHERINE CHRISTENSEN, Respondent.
No. 6577
March 13, 1972 494 P.2d 552
Appeal from summary judgment in favor of respondent as insured under five insurance
policies issued by appellant wherein such policies aggregated $50,000 uninsured motorist
coverage. Second Judicial District Court, Washoe County; Emile J. Gezelin, Judge.
Action by insured, injured in collision of her motorcycle with uninsured motorist's
automobile, against insurer to recover combined policy limits of five policies, plus interest.
The district court granted summary judgment in favor of insured and insurer appealed. The
Supreme Court, Zenoff, C. J., held that statute declaring that no judgment in any action
between insured and operator of uninsured motor vehicle is binding upon insurer with respect
to existence or amount of liability under uninsured motorist coverage represents an
adjudication which is a judicial function and is void, and insurer was bound by judgment
obtained by insured against uninsured motorist for injuries sustained in collision.
Affirmed.
Vargas, Bartlett & Dixon, and Jon J. Key, of Reno, for Appellant.
Hibbs & Bullis, of Reno, for Respondent.
1. Constitutional Law; Insurance.
Statute declaring that no judgment in any action between insured and operator of uninsured motor vehicle
is binding upon insurer with respect to existence or amount of liability under uninsured motorist coverage
represents an adjudication which is a judicial function and is void. NRS 693.115, subd. 5.
2. Insurance.
Insurer was bound by judgment obtained by insured against uninsured motorist for injuries sustained in
collision.
3. Interest.
Award of prejudgment interest against insurer which had issued five policies to insured commenced on
date of insured's personal injury judgment against uninsured motorist rather than on date summary
judgment was rendered for insured in her action against insurer; it was of no consequence that decision
holding that policies issued by same company could be stacked had not been rendered at time judgment
was obtained against uninsured motorist. NRS 693.115, 693.115, subd. 5.
4. Interest.
Interest is allowed, where no written contract fixes a different rate, at 7 percent per annum upon all
money from the time it becomes due upon contracts, express or implied. NRS 99.040, subd. 1.
OPINION
The parties agree on the issues of this appeal and the facts that gave rise to them.
Ann Katherine Christensen, respondent while commuting from work on her motorcycle
was involved in a collision with an automobile driven by Richard R. Stanton who was an
uninsured motorist. Respondent was insured by five policies issued from State Farm under
uninsured automobile coverage. She sued Stanton obtaining a default judgment in the amount
of $96,302.95 on June 16, 1969. Although notified of this litigation State Farm chose not to
participate.
Respondent then commenced an action against appellant seeking $50,000 which
represented the combined policy limits of the five policies, plus interest. Her motion for
summary judgment was granted on January 4, 1971 in the amount of $50,000, plus
prejudgment interest at 7 percent from June 16, 1969 (the date of the Stanton judgment) until
paid, plus costs of suit with interest thereon from January 4, 1971.
1. The first question for our determination is whether the insurance company was bound
by the Christensen judgment against Stanton so that the date the interest commenced to run
was properly June 16, 1969 as the trial court ruled.
In Allstate Insurance Co. v. Pietrosh, 85 Nev. 310, 454 P.2d 106 (May 6, 1969), this court
stated that when the company is given notice of the action, has the opportunity to intervene,
and judgment is thereafter obtained against the uninsured motorist in an adversary
proceeding, that the company should be bound thereby even despite contrary policy
provisions. Prior to Pietrosh, the Nevada legislature on April 23, 1969 amended NRS 693.115
(1969 Nev. Stats. ch. 568), as follows: No judgment in any action between the named
insured or any person claiming under him and the owner or operator of an uninsured motor
vehicle is binding upon the insurer with respect to the existence or amount of any liability
under the coverage required by this section. It is the insurance company's contention now
that the new law, subsection 5 thereof, should be applied to the Stanton action which was
commenced March 20, 1969 and concluded June 16, 1969.
[Headnotes 1, 2]
Such legislative adjudication represented by the statute is a judicial function and is void.
Cf. Volpert v. Papagna, 85 Nev. 437, 456 P.2d 848 (1969). The effect of Pietrosh, supra,
procedurally is to impliedly pronounce the insurer as an indirect party which is a procedural
consequence that is ours to decide. Pietrosh, supra, being the last pronouncement on the
subject is controlling.
is controlling. The insurance company is bound by the judgment against Stanton.
[Headnote 3]
2. We turn now to decide whether the award of prejudgment interest against the insurance
company properly commenced from June 16, 1969, the date of the respondent's judgment
against Stanton, or should have commenced as of January 4, 1971, the date of the summary
judgment against the insurance company.
The main issue presented to the trial court was whether State Farm's liability was limited
to the one policy limit of $10,000 or whether State Farm was under obligation to pay all five
policies so that a total of $50,000 would be due. We decided in United Services Auto. Assoc.
v. Dokter, 86 Nev. 917, 478 P.2d 583, rendered December 28, 1970, that policies issued by
the same company could be stacked. The day after that decision the trial court in this case
granted summary judgment which was entered on January 4, 1971.
The insurance company's liability became fixed the date of the Stanton judgment, June 16,
1969. On that date the appellant's obligation to compensate respondent in accord with its
contractual obligations to her was established. Their contention that they had an unresolved
bona fide issue of stacking and that therefore they should be absolved of prejudgment interest
until it was decided is of no consequence.
We said in Paradise Homes v. Central Surety, 84 Nev. 109, 437 P.2d 78 (1968), that the
money becomes due when performance was due as resolved by the court upon trial of the
cause. The Stanton judgment fixed their duty to pay under their contracts. Although this court
had not yet decided Dokter, supra, the amount they were to pay was at their risk if they were
wrong.
The Dokter decision being this court's first pronouncement of the stacking principle was,
nevertheless, declarative of existing law applicable at the time of the event (Stone v. City and
County of San Francisco, 80 P.2d 175, 178 (Cal.App. 1938)), in this instance the date of the
default judgment. Gt. Northern Ry. v. Sunburst Co., 287 U.S. 358, 364 (1932).
[Headnote 4]
Under our law with exceptions not pertinent here, interest is allowed, where no written
contract fixes a different rate, at 7 percent per annum, upon all money from the time it
becomes due upon "contracts, express or implied."
due upon contracts, express or implied. NRS 99.040(1); Paradise Homes v. Central Surety,
supra.
1

Therefore, interest on the total amount of $50,000 commenced to run on June 16, 1969 at
7 percent. All interest ceased on May 13, 1971 at which time tender was made of the entire
$50,000.
Affirmed.
____________________

1
The three-pronged tests defining due dates of prejudgment interest on contracts are specified in Paradise
Homes v. Central Surety, 84 Nev. 109, 116, 437 P.2d 78 (1968), wherein the Nevada cases on the subject are
reviewed and NRS 99.040 is construed.
____________
88 Nev. 164, 164 (1972) Williams v. State
LORENE WILLIAMS, Appellant, v. THE STATE
No. 6679
March 13, 1972 494 P.2d 960
Appeal from a judgment of conviction by a jury for the crime of unlawful use of a credit
card. Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
The Supreme Court held that evidence was sufficient to support jury verdict finding
defendant guilty.
Affirmed.
Robert G. Legakes, Public Defender, Jerrold J. Courtney, Deputy Public Defender, Clark
County, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, Charles L. Garner,
Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Where defendant cited no authorities in support of her position on appeal, Supreme Court was not
required to consider assignment of error.
2. False Pretenses.
Evidence was sufficient to support jury verdict finding defendant guilty of unlawful use of a credit card.
NRS 205.500.
OPINION
Per Curiam:
The appellant challenges the sufficiency of the evidence to support the jury verdict
finding her guilty of unlawful use of a credit card, a violation of NRS 205.500.
88 Nev. 164, 165 (1972) Williams v. State
support the jury verdict finding her guilty of unlawful use of a credit card, a violation of NRS
205.500.
[Headnotes 1, 2]
Since the appellant has cited no authorities in support of her position, this court is not
required to consider the assignment of error. Howarth v. El Sobrante Mining Corp., 87 Nev.
492, 489 P.2d 89 (1971); Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334 (1971); Smithart v.
State, 86 Nev. 925, 478 P.2d 576 (1970). We have, however, reviewed the entire record and
found therein substantial evidence to prove each and every element of the crime with which
she was charged. Marshall v. State, 87 Nev. 536, 490 P.2d 1056 (1971); Collins v. State, 87
Nev. 436, 488 P.2d 544 (1971). This independent review of the record which we have
conducted clearly establishes that the appellant's claim of error is frivolous. Gay v. State, 87
Nev. 540, 490 P.2d 666 (1971); Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969).
Affirmed.
____________
88 Nev. 165, 165 (1972) Haughton Elevator v. R. C. Johnson & Assocs.
HAUGHTON ELEVATOR COMPANY, a Delaware Corporation, Appellant, v.
R. C. JOHNSON & ASSOCIATES, a Nevada Corporation, Respondent.
No. 6669
March 14, 1972 494 P.2d 961
Appeal from judgment of the Eighth Judicial District Court, Clark County; William P.
Compton, Judge.
The Supreme Court held that there was no error in refusing to relieve appellant from its
counsel's stipulation.
Affirmed.
Wiener, Goldwater, Galatz & Raggio, Ltd., of Las Vegas, for Respondent.
Stipulations.
Where counsel stipulated that respondent should pay appellant stated sum in stated installments with
interest from the date of the stipulation, and the stipulation provided that if respondent failed to make any
payment when due, appellant might cause court to enter judgment in form attached to the stipulation, and
where neither the stipulation nor the contemplated judgment allowed attorneys' fees, there was
no error, upon application for judgment following default, in refusing to relieve
appellant from stipulation by awarding attorneys' fees and interest from date debt
allegedly was due.
88 Nev. 165, 166 (1972) Haughton Elevator v. R. C. Johnson & Assocs.
allowed attorneys' fees, there was no error, upon application for judgment following default, in refusing to
relieve appellant from stipulation by awarding attorneys' fees and interest from date debt allegedly was due.
OPINION
Per Curiam:
The parties' counsel stipulated respondent should pay appellant $8,329.61, in stated
installments, with interest from the stipulation's date at 7% per annum. The stipulation
provided further that if respondent failed to make any payment when due, appellant might
thereupon cause the court to enter a judgment in a form attached to the stipulation. Neither
the stipulation nor the contemplated judgment allowed attorneys' fees to appellant.
Respondent defaulted in paying the first of the required installments; appellant thereupon
applied for judgment, but asked the court to award attorneys' fees and interest from the date
the debt allegedly was due. The court refused to relieve appellant from its counsel's
stipulation, and entered judgment in accord with the stipulation. We find no error in the lower
court's action. Cf. Second Bapt. Ch. v. Mt. Zion Bapt. Ch., 86 Nev. 164, 466 P.2d 212 (1970).
Affirmed.
____________
88 Nev. 166, 166 (1972) Brown v. Warden
WARREN ROBERT BROWN, Appellant v. WARDEN,
No. 6619
March 14, 1972 494 P.2d 959
Appeal from an order denying post-conviction relief. Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
The Supreme Court held that where trial court failed to make inquiry regarding waiver of
privilege against compulsory self-incrimination, right to trial by jury, and right to confront
one's accusers, statute regarding acceptance of guilty plea, upon which is imposed the
constitutional gloss of Boykin v. Alabama, was violated and petitioner, who pleaded guilty
after the date of Boykin, was entitled to plead anew.
Reversed and remanded with instructions.
Albert Matteucci, of Las Vegas, for Appellant.
Criminal Law.
Where trial court failed to make inquiry regarding waiver of privilege against compulsory
self-incrimination, right to trial by jury, and right to confront one's accusers, statute regarding acceptance of
guilty plea, upon which is imposed the constitutional gloss of Boykin v. Alabama, was violated and
petitioner, who pleaded guilty after the date of Boykin, was entitled to plead anew.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying post-conviction relief to
Brown who, on April 20, 1970, pleaded guilty to robbery and currently is serving a six-year
sentence in the Nevada State Prison. Brown was represented by counsel at the arraignment
where he entered his plea of guilty.
On August 20, 1970, Brown filed a petition for a writ of habeas corpus prepared by
another inmate alleging (1) that the guilty plea was induced by promises of the Clark County
District Attorney's Office and (2) that the plea was not entered with knowledge of its
consequences and was therefore involuntary. On October 12, 1970, a hearing on the petition
was held and argument was heard. The writ was denied.
Brown then filed a petition for post-conviction relief. This petition also alleged that the
plea was induced by unfulfilled promises and was neither knowledgeable nor voluntary.
Counsel was appointed by the court to represent Brown at the hearing to be held on the
petition. The hearing was held and the petition denied on March 4, 1971. Notice of appeal
from the order denying the petition for post-conviction relief was then filed.
Now, for the first time, on appeal Brown specifically cites the case of Boykin v. Alabama,
395 U.S. 238 (1969), alleging that the mandates there announced were not followed when the
district court accepted his plea of guilty. The State concedes that the doctrine of Boykin as
construed by this court in Stocks v. Warden, 86 Nev. 758, 476 P.2d 469 (1970), and Higby v.
Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), was not followed. The State, however, urges
affirmance of the district court's order arguing that the record shows that the plea was
voluntarily and knowingly made.
order arguing that the record shows that the plea was voluntarily and knowingly made. We do
not agree.
The relevant part of NRS 174.035(1) provides that the court shall not accept a guilty plea
without first addressing the defendant personally and determining that the plea is made
voluntarily with understanding of the nature of the charge and consequences of the plea. As
of June 2, 1969, the constitutional gloss of Boykin v. Alabama is imposed upon the meaning
of the phrase consequences of the plea. Stocks v. Warden, supra.
The record in this case clearly shows that the doctrine of Boykin was not followed. The
district judge failed to make inquiry regarding the waiver of fundamental trial rightsthe
privilege against compulsory self-incrimination, the right to trial by jury, and the right to
confront one's accusers. Hence, the provisions of NRS 174.035(1) as construed by this court
in Higby were violated.
We, therefore, reverse the order denying the petition for post-conviction relief and remand
the case to the district court to permit the defendant to plead anew to the charge in the manner
prescribed by statute.
____________
VARNER RAY COLLINS, Appellant, v. THE
No. 6595
March 14, 1972 494 P.2d 956
Appeal from a conviction of robbery. Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
The Supreme Court held that denial of defendant's request for a jury composed of six black
persons and six white persons did not require reversal on ground that jury verdict violated
equal protection clause of Fourteenth Amendment, absent evidence suggesting that members
of defendant's race were excluded systematically from jury duty.
Affirmed.
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Charles L.
Attorney, and Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.
Denial of defendant's request for a jury composed of six black persons and six white persons did not
require reversal on ground that jury verdict violated equal protection clause of Fourteenth Amendment,
absent evidence suggesting that members of defendant's race were excluded systematically from jury duty.
U.S.C.A.Const. Amend. 14.
2. Criminal Law.
Refusal to give defendant's proposed instruction regarding inferences that could be drawn from his failure
to testify in his own behalf was not error, where instructions given recited substantially the same law as the
instruction requested, including principle that no person can be compelled to be a witness against himself.
3. Criminal Law.
Supreme Court will not consider assignment of error, for which no authority is cited, unless the error is so
unmistakable that it reveals itself by a casual inspection of the record.
4. Criminal Law.
Imposition of sentence in excess of that recommended by department of parole and probation does not
constitute abuse of discretion.
OPINION
Per Curiam:
During the morning of September 10, 1969, an individual entered the Hyde Park Liquor
store in Las Vegas and forced two patrons to lie on the floor while he took from the employee
on duty a paper bag of cash and a cigar box containing rolled coin. Before fleeing, the robber
directed the three individuals to enter one of the restrooms. The store owner after parking his
car observed a man running from the store carrying a cigar box and a paper bag and enter an
automobile. This aroused the owner's suspicions so he took down the auto's license number.
Appellant was later arrested near an apartment house, standing beside a vehicle bearing the
license number taken by the store owner. A paper bag and cigar box, identified as those taken
from the store, were located in a trash receptacle at the rear of the apartments. Several
hundred dollars in bills and coin were scattered in the bag, cigar box, and trash receptacle.
Fingerprints taken from the paper bag, cigar box, and automobile matched those of appellant.
Upon this evidence and the identification of the appellant by both the store owner and one of
the patrons who observed the robbery, appellant was convicted.
Appellant now contends that his conviction must be reversed because: (1) his request for a
jury composed of six black persons and six white persons was denied, (2) the court refused to
give his proposed instruction regarding the inferences that could be drawn from his failure to
testify in his own behalf, (3) the district judge imposed a sentence in excess of that
recommended by the Department of Parole and Probation, and (4) insufficient evidence was
adduced at the trial to support his conviction. We find all the assertions of error to be without
merit.
[Headnote 1]
Regarding appellant's first assignment of error, a jury verdict violates the equal protection
clause of the Fourteenth Amendment only if it can be shown that members of the appellant's
race were excluded systematically from jury duty. We find nothing in the record to suggest
that members of the appellant's race were so excluded from jury service, nor has appellant
directed us to any portion of the record which would so indicate. Howard v. State, 84 Nev.
599, 446 P.2d 163 (1968); Collins v. State, 87 Nev. 436, 488 P.2d 544 (1971); Collins v.
State, 88 Nev. 9, 492 P.2d 991 (1972). In Swain v. Alabama, 380 U.S. 202, 202-04 (1965) the
United States Supreme Court stated, Although a Negro defendant is not entitled to a jury
containing members of his race, a State's purposeful or deliberate denial of Negroes on
account of race of participation as jurors in the administration of justice violates the Equal
Protection Clause.
[Headnote 2]
With reference to appellant's second contention, the record reflects that the instruction
given by the trial court recited substantially the same law as the instruction requested,
including the principle that no person can be compelled to be a witness against himself. It is
not error to refuse to give an instruction when the law encompassed therein is substantially
covered by another instruction given to the jury. Summers v. State, 86 Nev. 210, 467 P.2d 98
(1970); Vincze v. State, 86 Nev. 546, 472 P.2d 936 (1970).
[Headnotes 3, 4]
Appellant cites no authority in support of his third assignment of alleged error. This court will
not consider the assignment unless the error is so unmistakable that it reveals itself by a
casual inspection of the record. Carson v. Sheriff, 87 Nev. 357, 487 P.2d 334 (1971);
Smithart v. State, 86 Nev. 925, 47S P.2d 576 {1970).
478 P.2d 576 (1970). No such error is revealed here. Furthermore there is no requirement
imposed upon the sentencing court to set the penalty in compliance with the
recommendations of the Department of Parole and Probation. A trial court does not abuse its
discretion by imposing a sentence in excess of that suggested by the Department.
We have reviewed the record and find it contains substantial competent evidence to
support the jury's verdict. McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970); Collins v.
State, 87 Nev. 436, 488 P.2d 544 (1971).
The judgment of the district court is affirmed.
____________
88 Nev. 171, 171 (1972) Chislee v. Smith
ESTHER FERN CHISLEE, Appellant, v. VIRGINIA
SMITH, Respondent.
No. 6667
March 14, 1972 494 P.2d 282
Appeal from judgment of Second Judicial District Court, Washoe County; John F. Sexton,
Judge.
Affirmed.
Melvin Schaengold, of Reno, for Appellant.
Echeverria and Osborne Chartered, John T. Coffin, and Dennis J. Healy, Jr., of Reno, for
Respondent.
OPINION
Per Curiam:
We have reviewed the scanty record presented in this case, and we find no merit to this
appeal. The remittitur shall issue forthwith.
____________
88 Nev. 172, 172 (1972) Guerra v. Archie
NANCY GUERRA, Appellant, v. ROBERT ARCHIE, Executive Director, EMPLOYMENT
SECURITY DEPARTMENT OF THE STATE OF NEVADA, Respondent.
No. 6678
March 16, 1972 494 P.2d 957
Appeal from order of the Eighth Judicial District Court, Clark County, dismissing petition
for judicial review to determine entitlement to unemployment compensation; Clarence
Sundean, Judge.
The Supreme Court, Gunderson, J., held that pregnancy of employee, who was discharged
once employer learned of her condition, was not cause for denying her unemployment
benefits to which she was otherwise entitled until 60 days of time she was confined for
childbirth.
B. Mahlon Brown, III, of Las Vegas, for Appellant.
Peter I. Breen, of Reno, for Respondent.
Legislature has established a plan of relief for persons who, when willing and able to work, are separated
involuntarily from their employment, and Employment Security Department is bound to implement plan
within its statutory limits. NRS 612.435, 612.440, subd. 2.
Pregnancy of employee, who was discharged once employer learned of her condition, was not cause for
denying her unemployment benefits to which she was otherwise entitled until 60 days of time she was
confined for childbirth. NRS 612.435, 612.440, subd. 2.
OPINION
Another employee in whom appellant confided having told their mutual employer
appellant was some two months pregnant, the employer immediately discharged her.
Thereupon, appellant applied for unemployment compensation. NRS 612.010 et seq.
Although respondent admits appellant was fully able to discharge all duties of her previous
employment, and remained ready, willing and able to work, appellant was denied benefits
at each level of administrative review.
able to discharge all duties of her previous employment, and remained ready, willing and able
to work, appellant was denied benefits at each level of administrative review. The district
court dismissed her petition for judicial review, holding that pursuant to NRS 612.435, it is
not necessary for a pregnant individual to be unable to work before she is disallowed
unemployment compensation benefits under the provisions of this section of NRS.
1
This
appeal follows.
[Headnote 1 ]
Respondent tells us appellant's employer makes a general practice of discharging expectant
mothers as soon as the employer learns they are pregnant, and we do not question the
employer's right to implement this policy. However, our legislature has established a plan for
the relief of persons who, when willing and able to work, are separated involuntarily from
their employment; and it is this policy respondent is bound to implement, within its statutory
limits. NRS 612.435 must be read in conjunction with NRS 612.440(2) which provides: A
claimant's unemployment shall be deemed to be due to pregnancy if such unemployment
exists within 60 days of expected confinement. As the Supreme Court of Kansas has said,
interpreting a similar statute: We must assume that if the legislature had intended to make
pregnancy per se a disqualification for benefits it would have so stated. Boeing Co. v.
Kansas Employment Security Bd. of Rev., 392 P.2d 904, 907 (Kan. 1964).
We are forced to conclude that pregnancy does not of itself render an employee
unavailable for employment prior to the two months immediately preceding the expected
birth. Whether pregnancy renders an employee unavailable for work previous to the
expiration of the first seven months is a matter for the determination of the Employment
Security Board under the facts and circumstances of the particular case. Id., at 909.
[Headnote 2]
Upon the facts admitted by respondent, until 60 days of the time she was confined for
childbirth, appellant's pregnancy was not cause for denying her benefits to which she was
otherwise entitled.
____________________

1
NRS 612.435 provides:
Separation from work because of pregnancy. An individual shall be disqualified for benefits for the week in
which the claimant is separated from work because of pregnancy and each week thereafter until proof of ability
to work following confinement is submitted.
entitled. This cause is reversed and remanded with instructions to enter an appropriate
judgment in favor of appellant.
2

____________________

2
Appellant not having left her employment voluntarily and without good cause, her aforementioned
employer's experience rating should be charged for benefits awarded to her. NRS 612.475(6); NRS
612.550(4)(c).
____________
88 Nev. 174, 174 (1972) Seyden v. Frade
WILBUR SEYDEN and SYBIL J. SEYDEN, Appellants, v.
JOSEPH A. FRADE and WILLIAM M. FRADE, Respondents.
No. 6622
March 23, 1972 494 P.2d 1281
Appeal from a judgment of the First Judicial District Court, Lyon County; Frank B.
Gregory, Judge.
Suit by vendors for reformation of deed and deed of trust, alleging that a mutual mistake
regarding property had occurred. The district court dismissed the complaint and abated
purchase price and vendors appealed. The Supreme Court, Batjer, J., held that where parties
to sale of ranch agreed upon price of $350,000 for property consisting of 320-acre home
ranch and parcel of land in valley consisting of approximately 2,300 acres, there was a sale
in gross and fact that title report revealed only 2,160 acres in the valley area did not warrant
reduction of purchase price.
Emerson J. Wilson and Peter I. Breen, of Reno, for Appellants.
Diehl, Recanzone and Evans, of Fallon, for Respondents.
1. Vendor and Purchaser.
Whether sale of land is a sale in gross or a sale by the acre depends primarily upon the intention of the
parties, which is to be determined from variety of factors such as the negotiations of the parties, the mode
of stating the purchase price, the manner of describing the lands and the language of the contract.
Sale of 320-acre home ranch and second parcel of land consisting of approximately 2,300 acres, for
$350,000, was not changed from one in gross to one by the acre by the fact that at the time of the
close of escrow the accountant for vendors allocated a certain part of the purchase
price to land.
the time of the close of escrow the accountant for vendors allocated a certain part of the purchase price to
land.
If a sale of land is a sale in gross, and not by the acre, a purchaser is not entitled to a diminution of the
purchase price because of a deficiency in acreage.
Where parties to sale of ranch agreed upon price of $350,000 for property consisting of 320-acre home
ranch and parcel of land in valley consisting of approximately 2,300 acres, there was a sale in gross and
fact that title report revealed only 2,160 acres in the valley area did not warrant reduction of purchase
price.
If land sale is in gross, a substantial variance from the supposed acreage is immaterial.
6. Reformation of Instruments.
Courts will reform contracts and deeds in accordance with the true intention of the parties when their
intentions have been frustrated by a mutual mistake.
7. Reformation of Instruments.
Where deed conveying 40-acre parcel from ranch by vendors' predecessors in interest was recorded and
available for discovery by both parties, inclusion in deed to purchasers of the 40-acre parcel was a mutual
mistake, and, as against purchasers, vendors possessed equitable right to have deed reformed so as to
convey the actual parcels intended to be conveyed.
OPINION
In May of 1965 Wilbur and Sybil Seyden, appellants, began negotiations for the sale of
their property in Lyon County, Nevada, to Joseph and William Frade, respondents. The
parties finally agreed upon a sale price of $350,000 for all of the appellants' property in Lyon
County consisting of a 320-acre home ranch, a parcel of land in Adrian Valley which the
appellants represented as consisting of approximately 2300 acres, livestock, equipment and
improvements on the home ranch. The appellants' attorney obtained a title report from a title
company and drafted the deed, deed of trust and escrow instructions for both parties. A
preliminary title report indicated that the home ranch area consisted of 320 acres and the
Adrian Valley property consisted of 2160 acres. After the transaction had been completed, it
was determined that the home ranch contained 320 acres, but the Adrian Valley property
consisted of only 2120 acres because a 40-acre parcel of the real property described in the
deed had been conveyed to third parties by the appellants' predecessor in title.
The appellants filed suit in the district court for reformation of the deed and deed of trust,
alleging that a mutual mistake regarding the property had occurred. That complaint was
dismissed by the lower court upon the grounds that the appellants had failed to state a claim
upon which relief could be granted. The appellants then filed an amended complaint seeking
reformation and this time alleged that a mutual mistake had occurred because they had not
intended to convey, nor had the respondents intended to acquire that 40-acre parcel which had
been inadvertently included in the deed and deed of trust. The respondents counterclaimed
requesting compensation for damages alleged to have been suffered by reason of the fact that
they received fewer acres than they had bargained for. The district court denied the appellants'
request for reformation and found a defect in title amounting to 180 acres. Damages were
determined by the district court to be $18,000, and that court abated the purchase price by that
amount.
Pursuant to NRCP 52(b) and 59(e), the appellants filed a motion with the district court
supported by points and authorities requesting an order amending, modifying and
supplementing the court's findings of fact and conclusions of law and for the entry of an
amended judgment and decree. That motion was denied by the district court. The appellants
now appeal from the judgment and from the order denying their motion to modify, amend and
supplement findings of fact, conclusions of law and decree, contending that the sale of their
property in Lyon County to the respondents was a sale in gross with no warranty as to the
quantity of land involved, and that the district court erred when it allowed an abatement of the
purchase price and refused to reform the deed and deed of trust.
[Headnote 1]
Whether a sale of land is a sale in gross or a sale by the acre depends primarily upon the
intention of the parties, which is to be determined from a variety of factors such as the
negotiations of the parties, the mode of stating the purchase price, the manner of describing
the land and the language of the contract. Dixon v. Morse, 463 P.2d 284 (Idaho 1970);
Speedway Enterprises v. Hartsell, 251 P.2d 641 (Ariz. 1952); 1 ALR 2d 9. Here the evidence
reveals that at the outset of negotiations the sellers (appellants) were asking $450,000 and the
buyers (respondents) were offering $250,000 for all of the property of the appellants located
in Lyon County, Nevada, and subsequently they agreed upon a sale price of $350,000 for the
appellants' ranch which comprised approximately 320 acres in Mason Valley and
approximately 2300 acres of range land located from Wabuska to Adrian Valley, including
all cattle, personal property and improvements situated on the property.
located from Wabuska to Adrian Valley, including all cattle, personal property and
improvements situated on the property. On one occasion William M. Frade, one of the
buyers, and Ted Seyden, a relative of the appellants, rode over some of the Adrian Valley
property and Seyden pointed out the boundaries in a general way. The escrow receipt read:
Deposit on purchase of Wilbur Seyden Ranch320 A. in Mason Valley and 2300 acres
Webuska (sic) [Wabusha] to Adrian ValleyAcreage Approximate.
Up to the point in time when the escrow was opened there is nothing in the record that
points to a sale by the acre and every piece of evidence revealing the intention of the parties
points to a sale in gross.
[Headnote 2]
The fact that the title report revealed only 2,160 acres in the Adrian Valley area and that
after escrow was closed it was discovered that the appellants were without title to 40 acres
that they attempted to convey does not alter the nature of the sale. Nor is the sale changed
from one in gross to one by the acre by the fact that at the time of the close of escrow the
accountant for the appellants allocated a certain part of the purchase price to land.
[Headnote 3]
If a sale of land is a sale in gross, and not by the acre, a purchaser is not entitled to a
diminution of the purchase price because of a deficiency in acreage. Dixon v. Morse, supra;
Continental Life Ins. Co. v. Murphy, 44 P.2d 1112 (Idaho 1935); see also Speedway
Enterprises v. Hartsell, supra; Meyer v. Ranson, 224 N.E.2d 293 (Ill.App. 1967).
In Consolazio v. Summerfield, 54 Nev. 176, 179, 10 P.2d 629 (1932), we said: The
general rule of this court is that when the evidence is conflicting and there is substantial
evidence to sustain the judgment it will not be disturbed. But there is an exception to the
general rule to the effect that where, upon all the evidence, it is clear that a wrong conclusion
has been reached, the judgment will be reversed. Price v. Sinnott, 85 Nev. 600, 460 P.2d 837
(1969); Walker Brothers Bankers v. Janney, 52 Nev. 440, 290 P. 413 (1930); Watt v. Nev.
Cen. R. R. Co., 23 Nev. 154, 44 P. 423 (1896); Dalton v. Dalton, 14 Nev. 419 (1880); Reed
v. Reed, 4 Nev. 395 (1868); cf. Cram v. Durston, 68 Nev. 503, 237 P.2d 209 (1951);
Kitselman v. Rautzahn, 68 Nev. 342, 232 P.2d 1008 (1951). In our view the exception stated
in Consolazio v. Summerfield, supra, applies to the record before us. Here there was no
conflict in the evidence on the question of the nature of the sale.
the evidence on the question of the nature of the sale. There was no substantial evidence to
support the findings of the trial court. On the contrary, all the evidence supports the
appellants' contention that this transaction was a sale in gross.
[Headnote 4]
In their answering brief the respondents admit that we are dealing with a sale in gross but
contend that the discrepancy of 180 acres is approximately seven percent of 2300 acres and is
so substantial as to warrant the trial court's reduction of the purchase price. We do not agree.
In support of their position they rely upon Hay v. Allen, 247 P.2d 94 (Cal.App. 1952); Dixon
v. MacGillivray, 185 P.2d 109 (Wash. 1947), and Richard v. Baker, 297 P.2d 674 (Cal.App.
1956). Those cases are inapposite. Unlike this case, where acreage was referred to in
approximations, those cases dealt with factual situations where the sellers made
representations of definite boundaries or areas and the buyers relying on those representations
acted to their detriment.
[Headnote 5]
If a land sale is in gross, a substantial variance from the supposed acreage is immaterial.
Speedway Enterprises v. Hartsell, supra. This court, in Gottlieb v. Close, 81 Nev. 38, 41, 398
P.2d 248 (1965), where the frontage on Highway 91 in Clark County, Nevada, was 420 feet
instead of 570 feet, held that such variance was of no significance as the purchaser agreed to
buy that property owned by M. D. Close. . . as described on a sketch.
Ordinarily, when a sale of land is in gross, deficiencies of ten to twenty percent and even
more than thirty percent have not been considered sufficiently material to entitle a buyer to
relief. See cases collected in 1 ALR2d 9. Those jurisdictions that grant equitable relief to a
purchaser if the discrepancy in acreage is ten percent or over will deny relief if the
discrepancy is less than ten percent [Krumholz v. Goff, 315 F.2d 575 (6th Cir. 1963)] and
may deny relief when the discrepancy exceeds ten percent where the acreages are referred to
in approximations [Sullivan v. Gouge, 223 S.W.2d 985 (Ky. 1949)].
[Headnote 6]
The courts in this state will reform contracts and deeds in accordance with the true
intention of the parties when their intentions have been frustrated by a mutual mistake. Lattin
v. Gray, 75 Nev. 128, 335 P.2d 778 (1959); Roberts v. Hummel, 69 Nev. 154, 243 P.2d 248
(1952); Holman v. Vieira, Et Al., 53 Nev. 337
53 Nev. 337, 300 P. 946 (1931); Ruhling v. Hackett, 1 Nev. 360 (1865).
The record reveals a mistake of fact on the part of the appellants. The respondents contend,
however, that the mistake was not shared by them and for that reason the mistake was not
mutual. All the testimony in the record indicates that the respondents bargained to purchase
all of the appellants' property in Lyon County, no more and no less. There is no evidence to
indicate an intention on the part of the respondents to have conveyed to them any lands that
had previously been conveyed to other parties by the appellants' predecessors in interest. The
deed by the appellants' predecessors in interest conveying the 40-acre parcel was recorded in
book 33, page 127 of Deeds, records of Lyon County, Nevada, and was available for
discovery by both parties.
[Headnote 7]
We conclude that the record establishes without dispute that the inclusion in the deed of
the 40-acre parcel not owned by the appellants was a mutual mistake. As against the
respondents, the appellants possessed an equitable right to have the deed from them reformed
to convey the actual parcels intended to be conveyed.
The respondents are not entitled to any abatement in the purchase price of the premises.
The judgment in this case is reversed with instructions that a judgment be entered to the
effect that the deed dated the 24 day of June, 1965, by and between Wilbur Seyden and Sybil
J. Seyden, his wife, parties of the first part, and Joseph A. Frade and William M. Frade,
parties of the second part, recorded in book 48 of Deeds at page 185, records of Lyon County,
Nevada, and the deed of trust recorded in book 33 of Mortgages, at page 541, records of Lyon
County, Nevada, be reformed by striking from the parcel descriptions in each instrument the
Southwest Quarter of Southeast Quarter of Section 29, Township 15 North, Range 25 East,
M.D.B. & M.
____________
88 Nev. 180, 180 (1972) Perry v. Law Enforcement Electronics
JACK G. PERRY and PATRICK C. CLARY, Individually and as Partners in PERRY AND
CLARY, a Partnership, Appellants, v. LAW ENFORCEMENT ELECTRONICS, INC., a
Nevada Corporation, Respondent.
No. 6680
March 29, 1972 495 P.2d 355
Pavlikowski, Judge.
Corporation brought suit against attorneys seeking a judgment declaring that it was not
indebted to defendants for certain legal fees. The district court entered judgment in favor of
plaintiff, and defendants appealed. The Supreme Court held that on the appeal of defendant
attorneys, the record simply did not contain the information necessary for the Supreme Court
to rule upon defendants' assigned error that the lower court erred in refusing to allow the
deposition of one of defendants' witnesses to be introduced into evidence, where counsel for
plaintiff, at the time the deposition was offered, stated that he objected to its being offered
into evidence but that he would not object to it being published, where the objection was
sustained, but where, for some reason, the deposition was not published nor was an offer of
proof made by defendants.
Affirmed.
John Marshall, of Las Vegas, for Appellants.
Fadgen & Johnson, of Las Vegas, for Respondent.
On the appeal of defendant attorneys, against whom corporation brought suit seeking a judgment
declaring that it was not indebted to defendants, the record simply did not contain the information
necessary for Supreme Court to rule upon defendants' assigned error that lower court erred in refusing to
allow the deposition of one of defendants' witnesses to be introduced into evidence, where counsel for
plaintiff, at the time the deposition was offered, stated that he objected to its being offered into evidence
but that he would not object to it being published, where the objection was sustained, but where, for some
reason, the deposition was not published nor was an offer of proof made by defendants.
Where there is substantial evidence in the record to support lower court's decision, the decision will not
be disturbed on appeal.
OPINION
Per Curiam:
The respondent filed a complaint for declaratory relief seeking a determination of
whether respondent was indebted to appellants for certain legal fees.
88 Nev. 180, 181 (1972) Perry v. Law Enforcement Electronics
seeking a determination of whether respondent was indebted to appellants for certain legal
fees. Appellants filed an answer and counterclaim. This appeal is from judgment denying
appellants' counterclaim for legal services rendered.
Appellants contend that the lower court erred in refusing to allow a deposition of one of
appellants' witnesses to be introduced into evidence. Appellants also contend that the district
court's findings of fact and conclusions of law were not supported by the evidence introduced
during trial.
[Headnote 1]
At trial appellants sought to introduce into evidence the deposition of Richard L. Noble, a
securities attorney from Los Angeles. Counsel for respondent stated that he objected to the
deposition being offered into evidence, but that he would not object to it being published. The
objection was sustained. For some reason, the deposition was not published and marked for
identification, nor was an offer of proof made by appellants. There is nothing in the record on
appeal which would indicate what was contained in Mr. Noble's deposition.
Accordingly, this court will not speculate as to the contents of the deposition. The record
simply does not contain the information necessary for this court to rule upon the assigned
error. Foreman v. Ver Brugghen, 81 Nev. 86, 398 P.2d 993 (1965); Alamo Airways, Inc. v.
Benum, 78 Nev. 384, 374 P.2d 684 (1962).
[Headnote 2]
The record on appeal is replete with evidence which supports the lower court's findings of
fact and conclusions of law. When there is substantial evidence in the record to support the
lower court's decision, that decision will not be disturbed on appeal. Bagston v. Brown, 86
Nev. 653, 473 P.2d 829 (1970).
The judgment of the lower court is affirmed.
____________
88 Nev. 182, 182 (1972) Archie v. Pierce
ERIC L. ARCHIE Appellant, v. STANLEY W. PIERCE, VANILLA ARCHIE, aka
VANALLA ARCHIE, aka VANILLA GLOVER, and LINDA FULTON, Respondents.
No. 6675
March 29, 1972 495 P.2d 363
Appeal from order denying without prejudice motion to vacate sheriff's sale and sheriff's
deed. Eighth Judicial District Court, Clark County; Roscoe H. Wilkes, Judge.
The Supreme Court, Zenoff, C. J., held that order was not an appealable determination.
Appeal dismissed.
Robert L. Gifford, of Las Vegas, for Respondents Pierce and Fulton.
Cochran & Pomeranz, of Las Vegas, for Respondent Vanilla Archie.
Appeal and Error.
Denial without prejudice of motion to vacate sheriff's sale and to set aside sheriff's deed in action wherein
same relief is sought by pending complaint was not an appealable determination. NRCP 72(b),(b)(3).
OPINION
This is one of a continuing series of legal procedures designed to gain restitution to Eric L.
Archie for injuries arising from alleged conduct of the respondents herein.
Prior to the commencement of this action a default judgment was obtained by Pierce
against Archie which resulted in an execution and sheriff's sale of a portion of Archie's
property on June 13, 1967. The appeal taken from that judgment was dismissed on June 3,
1968 per the request of appellant Archie. (Bank of Nevada v. Archie, No. 5627 on appeal,
No. A-42897 below.) After that dismissal Archie obtained an order entered on May 26, 1971
dismissing the complaint therein with prejudice, subject to the right of appellant to continue
the present litigation which had been started on December 10, 1969 setting forth five causes
of action against the named respondents.
88 Nev. 182, 183 (1972) Archie v. Pierce
On April 5, 1971 Archie moved the district court in the present action to vacate the
sheriff's sale and to set aside the sheriff's deed. This motion related to Archie's third and
fourth causes of action wherein he had requested a lien to be impressed on the subject
property and that any cloud upon his title be declared void. The motion was denied, from
which order a purported appeal was taken. Later respondents obtained an amended order
denying appellant's motion to vacate wherein appellant's request was denied without
prejudice in the following language:
IT IS ORDERED that plaintiff's Motion to Vacate Sheriff's Sale and to Set Aside
Sheriff's Deed filed herein on April 5, 1971, is hereby denied without prejudice to bringing
the same issues on to be determined at the trial of this cause.
We do not reach the merits presented by appellant because we hold that the denial without
prejudice of a motion to vacate a sheriff's sale and to set aside a sheriff's deed in an action
wherein the same relief is sought by the pending complaint is not an appealable determination
under NRCP 72.
NRCP 72(b) states precisely what determinations are appealable and does not include a
denial of an interlocutory motion to set aside a sheriff's sale and deed. Alper v. Posin, 77 Nev.
328, 330, 363 P.2d 502 (1961); Bates v. Nevada Savings & Loan Ass'n, 85 Nev. 441, 443,
456 P.2d 450 (1969); Christensen v. Insurance Comm'r, 85 Nev. 335, 337, 454 P.2d 891
(1969). NRCP 72(b)(3) provides for appeal [f]rom an interlocutory. . . order . . . made or
entered in actions to redeem real. . . property from a . . . lien thereon, determining such right
to redeem and directing on accounting. . . . This is not such an action.
The appeal is dismissed.
____________
88 Nev. 183, 183 (1972) State Farm Mut. Auto. Ins. v. Wharton
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Appellant, v. DEVOLA M. WHARTON, Respondent.
No. 6602
March 30, 1972 495 P.2d 359
Pavlikowski, Judge.
Suit by automobile insurer, as subrogee of its named insured, to recover moneys paid
under provisions of uninsured motorist clause as result of collision involving insured's vehicle
and one driven by defendant. The district court dismissed the complaint and insurer appealed.
The Supreme Court, Mowbray, J., held that action by insurer, as subrogee of its named
insured, suing to recover moneys paid under provisions of uninsured motorist clause as result
of collision involving insured's vehicle and one driven by defendant, sounded in tort rather
than in contract and 2-year statute of limitations was applicable and started to run from the
date the injuries were incurred.
Affirmed.
Rose & Norwood, Ltd., and Keith Edwards, of Las Vegas, for Appellant.
Beckley, DeLanoy & Jemison, Chartered, Jay H. Brown, and Alvin B. Maupin, of Las
Vegas, for Respondent.
Action by insurer, as subrogee of its named insured, suing to recover moneys paid under provisions of
uninsured motorist clause as result of collision involving insured's vehicle and one driven by defendant,
sounded in tort rather than in contract and 2-year statute of limitations was applicable and started to run
from the date the injuries were incurred. NRS 11.190, 11.190, subds. 1(b), 3(a), 4(e), 11.220,
41.100, subd. 4.
2. Insurance; Parties.
If insurer desires to press subrogation claim against an uninsured motorist, it may intervene in any timely
action commenced by its insured or it may commence a timely action against the tort-feasor alleging
insurer's liability to the insured for the damages the tort-feasor has caused, the insurer's intent to discharge
that liability, and its own right to be subrogated to the insured's rights upon payment.
OPINION
State Farm Automobile Insurance Company, as subrogee of its named insured, Murwyn H.
Fain, sued Devola M. Wharton for $14,875, representing moneys that State Farm had paid
under the provisions of the uninsured motorist clause of its automobile insurance policy to
Murwyn H. Fain and his passengershis wife, Vyrle, and Floyd and Veda Jonesall of
whom were injured in an accident involving the Fain vehicle and one driven by Respondent
Devola M. Wharton.
Wharton filed a motion to dismiss the complaint on the ground that the action was barred
by the 2-year statute of limitations, NRS 11.190, subsection 4(e).
1
According to State Farm's
complaint, which was filed on December 15, 1970, the accident occurred in Las Vegas,
Nevada, on February 26, 1967. The district judge granted the motion, and he dismissed the
complaint. Hence, this appeal.
Two issues are presented for our consideration on this appeal: (1) When does the statute of
limitations start to run where an insurance company seeks recovery as a subrogee under the
terms and conditions of an uninsured motorist provision of an insurance policy? (2) What
statute of limitations is applicable in such a case?
State Farm has suggested that the present action sounds in contract and therefore perhaps
the 6-year statute, NRS 11.190, subsection 1(b),
2
governs. Or the 3-year statute, NRS
11.190, subsection 3(a),
3
may be applicable. Or the catchall 4-year statute, NRS 11.220,
4
perhaps should be applied.
5
State Farm's counsel argues that the instant action is unique
and is predicated on and permissible only because of the provisions of NRS 41.100,
subsection 4, which states: The provisions of this section [prohibiting the assignment of
claims for personal injuries] shall not prevent subrogation suits under the terms and
conditions of an uninsured motorists' provision of an insurance policy."
____________________

1
NRS 11.190:
Actions other than those for the recovery of real property, unless further limited by NRS 11.205 or by or
pursuant to the Uniform Commercial Code, can only be commenced as follows:
. . .
4. Within 2 years:
. . .
(e) An action to recover damages for injuries to a person or for the death of a person caused by the wrongful
act or neglect of another. . . .

2
1. Within 6 years:
. . .
(b) An action upon a contract, obligation or liability founded upon an instrument in writing, except those
mentioned in the preceding sections of this chapter.

3
3. Within 3 years:
(a) An action upon a liability created by statute, other than a penalty or forfeiture.

4
NRS 11.220:
An action for relief, not hereinbefore provided for, must be commenced within 4 years after the cause of
action shall have accrued.

5
The scant record on appeal consists of the complaint, respondent's motion to dismiss, the points and
authorities in support thereof and in opposition thereto, and the judge's brief order granting the motion.
and conditions of an uninsured motorists' provision of an insurance policy. Because of its
uniqueness, State Farm argues, the action is not barred by the 2-year personal injury statute
and must fall into some other category.
In Hartford Ins. Group v. Statewide Appliances, Inc., 87 Nev. 195, 484 P.2d 569 (1971),
the subrogee insurance company sought recovery for property damages. The company
claimed that the 6-year statute of limitations was applicable because the action was predicated
on a contract. This court rejected that contention and ruled (87 Nev. at 197, 484 P.2d' at 571)
that one must look to the real purpose of the complaint. We cited the case of Automobile
Ins. Co. v. Union Oil Co., 193 P.2d 48, 50-51 (Cal.App. 1948), which held:
In determining whether an action is on the contract or in tort, we deem it correct to say
that it is the nature of the grievance rather than the form of the pleadings that determines the
character of the action. If the complaint states a cause of action in tort, and it appears that this
is the gravamen of the complaint, the nature of the action is not changed by allegations in
regard to the existence of or breach of a contract. In other words, it is the object of the action,
rather than the theory upon which recovery is sought[,] that is controlling. (Citations
omitted.)
[Headnote 1]
We believe that the present action sounds in tort. Therefore, the 2-year statute of
limitations is applicable and starts to run from the date the injuries were incurred.
State Farm urges that California has provided a 3-year built-in statute in these cases,
which commences to run when the insurer has actually made payment under the policy. This
is true as provided in Cal. Ins. Code 11580.2(g) (West 1972).
6
But the 3-year statute is
only part of the statutory scheme provided by California. For example, California also
requires by statute that no cause of action shall accrue to the named insured under the
uninsured motorist coverage unless within 1 year from the date of the accident (1) suit for
bodily injury has been filed against the uninsured motorist or (2) agreement as to the amount
due under the policy has been concluded or (3) the insured has formally instituted
arbitration proceedings.
____________________

6
Cal. Ins. Code 11580.2(g):
The insurer paying a claim under an uninsured motorist endorsement or coverage shall be entitled to be
subrogated to the rights of the insured to whom such claim was paid against any person causing such injury or
death to the extent that payment was made. Such action may be brought within three years from the date that
payment was made hereunder.
insured has formally instituted arbitration proceedings. See Cal. Ins. Code 11580.2(i) (West
1972).
. . . [T]he California courts have repeatedly held that compliance with the statute is a
condition precedent to any determination of the insured's claim, and that whether a claim is
barred by the one-year period of limitations is a matter for judicial determination (and not a
matter to be decided by an arbitration); . . . a three-year statute of limitations governs the right
of an insurance company to assert its subrogation claim after having compensated a claimant
under this coverage.
. . .
Thus far, California is the only state to have clarified the problem by enacting legislation
which specifies a statute of limitations against the insured under the uninsured motorist
coverage. . . . (Footnotes omitted.) A. Widiss, A Guide to Uninsured Motorist Coverage
2.24, 2.25 at 54 (1969).
[Headnote 2]
We conclude that Nevada's 2-year statute is applicable in the instant case and that it
commences to run from the date the injuries of the insured were incurred. To rule otherwise
would mean that an insurance company could withhold payment under the uninsured motorist
policy for an unlimited period and then after payment seek recovery as the subrogee of its
insured. Such practice would delay the settlement and disposition of such cases.
7
The
judgment is affirmed.

____________________

7
While appellant suggests that inequities may occur under our law as we interpret it, the procedures available
under our rules are sufficiently flexible to enable an insurance carrier to preserve its right in the event it cannot
settle with its insured within 2 years. We recently annulled a legislative enactment that was contrary to a
procedural rule established by this court and that allowed carriers to defer interminably their obligations under
uninsured motorist policies. We reaffirmed our holding that a carrier is bound by the result of an action between
its insured and an uninsured motorist when the carrier has notice of the action but elects not to intervene. State
Farm Mut. Auto. Ins. Co. v. Christensen, 88 Nev. 160, 494 P.2d 552 (1972); Allstate Ins. Co. v. Pietrosh, 85
Nev. 310, 454 P.2d 106 (1969). If a carrier desires to press a subrogation claim against an uninsured motorist, it
may intervene in any timely action commenced by its insured as contemplated by our holdings in the Pietrosh
and Christensen cases. Alternatively, it may commence a timely action against the tort-feasor alleging the
carrier's liability to the insured for the damages the tort-feasor has caused, the carrier's intent to discharge that
liability, and its own right to be subrogated to the insured's rights upon payment. In the latter case, the carrier can
make the insured a party to resolve any remaining disputes, in proceedings binding upon all partiesa result the
carrier should desire.
Where only the insurance contract allows for subrogation and a
____________________
subrogated carrier must therefor sue in the name of its insured, it has been said:
Under the Trust Agreement, between carrier and insured, carrier may force insured to bring a lawsuit
against uninsured motorist, and therefore any lost remedy incurred by the carrier as to its right of subrogation,
was due to its own negligence. (Footnote omitted.) Feldman, Uninsured Motorist Coverage, A. B. A. Section of
Insurance, Negligence and Compensation Law, 1968-1969 Proceedings 370, 381 (1969).
There is surely less reason for delay where the carrier is vested by statute with a right to subrogation and may
sue in its own name. Therefore, if insurance carriers will utilize available procedures with the diligence we
require of other litigants, they can adequately protect their rights. In this case, the carrier unfortunately allowed
the statute of limitations to bar an action based on its insured's personal injuries. We see no occasion, however,
to extend the normal statute of limitations to aid appellant or other carriers who may sleep on their rights. The
policy of allowing 2 years to seek recovery for personal injuries applies equally when the injured person has
uninsured motorist coverage and when he does not. In any event, change in our statutory law, if desirable, must
come from the Legislature.
____________
88 Nev. 188, 188 (1972) Page v. State
JOHNNY PAGE, Appellant, v. THE STATE
No. 6651
March 30, 1972 495 P.2d 356
Appeal from judgment of conviction of burglary. Eighth Judicial District Court, Clark
County; William P. Compton, Judge.
The Supreme Court, Mowbray, J., held that under statute, defendant could be convicted of
burglary even though offense was committed in the daytime.
Affirmed.
Robert G. Legakes, Public Defender, and John C. Ohrenschall, Deputy Public Defender,
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and Rex A.
Bell, Deputy District Attorney, Clark County, for Respondent.
88 Nev. 188, 189 (1972) Page v. State
1. Burglary.
Under statute, defendant could be convicted of burglary even though alleged offense occurred in the
daytime. NRS 205.060.
2. Criminal Law.
In prosecution for burglary, witness' testimony that he had observed defendant remove clothing from back
seat of another's automobile was admissible even though witness testified on direct examination that
defendant had been wearing dark-colored slacks but on cross-examination admitted that he had signed
statement that defendant had been wearing tan or light-colored slacks. NRS 205.060.
3. Witnesses.
Any discrepancy between witness' testimony on direct examination and prior statement given officers
went only to weight and not to admissibility of witness' testimony.
4. Criminal Law.
In prosecution for burglary, pliers and knife found under pickup truck near burglarized automobile were
admissible where officer testified that, as he approached defendant and companion, he observed them
throw two objects under the pickup truck and defendant subsequently admitted at trial that he was the one
who threw pliers and knife under the truck. NRS 205.060.
OPINION
The appellant, Johnny Page, was charged in the district court with burglary. He was tried
to a jury and convicted. He has appealed from the judgment of conviction, asserting several
assignments of error, which we find meritless. Therefore, the judgment is affirmed.
1. The victim of the burglary, Elmer W. Kelter, Jr., upon reporting for duty at Nellis Air
Force Base in Clark County, was assigned temporary off-base quarters at the Moulin Rouge
Hotel in nearby Las Vegas. Kelter parked his car on the hotel parking lot. In the early
morning hours of June 22, 1969, Witness Jack B. Anderson, while waiting for transportation
to Nellis, saw two men pass through the parking lot toward Kelter's car. Anderson identified
one of the men as Appellant Page. He did not, at first, see the men near Kelter's car, as his
vision to the car was partially obscured by a camper truck parked adjacent to it. While the
men were out of sight and apparently near Kelter's car, Anderson heard a distinct clicking
noise. The dome light then came on in Kelter's car, and Anderson saw Page . . . reaching
over the seat and removing clothing from a clothing rod in the back seat of the car. Anderson
then observed Page and his companion leave Kelter's car with their arms full of clothing.
88 Nev. 188, 190 (1972) Page v. State
arms full of clothing. Anderson returned to the hotel and told the desk clerk to call the police.
While he was doing this, he lost sight of the men for a minute or so; then, as he watched from
the hotel office, they came back into his line of vision. At this point the police arrived.
Officers Howard Oren and James Kelly arrested Page and his companion. Oren testified at the
trial that, as he and Kelly approached the area, Page and his companion threw two objects
under a nearby pickup truck. The objects were retrieved, and they were found to be a pair of
pliers and a knife. At trial, the State claimed that the knife was used to gain entry to Kelter's
two-door, hardtop vehicle.
[Headnote 1]
2. The burglary occurred on June 22, 1969 (and, it is conceded, in the daytime). Page
argues that he cannot be guilty of burglary committed in the daytime because there was no
such crime in June 1969. We do not agree.
The history of the burglary statute commences with the first regular session of the
Legislative Assembly of the Territory of Nevada in 1861. Section 59 of chapter 28 of the
1861 Laws of Nevada Territory defined burglary as a nighttime offense.
1
The crime was
punishable by imprisonment in the Territorial Prison for not less than 1 nor more than 10
years. In 1873, the Nevada State Legislature added day-time burglary as a crime,
characterized housebreaking, and set the penalty therefor at not less than 1 nor more than 5
years.
2
In 1909, the Nevada Legislature amended the burglary statute to provide for degrees
of burglary: Nighttime, or first-degree, burglary, carrying a penalty term of not less than 1
nor more than 15 years' imprisonment; daytime, or second-degree, burglary, carrying a
penalty term of not more than 5 years' imprisonment.3 In 1967, the Legislature amended
the burglary statute by decreasing the disparity in the penalty provisions between first-
and second-degree burglary.
____________________

1
Act of Nov. 26, 1861, ch. 28, 59 [1861] Laws Nev. Territory 66 (Gillespie 1862):
SEC. 59. Every person who shall in the night-time forcibly break and enter, or without force (the doors and
windows being open), enter into any dwelling-house, or any other house whatever, or tent, with intent to commit
murder, robbery, rape, mayhem, larceny, or other felony, shall be deemed guilty of burglary, and upon
conviction thereof, shall be punished by imprisonment in the Territorial Prison, for a term not less than one, nor
more than ten years.

2
Act of Mar. 7, 1873, ch. 76, 1 [1873] Stats. Nev. 144:
SECTION 1. Section fifty-nine of said Act [(1861) Laws Nev. Territory 66 (Gillespie 1862)] is amended
so as to read as follows:
Section Fifty-nine. Every person who shall, in the night-time, forcibly break and enter, or without force (the
doors or windows being open), enter into any dwelling house, or tent, or any other house or building whatever,
or any vessel, water craft, railroad, passenger, or freight car, with intent to commit murder, robbery, rape,
mayhem, grand larceny, petit larceny, or any felony, shall be deemed guilty of burglary, and, on conviction
thereof, shall be punished by imprisonment in the State Prison for a term not less than one nor more than ten
88 Nev. 188, 191 (1972) Page v. State
burglary: Nighttime, or first-degree, burglary, carrying a penalty term of not less than 1 nor
more than 15 years' imprisonment; daytime, or second-degree, burglary, carrying a penalty
term of not more than 5 years' imprisonment.
3
In 1967, the Legislature amended the burglary
statute by decreasing the disparity in the penalty provisions between first- and second-degree
burglary. Act of March 29, 1967, ch. 211, 138 [1967] Stats. Nev. 494, amending NRS
205.060.
4
The following year, the Legislature did away with the distinction between first-
and second-degree burglary and provided that "[a]ny person convicted of burglary shall be
punished by imprisonment in the state prison for not less than 1 year nor more than 10
years."
____________________
years. Whenever such burglary is committed upon a railroad train, in motion or in rest, in this State, and it
cannot with reasonable certainty be ascertained in what county said crime was committed, the offender may be
arrested and tried in any county through which said railroad train may have run. Every person who, in the
day-time, shall enter any dwelling house, shop, warehouse, depot, store, mill, barn, stable, outhouse, other
building, vessel, or railroad passenger or freight car, with intent to steal, or to commit any felony whatever
therein, is guilty of housebreaking, and, on conviction, shall be punished by imprisonment in the State Prison for
not less than one nor more than five years. Night-time, as in this section named, means the period between sunset
and sunrise. If housebreaking be committed upon any railroad train, in motion or in rest, in this State, and it
cannot with reasonable certainty be ascertained in what county said crime was committed, the offender may be
arrested and tried in any county through which said railroad train may have run. (Emphasis added.)

3
Act of Feb. 20, 1909, ch. 27, 1 [1909] Stats. Nev. 25:
SECTION 1. Section fifty-nine of said Act [(1861) Laws Nev. Territory 66 (Gillespie 1862)] is hereby
amended to read as follows:
Section 59. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill,
barn, stable, outhouse, or other building, tent, vessel, or railroad car, with intent to commit grand or petit
larceny, or any felony, is guilty of burglary.
Every burglary committed in the night-time is burglary of the first degree, and every burglary committed in
the daytime is burglary of the second degree.
Burglary of the first degree is punishable by imprisonment in the State Prison for not less than one nor more
than fifteen years.
Burglary of the second degree is punishable by imprisonment in the State Prison for not more than five
years.
Whenever burglary is committed upon a railroad train, in motion or in rest, in this State, and it cannot with
reasonable certainty be ascertained in what county said crime was committed, the offender may be arrested and
tried in any county through which said railroad train may have run.
The phrase night-time,' as used in this section, means the period between sunset and sunrise.

4
Act of March 29, 1967, ch. 211, 138 [1967] Stats. Nev. 494:
SEC. 138. NRS 205.060 is hereby amended to read as follows:
205.060 1. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill,
barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or housetrailer,
88 Nev. 188, 192 (1972) Page v. State
burglary and provided that [a]ny person convicted of burglary shall be punished by
imprisonment in the state prison for not less than 1 year nor more than 10 years. Act of Feb.
26, 1968, ch. 22, 3 [1968] Stats. Nev. 45-46.
5

The Legislature did not, as Page would have us believe, delete from the burglary statute
burglary perpetrated during the daytime. To make it clear that there was no such intendment,
the 1971 Legislature amended the burglary statute again, by inserting the phrase either by
day or night, in subsection 1 of NRS 205.060.
6
[Headnotes 2, 3]

____________________
or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary.
2. Nighttime' as used in this section means the period between sunset and sunrise.
3. Every burglary committed in the nighttime is burglary of the first degree. Burglary of the first degree is
punishable by imprisonment in the state prison for not less than 1 nor more than [15] 12 years.
4. Every burglary committed in the daytime is burglary of the second degree. Burglary of the second degree
is punishable by imprisonment in the state prison for not less than 1 year nor more than [5] 10 years.
5. Whenever burglary is committed upon a railroad train, vehicle, vehicle trailer, semitrailer or housetrailer,
in motion or in rest, in this state, and it cannot with reasonable certainty be ascertained in what county the crime
was committed, the offender may be arrested and tried in any county through which the railroad train, vehicle,
vehicle trailer, semitrailer or housetrailer may have run on the trip during which such burglary is committed.
(Brackets and emphasis in original, indicating, respectively, deleted and new wording.)

5
Act of Feb. 26, 1968, ch. 22, 3 [1968] Stats. Nev. 45-46:
SEC. 3. NRS 205.060 is hereby amended to read as follows:
205.060 1. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill,
barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or housetrailer,or
railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary.
2. Any person convicted of burglary shall be punished by imprisonment in the state prison for not less than
1 year nor more than 10 years. [Emphasis in original.]

6
Act of April 25, 1971, ch. 547, 1 [1971] Stats. Nev. 1161-1162:
SECTION 1. NRS 205.060 is hereby amended to read as follows:
205.060 1. Every person who, either by day or night, enters any house, room, apartment, tenement, shop,
warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer,
88 Nev. 188, 193 (1972) Page v. State
[Headnotes 2, 3]
3. Page claims the court erred in admitting Anderson's testimony because Anderson
testified on direct examination that Page was wearing at the time of his arrest a white T-shirt,
dark-colored slacks, and a beret-type cap or hat. On cross-examination, Anderson admitted
that he had signed a statement for the police that Page was wearing tan or light-colored
slacks. While Page's argument is not clear, it appears to be his position now that this so-called
discrepancy in the testimony regarding the color of Page's slacks rendered Anderson's
identification of Page inadmissible. Any discrepancy went only to the weight and not to the
admissibility of Anderson's testimony. See Collins v. State, 88 Nev. 9, 492 P.2d 991 (1972).
[Headnote 4]
4. Finally, Page complains that the court erred in admitting into evidence the pliers and
knife found under the pickup truck. Officer Oren testified that, as he approached Page and his
companion, he saw them throw two objects under the pickup truck. Page later admitted at
trial that he was the one who threw the pliers and knife under the truck. It was not error to
receive the two items in evidence.
The judgment of conviction is affirmed.
____________________
semitrailer or housetrailer, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of
burglary. [Emphasis in original.]
2. . . . [No change; same as in 1968 Act, supra.]
3. . . . [No change; same as in 1968 Act, supra.]
____________
88 Nev. 193, 193 (1972) Savage v. Salzmann
DOROTHY SAVAGE, aka DOROTHY REINDERS and DOROTHY MECUM, Appellant,
v. ALBERTA M. SALZMANN and ELSIE K. GIVENS,
Co-Administratrices of the Estate of Bernard Henry Teuscher, Deceased, Respondents.
No. 6672
March 30, 1972 495 P.2d 367
Appeal from judgment of dismissal with prejudice. Second Judicial District Court,
Washoe County; Thomas O. Craven, Judge.
Suit to set aside default judgment. The district court entered judgment dismissing action
with prejudice, and plaintiff appealed. The Supreme Court held that though complaint alleged
that parties had entered into prior agreement which would have obviated default judgment
and that plaintiff had relied upon agreement, in absence of showing of oral agreement
including its terms and where respondents categorically denied existence of agreement,
contention was not sufficient against a motion to dismiss but action should not have been
dismissed with prejudice.
Byron K. Meredith and Samuel B. Francovich, of Reno, for Appellant.
Laub, Clark, Puzey & Lane and Dennis R. Haney, of Reno, for Respondents.
1. Judgment.
Upon proof of extrinsic fraud, normal six-month limitation of rule for relief from judgment has no
application, but relief from intrinsic fraud must be sought not later than six months after the decree was
entered. NRCP 60(b).
2. Judgment.
Though complaint alleged that parties had entered into prior agreement which would have obviated
default judgment and that plaintiff had relied upon agreement, in absence of showing of oral agreement
including its terms and where respondents categorically denied existence of agreement, contention was not
sufficient against a motion to dismiss in suit to set aside default judgment, but action should not have been
dismissed with prejudice. NRCP 9(b).
3. Dismissal and Nonsuit.
A failure to plead with sufficient particularity does not warrant a dismissal of action with prejudice.
OPINION
Per Curiam:
On January 22, 1969, respondents Salzmann and Givens, co-administratrices of the Estate
of Bernard Henry Teuscher, obtained a default judgment in a separate action against appellant
Savage. On May 19, 1970, appellant filed suit to set aside that default judgment. Her
complaint alleged that it was filed pursuant to NRCP 60(b) which provides that an
independent action may be brought to set aside a judgment for fraud upon the court. The
complaint further alleges that prior to the entry of said default judgment the parties hereto
had entered into an oral agreement which, if observed, would have obviated the
judgment."
entered into an oral agreement which, if observed, would have obviated the judgment. It was
also alleged that the oral agreement had operated to lull the plaintiff into inactivity so that
some unconscionable advantage would be gained by respondents. No particular facts were
pleaded.
Respondents moved to dismiss the complaint on the grounds that the default judgment
obtained in the prior action operated as res judicata and that plaintiff was estopped from
raising her contentions since she had failed to act within six months following the entry of the
original default judgment. The lower court entered judgment dismissing appellant's action
with prejudice. The sole issue raised on appeal is whether the lower court erred in rendering
its judgment of dismissal with prejudice.
[Headnote 1]
NRCP 60(b) expressly states that it does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order or proceeding, or to set aside a
judgment for fraud upon the court. The purpose of this part of the rule is to afford relief
upon proof of extrinsic fraud, and the normal six month limitation of Rule 60(b) has no
application. Manville v. Manville, 79 Nev. 487, 387 P.2d 661 (1963). Relief from intrinsic
fraud, under NRCP 60(b), must be sought not later than six months after the decree was
entered.
Extrinsic fraud is defined as fraud by reason of which there was, in fact, no adversary trial
or decision of the issue in the case; where there has never been a real contest in the trial or
hearing of the case. Villalon v. Bowen, 70 Nev. 456, 469, 273 P.2d 409 (1954), citing
United States v. Throckmorton, 98 U.S. 61 (1878). Extrinsic fraud has been held to exist
when the unsuccessful party is kept away from the court by a false promise of compromise, or
such conduct as prevents a real trial upon the issues involved, or any other act or omission
which procures the absence of the unsuccessful party at trial. Further, it consists of fraud by
the other party to the suit, which prevents the losing party either from knowing about his
rights or defenses, or from having a fair opportunity of presenting them upon the trial.
Murphy v. Murphy, 65 Nev. 264, 271, 193 P.2d 850 (1948), quoted with approval in Colby v.
Colby, 78 Nev. 150, 369 P.2d 1019 (1962).
[Headnote 2]
In this case, appellant's complaint alleged that the parties had entered into a prior
agreement which would have obviated the default judgment and that she had relied upon this
agreement. Hence, appellant has alleged facts which if proved would support a finding of
extrinsic fraud.
support a finding of extrinsic fraud. However, appellant has failed to comply with NRCP 9(b)
which provides that in all averments of fraud or mistake, the circumstances constituting
fraud or mistake shall be stated with particularity. Appellant has, without evidence or
affidavit, merely contended that an oral agreement existed between herself and the
respondents prior to the default judgment. In the absence of a showing of the oral agreement,
including its terms, and because respondents have categorically denied the existence of the
agreement, such a contention is not sufficient against a motion to dismiss. Garteiz v. Garteiz,
70 Nev. 77, 254 P.2d 804 (1953); Mazour v. Mazour, 64 Nev. 245, 180 P.2d 103 (1947).
[Headnote 3]
Even if the district court was correct in granting the motion to dismiss, the action should
not have been dismissed with prejudice. Respondents' motion to dismiss did not apprise
appellant of the fact that her complaint was subject to dismissal for failure to state a cause of
action. If it had, appellant could have requested leave to amend her complaint. A failure to
plead with sufficient particularity does not warrant a dismissal of the action with prejudice.
Accordingly, the judgment of dismissal is reversed, and the action is remanded to the
district court with instructions to afford appellant the opportunity to plead with sufficient
particularity the circumstances constituting the alleged fraud.
____________
88 Nev. 196, 196 (1972) Watson v. State
CHARLES L. WATSON, Appellant, v. STATE
No. 6317
March 30, 1972 495 P.2d 365
Appeal from judgment of conviction. Sixth Judicial District Court, Humboldt County;
Llewellyn A. Young, Judge.
Prosecution for possession of marijuana. A jury in the district court found defendant guilty
and he was sentenced. Defendant appealed. The Supreme Court, Thompson, J., held that a
charge of possession of narcotic drug requires union of act and intent, and the necessary
intent does not exist when an amount is so minute as to be incapable of being applied to any
use, though chemical analysis may identify a trace of narcotics. The court also held that
unlawful possession of narcotic drug could not be established merely by proof that
contraband was found in a bedroom which was customarily occupied by defendant's
daughters but to which he also had access.
drug could not be established merely by proof that contraband was found in a bedroom which
was customarily occupied by defendant's daughters but to which he also had access.
Reversed.
J. Rayner Kjeldsen, of Reno, for Appellant.
Robert List, Attorney General, and William Macdonald, District Attorney, Humboldt
County, for Respondent.
1. Drugs and Narcotics.
Charge of possession of narcotic drug requires union of act and intent, and necessary intent does not exist
when amount is so minute as to be incapable of being applied to any use, though chemical analysis may
identify trace of narcotics. NRS 453.030.
Unlawful possession of narcotic drug could not be established merely by proof that contraband was found
in bedroom which was customarily occupied by defendant's daughters but to which he also had access.
NRS 453.030.
OPINION
Charles Watson was charged by indictment with possession of marijuana. A jury found
him guilty and the court has pronounced judgment upon the verdict. By this appeal he
contends that the evidence is insufficient to sustain the conviction.
1
For the reasons hereafter
discussed we believe that the judgment must be reversed.
The police, armed with a search warrant, entered Watson's home and discovered 17
marijuana seeds weighing but a fraction of a gram scattered on the floor in the bedroom
occupied by his two teen-age daughters. No other marijuana was found in the house and none
was found on his person. Watson testified that he had never possessed marijuana, used it, nor
did he recognize its appearance. The expert witness for the State explained that the active
ingredient of marijuana, tetrahydrocannabinol, was practically nonexistent in the seeds and
that they were useless as a narcotic. Such is the relevant evidence.
[Headnote 1]
1. The Uniform Narcotic Drug Act that Nevada has adopted declares it to be unlawful for
any person to possess any narcotic drug.
____________________

1
Other errors also are assigned but need not be considered.
any narcotic drug. NRS 453.030. Some courts hold that the word any is relevant to the
quantity of narcotic as well as to its type, and extend the statutory ban to possession of even
the most minute traces. People v. Harrington, 190 N.W.2d 343 (Mich.App. 1971); State v.
Young, 427 S.W.2d 510 (Mo. 1968); State v. Dodd, 137 N.W.2d 465 (Wis. 1965); State v.
Winters, 396 P.2d 872 (Utah 1964). Other courts believe that possession of minute quantities
of a narcotic, useless for either sale or consumption, is an insufficient foundation upon which
to sustain a conviction for possession. People v. Leal, 413 P.2d 665 (Cal. 1966); State v.
Larkins, 473 P.2d 854 (Wash.App. 1970); State v. Haddock, 418 P.2d 577 (Ariz. 1966). We
adopt the latter view. The charge of possession of a narcotic drug requires a union of act and
intent. The intent necessary to establish the crime of possession simply does not exist when
the amount is so minute as to be incapable of being applied to any use, even though chemical
analysis may identify a trace of narcotics.
2

[Headnote 2]
2. Equally valid is Watson's contention that unlawful possession may not be established
merely by proof that contraband was found in the bedroom customarily occupied by his
daughters to which he also had access. Guilty knowledge is not presumed. It has to be
established by evidence. In a sense it can be said that one has possession of everything that is
contained in the home or apartment in which he lives but this is not the sense in which
possession' is used in the penal statute. People v. Antista, 276 P.2d 177, 179 (Cal.App.
1954); People v. Fernandez, 342 P.2d 309 (Cal.App. 1959); People v. Savage, 274 P.2d 905
(Cal.App. 1954); People v. Barnett, 257 P.2d 1041 (Cal.App. 1953); People v. Bledsoe, 171
P.2d 950 (Cal.App. 1946).
Therefore, we conclude that the judgment below must be reversed and Charles L. Watson
discharged from custody. Since counsel for the appellant was appointed by the district court
to handle this appeal, we direct that court to compensate counsel as provided by NRS 7.260.
____________________

2
This case was tried before the 1971 amendment to NRS ch. 453 adding a new section: the amount of a
narcotic drug needed to sustain a conviction of a person for an offense prohibited by this chapter is that amount
necessary for identification as a narcotic drug by a witness qualified to make such identification. See Stats. Nev.
1971, ch. 250.
____________
88 Nev. 199, 199 (1972) Cardinal v. C. H. Masland & Sons
CHARLES W. CARDINAL (and, by Substitution, THERESA CARDINAL, Executrix
of the Estate of CHARLES W. CARDINAL, Deceased) and THERESA CARDINAL,
as Individuals and as General Partners of JOE CARDINAL COMPANY,
a Partnership, Appellants, v. C. H. MASLAND AND SONS,
a Pennsylvania Corporation, Respondent.
No. 6308
March 30, 1972 495 P.2d 364
Action by partners to cancel forged deed of trust covering partnership real property and to
recover such property which was sold under foreclosure sale. The district court granted
summary judgment for defendant, and plaintiffs appealed. The Supreme Court, Mowbray, J.,
87 Nev. 224, 484 P.2d 1075 (1971), reversed and remanded for a limited trial. On rehearing,
the Supreme Court, Thompson, J., held that where partner waited 21 months after acquiring
knowledge of forgery by his brother, who was also a partner in partnership consisting of such
brothers and their mother, of deed of trust covering partnership real property before bringing
suit along with his mother to cancel such deed of trust and recover the partnership property
from corporation which was payee under forging partner's note secured by such deed of trust
and which foreclosed on the deed of trust and bought the property under the foreclosure sale,
such 21-month period was unreasonable time to wait before filing suit, and plaintiffs were
thus deemed to have ratified the forgery.
Opinion on appeal overruled and order of district court granting summary judgment
affirmed.
Lionel Sawyer Collins & Wartman and Jeffrey N. Sheehan, of Las Vegas, for Appellants.
Beckley, DeLanoy & Jemison, of Las Vegas, for Respondent.
Partnership.
Where partner waited 21 months after acquiring knowledge of forgery by his brother, who was also a
partner in partnership consisting of such brothers and their mother, of deed of trust covering partnership
real property before bringing suit along with his mother to cancel such deed of trust and recover the
partnership property from corporation which was payee under forging partner's note secured by such deed
of trust and which foreclosed on the deed of trust and bought the property under the foreclosure sale, such
21-month period was unreasonable time to wait before filing suit, and plaintiff-partners were thus
deemed to have ratified the forgery.
88 Nev. 199, 200 (1972) Cardinal v. C. H. Masland & Sons
suit, and plaintiff-partners were thus deemed to have ratified the forgery.
OPINION ON REHEARING
On the appeal of this case we reversed an order of the district court granting summary
judgment to C. H. Masland and Sons in an action commenced by Charles and Theresa
Cardinal to cancel a deed of trust and recover partnership real property sold to Masland under
foreclosure sale. Cardinal v. C. H. Masland & Sons, 87 Nev. 224, 484 P.2d 1075 (1971), two
justices dissenting. We granted rehearing to reconsider that holding. A majority of this court
is now of the view that the district court order granting summary judgment should be
affirmed for the reasons expressed in the dissenting opinion on appeal. Accordingly, we
overrule our opinion on appeal, and affirm the order of the district court granting summary
judgment.
Batjer and Mowbray, JJ., concur.
Chief Justice Zenoff and Justice Gunderson adhere to the majority opinion on appeal
except that the remand for a new trial should not have been limited to the sole issue of
ratification.
Zenoff, C. J., and Gunderson, J.
____________
88 Nev. 200, 200 (1972) Western Land Co. v. Truskolaski
WESTERN LAND CO., LTD., Appellant, v. LEONARD
TRUSKOLASKI, et al., Respondents.
No. 6562
March 31, 1972 495 P.2d 624
Appeal from a temporary restraining order and from a judgment of the Second Judicial
District Court, Washoe County; Emile J. Gezelin, Judge.
Suit brought by subdivision homeowners to enjoin defendant from constructing a shopping
center on a 3.5-acre parcel of land located within the subdivision. The district court entered
judgment in favor of plaintiffs, and defendant appealed. The Supreme Court, Batjer, J., held
that restrictive covenants which specifically restricted entire 40 acres of subdivision to
single-family dwellings and which further prohibited any stores, butcher shops, grocery or
mercantile business of any kind were enforceable, and defendant was properly enjoined
from constructing a shopping center, since, notwithstanding defendant's claim that the
covenants should not be enforced because the subdivision had so radically changed in
recent years as to nullify their purpose, the evidence supported lower court's
determination that the covenants remained of substantial value to the subdivision
homeowners and that the changes which had occurred since 1941 {at which time the
restrictive covenants were imposed) were not so great as to make it inequitable or
oppressive to restrict the property to single-family residential use.
Supreme Court, Batjer, J., held that restrictive covenants which specifically restricted entire
40 acres of subdivision to single-family dwellings and which further prohibited any stores,
butcher shops, grocery or mercantile business of any kind were enforceable, and defendant
was properly enjoined from constructing a shopping center, since, notwithstanding
defendant's claim that the covenants should not be enforced because the subdivision had so
radically changed in recent years as to nullify their purpose, the evidence supported lower
court's determination that the covenants remained of substantial value to the subdivision
homeowners and that the changes which had occurred since 1941 (at which time the
restrictive covenants were imposed) were not so great as to make it inequitable or oppressive
to restrict the property to single-family residential use.
Affirmed.
Vargas, Bartlett and Dixon, and Jon J. Key, of Reno, for Appellant.
Breen, Young, Whitehead and Hoy, of Reno, for Respondents.
1. Covenants.
Notwithstanding defendant's claim that covenants which specifically restricted entire 40 acres of
subdivision to single-family dwellings should not be enforced because the subdivision had so radically
changed in recent years as to nullify their purpose, the evidence supported finding that the covenants
remained of substantial value to the homeowners and that the changes which had occurred since the time
the covenants were imposed were not so great as to make it inequitable or oppressive to restrict the
property to single-family residential use.
2. Covenants.
Even though nearby avenues may become heavily traveled thoroughfares, restrictive covenants are still
enforceable if the single-family residential character of the neighborhood has not been adversely affected,
and the purpose of the restrictions has not been thwarted.
3. Covenants.
Although, since 1941 when lots in subdivision were subjected to restrictive covenants specifically
restricting the subdivision to single-family dwellings, commercialization had increased in the vicinity of the
subdivision, such activity did not render the covenants unenforceable, since they were still of real and
substantial value to those homeowners living within the subdivision.
Where the evidence is conflicting and the credibility of witnesses is in issue, lower court's judgment will
not be disturbed on appeal if the evidence is substantially in support of the judgment.
5. Covenants.
A zoning ordinance cannot override privately-placed restrictions, and a trial court cannot be compelled to
invalidate restrictive covenants merely because of a zoning change.
6. Covenants.
Even if property in question was presently more valuable for commercial than residential purposes, that
fact did not entitle subdivider to be relieved of the restrictions it had created in 1941 on all lots within
subdivision, since substantial benefit inured to the restricted area by enforcement of the restrictive
covenants.
7. Covenants.
In order for community violations to constitute an abandonment of restrictive covenants, they must be so
general as to frustrate original purpose of the agreement.
OPINION
[Headnote 1]
The respondents, homeowners in the Southland Heights Subdivision in southwest Reno,
Nevada, brought an action in the district court to enjoin the appellant from constructing a
shopping center on a 3.5-acre parcel of lad located within the subdivision at the northeast
corner of Plumas and West Plumb Lane. In 1941 the appellant subdivided this 40-acre
development, and at that time it subjected the lots to certain restrictive covenants which
specifically restricted the entire 40 acres of the subdivision to single family dwellings and
further prohibited any stores, butcher shops, grocery or mercantile business of any kind.
1
The district court held these restrictive covenants to be enforceable, and enjoined the
appellant from constructing a supermarket or using the 3.5 acres in any manner other than
that permitted by the covenants.
____________________

1
The agreement as to building restrictions for the Southland Heights Subdivision, signed and filed for record
by the Western Land Co., Ltd., provides in pertinent part as follows:
WHEREAS, the said Western Land Co. Ltd. desires to subject said lots to the conditions and restrictions
hereinafter set forth for the benefit of said lots and of the present and subsequent owners thereof.
NOW, THEREFORE, the Western Land Co. Ltd., for the benefits and considerations herein set forth
accrued and accruing to it, does covenant and agree that said lots, pieces, and parcels of land shall be held or
conveyed subject to the following conditions and restrictions, to-wit:
1. No structures shall be erected, altered, placed or permitted to remain on any of said lots or parcels of
ground other than one single family dwelling. . . .
. . . .
4. No store, butcher shop, grocery or mercantile business of any
that permitted by the covenants. The appellant contends that the district court erred in
enforcing these covenants because the subdivision had so radically changed in recent years as
to nullify their purpose. We agree with the holding of the district court that the restrictive
covenants remain of substantial value to the homeowners in the subdivision, and that the
changes that have occurred since 1941 are not so great as to make it inequitable or oppressive
to restrict the property to single-family residential use.
In 1941 the Southland Heights subdivision was outside of the Reno city limits. The
property surrounding the subdivision was primarily used for residential and agricultural
purposes, with very little commercial development of any type in the immediate area. At that
time Plumb Lane extended only as far east as Arlington Avenue.
By the time the respondents sought equitable relief in an effort to enforce the restrictive
covenants, the area had markedly changed. In 1941 the city of Reno had a population of
slightly more than 20,000; that figure had jumped to approximately 95,100 by 1969. One of
the significant changes, as the appellant aptly illustrates, is the increase in traffic in the
surrounding area. Plumb Lane had been extended to Virginia Street, and in 1961 the city of
Reno condemned 1.04 acres of land on the edge of the subdivision to allow for the widening
of Plumb Lane into a four-lane arterial boulevard. A city planner, testifying for the appellant,
stated that Plumb Lane was designed to be and now is the major east-west artery through the
southern portion of the city. A person who owns property across Plumas from the subdivision
testified that the corner of Plumb Lane and Plumas is terribly noisy from 5:00 p. m. until
midnight. One of the findings of the trial court was that traffic on Plumb Lane had greatly
increased in recent years.
____________________
kind shall be maintained, carried on, or conducted upon any of said lots or parcels. . . .
. . . .
10. These covenants are to run with the land and shall be binding upon all the parties and all persons
claiming under them until January 1st, 1966, at which time said covenants shall be automatically extended for
successive periods of ten years unless by a vote of the majority of the then owners of the lots it is agreed to
change the said covenants in whole or in part; . . . and whether or not it be so expressed in the deeds or other
conveyances of said lots, the same shall be absolutely subject to the covenants, conditions, and restrictions which
run with and are appurtenant to said lots or every part thereof as herein expressed as fully as if expressly
contained in proper and obligatory covenants and conditions in each and every deed, contract, and conveyance
of or concerning any part of the said land or the improvements to be made thereon.
Another significant change that had occurred since 1941 was the increase in commercial
development in the vicinity of the subdivision. On the east side of Lakeside Drive, across
from the subdivision property, is a restaurant and the Lakeside Plaza Shopping Center. A
supermarket, hardware store, drug store, flower shop, beauty shop and a dress shop are
located in this shopping center. Still further east of the subdivision, on Virginia Street, is the
Continental Lodge, and across Virginia Street is the Park Lane Shopping Center.
Even though traffic has increased and commercial development has occurred in the
vicinity of the subdivision, the owners of land within Southland Heights testified to the
desirability of the subdivision for residential purposes. The traffic density within the
subdivision is low, resulting in a safe environment for the children who live and play in the
area. Homes in Southland Heights are well cared for and attractively landscaped.
The trial court found that substantial changes in traffic patterns and commercial activity
had occurred since 1941 in the vicinity of the subdivision. Although it was shown that
commercial activity outside of the subdivision had increased considerably since 1941, the
appellant failed to show that the area in question is now unsuitable for residential purposes.
[Headnotes 2, 3]
Even though nearby avenues may become heavily traveled thoroughfares, restrictive
covenants are still enforceable if the single-family residential character of the neighborhood
has not been adversely affected, and the purpose of the restrictions has not been thwarted.
Burden v. Lobdell, 235 N.E.2d 660 (Ill. App. 1968); Gonzales v. Gackle Drilling Company,
353 P.2d 353 (N.M. 1960); Continental Oil Co. v. Fennemore, 299 P. 132 (Ariz. 1931).
Although commercialization has increased in the vicinity of the subdivision, such activity has
not rendered the restrictive covenants unenforceable because they are still of real and
substantial value to those homeowners living within the subdivision. West Alameda Heights
H. Ass'n. v. Board of Co. Com'm., 458 P.2d 253 (Colo. 1969); Burden v. Lobdell, supra;
Hogue v. Dreeszen, 73 N.W.2d 159 (Neb. 1955).
The appellant asks this court to reverse the judgment of the district court and declare as a
matter of law that the objects and purposes for which the restrictive covenants were originally
imposed have been thwarted, and that it is now inequitable to enforce such restrictions against
the entity that originally created them. This we will not do. The record will not permit us to
find as a matter of law that there has been such a change in the subdivision or for that
matter in the area to relieve the appellant's property of the burden placed upon it by the
covenants.
in the subdivision or for that matter in the area to relieve the appellant's property of the
burden placed upon it by the covenants. There is sufficient evidence to sustain the findings of
the trial court that the objects and purposes of the restrictions have not been thwarted, and
that they remain of substantial value to the homeowners in the subdivision.
The case of Hirsch v. Hancock, 343 P.2d 959 (Cal.App. 1959) as well as the other
authorities relied upon by the appellant [Key v. McCabe, 356 P.2d 169 (Cal. 1960); Strong v.
Hancock, 258 P. 60 (Cal. 1927); Downs v. Kroeger, 254 P. 1101 (Cal. 1927)] are inapposite
for in those cases the trial court found many changes within as well as outside the subdivision
and concluded from the evidence that the properties were entirely unsuitable and undesirable
for residential use and that they had no suitable economic use except for business or
commercial purposes, and the appellate courts in reviewing those cases held that the evidence
supported the findings and sustained the judgments of the trial courts.
On the other hand, in the case of West Alameda Heights H. Ass'n. v. Board of Co.
Com'm., supra, upon facts similar to those found in this case, the trial court decided that the
changed conditions in the neighborhood were such as to render the restrictive covenants void
and unenforceable. The appellate court reversed and held that the trial court misconceived
and misapplied the rule as to change of conditions and said, 458 P.2d at 256: As long as the
original purpose of the covenants can still be accomplished and substantial benefit will inure
to the restricted area by their enforcement, the covenants stand even though the subject
property has a greater value if used for other purposes. See also Rombauer v. Compton
Heights Christian Church, 40 S.W.2d 545 (Mo. 1931); Porter v. Johnson, 115 S.W.2d 529
(Mo.App. 1938); Finley v. Batsel, 353 P.2d 350 (N.M. 1960); Southwest Petroleum Co. v.
Logan, 71 P.2d 759 (Okla. 1937); Burden v. Lobdell, supra.
[Headnote 4]
There is substantial evidence in the record to support the trial court's findings of fact and
conclusions of law that the covenants were of real and substantial value to the residents of the
subdivision. Where the evidence is conflicting and the credibility of the witnesses is in issue,
the judgment will not be disturbed on appeal if the evidence is substantially in support of the
judgment of the lower court. Bangston v. Brown, 86 Nev. 653, 473 P.2d 829 (1970); Brandon
v. Travitsky, 86 Nev. 613, 472 P.2d 353 (1970); Havas v. Alger, 85 Nev.
627, 461 P.2d 857 (1969). Here the appellant has not carried its burden of showing that the
subdivision is not now suitable for residential purposes because of changed conditions.
[Headnote 5]
In another attempt to show that the restrictive covenants have outlived their usefulness, the
appellant points to actions of the Reno city council. On August 1, 1968, the council adopted a
Resolution of Intent to reclassify this 3.5-acre parcel from R-1 [residential] to C-1(b)
[commercial]. The council never did change the zoning, but the appellant contends that since
the council did indicate its willingness to rezone, it was of the opinion that the property was
more suitable for commercial than residential use. This argument of the appellant is not
persuasive. A zoning ordinance cannot override privately-placed restrictions, and a trial court
cannot be compelled to invalidate restrictive covenants merely because of a zoning change.
Rice v. Heggy, 322 P.2d 53 (Cal.App. 1958).
[Headnote 6]
Another of the appellant's arguments regarding changed conditions involves the value of
the property for residential as compared to commercial purposes. A professional planning
consultant, testifying for the appellant, stated that the land in question is no longer suitable for
use as a single-family residential area. From this testimony the appellant concludes that the
highest and best use for the land is non-residential. Even if this property is more valuable for
commercial than residential purposes, this fact does not entitle the appellant to be relieved of
the restrictions it created, since substantial benefit inures to the restricted area by their
enforcement. West Alameda Heights H. Ass'n. v. Board of Co. Com'm., supra; Cawthon v.
Anderson, 84 S.E.2d 66 (Ga. 1954).
In addition to the alleged changed circumstances, the appellant contends that the restrictive
covenants are no longer enforceable because they have been abandoned or waived due to
violations by homeowners in the area. Paragraph 3 of the restrictive agreement provides that
no residential structure shall be placed on a lot comprising less than 6,000 square feet. Both
lot 24 and lot 25 of block E contain less than 6,000 square feet and each has a house located
on it. This could hardly be deemed a violation of the restrictions imposed by the appellant
inasmuch as it was the appellant that subdivided the land and caused these lots to be smaller
than 6,000 feet. Paragraph 7 of the agreement provides that a committee shall approve any
structure which is moved onto the subdivision, or if there is no committee, that the
structure shall conform to and be in harmony with existing structures.
if there is no committee, that the structure shall conform to and be in harmony with existing
structures. The appellant did show that two houses were moved on to lots within the
subdivision, but the appellant failed to show whether a committee existed and if so approved
or disapproved, or whether the houses failed to conform or were out of harmony with the
existing structures. Finally, in an effort to prove abandonment and waiver, the appellant
showed that one house within the subdivision was used as a painting contractor's office for
several years in the late 1940's, and that more recently the same house had been used as a
nursery for a baby sitting business. However, the same witnesses testified that at the time of
the hearing this house was being used as a single-family residence.
[Headnote 7]
Even if the alleged occurrences and irregularities could be construed to be violations of the
restrictive covenants they were too distant and sporadic to constitute general consent by the
property owners in the subdivision and they were not sufficient to constitute an abandonment
or waiver. In order for community violations to constitute an abandonment, they must be so
general as to frustrate the original purpose of the agreement. Thodos v. Shirk, 79 N.W.2d 733
(Iowa 1956).
Affirmed.
____________
88 Nev. 207, 207 (1972) Moore v. Board of Trustees
GEORGE L. MOORE, Appellant, v. THE BOARD OF TRUSTEES OF CARSON-TAHOE
HOSPITAL, a Public Hospital, and WILLIAM SCHULTZ, WILLIAM YOUNG,
GENE GOLD, JOSEPH LITTLEFIELD, and MARY GIALY, Constituting
the Members of Said Board, Respondents.
No. 6684
April 6, 1972 495 P.2d 605
Appeal from order of the First Judicial District Court, Carson City; Richard L. Waters, Jr.,
Judge.
Proceeding on petition for writ of mandate to force board of trustees of public hospital to
restore petitioner-doctor's medical staff privileges. The district court denied request, and
doctor appealed. The Supreme Court, Mowbray, J., held that board, in terminating, on
grounds of unprofessional conduct, staff privileges of doctor, who, with regard to attempt
to administer spinal anesthetic, unsuccessfully attempted spinal puncture several times
and performed minimal skin preparation and placed fingers on spinal needle without
wearing sterile gloves, and who had scheduled surgery that was cancelled on basis that
he was in no condition physically or mentally to perform such surgery, had not acted
arbitrarily or without standard to guide it, though doctor's acts complained of were not
expressly defined and prohibited in bylaws, rules and regulations promulgated by
hospital.
board, in terminating, on grounds of unprofessional conduct, staff privileges of doctor, who,
with regard to attempt to administer spinal anesthetic, unsuccessfully attempted spinal
puncture several times and performed minimal skin preparation and placed fingers on spinal
needle without wearing sterile gloves, and who had scheduled surgery that was cancelled on
basis that he was in no condition physically or mentally to perform such surgery, had not
acted arbitrarily or without standard to guide it, though doctor's acts complained of were not
expressly defined and prohibited in bylaws, rules and regulations promulgated by hospital.
Affirmed.
[Rehearing denied May 3, 1972]
Thompson and Gunderson, JJ., dissented.
Carl F. Martillaro, of Carson City, for Appellant.
Michael E. Fondi, District Attorney, and Laxalt, Berry & Allison, of Carson City, for
Respondents.
1. Hospitals.
Board of trustees of public hospital, in terminating, on grounds of unprofessional conduct, staff privileges
of doctor, who, with regard to attempt to administer spinal anesthetic, unsuccessfully attempted spinal
puncture several times and performed minimal skin preparation and placed fingers on spinal needle without
wearing sterile gloves, and who scheduled surgery that was cancelled on basis that he was in no condition
physically or mentally to perform such surgery, had not acted arbitrarily or without standard to guide it,
though doctor's acts complained of were not expressly defined and prohibited in bylaws, rules and
regulations promulgated by hospital. NRS 450.010 et seq., 450.160, 450.180, subd. 4, 450.440,
subd. 1.
2. Hospitals.
Right to enjoy medical staff privileges in community hospital is not an absolute right, but is subject to
reasonable rules and regulations of hospital.
3. Hospitals.
Board of trustees of a community hospital may not act arbitrarily or unreasonably deny medical staff
privileges to doctor.
OPINION
The appellant, George L. Moore, is a doctor of medicine and is licensed to practice in the
State of Nevada. He also enjoyed medical staff privileges at the Carson-Tahoe Hospital
until they were terminated on February 19, 1970, by action of the Hospital Board of
Trustees.
enjoyed medical staff privileges at the Carson-Tahoe Hospital until they were terminated on
February 19, 1970, by action of the Hospital Board of Trustees. Doctor Moore filed a petition
in the district court seeking a writ of mandate in an effort to force the Board to restore his
medical staff privileges. The district judge denied his request and hence this appeal.
The issues presented for our consideration may be summarized under two headings: (1) Is
the action of a governing board of a public hospital arbitrary, capricious, and unreasonable
when it terminates the medical staff privileges of a physician on the grounds of
unprofessional conduct, where the acts constituting the conduct complained of are not
expressly defined and prohibited in the bylaws, rules, and regulations promulgated by the
hospital? (2) Is there sufficient evidence in this case to support the findings of the Board?
1. Doctor Moore was charged with 12 alleged acts of unprofessional conduct, and he was
found guilty of Charges Nos. 7 and 11 of the complaint. Those charges read as follows:
7. On or about July 26, 1969, you attempted to administer to an O.B. patient, ready to
deliver a baby, a spinal anesthetic without benefit of sterile technique in that you prepared the
medication, performed a minimal skin preparation and placed your fingers on the spinal
needle, all without wearing sterile gloves. Additionally, you attempted the spinal puncture
several times, all attempts being unsuccessful.
11. On or about July 28, 1969, you had a meeting with the Chief of Staff, Doctor
Thomas Hines, and Doctor William King, at approximately 7:30 a.m. in the morning, after
which Doctor Hines, with the concurrence of Doctor King, cancelled certain surgery you had
scheduled on the basis that you were in no condition physically or mentally to perform
surgery.
2. The Carson-Tahoe Hospital is a public hospital and is governed by the provisions of
NRS 450.010 through 450.700. NRS 450.160 provides as follows:
The board of hospital trustees shall make and adopt such bylaws, rules and regulations for
its own guidance and for the government of the hospital, and such rules and regulations
governing the admission of physicians to the staff, as may be deemed expedient for the
economic and equitable conduct thereof, not inconsistent with NRS 450.010 to 450.510,
inclusive, or the ordinances of the city or town wherein such hospital is located.
NRS 450.180, subsection 4, further provides:
The board of hospital trustees shall have the power:
. . .
4. To control the admission of physicians, surgeons and interns to the staff by
promulgating appropriate rules, regulations and standards governing such appointments.
The Hospital Board of Trustees, as the governing body of the institution, promulgated
bylaws, rules, and regulations designed to govern the medical staff of the Hospital.
NRS 450.440, subsection 1, provides:
1. The board of hospital trustees shall organize a staff of physicians composed of every
regular practicing physician in the county in which the hospital is located who meets the
standards fixed by the rules and regulations laid down by the board of hospital trustees.
The delegated power to establish admission standards for medical staff members impliedly
includes the power to continue to regulate membership after admission. It is axiomatic under
the rule of statutory construction that a power conferred by statute necessarily carries with it
the power to make it effective and complete. See Checker, Inc. v. Public Serv. Comm'n, 84
Nev. 623, 629-630, 446 P.2d 981, 985 (1968), citing Koelling v. Board of Trustees, 146
N.W.2d 284 (Iowa 1966).
[Headnote 1]
Article 4, Section 5, of the Hospital's By-Laws, Rules & Regulations Governing the
Medical Staff provides in part that any Medical Staff member who is guilty of
unprofessional conduct, may have his privileges reviewed[,] altered or rescinded by the Board
of Trustees on recommendation of the Medical Staff. Doctor Moore was formally charged
by a complaint that set forth with specificity in 12 counts the acts with which he was charged.
He was present with counsel at all stages of the proceedings and was afforded the right of
cross-examination of witnesses and the right to call witnesses in his own behalf. There is no
procedural due process challenge presented in this case. Rather, Doctor Moore complains that
he was denied substantive due process because the acts of which he was found guilty
(numbered paragraphs 7 and 11 of the complaint) were not specifically proscribed in the
Hospital's By-Laws, Rules & Regulations Governing the Medical Staff, and therefore they
cannot constitute a predicate for the Board's conclusion that he was guilty of unprofessional
conduct. We do not agree.
In North Broward Hosp. Dist. v. Mizell, 148 So.2d 1 (Fla. 1962), the court held that the
governing body of the hospital should be permitted certain discretion under the broad
standard [for] the good of the hospital or the patients therein, and that such words were
essentially the same in meaning, when used in such context, as those used in other
instances to authorize suspension for "unprofessional conduct."
that such words were essentially the same in meaning, when used in such context, as those
used in other instances to authorize suspension for unprofessional conduct. The court ruled
that the particular bylaw provision set an objective standard upon which a board could act and
by which a physician would have sufficient notice to guide him in his conduct. The court
said, 148 So.2d at 5:
. . . There is at least equal difficulty in precise definition of professional fitness for staff
membership in any given institution . . . Detailed description of prohibited conduct is
concededly impossible, perhaps even undesirable in view of rapidly shifting standards of
medical excellence and the fact that a human life may be and quite often is involved in the
ultimate decision of the board.
The Oregon Supreme Court, in a case involving a revocation of a physician's license to
practice medicine, said in In re Mintz, 378 P.2d 945, 948 (Ore. 1963):
. . . [T]he variety of forms which unprofessional conduct may take makes it infeasible to
attempt to specify in a statute or regulation all of the acts which come within the meaning of
the term. The fact that it is impossible to catalogue all of the types of professional misconduct
is the very reason for setting up the statutory standard in broad terms and delegating to the
board the function of evaluating the conduct in each case. . . .
If the standard unprofessional conduct is sufficiently objective in the case of a
revocation of a physician's license to practice, it should be a sufficiently objective standard to
guide a hospital board in acting upon the revocation of a physician's medical staff privileges
in a community hospital.
Today, in response to demands of the public, the hospital is becoming a community health
center. The purpose of the community hospital is to provide patient care of the highest
possible quality. To implement this duty of providing competent medical care to the patients,
it is the responsibility of the institution to create a workable system whereby the medical staff
of the hospital continually reviews and evaluates the quality of care being rendered within the
institution. The staff must be organized with a proper structure to carry out the role delegated
to it by the governing body. All powers of the medical staff flow from the board of trustees,
and the staff must be held accountable for its control of quality. The concept of corporate
responsibility for the quality of medical care was forcibly advanced in Darling v. Charleston
Community Memorial Hosp.
Hosp. 211 N.E.2d 253 (Ill. 1965), wherein the Illinois Supreme Court held that hospitals and
their governing bodies may be held liable for injuries resulting from imprudent or careless
supervision of members of their medical staffs. The role of the hospital vis-a-vis the
community is changing rapidly. The hospital's role is no longer limited to the furnishing of
physical facilities and equipment where a physician treats his private patients and practices
his profession in his own individualized manner.
[Headnotes 2, 3]
The right to enjoy medical staff privileges in a community hospital is not an absolute right,
but rather is subject to the reasonable rules and regulations of the hospital. Licensing, per se,
furnishes no continuing control with respect to a physician's professional competence and
therefore does not assure the public of quality patient care. The protection of the public must
come from some other authority, and that in this case is the Hospital Board of Trustees. The
Board, of course, may not act arbitrarily or unreasonably in such cases. The Board's actions
must also be predicated upon a reasonable standard.
In Selden v. City of Sterling, 45 N.E.2d 329 (Ill.App. 1942), the court ruled that the
recommendation of the medical staff executive committee, based on the observations of its
members of another physician's work, established a sufficient standard upon which to act in
the granting of medical staff privileges. In the present case, Dorothy Haman, a nurse
anesthetist, testified regarding Doctor Moore's unsuccessful attempts to administer the spinal
anesthetic. She also testified regarding the procedure normally utilized. Dr. Thomas Hines
testified that the procedure used by Doctor Moore substantially deviated from the accepted
practice. Doctor King likewise testified. These three witnesses established the objective
standard for administering spinal anesthetics. Doctor Moore failed to establish any other
standard. Rather, he admitted deviating from the standard procedure but felt that he was
justified in doing so. Doctors Hines and King testified that Doctor Moore was in no physical
or mental condition to perform surgery that he had scheduled on the morning of July 28,
1969. Doctor Hines, in conference with Doctor Moore, so advised him, and it was agreed that
the scheduled surgery be canceled. No physician should perform surgery when he is not
physically or mentally fit to do so.
After reviewing the record, it is clear that the Board did not act arbitrarily in this case, or
without a standard to guide it, and that the record does contain sufficient evidence to support
the charge of violation of the standard of professional care required in such cases.
the charge of violation of the standard of professional care required in such cases. Therefore,
the judgment of the district court is affirmed.
1

Zenoff, C. J., and Batjer, J., concur.
Thompson, J., with whom Gunderson, J., agrees, dissenting:
Dr. Moore, a Board certified physician and surgeon who specializes in obstetrics and
gynecology, and is licensed to practice in Nevada, appeals from a judgment denying his
petition for a writ of mandate to compel his admission to membership on the medical staff of
Carson-Tahoe Hospital, a public hospital.
2
He was excluded from staff privileges for
unprofessional conduct in that on one occasion he administered a spinal anesthetic without
wearing sterile gloves, and on another occasion he had appeared at the hospital to perform
scheduled surgery when in no condition physically or mentally to do so. The spinal anesthetic
was administered without damage to the patient. Dr. Moore acquiesced in the postponement
of the scheduled surgery and successfully performed the operation at a later time.
1. It is apparent that important rights and policies are involved. The effect of expulsion
from a medical staff can be disastrous for it may follow the doctor to other areas and have the
result of denying to a licensed physician qualified to practice in Nevada the right to fully
exercise his profession. Conditions of modern medicine almost make it imperative that a
doctor have a hospital in which he can practice. On the other hand, a hospital cannot function
without its medical staff whose most important responsibility is to see that the staff members
conform to certain standards which the community has the right to expect.
The Board of Hospital Trustees enjoys the power to control the admission of physicians
to the staff by promulgating appropriate rules,
____________________

1
Of course, this ruling is not to be interpreted as barring forever Doctor Moore from seeking staff privileges
at the Hospital. He may, if he wishes, at a later date submit his application for readmission to the Board for its
consideration.

2
A doctor has a right to treat his patients in a public hospital so long as he conforms to the reasonable rules
and regulations of the hospital. Findlay v. Board of Sup'rs of County of Mohave, 230 P.2d 526 (Ariz. 1951);
Ware v. Benedikt, 280 S.W.2d 234 (Ark. 1955); Hamilton County Hospital v. Andrews, 84 N.E.2d 469 (Ind.
1949). And, of course, a writ of mandate may issue to compel the admission of a party to the use and enjoyment
of a right or office to which he is entitled and from which he is unlawfully precluded. . . . NRS 34.160; State v.
City of Parkersburg, 136 S.E.2d 783 (W.Va. 1964).
the admission of physicians to the staff by promulgating appropriate rules, regulations and
standards [NRS 450.180(4); 450.440(1)] and concomitantly, possesses the power to exclude
physicians who do not comply with appropriate rules thus promulgated. The By-Laws, Rules
& Regulations Governing the Medical Staff promulgated by the Carson-Tahoe Board of
Trustees, in relevant part, provide only that any Medical Staff member who is guilty of
unprofessional conduct may have his privileges reviewed, altered or rescinded by the Board
of Trustees on recommendation of the Medical Staff. One searches in vain for a description
of unprofessional conduct even in general terms. Herein lies the difficulty with the instant
matter. A hospital should not be permitted to adopt standards for the exclusion of doctors
which are so vague and ambiguous as to provide a substantial danger of arbitrary
discrimination in their application. Rosner v. Eden Township Hospital District, 375 P.2d 431
(Cal. 1962); Jacobs v. Martin, 90 A.2d 151 (N.J.Sup. 1952).
Our legislature has defined unprofessional conduct for the guidance of the Board of
Medical Examiners in exercising its disciplinary powers. NRS 630.030; 630.300. A definition
was deemed essential in order to guard against discriminatory action by the Board of Medical
Examiners. A suitable definition is equally essential to protect a hospital staff member from
arbitrary conduct by a Board of Hospital Trustees of a public hospital. Absent that definition,
the Board is clothed with almost unlimited power, susceptible of abuse.
2. The acts for which Dr. Moore was expelled from the staff point to the need for a
definition of unprofessional conduct. His acquiescence in the request not to perform
scheduled surgery was an act of compliance rather than an act of disobedience. And, the
administration of an anesthetic without sterile gloves can be no more than an isolated instance
of negligence which did not result in injury or damage. Such in isolated act without injury
cannot be a reasonable basis for revocation of staff privileges, for if it is, and if enforced
equally and without discrimination, medical staffs will disappear entirely. Every professional
man errs from time to time.
3. The Board is concerned with its liability to third persons for the misconduct of its staff
members. Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965).
This is a legitimate concern, but it possesses no relevance to the case at hand. Neither of the
instances relied upon by the Board to justify the expulsion of Dr. Moore could possibly result
in Board liability to others.
result in Board liability to others. Consequently, this concern of the Board points to the
arbitrariness of its action rather than to a reason for sustaining it. Cf. Boswell v. Bd. Med.
Ex., 72 Nev. 20, 293 P.2d 424 (1956).
The judgment should be reversed with directions to issue a writ of mandate compelling the
Board to admit Dr. Moore to membership on the medical staff.
____________
88 Nev. 215, 215 (1972) Burns v. State
WILLIAM BURNS, Appellant, v. THE STATE
No. 6682
April 6, 1972 495 P.2d 602
Appeal from judgment of First Judicial District Court, Churchill County; Frank B.
Gregory, Judge.
Defendant was convicted in the district court of grand larceny and was adjudged a habitual
criminal, and he appealed. The Supreme Court, Mowbray, J., held that where statements
defendant made at police station were not result of any police interrogation, but were
voluntary, statements were properly received in evidence, notwithstanding that defendant was
not given warnings of right to counsel and the right to remain silent; but that where there was
no affirmative showing that defendant was represented by counsel or that he had validly
waived his right to counsel in prior felony proceedings resulting in convictions, the prior
felony convictions could not be considered in determining whether defendant was a habitual
criminal.
Affirmed as to jury's verdict; reversed as to habitual criminal adjudication and
remanded to district judge for resentencing.
Noel E. Manoukian, of Zephyr Cove, for Appellant.
Robert List, Attorney General, Carson City; Dennis E. Evans, District Attorney, Churchill
1. Criminal Law.
Volunteered statements are not barred by the Fifth Amendment and they are not affected by United States
Supreme Court decision requiring warnings of right to counsel and right to remain silent. U.S.C.A.Const.
Amend. 5.
88 Nev. 215, 216 (1972) Burns v. State
2. Criminal Law.
Where statements defendant made at police station were not result of any police interrogation, but were
voluntary, statements were properly received in evidence, notwithstanding that defendant was not given
warnings of right to counsel and right to remain silent.
3. Larceny.
Evidence was sufficient to support conviction of grand larceny against defendant who allegedly picked
pocket of cabaret patron, was chased down the street by cabaret owner and bartender and threw out wad of
bills that defendant stated was the money that he had stolen.
4. Criminal Law.
A jury's verdict may not be disturbed where substantial evidence is adduced to support it.
5. Criminal Law.
Where trial court properly sustained defense counsel's objections to district attorney's argumentative
questions as to whether defendant was lying and where defendant's only answer was a negative one, failure
to admonish jury to disregard the colloquy between district attorney and defendant was not reversible error.
6. Criminal Law.
Prosecutors should not engage in argumentative questioning.
7. Criminal Law.
Instruction which was directed to weight jury could give the testimony of all the witnesses, not any
particular witness, did not result in unfair comment with respect to defendant's testimony.
8. Criminal Law.
Where defendant has been charged as a habitual criminal as well as convicted of substantive crime, trial
court must sentence on the substantive crime charged and then invoke the recidivist statute to determine the
penalty. NRS 207.010, subd. 1.
9. Criminal Law.
Where there was no affirmative showing that defendant was represented by counsel or that he had validly
waived his right to counsel in prior felony proceedings resulting in convictions prior felony convictions
could not be considered in determining whether defendant was a habitual criminal. NRS 207.010. subd.
1.
OPINION
William Burns picked the pocket of John Loter while the two were in a cabaret in Fallon,
Nevada. Burns obtained approximately $120. He was charged with grand larceny, tried to a
jury, and found guilty. Thereafter, in a separate hearing before the district judge, Burns was
adjudged to be a habitual criminal because he had been convicted of two prior felonies.
88 Nev. 215, 217 (1972) Burns v. State
NRS 207.010, subsection 1.
1
The district judge thereupon sentenced Burns to 25 years'
imprisonment in the State Prison. Burns has appealed, challenging the validity of his
conviction, as well as his sentence. We affirm the jury's verdict, but we reverse the habitual
criminal adjudication and remand the case to the district judge for resentencing.
1. Burns and Loter were patronizing the Club Horseshoe in Fallon, Nevada, on February
1, 1971, the date of the crime. While Loter was having a beer at the bar, Burns entered the
room and, enroute to the bar, brushed against Loter. Loter finished his beer and left the
club, but as he walked down the street he discovered that his wallet was missing. He
immediately walked back into the club and announced his loss to the owner's wife, the owner,
and the bartender. About that time, Burns emerged from the rest room and was accosted at
once by Loter, who demanded, Young man, if you have got my wallet I would like to have it
back. Burns remained silent. The bartender telephoned the police, whereupon Burns fled the
scene. The owner then went into the rest room and found Loter's empty wallet in a
wastebasket. The club owner and an extra bartender chased Burns down the street. They were
soon joined by Police Officer Alfred Mason in a squad car and were successful in overtaking
Burns. Burns was placed under arrest and taken to the police station. Officer Mason, whose
testimony was corroborated by Chief Donald Mills, testified at the trial that, as the police
were booking Burns, . . . [Burns] threw out to one side a wad of bills and he stated to me,
This is the money that I stole off the old man at the club. Give the money back to him and
give me a break.' or words to that effect. The wad contained four $20 and five $1 bills.
Burns was then placed in the lockup room. Meanwhile, Loter had arrived at the station. He
was shown the money and claimed that he had had more in his wallet.
____________________

1
NRS 207.010, subsection 1, as in effect on May 11, 1971, the date of sentencing:
Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of
petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or
elsewhere, of any crime which under the laws of the situs of the crime or of this state would amount to a felony,
or who shall previously have been three times convicted, whether in this state or elsewhere, of petit larceny, or of
any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be adjudged to
be an habitual criminal and shall be punished by imprisonment is (sic) the state prison for not less than 10
years. (Note: This subsection was amended effective July 1, 1971, by adding the phrase nor more than 20
years. See ch. 123, 1 [1971] Stats. Nev. 173.)
88 Nev. 215, 218 (1972) Burns v. State
had more in his wallet. Burns was then taken to an interrogation room and, upon entering,
said to Chief Mills, Here. Here's the rest of it, holding forth another $20 bill. He was told to
strip. He did so, and Loter's remaining $20 bill was found in his underwear. Burns then said,
according to Officer Mason, That's it.
[Headnotes 1, 2]
2. Burns claims as one of his assignments of error that the statements he volunteered to
the officers were improperly received in evidence because he was not given the Miranda
warning.
2
Miranda v. Arizona, 384 U.S. 436 (1966). We do not agree. Volunteered
statements are not barred by the Fifth Amendment, and they are not affected by Miranda. See
Miranda, supra, at 478. The statements Burns made at the police station were not the result of
any police interrogation. They were voluntary and volunteered. State v. Billings, 84 Nev.
55, 59, 436 P.2d 212, 214 (1968).
[Headnotes 3,4]
3. Burns has challenged the sufficiency of the evidence. He claims it will not support the
verdict. A reading of the record demonstrates otherwise. A jury's verdict may not be disturbed
where substantial evidence is adduced to support it. Fairman v. State, 87 Nev. 627, 491 P.2d
1283 (1971), citing Collins v. State, 87 Nev. 436, 488 P.2d 544 (1971); Graham v. State, 86
Nev. 290, 467 P.2d 1016 (1970); McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970).
4. The district attorney, in cross-examining Burns, asked him the following questions:
Q. Do you know why there would be any reason to lie on this witness stand?
A. I ain't lying.
Q. Do you know of any reason why you would?
A. No.
Q. Wouldn't be because it is very important that the jury believe you?
Mr. Mackedon [attorney for defendant]: Objection. It is very argumentative.
Court: Sustained.
[Headnote 5]
The district attorney's questions were argumentative, and the district judge properly
sustained defense counsel's objections.
____________________

2
Counsel for Burns did not object to the admissibility of Burns's statements during his trial.
88 Nev. 215, 219 (1972) Burns v. State
the district judge properly sustained defense counsel's objections. Burns on appeal claims that
the judge committed reversible error in failing to admonish the jury to disregard the colloquy
between the district attorney and Burns. We disagree, inasmuch as Burns's only answer was a
negative one.
[Headnote 6]
We might say in passing that when prosecutors engage in this sort of examination they are
treading on dangerous ground and therefore should refrain from such conduct.
[Headnote 7]
Burns also claims that Instruction No. 7 resulted in unfair comment with respect to his
testimony. Not so. Instruction No. 7 is the instruction given in almost every criminal case; it
is directed to the weight the jury may give the testimony of all the witnesses, not any
particular one.
3

We conclude that the record on appeal fails to demonstrate any irregularities in the trial
that would constitute a ground for reversing the jury's verdict. The guilty verdict must stand.
____________________

3
Instruction No. 7:
The jury are the sole and exclusive judges of the effect and value of evidence addressed to them and of the
credibility of the witnesses who have testified in the case. The term witness' includes every person whose
testimony under oath has been received as evidence, whether by examination here in court or through deposition.
The character of the witnesses, as shown by the evidence, should be taken into consideration for the purpose
of determining their credibility, that is whether or not they have spoken the truth. The jury may scrutinize the
manner of witnesses while on the stand, and may consider their relation to the case, if any, and also their degree
of intelligence. A witness is presumed to speak the truth. This presumption, however, may be repelled by the
manner in which he testifies; his interest in the case, if any, or his bias or prejudice, if any, for or against one or
any of the parties; by the character for truth, honesty or integrity, or by contradictory evidence. A witness may be
impeached also by evidence that at other times he has made statements inconsistent with his present testimony as
to any matter material to the cause on trial; and a witness may be impeached also by proof that he has been
convicted of a felony.
A witness wilfully false in one material part of his or her testimony is to be distrusted in others. The jury
may reject the whole of the testimony of a witness who has wilfully sworn falsely as to a material point. If you
are convinced that a witness has stated what was untrue as to a material point, not as a result of mistake or
inadvertence, but wilfully and with the design to deceive, then you may treat all of his or her testimony with
distrust and suspicion, and reject all unless you shall be convinced that he or she has in other particulars sworn to
the truth.
88 Nev. 215, 220 (1972) Burns v. State
[Headnotes 8, 9]
5. The 25-year sentence, however, may not stand. Preliminarily, as this court said in
Hollander v. State, 82 Nev. 345, 353, 418 P.2d 802, 807 (1966): The trial court must
sentence on the substantive crime charged. . . , and then invoke the recidivist statute to
determine the penalty. The State introduced in evidence exemplified copies of the two prior
felony convictions. This court announced in Hamlet v. State, 85 Nev. 385, 387, 455 P.2d 915,
916 (1969), in following the mandate of the High Court in Burgett v. Texas, 389 U.S. 109
(1967), that there must be an affirmative showing that the defendant was represented by
counsel or that he validly waived his right to counsel in the prior felony proceedings. If the
record does not so show, that felony conviction may not be considered in determining
whether the defendant is a habitual criminal. Neither of the prior felony convictions
introduced in evidence met the test of Hamlet and Burgett.
4
We therefore must reverse the
lower court's adjudication that Burns is a habitual criminal, and we remand the case for a
resentencing solely on the grand larceny charge.
6. Since counsel for the appellant was appointed by the district judge to take this appeal,
we direct that court to compensate counsel as provided by NRS 7.260.
____________________

4
Counsel for the State frankly and forthrightly conceded that the mandates of Hamlet and Burgett were not
met in this case. He further admitted in oral argument that he did not know whether they could be satisfied by a
further evidentiary hearing on remand.
____________
88 Nev. 220, 220 (1972) State v. Ricci
STATE OF NEVADA, Petitioner, v. JOSEPH DONALD
RICCI and GARY STEPHEN ELLINGTON, Respondents.
No. 6760
April 6, 1972 495 P.2d 614
Original proceeding by the State for writs of certiorari, mandamus and prohibition arising
after the district court remanded a murder prosecution to the justice of the peace for a second
preliminary examination. The Supreme Court, Thompson, J., held that even if prosecutor's
statement concerning credibility of witnesses influenced the magistrate in deciding probable
cause, the district court exceeded its jurisdiction in declining to rule on defendants'
habeas corpus petitions and in remanding the case for second preliminary hearing.
88 Nev. 220, 221 (1972) State v. Ricci
cause, the district court exceeded its jurisdiction in declining to rule on defendants' habeas
corpus petitions and in remanding the case for second preliminary hearing.
Writs granted.
Deputy District Attorney, Washoe County, for Petitioner.
Sanford, Sanford & Fahrenkopf, of Reno, for Respondent Joseph Donald Ricci.
Vargas, Bartlett & Dixon, of Reno, for Respondent Gary Stephen Ellington.
1. Habeas Corpus.
District court does not possess statutory authority to order a second preliminary examination where the
sole issue tendered to the court is whether the petitioners for habeas corpus relief had been committed
without reasonable or probable cause, and the court's duty is to decide the issue and either discharge the
petitioners, or continue them under restraint. NRS 34.500, subd. 7, 34.550, 34.640.
2. Habeas Corpus.
Even if prosecutor's statement concerning credibility of witnesses influenced the magistrate in deciding
probable cause, the district court exceeded its jurisdiction in declining to rule on defendants' habeas corpus
petitions and in remanding the case for second preliminary hearing. NRS 34.020, subd. 2, 34.160,
34.320, 34.500, subd. 7, 34.550, 34.640.
OPINION
The respondents stand jointly charged with murder. Following a preliminary examination,
the Justice of the Peace found probable cause to believe that the offense had been committed
and that they committed it. Consequently, he ordered them to answer in the district court.
There, they requested release by habeas corpus upon the sole ground that the evidence
received at the preliminary examination did not establish probable cause to hold them for
trial. The district court declined to rule upon that contention. Instead, it remanded the case to
the Justice of the Peace for another preliminary examination with the direction to hear and
weigh the testimony provided by both sides and weigh and judge the credibility of all
witnesses and evidence presented."
88 Nev. 220, 222 (1972) State v. Ricci
and evidence presented. That ruling precipitated this original proceeding for writs of
certiorari, mandamus and prohibition. The State contends that certiorari is appropriate since
the district court exceeded its jurisdiction in entering the remand order (NRS 34.020(2)); that
mandamus should issue to compel the district court to decide the single contention presented
by the habeas petitions (NRS 34.160); and that a second preliminary examination should be
prohibited (NRS 34.320). All agree that the challenged order is not one for which review by
appeal has been provided.
It is not suggested that a jurisdictional defect existed in the preliminary examination or that
it was irregularly conducted. Both sides offered evidence and a conflict on material points
developed. The prosecutor argued that the credibility of witnesses was not the concern of the
Justice's Court. This argument was disputed by defense counsel. However, the prosecutor's
statement apparently prompted the district court to decline to rule upon the subsequent
petitions for habeas corpus grounded upon the insufficiency of the evidence to establish
probable cause, and to remand the matter for a second preliminary examination with the
direction to weigh the evidence and the credibility of witnesses. The record of the preliminary
examination does not contain the slightest hint that the Justice of the Peace was influenced by
the prosecutor's argument in finding probable cause to hold the respondents for trial.
1

[Headnotes 1, 2]
A district court does not possess statutory authority to order a second preliminary
examination where the sole issue tendered to the court is whether the petitioners for habeas
relief have been committed without reasonable or probable cause.
2
The court's duty is to
decide the issue and either discharge the petitioners, NRS 34.500(7); 34.640, or continue
them under restraint, NRS 34.550; 34.640. Indeed, were we to assume that the prosecutor's
statement concerning the credibility of witnesses somehow influenced the magistrate in
deciding probable cause {an unwarranted assumption upon this record), the correction
thereof is by review in the district court through appropriate petitions for habeas corpus.
Cf. Bonnenfant v. State, S6 Nev. 393
____________________

1
In the district court the prosecutor offered the Justice of the Peace as a witness on that point, but the Court
would not allow his testimony.

2
In certain instances a district court may order a preliminary examination where none has been held. NRS
171.208. Moreover, if it appears that there is a defect in the institution of the prosecution, or in the indictment,
information or complaint, the court may grant a motion addressed to that point and order the accused held in
custody or that his bail be continued for a specified time pending the filing of a new indictment, information or
complaint. NRS 174.145. These statutes do not bear upon the case at hand.
88 Nev. 220, 223 (1972) State v. Ricci
witnesses somehow influenced the magistrate in deciding probable cause (an unwarranted
assumption upon this record), the correction thereof is by review in the district court through
appropriate petitions for habeas corpus. Cf. Bonnenfant v. State, 86 Nev. 393, 469 P.2d 401
(1970). If probable cause does not exist, the district court will order the petitioners
discharged. If it does exist, they will be held for trial. We find no authority in support of the
order entered below and conclude that it was entered in excess of jurisdiction. Accordingly,
we grant the requested writs and direct the district court to rule upon the petitions for habeas
corpus tendered to that court by Ricci and Ellington, i.e., to decide whether the record of the
preliminary examination contains sufficient evidence to sustain the magistrate's finding of
probable cause to hold them for trial. The remand of the district court for a second
preliminary examination is voided and that examination is prohibited.
____________
88 Nev. 223, 223 (1972) Sargeant v. Sargeant
HARRY H. SARGEANT, Appellant and Cross-Respondent,
v. MATILDA E. SARGEANT, Respondent and Cross-Appellant.
No. 6567
April 7, 1972 495 P.2d 618
Appeal from findings of fact, conclusions of law and decree of divorce. Second Judicial
The district court granted wife a divorce as party least at fault and, inter alia, awarded her a
lump sum for support and maintenance, and husband appealed. The Supreme Court, Zenoff,
C. J., held that where husband was worth $3,000,000 at time of divorce, where wife's
meager savings consisted of stock worth $42,000, from which she received annual
dividends of $1,700, and savings and checking accounts totaling $2,200, and where total
hours expended by wife's attorneys numbered 753, plus court appearances, conferences,
depositions and review of many exhibits and records spanning a 29-year period, awarding
wife's counsel $5,000 in preliminary attorneys' fees, plus $47,500 at conclusion of suit for a
total of $52,500, was not an abuse of discretion.
of $52,500, was not an abuse of discretion. It was further held that order compelling husband
to establish a $50,000 trust fund for child over whom he and his wife had accepted
responsibility could not be supported on basis of husband's oral agreement to support child,
even though agreement established his standing in place of parent (loco parentis), since
husband could abandon burdens attendant on such status at any time; nor did bare promises of
future support convert such status to a degree of permanence on theory that husband was
estopped from withdrawing from promises.
Affirmed in part; reversed in part.
Thompson, J., dissented in part.
Gene Barbagelata, of Reno, and Peter Echeverria, of Reno, for Appellant and
Cross-Respondent.
Johnson and Sloan, of Reno, and John J. Hurtak and Norman K. Rutkin, of Miami,
Florida, for Respondent and Cross-Appellant.
1. Divorce.
A wife is not required to show necessitous circumstances in order to authorize an award for an attorney's
fee in a divorce proceeding; overruling Allis v. Allis, 81 Nev. 653, 408 P.2d 916 (1965). NRS
125.040.
2. Divorce.
Amount to be awarded wife's attorney in a divorce proceeding is within discretion of trial court. NRS
125.040.
3. Divorce.
Where husband was worth $3,000,000 at time of divorce, where wife's meager savings consisted of
stock worth $42,000, from which she received annual dividends of $1,700, and savings and checking
accounts totaling $2,200, and where total hours expended by wife's attorneys numbered 753, plus court
appearances, conferences, depositions and review of many exhibits and records spanning a 29-year period,
awarding wife's counsel $5,000 in preliminary attorneys' fees, plus $47,500 at conclusion of suit for a total
of $52,500, was not an abuse of discretion.
4. Executors and Administrators.
Under statute providing that in event of death of either party or subsequent remarriage of wife, all
alimony awarded by decree shall cease unless it has otherwise been ordered by court, an alimony award
payable in installments can presumably be ordered a charge against estate of husband in order that her
subsistence be insured in event of his death or his voluntary dissolution of his assets in recrimination
against her. NRS 125.150, subd. 4.
5. Divorce.
Dour attitude of aged husband to his wife 20 years his junior, despite her many years of care and
affection before they were married and after, together with potential problems {she lived
in Florida) which would attend possible litigious harassment via Nevada courts
justified trial court's exercise of discretion in awarding wife a lump sum support and
maintenance award of $331,200, payable in nine installments, where trial court
found, inter alia, that overall attitude and conduct of husband illustrated some
possibility that he might attempt to liquidate, interfere, hypothecate or give away his
assets to avoid payment of any alimony or support obligations to wife.
married and after, together with potential problems (she lived in Florida) which would attend possible
litigious harassment via Nevada courts justified trial court's exercise of discretion in awarding wife a lump
sum support and maintenance award of $331,200, payable in nine installments, where trial court found,
inter alia, that overall attitude and conduct of husband illustrated some possibility that he might attempt to
liquidate, interfere, hypothecate or give away his assets to avoid payment of any alimony or support
obligations to wife. NRS 125.150, subd. 4.
6. Divorce.
A court may set aside husband's separate property for wife's support when need is shown and an order for
support is present. NRS 125.150, subd. 3.
7. Divorce.
Where it was apparent that lump sum alimony award was the setting apart of the husband's separate
property for support of wife, award was a proper order within statute. NRS 125.150, subd. 3.
8. Divorce; Executors and Administrators.
Since an award of alimony shall cease on death of either husband or wife or on her remarriage unless
otherwise ordered by court, Supreme Court would order that provisions of divorce decree awarding a lump
sum alimony to wife would become a charge against husband's estate and would further order that husband
set lump sum apart in a trust from which monthly installments could be paid to wife as periodic alimony
installments until her death or her remarriage and, in event of husband's prior death, monthly payments
were to continue as a charge against his estate payable from appropriated fund until wife died or fund was
exhausted. NRS 125.150, subd. 3.
9. Adoption; Divorce.
Even though there was evidence of husband's affection for child over whom he and his wife had assumed
responsibility, doctrine of equitable adoption did not apply, and order compelling husband to establish a
$50,000 trust fund for child in divorce proceeding was not valid, in absence of even an unfulfilled promise
to adopt.
10. Parent and Child.
Order compelling husband to establish a $50,000 trust fund for child over whom he and his wife had
accepted responsibility could not be supported on basis of husband's oral agreement to support child, even
though agreement established his standing in place of parent (loco parentis), since husband could abandon
burdens attendant on such status at any time; nor did bare promises of future support convert such status to
a degree of permanence on theory that husband was estopped from withdrawing from promises.
OPINION
The parties to this appeal were married September 25, 1940 and resided in Florida for the
majority of their married life.
The day before the marriage the parties voluntarily executed an antenuptial agreement
whereby they agreed that their separate property would remain separate. It must be noted that
it is apparent from the record that Matilda Sargeant was not aware nor permitted to be aware
of the agreement's significance. At the time of the marriage Harry Sargeant was worth
$285,000, but at the time of the divorce his net worth was $3,000,000. He managed all
financial affairs during the marriage and made allowances to her sufficient for their food,
clothing and housing and for the care of a child whom they brought into their home.
Marital difficulties began in 1960 and continued for approximately eight years when he,
surprisingly to her, commenced divorce proceedings in Nevada. He was 81 years of age at the
time. After an extensive contest the trial court granted her the divorce as the party least at
fault, gave her a lump sum support and maintenance award of $331,200 payable in nine
installments, awarded the wife's counsel $47,500, plus $5,000 preliminary fees, and ordered
the creation of a $50,000 trust fund for the benefit of the foster child, Michael Estes, for his
education and support.
The husband contests the awarding of attorneys' fees, traveling expenses and costs when it
was not shown that the wife was in necessitous circumstances, that the $52,500 attorneys' fees
to her were excessive, that the preliminary alimony of $400 per month, coupled with
residence privileges for herself and Michael was error, and also that the lump sum award of
alimony and the trust for Michael were invalid.
1. The trial court awarded Matilda's counsel $5,000 preliminary attorneys' fees, plus
$47,500 at the conclusion of the suit for a total of $52,500, which Harry claims the court had
no right to give and which were, in any event, excessive. Keeping in mind that he was worth
$3,000,000 at the time of the divorce, her meager savings, as described by the trial court,
consisted of stock worth $42,000, from which she received annual dividends of $1,700 and
savings and checking accounts totaling $2,200.
[Headnote 1]
Our historical standard of measuring preliminary and final allowances was stated in Allis
v. Allis, 81 Nev. 653, 408 P.2d 916 (1965), wherein we said the husband's greater wealth is
not relevant to the issue of the wife's need of money to pay her counsel fee, but that the wife
must show necessitous circumstances to authorize such an award. See also Cranmer v.
Cranmer, 79 Nev. 128, 379 P.2d 474 (1963). The term necessitous circumstances does not
appear in Nevada's suit money statute, NRS 125.040,1 nevertheless, this court for many
years has written in that requirement.
money statute, NRS 125.040,
1
nevertheless, this court for many years has written in that
requirement. However, when we hue to the strict letter of necessitous circumstances we are
out of step with the majority of the nation's community. Cf. Jolley v. Jolley, 363 P.2d 1020
(Idaho 1961); Cudahy v. Cudahy, 258 N.W. 168 (Wis. 1935); Stuber v. Stuber, 244 P.2d 650
(Utah 1952); Sweeley v. Sweeley, 170 P.2d 469 (Cal. 1946); Gregg v. Gregg, 272 S.W.2d
855 (Mo. 1954); Sigesmund v. Sigesmund, 115 Cal.App.2d 628, 252 P.2d 713 (1953); Bell v.
Bell, 328 P.2d 115 (Mont. 1958); Schmidt v. Schmidt, 321 P.2d 895 (Wash. 1958); Small v.
Small, 485 P.2d 1365 (Kan. 1971); Lowe v. Lowe, 182 S.E.2d 75 (S.C. 1971); Swanson v.
Swanson, 464 S.W.2d 225 (Mo. 1971); Smith v. Smith, 474 P.2d 619 (Colo. 1970).
According great respect to the trial court's discretion we now declare Allis v. Allis, supra,
overruled and all cases therein cited as to the pertinent point now discussed are likewise
overruled. The wife must be afforded her day in court without destroying her financial
position. This would imply that she should be able to meet her adversary in the courtroom on
an equal basis. Here, without the court's assistance, the wife would have had to liquidate her
savings and jeopardize the child's and her future subsistence still without gaining parity with
her husband.
[Headnotes 2, 3]
Neither is the final amount excessive for the total hours expended by her attorneys
numbered 753, plus court appearances, conferences, depositions and the review of many
exhibits and records spanning a 29-year period. The amount of counsel fees is within the
court's discretion, Fox v. Fox, 81 Nev. 186, 198, 401 P.2d 53 (1965), and we will not say in
view of all of the circumstances that the court abused its discretion in making the award or in
the amount. Sigesmund v. Sigesmund, supra.
____________________

1
NRS 125.040: Allowances and suit money for wife during pendency of action. In any suit for divorce
now pending, or which may hereafter be commenced, the court, or judge, may, in its discretion, upon
application, of which due notice shall have been given to the attorney for the husband if he has an attorney, or to
the husband if he has no attorney, at any time after the filing of the complaint, require the husband to pay such
sums as may be necessary to enable the wife to carry on or defend such suit, and for her support and for the
support of the children of the parties during the pendency of such suit. A court or judge may direct the
application of specific property of the husband to such object, and may also direct the payment to the wife for
such purpose of any sum or sums that may be due and owing the husband from any quarter, and may enforce all
orders made in this behalf as provided in NRS 125.060.
2. A second point of major proportion is appellant's objection to payment of alimony in a
lump sum instead of periodic installments.
[Headnote 4]
NRS 125.150(4) provides: In the event of the death of either party or the subsequent
remarriage of the wife, all alimony awarded by the decree shall cease unless it has otherwise
been ordered by the court. Presumably, an alimony award payable in installments can be
ordered a charge against the estate of the husband in order that her subsistence be insured in
the event of his death or his voluntary dissolution of his assets in recrimination against her.
In justifying the lump sum award the trial court found that It is conceivable the plaintiff
could die within a short period of time; that the overall attitude and conduct of this plaintiff
illustrates some possibility that he might attempt to liquidate, interfere, hypothecate or give
away his assets to avoid payment of any alimony or support obligations to defendant. Under
the plaintiff's view that the defendant never was nor now is entitled to any consideration it is
foreseeable that there may be further litigation on modification of any alimony or support
award the court may make because of change of circumstances; that defendant intends to
remain a resident of Florida, and if the Nevada courts retain jurisdiction, such litigation
would be expensive to the defendant and that it would be most advantageous to the parties to
settle differences on alimony with finality.
The husband's life expectancy was 4.9 years, the wife's life expectancy was 23.1 years. The
trial court awarded the alimony on the basis of $1,200 per month or $14,337.66 per year
multiplied by her life expectancy, totaling $331,100, having taken into consideration factors
including her age, health, length of marriage, standard of living, assets of each party, health
insurance policies, ownership of furnishings, earning capacity of each party and conduct of
the parties.
This court has previously approved lump sum alimony awards. Fenkell v. Fenkell, 86 Nev.
397, 469 P.2d 701 (1970); Winn v. Winn, 86 Nev. 18, 467 P.2d 601 (1970); Shane v. Shane,
84 Nev. 20, 435 P.2d 753 (1968); see also Reeves v. Reeves, 399 S.W.2d 641 (Mo.App.
1966); Udell v. Udell, 151 So.2d 863 (Fla.App. 1963); Broida v. Broida, 388 S.W.2d 617
(Ky. 1965); cf. Cruikshank v. Cruikshank, 121 P.2d 25, 27 (Cal.App. 1942).
[Headnote 5]
The dour attitude of the aged husband to his wife 20 years his junior, despite her many
years of care and affection before they were married and after, together with the potential
problems (she lives in Florida) which would attend the possible litigious harassment via the
Nevada courts justify the trial court's exercise of discretion that we will not disturb. The
finding of fault by the trial court predominated against the husband, the voluminous
testimony and evidence weighed in her favor. His bitterness foretells future harassment.
2

[Headnotes 6-8]
Under NRS 125.150(3) the court may set apart the husband's separate property for the
wife's support when the need is shown (Lewis v. Lewis, 71 Nev. 301, 289 P.2d 414 (1955);
Jacobs v. Jacobs, 83 Nev. 73, 422 P.2d 1005 (1967)) and an order for support is present.
Zahringer v. Zahringer, 76 Nev. 21, 348 P.2d 161 (1960); Thorne v. Thorne, 74 Nev. 211,
326 P.2d 729 (1958); Stojanovich v. Stojanovich, 86 Nev. 789, 476 P.2d 950 (1950). It is
apparent to this court that the lump sum alimony award was the setting apart of the husband's
separate property for the support of the wife and, as such, was a proper order within the
statute. Further, since the statute also provides that an award of alimony shall cease upon the
death of either husband or wife or upon her remarriage unless otherwise ordered by the court
we do herewith order that the provisions of this decree shall forthwith become a charge
against the husband's estate. In addition, to further supplement these protective features it is
ordered that the husband shall forthwith set apart in a trust approved by the district court
herein the lump sum heretofore decreed from which monthly installments shall be paid to the
wife as periodic alimony installments until her death or her remarriage. In the event of the
husband's prior death, of course, the monthly payments will continue as a charge against his
estate payable from the appropriated fund until the wife dies or the fund is exhausted.
____________________

2
J. DuCanto, The case for More Frequent Use of Installment Payment of Lump Sum Alimony in Divorce
Settlement Agreements and Judgments, 6 Law Notes 35, 40 (1970): The use of lump sum settlements in divorce
cases has achieved continuing and unvarying acceptance and support by the Courts of virtually every state in the
nation, both by way of enforcement of the provisions of such agreements irrespective of lamentable and valid
changes of circumstances on the part of either party to them, as well as by reason of numerous court decisions
disavowing the inherent power of a court to change their terms or conditions. (Footnotes omitted.)
the appropriated fund until the wife dies or the fund is exhausted. Thus, the husband's
property is being set apart for the support of his wife as authorized by law.
3. There were no children born of the marriage but the Sargeants in 1958 assumed
responsibility for the care, control and custody of Clarence Michael Estes, now also known as
Michael C. Sargeant, who was then four years of age, and 15 years of age at the time of trial.
Michael was the son of Matilda Sargeant's niece. The child was abandoned by his natural
parents who are still alive, but their whereabouts are in doubt. With the parents' consent
Michael had lived with his grandmother, Matilda's sister, until he came to live with these
parties.
While the evidence of their intention to adopt him is inconclusive he was treated as their
natural born son in all respects. Harry Sargeant provided full support, maintenance and
education for the child. Neither the grandparents nor the natural parents ever requested his
return. He was given their name and Harry Sargeant had established trust funds for the child's
education and had made provision for him in his will. When these proceedings were
instituted Harry promised to buy Michael a home and an automobile but he also threatened to
cancel those promises and to cease future support and all other benefits being provided if
Matilda defended against his divorce action.
The question now is whether the trial court's order compelling the husband to establish a
$50,000 trust fund for the boy is valid. We must hold that it is not.
[Headnotes 9, 10]
Evidence of the husband's affection for the child is manifold, but in the absence of even an
unfulfilled promise to adopt, the doctrine of equitable adoption cannot apply. Bower v.
Landa, 78 Nev. 246, 371 P.2d 657 (1962); Fuller v. Fuller, 247 A.2d 767 (D.C.Ct.App. 1968).
The trial court instead sought to support the $50,000 trust fund on the oral agreement to
support the boy. This, of course, establishes their standing in the place of a parent (loco
parentis) but one may abandon the burdens attendant upon such status at any time. Farris v.
Farris, 365 P.2d 14 (Wash. 1961); Franklin v. Franklin, 253 P.2d 337 (Ariz. 1963); Chestnut
v. Chestnut, 147 S.E.2d 269 (S.C. 1966); see also 18 S.C.L.Rev. 541 (1966). Nor will bare
promises of future support convert this status to a degree of permanence on the theory that the
husband is estopped from withdrawing from those promises. Fuller v. Fuller, supra; cf.
Clevenger v. Clevenger, 189 Cal.App.2d 65S, 11 Cal.Rptr.
658, 11 Cal.Rptr. 707, 90 ALR2d 569 (1961); also People v. Sorensen, 437 P.2d 495 (Cal.
1968); Niesen v. Niesen, 157 N.W.2d 660 (Wis. 1968). Wilson v. Wilson, 14 Ohio App. 2d
148, 237 N.E.2d 421, 426 (1968).
Affirmed in part, reversed as to the trust for the child and remanded to the trial court to
execute a modified decree in accordance with this opinion and for such other and further
proceedings as the trial court shall deem necessary for the purposes hereof.
Thompson, J., dissenting in part:
I agree with the majority except for that part of the opinion overruling firmly established
law [NRS 125.040; Allis v. Allis, 81 Nev. 653, 408 P.2d 916 (1965), and the cases therein
cited] in order to approve the trial court award of fees for the wife's counsel. There is, of
course, no duty imposed upon this court to follow decisions which are absurd or obsolete.
Blind adherence to the requirements of stare decisis is not consonant with justice. On the
other hand, precedent should not be changed unless the policies which underlie the proposed
new rule are strong enough to outweigh the policy supporting the existing rule and the
disadvantages of making a change. The majority opinion does not speak to this point.
I am not aware that the law regarding suit money as it existed until today worked in such a
way as to preclude a wife from enjoying her day in court with competent representation.
Consequently, I perceive no good reason for a change of law, and fear that such change may
result in the mischief of redistributing the separate wealth of a party litigant simply because
the opportunity to do so is present.
____________
88 Nev. 231, 231 (1972) Todkill v. Todkill
GLADYS TODKILL, Appellant, v. BURTON
A. TODKILL, Respondent.
No. 6446
April 7, 1972 495 P.2d 629
Appeal from a decree of divorce of the Eighth Judicial District Court, Clark County;
William R. Morse, Judge.
The Supreme Court, Batjer, J., held that where husband testified that his transfer of family
home and one-sixth interest in certain corporation to wife was in trust but that he had no
recollection why he transferred his one-sixth interest in corporation to wife, and wife,
through her testimony, raised issue that home was a birthday present to her and that
interest in corporation was given her for her financial security, husband's evidence was
not so clear and convincing as to rebut presumption of an absolute gift to wife of disputed
property.
in certain corporation to wife was in trust but that he had no recollection why he transferred
his one-sixth interest in corporation to wife, and wife, through her testimony, raised issue that
home was a birthday present to her and that interest in corporation was given her for her
financial security, husband's evidence was not so clear and convincing as to rebut
presumption of an absolute gift to wife of disputed property.
Affirmed in part, reversed in part and remanded.
Morton Galane and Miriam Shearing, of Las Vegas, for Appellant.
Edwin A. Adamson and Charles W. Deaner, of Las Vegas, for Respondent.
1. Husband and Wife.
Properties acquired during marriage are presumed to be community property and such presumption can
only be overcome by clear and certain proof.
If there is clear and convincing evidence to support lower court's finding, when adjudicating marital
property rights, that property purchased during marriage was separate property, Supreme Court will not
reverse such determination on appeal.
Evidence in divorce proceeding supported finding that property acquired by parties during marriage,
regardless of how title was held, was husband's separate property. NRS 123.130, 123.220.
4. Trusts.
In divorce proceeding in which property rights were adjudicated, evidence was insufficient to support
finding that transfer of husband's one-sixth interest in corporation and all of his interest in family home
were prompted by desire on part of husband to avoid seizure by his creditors and that there was an oral
agreement between parties that wife would hold property in trust for husband and would retransfer it to him
at his request.
When a husband transfers title to his separate property from his name into his wife's name, he is
presumed to intend a gift to her, even though his original intent was to defraud creditors, and such
presumption, while rebuttable, can be overcome only by clear and convincing evidence.
Husband has burden of proof to rebut presumption that his transfer of title to his separate property from
his name into wife's name is a gift to her.
Where husband testified that his transfer of family home and one-sixth interest in certain corporation to
wife was in trust but that he had no recollection why he transferred his one-sixth interest
in corporation to wife, and wife, through her testimony, raised issue that home was a
birthday present to her and that interest in corporation was given her for her
financial security, husband's evidence was not so clear and convincing as to rebut
that he had no recollection why he transferred his one-sixth interest in corporation to wife, and wife,
through her testimony, raised issue that home was a birthday present to her and that interest in corporation
was given her for her financial security, husband's evidence was not so clear and convincing as to rebut
Finding that a husband's transfer of his separate property to his wife during marriage is not a gift will be
sustained on appellate level if supported by clear and convincing evidence but will be reversed if it is not.
OPINION
On October 8, 1970, the district court entered a decree of divorce granting Burton A.
Todkill, the respondent, a divorce, finding all property in dispute to be the sole and separate
property of respondent, concluding as a matter of law that there was no community property
belonging to the parties and awarding Gladys Todkill, the appellant, alimony and attorney
fees.
Both parties appear to be satisfied with the termination of the marital relationship, and
neither the divorce, the alimony nor attorney fees are an issue in this appeal which is taken
only from that portion of the decree designating certain assets to be the separate property of
respondent and awarding all of that property to him.
Respondent has been a resident of Nevada since 1948. He and appellant were married in
this state in July of 1961. At the time of the marriage appellant was working as a receptionist
in a doctor's office in Las Vegas, Nevada, and respondent was managing his automobile
agency (Todkill Lincoln-Mercury) in the same city. After the marriage, appellant continued
working for only about two months and respondent continued to manage his automobile
agency until it was sold in October, 1966. Respondent worked full time at the agency and
received approximately $3,000 per month, plus a bonus of an undetermined amount at the
end of each year. It is undisputed that in 1944 he inherited $750,000 in stock from his father's
estate and that the automobile agency was sold in 1966 for five ($5.00) dollars, plus the
assumption by the purchaser of nearly a million dollars in liabilities.
In June of 1962, respondent purchased a lot at 7082 Mira Vista, Sierra Vista Ranchos,
Clark County, Nevada for $10,000. He testified that this money came from the sale of stock
which he inherited from his father.
which he inherited from his father. He took title to this property solely in his name. A loan of
$42,400 was obtained in July of 1962 for the purpose of constructing a house on the property.
This loan was secured by a deed of trust on the property signed by both respondent and
appellant. Respondent testified that he borrowed an additional $42,000, secured by his
inherited stock, to complete the construction of the home. The house and lot were transferred
by deed from respondent to appellant on October 27, 1965. Respondent claims he initiated
the transfer to protect the property from creditors, as his business was failing at the time.
Appellant denied that there was any conversation regarding safekeeping from creditors and
testified that the house and lot were a birthday present. (Her birthday is October 28.) After the
transfer, respondent continued to pay the taxes and to make all payments on the promissory
note secured by the trust deed. Prior to October, 1966, these payments were made from the
bank account where he deposited his salary and bonuses. The district court found that the
home property had been transferred to appellant to avoid its seizure by respondent's creditors,
and that appellant had orally agreed to hold it in trust for respondent and to reconvey it at his
request. The district court then went on to find this property to be the sole and separate
property of respondent.
In 1962, respondent, with two other persons, formed C. B. C. Inc., for the purpose of
purchasing, improving and selling parcels of real estate. The corporation purchased a parcel
of land on Paradise Road in Clark County. Respondent testified that he used proceeds from
the sale of his inherited stock, plus a bank loan secured by more of the same stock, to
purchase his interest in the corporation. Appellant testified that she was not sure where
respondent obtained the funds to make this purchase. Stubs in the C. B. C. Inc., stock record
book show that a one-sixth interest in the corporation was issued to respondent on November
29, 1965, and a one-sixth interest was, on the same date, issued to appellant. Respondent
testified that he could not recall why his wife had been given a one-sixth interest. He did
testify, however, that he recalled turning the certificates over to her for the purpose of
safekeeping. On January 12, 1966, the stock certificate issued to respondent was transferred
by him to appellant. Appellant testified that the transfer was made because respondent wanted
her to have some security, but respondent stated he could not recall why the transfer was
made.
The sole asset of C. B. C. Inc., consisting of the Paradise Road property, was sold in June
of 1969 for $800,000. Although appellant held in her name a certificate evidencing a
one-third interest, respondent personally received $302,779.74 from the sale. This represented
a return of his invested capital plus his share of the profit. The district court awarded the
proceeds to respondent and held that the transfer was merely to avoid creditors and that there
was an oral agreement to reconvey.
Respondent purchased property at 2000 Las Vegas Boulevard South in 1950. It was at this
location that he operated his automobile agency. On November 9, 1962, after his marriage to
appellant, he purchased a parcel of property near the agency referred to as the Commerce
Street property. Title to this property was taken in the name of Todkill Lincoln-Mercury, Inc.
Respondent owned all of the stock in that corporation. The purchase of the Commerce Street
property was financed by encumbering that property and the Las Vegas Boulevard South
(agency) property with a deed of trust. The payments toward reducing that encumbrance were
made by Todkill Lincoln-Mercury, Inc., from 1962 until the agency was sold in 1966.
In May of 1968, the parties discussed the purchase of a lot adjoining the 7082 Mira Vista
property. Respondent admitted that he was short on cash and testified that he told appellant
she would have to get the $750 for the down payment. Appellant did consummate the
transaction, and she put the property in her name. Respondent alleged that appellant used his
money to make the purchase, but appellant claimed that she made all payments and paid all
taxes with her own money which respondent had given her for security. The district court
found this lot to be the sole and separate property of respondent.
Appellant contends that the district court erred in finding no community property
belonging to the parties, but instead finding all property purchased by the parties during the
marriage to be the sole and separate property of respondent and holding that the property
conveyed by respondent to appellant during marriage was held by her in trust for him.
[Headnote 1]
It is undisputed that the home property at 7082 Mira Vista, the C. B. C. Inc., stock, the
Sierra Vista lot adjoining the home property and the Commerce Street property were acquired
during the marriage. Properties acquired during marriage are presumed to be community
property,1 and the presumption can only be overcome by clear and certain proof.
presumed to be community property,
1
and the presumption can only be overcome by clear
and certain proof. Carlson v. McCall, 70 Nev. 437, 271 P.2d 1002 (1954); Lake v. Bender, 18
Nev. 361, 7 P. 74 (1884).
[Headnote 2]
In adjudicating marital rights we have previously held that if there is substantial evidence
to support the lower court's findings we will not reverse that determination upon appeal.
Shane v. Shane, 84 Nev. 20, 435 P.2d 753 (1968); Zahringer v. Zahringer, 76 Nev. 21, 348
P.2d 161 (1960); Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950). Likewise, when
adjudicating marital property rights, if there is clear and convincing evidence to support a
lower court's finding that property purchased during marriage is separate property we will not
reverse that determination on appeal. Kelly v. Kelly, 86 Nev. 301, 468 P.2d 359 (1970).
[Headnote 3]
Here we will not disturb the district court's determination that property acquired by the
Todkills during marriage, regardless of how title was held, was the husband's separate
property. The district court correctly found that under NRS 123.130 those assets were the
separate property of respondent. Whether or not the evidence was clear and convincing and
sufficient to overcome the presumption that the property acquired during marriage was
community property was a question for the district court. The evidence offered by the
respondent, together with the reasonable inferences to be drawn therefrom, can be deemed
clear and convincing. On the other hand, appellant failed to offer clear and convincing proof
that the purchases were made with community funds or credit or acquired by the respondent's
community toil or talent. Kelly v. Kelly, supra; Barrett v. Franke, 46 Nev. 170, 208 P. 435
(1922).
Shortly after the marriage appellant terminated her employment and thereafter made no
contribution of wages or property to the community. At the time of the marriage she owned
some separate property but it is in no way involved in this case. The only community
property generated and received by the parties during the marriage was respondent's
salary of $3,000 per month, together with undetermined bonuses from Todkill
Lincoln-Mercury, Inc., which business enterprise respondent had purchased prior to the
marriage with money from his father's estate.
____________________

1
NRS 123.130: 1. All property of the wife owned by her before marriage, and that acquired by her
afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is her separate property.
2. All property of the husband owned by him before marriage, and that acquired by him afterwards by gift,
bequest, devise or descent, with the rents, issues and profits thereof, is his separate property.
NRS 123.220: All property other than that stated in NRS 123.130, acquired after marriage by either
husband or wife, or both, except as provided in NRS 123.180 and 123.190, is community property.
separate property but it is in no way involved in this case. The only community property
generated and received by the parties during the marriage was respondent's salary of $3,000
per month, together with undetermined bonuses from Todkill Lincoln-Mercury, Inc., which
business enterprise respondent had purchased prior to the marriage with money from his
father's estate. The salary and bonuses were received by respondent until the agency was sold
in October, 1966. There is substantial evidence that the salary and bonuses were used to
defray family living expenses and clear and convincing evidence to show that any of the
salary and bonuses were used to purchase the disputed property is absent. Kelly v. Kelly,
supra.
[Headnote 4]
However, it is undisputed that during the marriage respondent transferred his one-sixth
interest in the C. B. C. Inc., stock and all of his interest in the property at 7082 Mira Vista to
appellant. The district court found that these transfers were prompted by a desire on the part
of respondent to avoid seizure by his creditors and that there was an oral agreement between
the parties that appellant would hold the property in trust for respondent and would re-transfer
it to him at his request. Appellant contends that this was error on the part of the trial court,
and we agree.
In his complaint, respondent alleged that appellant was holding the real property at 7082
Mira Vista, Sierra Vista Ranchos, Clark County, Nevada, as constructive trustee for the
benefit of respondent. In Moore v. DeBernardi, 47 Nev. 33, 50, 220 P. 544 (1923), this court
said: It is well settled that a constructive trust cannot be established by a mere preponderance
of the evidence, but must be established by evidence which is clear, definite, unequivocal,
and satisfactory. We find no clear, definite, unequivocal and satisfactory evidence in the
record to support the finding of such a trust. There was no trust relationship created by or in
connection with the deed of the real property located at 7082 Mira Vista (home property), and
it did not become the duty of appellant to reconvey that property to respondent under the
terms of any trust.
[Headnotes 5-7]
When a husband transfers title to his separate property from his name into his wife's name,
he is presumed to intend a gift to her, even though his original intent was to defraud creditors.
Peardon v. Peardon, 65 Nev. 717, 201 P.2d 309 (1948); cf. Peterson v. Brown, 17 Nev. 172,
30 P. 697 (1882). That presumption, while rebuttable, can be overcome only by clear and
convincing evidence.
convincing evidence. The husband has the burden of proof. If the evidence is conflicting the
presumption remains. Here, in spite of the testimony of respondent that his transfer of the
home and one-sixth of the C. B. C. Inc., stock to the appellant was in trust, she has, through
her testimony, raised the issue that the home was a birthday present and that the stock was
given to her for her financial security. This raises a conflict in the evidence and the
respondent's evidence is therefore not so clear and convincing as to rebut the presumption of
an absolute gift. Peardon v. Peardon, supra.
Respondent testified that he had no recollection why he transferred his interest in his C. B.
C. Inc., stock to appellant.
2
On the other hand, appellant unequivocally testified that
respondent transferred his stock to her because he wanted her to have security.
3
There is
some evidence to support the finding of the trial court that the transfers were prompted by
respondent's desire to avoid seizure of the properties by his creditors, but this intention on the
part of respondent does not overcome the presumption of an absolute gift to the wife. See
Weeks v. Weeks, 72 Nev. 268, 302 P.2d 750 (1956).
[Headnote 8]
Just as the findings of the trial court will be sustained on the appellate level if they are
supported by substantial evidence, Shane v. Shane, supra; Zahringer v. Zahringer, supra; and
Ormachea v. Ormachea, supra, they will be reversed if they are not. Roberts Roof & Floor v.
Ford Wholesale, 84 Nev. 298, 440 P.2d 124 (1968); Peardon v. Peardon, supra. Likewise, the
finding of a trial court that a husband's transfer of his separate property to his wife during
marriage is not a gift will be sustained on the appellate level if it is supported by clear and
convincing evidence, but it will be reversed if it is not.
The evidence introduced by the respondent was not clear and convincing. It did not
overcome the presumption of a gift from him to the appellant of the real property at 70S2
Mira Vista and the one-sixth interest in C. B. C.
____________________

2
The respondent's testimony was as follows:
Q. I note on the back of Exhibit, defendant's Exhibit F, there is an endorsement signed by you and dated
January 12, 1966. Do you recall endorsing that certificate?
A. I do not recall it. It's got my signature.
Q. Do you recall why that was endorsed?
A. I sure don't.

3
The appellant's testimony was as follows: A. He [respondent] said that he wanted me to have this. He said,
I want you to have this.' He said, I have said many times I wanted you to have security. This is yours.' And he
signed his portion over to me.
from him to the appellant of the real property at 7082 Mira Vista and the one-sixth interest in
C. B. C. Inc.
We reverse that part of the decree of divorce holding: That any title which defendant
holds in the following described properties is held in trust for the Plaintiff to-wit: a. A house
and real property located at 7082 Mira Vista and adjoining lot described as:
Lots 7 and 8, Block 2, Sierra Vista Ranchos, Unit #1, as shown by map thereof on file
in Book of Plats, Page 54, in the office of the Clark County, Nevada, recorder.
b. Capital stock in C. B. C. Inc., a Nevada corporation, now reduced to cash pursuant to a
liquidation arising out of the sale of corporation assets, now on deposit in Nevada State Bank.
That this decree in accordance with NRCP 70 shall have the effect and operation at law
and in equity of vesting title to the aforesaid real and personal property in the Plaintiff,
BURTON A. TODKILL, as fully as if Defendant, by Deed of Conveyance and/or Bill of Sale,
had transferred the same to him in fee simple. That Defendant and all persons claiming from,
through and under her (other than Plaintiff) be and they are hereby forever barred from
asserting any right, title, or interest in any of the aforesaid described properties, real and
personal, or any part thereof except as provided below.
The case is remanded to the district court with instructions to enter an amended decree of
divorce confirming the appellant's right, title and interest as her sole and separate property to
the house and real property located at 7082 Mira Vista, Sierra Vista Ranchos, Clark County,
Nevada, and to confirm and allow to her and require to be paid to her by the respondent the
sum of $151,389.87, plus accumulated interest from October 8, 1970, the same being
one-half of the proceeds received by respondent from the sale of the assets of C. B. C. Inc.
The district court is further instructed to confirm to the respondent all right, title and
interest in and to the lot adjacent to the property located at 7082 Mira Vista referred to as the
Sierra Vista lot, and to require the appellant to quit claim to the respondent the title thereto.
The amended decree of divorce shall in all particulars conform to the holdings reflected in
this opinion.
In all other particulars the decree of divorce entered on October 8, 1970 by the district
court in Case No. A62980, Burton A.
Burton A. Todkill, plaintiff vs. Gladys Todkill, defendant, is hereby affirmed.
____________
88 Nev. 240, 240 (1972) Azbill v. State
SYLVESTER JACKSON AZBILL, Appellant, v. THE
No. 6122
April 7, 1972 495 P.2d 1064
Appeal from a judgment entered upon a jury verdict from an order denying a motion for a
new trial and from an order denying a motion for repayment of costs advanced. Eighth
Judicial District Court, Clark County; Alvin N. Wartman, Judge.
Defendant was convicted in the district court of first degree murder and arson and, after
motion for new trial was denied, defendant appealed. The Supreme Court, Batjer, J., held that
testimony of defendant's son and son's friends implicating defendant in setting of fire in
master bedroom of family home, as well as testimony of expert who found human tissue on
crutch with which defendant allegedly struck his wife while she lay in bed and testimony of
physician who concluded that wife died in the fire, constituted substantial evidence to support
convictions.
Judgment entered upon a jury verdict and the order denying a motion for a new trial
is affirmed. The order denying a motion for repayment of costs advanced is reversed
and remanded.
John Manzonie, Wiener, Goldwater & Galatz, of Las Vegas, for Appellant.
Robert List, Attorney General; Roy A. Woofter, District Attorney, and Charles L. Garner
and Raymond D. Jeffers, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law; Witnesses.
Scope and extent of cross-examination is largely within the sound discretion of the trial court, and a
reversal will not be granted in the absence of abuse of discretion.
2. Witnesses.
Credibility of a witness may be attacked by showing his conviction of a felony but not by his mere arrest.
NRS 48.020.
3. Witnesses.
Where trial court specifically afforded defendant opportunity to inquire into any expectations of leniency
as to witnesses who testified for state and who had allegedly been involved in the past in taking an
automobile out of state without permission but had not been convicted of any offense in connection
therewith, defendant who insisted upon an all or nothing at all position was not denied any of his
constitutional rights by trial court's order in limine restricting inquiry as to alleged offense for purpose of
showing interest, bias and state of mind of the witnesses.
4. Criminal Law.
Giving of instruction relating to duties of jurors but making it clear to jury that each member had duty to
adhere to his own honest opinion although he should consider opinions of fellow jurors was not error.
5. Criminal Law.
Giving of Allen or dynamite charge in criminal prosecutions should be avoided.
6. Criminal Law.
All judicial interference in jury deliberations in criminal matters should be abandoned.
7. Criminal Law; Witnesses.
Trial court has right to examine witnesses for purpose of establishing the truth or clarifying testimony, but
in so doing must not become an advocate for either party nor conduct himself in such manner as to give
jury an impression of his feelings.
8. Criminal Law.
Trial court, under guise of examining a witness for purpose of establishing truth or clarifying testimony,
must not comment on evidence or attempt to mislead jury or belittle or cast aspersions on a witness.
9. Criminal Law.
Where witness, in testifying as to probable cause of death of victim, stated he did not understand
precisely the phrase medical certainty, whereupon court stated Well, in other words, are you saying this
is your best guess on the basis of what we have at the present time., as to which witness answered
Precisely, court's employment of phrase your best guess in context of examination was not a comment
on the evidence nor an expression of trial court's feelings, nor was it calculated to mislead jury or belittle
the witness.
10. Criminal Law.
Color photographs showing color of blood of deceased who was found dead in bedroom of her home
after fire and whose inhalation of carbon monoxide during fire might have affected color of her blood were
properly admitted in that their probative value as to whether victim inhaled carbon monoxide during fire
outweighed any prejudicial effect they might have had on jury.
11. Witnesses.
Impeachment is an attack upon the credibility of the witness and usually may not be done by the party
calling the witness, although such party has right to offer evidence showing facts to be
different from those testified to by such witness and may in that manner contradict
his own witness.
although such party has right to offer evidence showing facts to be different from those testified to by such
witness and may in that manner contradict his own witness.
12. Witnesses.
Where state offered testimony of one of its experts that cause of victim's death was by fire only to
produce independent evidence that victim's death had been caused by fire allegedly set by defendant, such
testimony was not improperly admitted on theory that its purpose was to impeach prior testimony of two
other of state's experts who had both testified that more probable cause of death of victim was use of a
combination of ethanol and barbiturates.
13. Criminal Law.
A trial court does not commit error when it refuses to give an offered instruction if content of such
instruction is covered in other instructions, even though the offered instruction correctly states the law.
14. Criminal Law.
Where court gave instruction in murder and arson prosecution that jury could not speculate that a
criminal agency caused the death of the victim but that death by criminal means had to be proven by
evidence beyond reasonable doubt, rejection of offered instruction that in order to find the defendant guilty
of homicide, there must be an expert medical opinion proving beyond a reasonable doubt that fire allegedly
set by defendant was cause of death was not error.
15. Criminal Law.
If there is substantial evidence to support a jury verdict, neither trial court nor Supreme Court may disturb
it.
16. Arson; Homicide.
Testimony of defendant's son and son's friends implicating defendant in setting of fire in master bedroom
of family home, as well as testimony of expert who found human tissue on crutch with which defendant
allegedly struck his wife while she lay in bed and testimony of physician who concluded that wife died in
the fire, constituted substantial evidence to support first degree murder and first degree arson conviction.
17. Criminal Law.
Where questions of fact are dependent upon the credibility of witnesses, jury is entitled to decide
questions of credibility and weight to be attached to their testimony.
18. Criminal Law.
In all criminal proceedings, weight and sufficiency of evidence are questions for jury, and its verdict will
not be disturbed upon appeal if there is evidence to support it.
19. Criminal Law.
Evidence in criminal proceedings cannot be weighed by Supreme Court. Const. art. 6, 4; NRS
177.025.
20. Costs.
Where trial court, in entertaining motions of defendant for reimbursement of his counsel for costs
advanced in his defense, found defendant to be an indigent and allowed expenses for medical expert,
defendant's status as an indigent was confirmed at such time and all out-of-pocket
expenses incidental to his defense incurred after such date by his counsel were
reimbursable.
medical expert, defendant's status as an indigent was confirmed at such time and all out-of-pocket expenses
incidental to his defense incurred after such date by his counsel were reimbursable.
OPINION
A jury found the appellant guilty of murder in the first degree and set his penalty at life in
prison without possibility of parole. The same jury found him guilty of arson in the first
degree and he was sentenced to 10 years, both sentences to run concurrently. A motion for a
new trial was denied, and this appeal follows.
The appellant and Rose Mapel were married on September 20, 1967. At the time of the
marriage she was approximately 20 years his senior. On the evening of December 27, 1967,
the charred remains of Rose Mapel Azbill were discovered in the master bedroom of the
Mapel-Azbill home at 709 Rancho Drive, Las Vegas, Nevada. The appellant and his son,
Brad Azbill, were the only persons immediately present when the disastrous fire started. At
the trial Brad testified that sometime during the evening of December 27, 1967, between eight
and nine o'clock, he was in the master bedroom of the Mapel-Azbill home with his
stepmother, Rose Mapel Azbill, and the appellant. The appellant asked Brad to get him a
drink. When Brad returned to the bedroom the appellant stated he was going to kill Rose
because she had found out that he had married her for her money and was going to divorce
him, and he then requested Brad to get some charcoal lighter fluid. At that time, according to
Brad's testimony, the appellant hit Rose several times with his fist and then hit her with his
crutch. Upon being hit with the crutch Rose raised herself on the bed and mumbled
something. By then the appellant had poured the lighter fluid on the bed. Brad looked away to
avoid seeing his father hit Rose, and he suddenly realized that the room was filling with
smoke.
On the day of the fire, Mark Hutton and Frank Luhman, friends of Brad, visited him at the
home of his father and stepmother. They arrived between 10 a.m. and 11 a.m. John Hutton,
another friend, arrived about 6 p.m. At approximately 6:30 p.m. the appellant and Brad went
to the liquor store where the appellant purchased beer and liquor. At about 7 p.m. Brad took a
bottle of beer to the decedent and noticed that the bottle of vodka on the floor near the bed
contained less than three inches of liquor.
that the bottle of vodka on the floor near the bed contained less than three inches of liquor. At
that time Brad observed that the decedent seemed alert and she thanked him for the beer. Just
after 7 p.m. Brad went back out to the guest house behind the main house to be with his
friends. At about 7:30 p.m. Brad was summoned into the house and told by the appellant that
Rose wanted another can of beer. After serving the beer, as requested, Brad returned to the
guest house where he remained until he was recalled to the main house by the appellant, just
before the fire was started. John Hutton testified that as soon as the television program Lost
in Space was over he looked toward the main house and saw smoke coming from it. He and
the other two boys ran inside the main house where they met Brad, who told them the oven
was on fire. They searched the kitchen area and failed to find any fire or smoke, then the
appellant told them that the Christmas tree was on fire, but that the fire had been
extinguished. After examining the tree the boys found no damage so they began looking
around the house and found the smoke was coming from the master bedroom. The smoke
prohibited them from entering the room so they went outside, broke the bedroom window and
used a garden hose in an attempt to extinguish the fire. It was at this time that they saw the
decedent in the flames. They then began yelling for someone to call the fire department and
police. There was no cross-examination of John Hutton.
Frank Luhman testified that during the afternoon of the day in question, the appellant was
quite drunk and boastful; further, that in such drunken state, the appellant threw a pen knife at
him and then he brought a revolver into the living room and stated he would just as soon kill
someone as look at him. The witness further testified that he saw Rose Mapel Azbill on the
afternoon prior to her death while he was changing the sheets in the appellant's bedroom and
that she appeared to be asleep in her room. At 5:30 in the evening, the appellant requested
this witness to get some girls, in return for such favor he was to be given $100. The
witness, in response to the appellant's request, took a taxi but was unable to locate the type of
women requested by the appellant.
Upon his return from the unfruitful search, the witness returned to the guest house. At
about 8:30 p.m. he saw smoke coming from the main house and went to locate the fire. He
corroborated the testimony of John Hutton that they were directed to the oven, and finding no
fire there, were told by the appellant that the Christmas tree had been on fire. Having
determined that the tree was not damaged he discovered the fire in the bedroom, broke the
window into the room, and upon observing a burning body he fainted.
fire in the bedroom, broke the window into the room, and upon observing a burning body he
fainted. Upon cross-examination of this witness, the defense elicited testimony that on the
day of the fire Brad was quite intoxicated and that he seemed to be almost falling down from
drunkenness. On re-cross-examination the witness was asked why he had not previously told
the police or grand jury about the incident with the gun or about going out in the early
evening looking for girls. He replied: Nobody asked me.
In an attempt to impeach the testimony of the witness, the defense called Joanne Allison, a
teacher at the school attended by the witness. She testified that he had a bad reputation for
truth and veracity.
Mark Hutton corroborated the testimony about the pen knife and about the appellant's
statement that the Christmas tree had been on fire. He also testified that he had not been
drinking liquor that day but that Brad had been drinking but was not drunk. He added that
while Brad and the appellant were at the liquor store in the early evening Rose had called for
Brad.
The appellant took the stand and simply stated he did not start the fire. There was no
cross-examination.
The appellant contends that the trial court erred (1) in denying him the right to impeach the
respondent's witness by restricting cross-examination; (2) in giving an Allen Charge type of
instruction to the jury which coerced them into reaching a verdict; (3) when it commented
upon the testimony of an expert witness; (4) when it admitted into evidence colored
photographs of the deceased; (5) when it allowed the respondent to impeach its own expert
witness, and (6) in refusing to give an instruction which he had requested to the jury. The
appellant further contends that the verdict of the jury is not supported by substantial evidence
sufficient to justify such finding, and is contrary to the law and the weight of the evidence and
that the aggregate of the trial court's error violates federal requirements of due process and
constitutes grounds for a new trial.
1. The appellant, during cross-examination of Brad Azbill, Mark Hutton and Frank
Luhman, sought to elicit testimony from them that they were involved, on or about May 6,
1968, in taking an automobile belonging to Halliburton Oil Well Cementing Company,
without permission or authority, from Las Vegas, Nevada to West Covina, California; that
they were arrested by West Covina authorities; that they were subsequently turned over to the
juvenile authorities of Los Angeles County and later returned to Las Vegas; and that no
further action was taken.
County and later returned to Las Vegas; and that no further action was taken. The appellant
contended that he could properly inquire into the alleged offense for the purpose of showing
interest, bias and state of mind of the witnesses.
The trial court by an order approving the respondent's motion in limine restricted the
inquiry as to the alleged offense, but expressly stated that the appellant was not precluded
from inquiry into the state of mind of each witness.
1
At various intervals during the trial the
appellant made offers of proof as to the unlawful conduct of Brad Azbill, Frank Luhman and
Mark Hutton. Each time the trial court made the same ruling for the reasons stated.
[Headnote 1]
The scope and extent of cross-examination is largely within the sound discretion of the
trial court and in the absence of abuse of discretion a reversal will not be granted. Smith v.
Illinois, 390 U.S. 129 (1968); Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965); State v.
Fitch, 65 Nev. 668, 200 P.2d 991 (1948); State v. McNeil, 53 Nev. 428, 4 P.2d 889 (1931).
NRS 48.020 provides: No person shall be disqualified as a witness in any action or
proceeding on account of his opinions on matters or religious belief, or by reason of his
conviction of a felony, but such conviction may be shown for the purpose of affecting his
credibility. . . .
[Headnote 2]
Although this court has indicated that within the limits of the exercise of sound discretion
a cross-examiner must be permitted to elicit any facts which show bias, interest or similar
feelings which may color the witnesses testimony {State v. Fitch, supra), it is the
established law in this state that the credibility of a witness may be attacked by showing
his conviction of a felony but not by his mere arrest. Johnson v. State, S2 Nev. 33S
____________________

1
The Court: All right. The Court's ruling will be this Mr. Wiener (Counsel for the appellant): You may not
inquire into any juvenile offenses or alleged juvenile offenses that he may have committed. You may ask him the
question: Have any promises or anything been extended to him in return for his testimony in court,' and seek to
lay a grounds for impeachment on that basis, but in the specific of things, juvenile offenses which he may or may
not have committed, you may not examine him with regard to those. His state of mind, if you ask him, was he
given anything or promised anything in exchange for his testimony at the time of the preliminary hearing, then
you are going to develop his state of mind.
The only thing that I'm going to permit you to go into, if you want to try and develop his state of mind, fine;
but you may not examine him with regard to the factual content of any alleged juvenile offense which he may or
may not have committed. If you want to develop in some way what his state of mind was, if he felt anything was
being done for him at the time he testified at the preliminary hearing, fine; go ahead and do it, but I'm not going
to let you examine him, factually speaking, with regard to his juvenile offense.
feelings which may color the witnesses testimony (State v. Fitch, supra), it is the established
law in this state that the credibility of a witness may be attacked by showing his conviction of
a felony but not by his mere arrest. Johnson v. State, 82 Nev. 338, 418 P.2d 495 (1966).
However, the appellant cites Alford v. United States, 282 U.S. 687 (1931), for the proposition
that upon cross-examination, for the purpose of establishing interest, bias or motive to testify
falsely, some inquiry of the witness concerning his unlawful conduct may be permitted
although there has been no felony conviction. Relying upon that case he claims that his
constitutional rights were violated by the trial court's order in limine which precluded him
from showing the interest, bias and state of mind of the juvenile witnesses. He contends that
he should have been allowed to show not only the facts surrounding the taking of the
automobile but also the fact that up to the time of his trial the juveniles had not even been
charged with an act of delinquency.
[Headnote 3]
The appellant's contention is without merit. The trial judge specifically afforded him the
opportunity to inquire into any expectation of leniency. However, the appellant insisted upon
an all or nothing at all position and he made no attempt to lay a foundation for any
questions or to explore the perimeters of the order in limine and refused to further pursue
cross-examinations of the juvenile witnesses. Johnson v. State, supra.
2. During its charge to the jury the trial court instructed them as follows: The Court
instructs the Jury that although the verdict to which each Juror agrees must, of course, be his
own conclusion, and not a mere acquiescence in the conclusion of his fellows, yet, in order to
bring twelve minds to a unanimous result the jurors should examine with candor the
questions submitted to them, with due regard and deference to the opinions of each other. A
dissenting juror should consider whether the doubt in his mind is a reasonable one, when it
makes no impression on the minds of so many jurors equally honest, equally intelligent with
him, who have heard the same evidence, with an equal desire to arrive at the truth, under the
sanction of the same oath. You are not to give up a conscientious conclusion after you have
reached such a conclusion finally, but it is your duty to confer with your fellow jurors
carefully and earnestly and with a desire to do absolute justice both to the State and to the
defendant.
The appellant took specific exception to this instruction upon the ground that it was an
"Allen Charge" which has been condemned in a number of jurisdictions.
the ground that it was an Allen Charge which has been condemned in a number of
jurisdictions.
The name is derived from the case of Allen v. United States, 164 U.S. 492 (1896), in
which the High Court approved a similar charge.
2

In State v. Hall, 54 Nev. 213, 13 P.2d 624 (1932), this court held that an instruction very
similar in wording to the Allen Charge was within the discretion of the trial court to give if
it thought proper to do so. In Basurto v. State, 86 Nev. 567, 570, 472 P.2d 339 (1970), we
considered an instruction identical to the one given here and we said: The charge is
approved so long as it makes clear to the jury that each member has a duty to conscientiously
adhere to his own honest opinion and the charge avoids creating the impression that there is
anything improper, questionable or contrary to good conscience for a jury to create a mistrial.
. . . In this case the charge was clear that no juror was to give up any conscientious conviction
he may hold. The coercive language and effect of State v. Hall [supra], is absent and this is
desirable. While the choice of State v. Hall, supra, as against this new look is not now
squarely presented our preference is expressed in this opinion. The dynamite' charge should
be avoided.
[Headnotes 4-6]
A careful comparison of the instruction given in this case and in Basurto with the original
Allen Charge indicates that those instructions are far less coercive than the original Allen
Charge and they do make it clear to the jury that each member has a duty to adhere to his
own honest opinion and they avoid creating the impression that there is anything improper,
questionable or contrary to good conscience for a jury to create a mistrial. We find no error in
the giving of instruction 52 in this case, however, as we did in Basurto, we again insist that
the dynamite or Allen Charge should be avoided and that there should be an
abandonment of all judicial interference in jury deliberations.
____________________

2
The charge in Allen was substantially as follows: [A]lthough the verdict must be the verdict of each
individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the
question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was
their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be
convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror
should consider whether his doubt was a reasonable one which made no impression upon the minds of so many
men, equally honest, equally intelligent with himself. If, upon the other hand, the majority were for acquittal, the
minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which
was not concurred in by the majority.
there should be an abandonment of all judicial interference in jury deliberations. Posey v.
United States, 416 F.2d 545 (5th Cir. 1969); United States v. Fioravanti, 412 F.2d 407 (3rd
Cir. 1969).
3. During the course of the trial the presiding judge used the phrase your best guess
3
in
questioning an expert witness. The appellant asserts that the use of the word guess
amounted to a prejudicial comment by the trial judge on the testimony.
[Headnotes 7, 8]
A trial judge has the right to examine witnesses for the purpose of establishing the truth or
clarifying testimony, but in doing so he must not become an advocate for either party, nor
conduct himself in such a manner as to give the jury an impression of his feelings. Herdandez
v. State, 87 Nev. 553, 490 P.2d 1245 (1971); People v. Rigney, 359 P.2d 23 (Cal. 1961);
People v. Smith, 165 N.E.2d 333 (Ill. 1960); Baldwin v. District of Columbia, 183 A.2d 566
(D.C.Mun.Ct.App. 1962). Furthermore, under the guise of examining a witness, a trial judge
must not comment on the evidence or attempt to mislead the jury or belittle or cast aspersions
on a witness. Hernandez v. State, supra; Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d
135 (1970); Kinna v. State, 84 Nev. 642, 447 P.2d 32 (1968); People v. Rigney, supra;
Peterson v. Silver Peak, 37 Nev. 117, 140 P. 519 (1914).
[Headnote 9]
We have reviewed the record in this case and are lead to the conclusion that the
questioning by the trial court was for the sole purpose of eliciting the truth and to make more
understandable the conclusions of the expert witness. It cannot be said that the employment
of the phrase your best guess in the context of the examination was a comment on the
evidence, nor an expression of the trial judge's feelings. Nor can it be said that the question
was calculated to mislead the jury or belittle the witness.
____________________

3
Judge Alvin Wartman, the trial judge, entered into the following question and answer colloquy with the
witness, Dr. John Wesley Grayson, Jr.:
Q. And your opinion as to the most probable cause of death is not that it was traumatic but that it was due
to a combination of alcohol and barbiturates?
A. I think that is the most probable. . . .
The Court: . . . Do you mean to a medical certainty?
A. . . . I don't really understand precisely the phrase medical certainty.'
The Court: Well, in other words, are you saying this is your best guess on the basis of what we have at the
present time.
A. Precisely.
that the question was calculated to mislead the jury or belittle the witness.
4. Relative to proof that carbon monoxide was induced into the blood stream through the
lungs of the victim at the time of the fire, certain colored photographs were admitted into
evidence to show the color of the victim's blood. The appellant claims that the pictures were
without a scientific purpose, that their presence only inflamed the minds of the jurors and that
the trial court erred when they were admitted. We do not agree. Because the inhalation of
carbon monoxide can affect the color of blood, a color photograph showing the color of the
blood of the deceased was highly probative of whether or not she inhaled carbon monoxide
during the fire.
[Headnote 10]
The purpose of a trial is to ascertain and disclose the truth and any evidence which is
relevant to that purpose is admissible. Here the color photographs were properly admitted
because their probative value outweighed any prejudicial effect they might have had on the
jury. Shuff v. State, 86 Nev. 736, 476 P.2d 22 (1970); Walker v. State, 85 Nev. 337, 455 P.2d
34 (1969); Langley v. State, 84 Nev. 295, 439 P.2d 986 (1968); Morford v. State, 80 Nev.
438, 395 P.2d 861 (1964).
5. Dr. John Wesley Grayson, Jr., and Dr. Thorne Jefferson Butler, witnesses for the state,
both testified that the more probable cause of death of Rose Mapel Azbill was the use of a
combination of ethanol and barbiturates. Dr. Joseph Alexander Jachimczyk, also a witness for
the state, testified that her death was caused by the fire. The appellant objected to Dr.
Jachimczyk's testimony upon the ground that its purpose was to impeach the testimony of Dr.
Grayson and Dr. Butler. The trial court correctly found that the testimony of Dr. Jachimczyk
was contradictory in nature and not for the purpose of impeachment and overruled the
objection. In overruling the appellant's objection the trial court limited Dr. Jachimczyk's
testimony to his opinions based on the independent research and observations and precluded
him from in any way voicing an opinion on the testimony of Dr. Grayson and Dr. Butler.
[Headnote 11]
Impeachment is an attack upon the credibility of a witness and usually may not be done by
the party calling the witness, but he has a right to offer evidence showing facts to be different
from those testified to by such witness and in that manner contradict his own witness. United
States v. Williamson, 424 F.2d 353 (5th Cir. 1970); Commonwealth v. Staino, 204 A.2d 664
{Pa.
A.2d 664 (Pa. 1964); State v. Winters 344 P.2d 526 (Wash. 1959); State v. Timm, 12 N.W.2d
670 (Wis. 1944); Cahow v. Michelas, 62 Nev. 295, 149 P.2d 233 (1944); Nevada R. & S. Co.
v. Grich, 59 Nev. 345, 93 P.2d 513 (1939); Wigmore, Evidence 3d ed., Vol. 3A 694-698
(1970); 98 C.J.S. Witnesses 630.
In Talley v. Richart, 185 S.W.2d 23, 26 (Mo. 1945), that court said: It is well settled a
party may contradict his own witness by independent evidence showing facts to be different
from those testified to by such witness. . . . Such rule does not violate the general rule that
one may not impeach his own witness because to contradict is not to impeach. The terms are
not synonymous. Impeachment is directed to the credibility of the witness for the purpose of
discrediting him. It ordinarily furnishes no factual evidence. Contradiction, on the other hand,
is directed to the accuracy of testimony and supplies additional factual evidence to be
considered along with such testimony. Such evidence as is relevant to the issues may not be
excluded because it contradicts another witness called by the same party, whether such
witness is friendly or hostile.
[Headnote 12]
In the present case the state did not seek to prove by Dr. Jachimczyk that either Dr.
Grayson or Dr. Butler had at some previous time made contrary statements, but only to
produce independent evidence that Rose Mapel Azbill's death had been caused by the fire.
This the state was permitted to do and the trial court committed no error in permitting Dr.
Jachimczyk to testify.
6. The appellant offered the following jury instruction which was rejected by the trial
court: In order to find the defendant guilty of homicide there must be an expert medical
opinion worthy of belief and proving beyond a reasonable doubt fire was the cause of death.
[Headnotes 13, 14]
The trial court properly rejected the offered instruction. After examining all of the
instructions given by the trial court, and in particular instruction No.19,
4
it is our opinion
that the subject matter was properly and fully treated in the other instructions. It is the
established law of this state that a trial court does not commit error when it refuses to give an
offered instruction if the content of that instruction is covered in other instructions, even
though the offered instruction correctly states the law.
____________________

4
Instruction number 19: You may not speculate that a criminal agency caused the death of Rose Azbill.
Death by a criminal means must be proven by evidence, proving beyond a reasonable doubt that said death was
by a criminal means.
instruction if the content of that instruction is covered in other instructions, even though the
offered instruction correctly states the law. Summers v. State, 86 Nev. 210, 467 P.2d 98
(1970); Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968); Carlson v. State, 84 Nev. 534,
445 P.2d 157 (1968).
[Headnote 15]
The appellant contends that the jury verdict is not supported by substantial evidence and is
contrary to the law and the weight of the evidence. If there is substantial evidence to support a
jury verdict neither the trial court nor this court will disturb it. McGuire v. State, 86 Nev. 262,
468 P.2d 12 (1970); Lamb v. Holsten, 85 Nev. 566, 459 P.2d 771 (1969); Tellis v. State, 85
Nev. 679, 462 P.2d 526 (1969); Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968); Crowe
v. State, 84 Nev. 358, 441 P.2d 90 (1968).
[Headnote 16]
We find that although there was conflicting evidence, and in particular concerning the
cause of death, there was substantial evidence to support the verdict in this case. The
testimony of Brad Azbill and friends, as well as the testimony of the expert who found human
tissue on the crutch, together with the testimony of the doctor who concluded that Rose
Azbill died in the fire, is such substantial evidence.
[Headnote 17]
Where questions of fact are dependent upon the credibility of witnesses, the jury is entitled
to decide questions of credibility and the weight to be attached to their testimony. Martinez v.
State, 77 Nev. 184, 360 P.2d 836 (1961).
[Headnotes 18, 19]
In all criminal proceedings the weight and sufficiency of the evidence are questions for the
jury, and its verdict will not be disturbed upon appeal if there is evidence to support it. The
evidence cannot be weighed by this court. Nev. Const. art. 6, 4; NRS 177.025; State v.
Butner, 66 Nev. 127, 206 P.2d 253 (1949); State v. Soares, 53 Nev. 235, 296 P. 1081 (1931);
State v. Watts, 52 Nev. 453, 290 P. 732 (1930); State v. Boyle, 49 Nev. 386, 248 P. 48
(1926); State v. Van Winkle, 6 Nev. 340 (1871).
7. As his final assignment of error the appellant claims that the trial court erred when it
denied his motion, as an indigent, for an order directing Clark County to reimburse his
attorney for costs advanced in his defense.
On May 9, 1968, the appellant filed a motion requesting that Clark County pay the
expenses for a medical expert to make studies in the case on his behalf, based on his affidavit
that he was indigent. This motion was granted on May 19, 1969. On October 7, 1969, the trial
court ordered Clark County to reimburse the appellant's counsel for monies advanced to Dr.
Henry, a defense pathologist. But when appellant moved for an order directing Clark County
to reimburse his attorneys for costs advanced, the motion was denied.
In State v. District Court, 85 Nev. 241, 245, 453 P.2d 421 (1969), this court stated:
Holding, as we do, that an indigent defendant's constitutional rights require reimbursement
to his counsel for out-of-pocket expenses incidental to his defense, the trial courts have the
inherent right to entertain motions seeking such allowances and to order payment of such
reasonable amounts as they, in their discretion, deem proper and necessary.
[Headnote 20]
Here the trial court did entertain motions of the appellant for reimbursement of his counsel
and on May 19, 1969, it found the appellant to be an indigent and allowed expenses for a
medical expert. At that time appellant's status as an indigent was confirmed and all
out-of-pocket expenses incidental to his defense incurred after that date by his counsel are
reimbursable.
We affirm the jury's verdict and the judgment of the trial court, but remand the matter to
the district court for the sole purpose of determining the reimbursable out-of-pocket expenses
incurred by the appellant's attorneys from and after May 19, 1969, to and including
September 25, 1969.
____________
88 Nev. 254, 254 (1972) Flowers v. Scott
In the Matter of the Adoption of ALLEN
DEAN SCOTT, a Minor.
JOHN ROBERT CHARLES FLOWERS, Appellant, v.
ALFRED ELROY SCOTT, Respondent.
No. 6514
ANITA SHEREE FLOWERS, Appellant, v.
ALFRED ELROY SCOTT, Respondent.
No. 6297
April 10, 1972 495 P.2d 610
No. 6514Appeal from an order dismissing the petition of John Robert Flowers to adopt
Allen Dean Scott, a Minor; Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Affirmed.
No. 6297Appeal from judgment granting visitation and support rights to Alfred Elroy
Scott, the natural father of Allen Dean Scott, and denying the petition of Anita Sheree
Flowers to terminate the parental rights of Alfred Elroy Scott; Eighth Judicial District Court,
Clark County, Roscoe H. Wilkes, Judge.
The district court dismissed adoption petition and petition by mother to terminate parental
rights of natural father of minor and appeals were taken. The Supreme Court, Thompson, J.,
held that where natural father of minor had obtained declaration of existence of relation of
parent and child between himself and minor and had not consented to adoption, proposed
adoption by husband of mother was properly denied and that record sustained trial court's
refusal to terminate parental rights of natural father of illegitimate child whose mother had
married.
Affirmed.
Beckley, DeLanoy & Jemison and Fadgen & Johnson, of Las Vegas, for Appellant.
Morris, Walker & Pilkington, of Las Vegas, for Respondent.
1. Adoption.
Where adoption proceeding had not been completed at time of enactment of new statute relating to
consent by father whose parental right had been established to adoption, new statute must be complied
with. Stats. Nev. 1971, ch. 412; NRS 41.530.
2. Adoption.
Where natural father of minor had obtained declaration of existence of relation of parent and child
between himself and minor, and had not consented to adoption, proposed adoption by
husband of mother was properly denied.
minor, and had not consented to adoption, proposed adoption by husband of mother was properly denied.
Stats. Nev. 1971, ch. 412; NRS 41.530.
3. Bastards.
Record sustained trial court's refusal to terminate parental rights of natural father of illegitimate child
whose mother had married.
OPINION
These consolidated appeals concern the welfare of Allen Dean Scott, a six-year old child
who was born out of wedlock to Anita Sheree Flowers [nee Schweche] and Alfred Elroy
Scott. Subsequently, Anita married John Robert Charles Flowers who petitioned to adopt
Allen. Before his petition was filed, however, Alfred Scott, the natural father, had secured
from the court a declaration of the existence of the relation of parent and child between
himself and Allen, and had persuaded the court to deny a subsequent petition by Anita to
terminate his parental rights thus declared. Armed with these court declarations, Alfred Scott
moved to dismiss the adoption petition filed by John Robert Charles Flowers on the ground
that he, Alfred, was the natural father whose parental rights had not been terminated, and who
had not consented to the adoption. The district court granted the motion and dismissed the
petition for adoption. That ruling forms the basis for the appeal in Case No. 6514 to which we
now turn.
[Headnotes 1, 2]
1. No. 6514. Whatever may have been the law regarding consent to the adoption of a child
born out of wedlock when the district court ruled, it is now certain that if parental rights
have been established in a court of competent jurisdiction by the father of such a child,
pursuant to NRS 41.530, his consent shall be required. Stats. Nev. 1971, ch. 412, p. 835,
effective April 22, 1971. Since the proposed adoption has not been completed, the new law
must be complied with. We, therefore, affirm the dismissal of the petition for adoption since
the relationship of father and son was established pursuant to NRS 41.530 and the father had
not consented to the proposed adoption.
[Headnote 3]
2. No. 6297. Pursuant to NRS 41.530, Alfred Elroy Scott commenced an action to
establish that he was the father of Allen Dean Scott, and following a hearing, the court so
declared.
declared. Subsequently, he moved to modify the judgment to provide for visitation rights and
to require him to support Allen. While that motion was pending, Allen's mother filed a
petition to terminate the parental rights of Alfred. The motion to modify, and that petition
were consolidated for hearing. The court granted modification and denied the petition to
terminate parental rights from which decision the mother appeals. Our review of the record
reveals substantial evidence in support of the decision below and we, therefore, affirm.
Zenoff, C. J. and Batjer, Mowbray, and Gunderson, JJ., concur.
____________
88 Nev. 256, 256 (1972) Federal Sav. & Loan Ins. Corp. v. Moss
FEDERAL SAVINGS AND LOAN INSURANCE CORPORATION, an Agency of the
United States of America, Appellant and Cross-Respondent, v. MELVIN S. MOSS, ALBERT
G. NEUMEYER, ROBERT C. FIELDING, EDWARD J. HELLMER, JOHN DONALD
PULLIAM and WILLIAM G. RAYSON, Respondents and Cross-Appellants.
No. 6374
April 11, 1972 495 P.2d 616
Appeal from order granting motion for voluntary dismissal upon payment of attorneys'
fees, and cross-appeals from denial of motions seeking dismissal with prejudice, Eighth
Judicial District Court, Clark County; Roscoe H. Wilkes, Judge.
Suit brought by savings and loan association's assignee seeking some $20 million in
damages for waste and mismanagement. An appeal and cross-appeal were taken from an
order of the district court denying the motion of four defendants to dismiss for want of
prosecution, granting the motion of plaintiff (as to those four defendants) for a voluntary
dismissal without prejudice on condition that plaintiff pay those defendants' costs and
attorney fees, and denying the motion of two other defendants to amend a judgment of
dismissal as to them. The Supreme Court held, inter alia, that because defendants were not
parties to the action after plaintiff noticed voluntary dismissal of the action as to them, neither
of those two defendants was a party aggrieved within meaning of rule when lower court
declined to amend the dismissal to be with prejudice; accordingly, those two defendants'
appeal from lower court's order refusing to amend the dismissal had to be dismissed.
lower court's order refusing to amend the dismissal had to be dismissed.
Appeal and cross-appeals dismissed.
Munger, Tolles, Hill & Rickershauser; Peter R. Taft, Ronald L. Olson, of Los Angeles;
Milton W. Keefer, of Las Vegas, for Appellant.
Simon, Sheridan, Murphy, Thornton & Medvene, of Los Angeles; Jones, Jones, Close,
Bilbray & Kaufman, Ltd., of Las Vegas, for Respondents.
Because defendants were not parties to the action after plaintiff noticed voluntary dismissal of the action
as to them, neither of those two defendants was a party aggrieved within meaning of rule when lower
court declined to amend the dismissal to be with prejudice; accordingly, defendants' appeal from lower
court's order refusing to amend the dismissal had to be dismissed. NRCP 41(a)(1), (a)(2), 72(a).
Since lower court had not entered a final order disposing of the action as between the parties, but had
simply entered an order granting plaintiffs motion for a voluntary dismissal without prejudice as to certain
defendants on the condition that plaintiff pay those defendants' costs and attorney fees, the appeals of both
plaintiff and those defendants had to be dismissed. NRCP 41(a)(1),(a)(2),72(b).
OPINION
Per Curiam:
May 23, 1967, First Western Savings and Loan Association filed a complaint in our Eighth
Judicial District Court, seeking some $20 million in damages for waste and mismanagement.
June 13, 1967, respondents Moss, Hellmer, Pulliam and Rayson answered the complaint, and
thereafter proceeded with discovery through interrogatories. By special appearance,
respondents Neumeyer and Fielding moved the court to quash purported service of process
upon them, which it did July 2, 1968.
Except for answering interrogatories propounded by the respondents who appeared,
unsuccessfully resisting motions to quash service made by those who did not, and filing but
not perfecting an appeal from the lower court's order quashing service of process, First
Western did little to move its action forward. On September 28, 1968, First Western assigned
its interest in the case to appellant Federal Savings and Loan Insurance Corporation
{"FSLIC"), which on November 12, 196S, petitioned to remove the case to the United
States District Court.
interest in the case to appellant Federal Savings and Loan Insurance Corporation (FSLIC),
which on November 12, 1968, petitioned to remove the case to the United States District
Court. Simultaneously, FSLIC commenced in federal court an action it characterizes as
incorporating claims of [First Western] pursuant to the assignment and original claims of
FSLIC. In federal court, FSLIC apparently concentrated its efforts on the second action; on
November 8, 1969, that court held that FSLIC's attempt to remove the first action was
improper, and remanded it to the Eighth Judicial District Court.
December 19, 1969, FSLIC noticed voluntary dismissal of the first action as to Fielding
and Neumeyer, pursuant to NRCP 41(a)(1); February 10, 1970, Fielding and Neumeyer
moved to have the dismissal amended to be with prejudice.
1
February 10, the other
respondents moved to dismiss the action with prejudice pursuant to NRCP 41(a)(2); March 6,
FSLIC moved for voluntary dismissal of the action against those respondents, pursuant to
NRCP 41(e).
2
May 11, the court entered an Order that recited in material part:
1. The motion of defendants Moss, Hellmer, Pulliam and Rayson to dismiss for want of
prosecution pursuant to Rule 41{e) of the Nevada Rules of Civil Procedure is hereby
denied;
____________________

1
NRCP 41(a)(1) provides: Subject to the provisions of Rule 23(e), of Rule 66, and of any statute, an action
may be dismissed by the plaintiff upon repayment of defendants' filing fees, without order of court (i) by filing a
notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary
judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have
appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without
prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff
who has once dismissed in any court of the United States or of any state an action based on or including the same
claim.

2
NRCP 41(a)(2) provides: 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.
NRCP 41(e) provides: The court may in its discretion dismiss any action for want of prosecution on motion
of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is
filed to bring such action to trial. . . . A dismissal under this subdivision (e) is a bar to another action upon the
same claim for relief against the same defendants unless the court otherwise provides.
41(e) of the Nevada Rules of Civil Procedure is hereby denied;
. . .
3. Defendants Neumeyer and Fielding's motion to amend judgment of dismissal is hereby
denied;
4. Plaintiff's motion for voluntary dismissal without prejudice pursuant to Rule 41(a)(2)
of the Nevada Rules of Civil Procedure as to defendants Moss, Hellmer, Pulliam, and
Rayson, and the twenty John Does is hereby granted on condition that plaintiff pay the cost of
defendants Moss, Hellmer, Pulliam, and Rayson as permitted by Nevada law and/or by
agreement of the parties during the course of the litigation and on condition that plaintiff also
pay the reasonable attorneys fees paid by defendants Moss, Hellmer, Pulliam, and Rayson for
legal services in this case, and said defendants shall have twenty days from the date of this
order for submitting said bills.
May 28, FSLIC then noticed a purported appeal from that certain portion of Paragraph
numbered 4 of that certain Order . . . which provides that Plaintiff pay the reasonable
attorneys fees paid by Defendants Moss, Hellmer, Pulliam, and Rayson. . . The thrust of this
appeal is that FSLIC, as an agency of the United States Government, cannot be assessed for
legal fees it causes others to incur. The defendant-respondents have purported to cross-appeal
from paragraphs 1, 3 and 4 of the court's order, contending the record shows such delay on
the part of First Western and FSLIC as to make dismissal with prejudice obligatory.
[Headnote 1]
Because Neumeyer and Fielding were not parties to the action in the lower court after
FSLIC dismissed its action as to them, neither was a party aggrieved within the meaning of
NRCP 72(a) when the lower court declined to amend FSLIC's dismissal of its action against
them; hence, we dismiss their appeal. Rule 41(a)(1) is the shortest and surest route to abort a
complaint when it is applicable. So long as plaintiff has not been served with his adversary's
answer or motion for summary judgment he need do no more than file a notice of dismissal
with the Clerk. That document itself closes the file. There is nothing the defendant can do to
fan the ashes of that action into life and the court has no role to play. This is a matter of right
running to the plaintiff and may not be extinguished or circumscribed by adversary or court.
American Cyanamid Company v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963); cf. Volpert v.
Papagna, 83 Nev. 429, 433 P.2d 533 (1967).
[Headnote 2]
Because the lower court has not entered a final order disposing of the action as between
FSLIC and the other respondents, the appeals of those parties are likewise dismissed. NRCP
72(b). Since appellant has declined to accept a voluntary dismissal on the terms the court
below would allow it, the court on remand may, on a renewed motion to dismiss for want of
prosecution, decide that appellant's delay in prosecuting its case constitutes an adequate
independent ground for a dismissal with prejudice. In that event, any error that may arguably
have occurred in the court's original order would be harmless. United States v. Pacific Fruit &
Produce Co., 138 F.2d 367 (9th Cir. 1943).
Appeals dismissed.
____________
88 Nev. 260, 260 (1972) Kay v. Bd. County Comm'rs of Clark Co.
EDITH KAY, EDWARD SINGER, THERESA SINGER, BENJAMIN KISHNER,
CHARLOTTE KISHNER, DARRYL RANDERSON, MARJORIE RANDERSON, and
JANE LEONARD, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF CLARK
COUNTY, NEVADA, Respondent, v. REALTY HOLDINGS, INC., a Nevada Corporation,
Intervenor-Respondent.
No. 6707
April 13, 1972 495 P.2d 628
Appeal from an order of the Eighth Judicial District Court, Clark County, dismissing a
petition for writ of review, Thomas J. O'Donnell, Judge.
Affirmed.
Peter L. Flangas, of Las Vegas, for Appellants.
Roy A. Woofter, District Attorney, Richard E. Vogel and Thomas R. Severns, Deputy
District Attorneys, Clark County, for Respondent.
Lionel Sawyer Collins & Wartman, of Las Vegas, for Intervenor-Respondent.
OPINION
Per Curiam:
This appeal is from a district court denial of certiorari which challenged the jurisdiction
of the Board of County Commissioners to grant a setback variance.
88 Nev. 260, 261 (1972) Kay v. Bd. County Comm'rs of Clark Co.
challenged the jurisdiction of the Board of County Commissioners to grant a setback
variance. The Board did not act in excess of its jurisdiction, NRS 278.020, and we, therefore,
affirm the district court out-of-hand.
____________
88 Nev. 261, 261 (1972) Prins v. Prins
JOHN PRINS, Appellant, v. MARGUERITE PRINS, Respondent.
No. 6665
May 1, 1972 496 P.2d 165
Appeal from an order modifying a divorce decree. Eighth Judicial District Court, Clark
County; John F. Mendoza, Judge.
Ex-wife moved to modify divorce decree to terminate ex-husband's visitation rights for
non-payment of support, and for judgment for the arrearage in support payments. Ex-husband
cross-moved seeking to have ex-wife held in contempt for failing to afford him visitation
rights and requested transfer of child's custody to himself. The district court entered judgment
in favor of ex-wife, and ex-husband appealed. The Supreme Court held, inter alia, that absent
a trial transcript or a statement of the evidence, it had to presume that sufficient evidence was
presented to support the findings and ruling of the trial court which modified the divorce
decree by altering ex-husband's unqualified right of visitation; moreover, the trial court is
afforded vast discretionary powers in determining what is in best interests of a child in cases
involving modification of visitation rights.
Affirmed.
Scotty Gladstone, of Las Vegas, for Respondent.
1. Divorce.
Absent a trial transcript or a statement of the evidence, Supreme Court had to presume that sufficient
evidence was presented to support the findings and ruling of the trial court which modified divorce decree
by altering father's unqualified right of visitation; moreover, the trial court is afforded vast discretionary
powers in determining what is in best interests of a child in cases involving modification of visitation
rights. NRS 125.140; NRCP 75(n).
88 Nev. 261, 262 (1972) Prins v. Prins
2. Divorce.
Not having been favored with a complete record of the testimony below, Supreme Court had to presume
that the evidence warranted modification of divorce decree to condition father's visitation rights upon
payment of all arrearages in child support, and in being current in his continuing payments.
3. Divorce.
Where ex-wife moved to modify divorce decree to terminate ex-husband's visitation rights for
non-payment of support, and for judgment for the arrearage in support payments, and where, after a
hearing, the court, inter alia, entered an order conditioning ex-husband's visitation rights upon paying all
child support arrearages and being current in continuing payments, it was not inappropriate for the court,
under those circumstances, to award attorney fees to the ex-wife. NRS 125.180, subd. 1.
Assignments of error were not ground for reversal absent a showing of how appellant had been
prejudiced or aggrieved, and without any citation of supporting authority.
OPINION
Per Curiam:
The parties to this appeal were divorced in Las Vegas in 1968. The decree, inter alia,
awarded to the respondent the custody of the child of the marriage; ordered the appellant to
make support payments of $50.00 per month; and granted him reasonable rights of visitation.
The decree was silent on exactly when the support should be paid and what would constitute
reasonable visitation rights. In 1969 the parties executed an agreement explicitly defining
when the appellant's visitation rights should be exercised, and specifying exactly when the
support payments should be made.
Subsequently, the relationship between the parties apparently deteriorated because in 1971,
the respondent moved to modify the divorce decree to terminate the appellant's visitation
rights for non-payment of support, and for judgment for the arrearage in the support
payments. The appellant responded by filing a cross-motion seeking to have the respondent
held in contempt of court for failing to afford him the visitation rights provided by the divorce
decree, and requesting that the court transfer custody of the child to him. Each party charged
the other with conduct detrimental to the child's well-being and each asserted that the other
was an unfit parent.
After a hearing which consumed nearly three days the court, inter alia, ordered that the
custody of the child be continued in the respondent; it continued the appellant's rights of
visitation, but it specifically defined when the visitation rights should be exercised, and it
imposed certain express conditions and limitations thereon; it continued the support
payments of $50.00 per month; and it entered judgment against the appellant for the
payments in arrears, and provided that his rights of visitation should not commence until
he had paid the support arrearage and was current in all his support obligations.
88 Nev. 261, 263 (1972) Prins v. Prins
but it specifically defined when the visitation rights should be exercised, and it imposed
certain express conditions and limitations thereon; it continued the support payments of
$50.00 per month; and it entered judgment against the appellant for the payments in arrears,
and provided that his rights of visitation should not commence until he had paid the support
arrearage and was current in all his support obligations. Attorney fees and costs were also
assessed against the appellant.
[Headnote 1]
This appeal from the order modifying the divorce decree challenges the provision which
altered the appellant's unqualified right of visitation as contained in the divorce decree to the
conditional visitation right as set forth in the modification order, contending that the court
abused its discretion.
1
However, the transcript of the testimony presented during the lengthy
hearing has not been docketed as part of the record on appeal, and in the absence of a trial
transcript, or a statement of the evidence pursuant to NRCP 75(n), we must presume that
sufficient evidence was presented to the trial court to support its findings and its ruling.
Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970). Moreover, the trial court is afforded
vast discretionary powers in determining what is in the best interests of a child in cases
involving modification of visitation rights. NRS 125.140; Howe v. Howe, 87 Nev. 595, 491
P.2d 38 (1971).
[Headnote 2]
The appellant further contends that the trial court erred in conditioning his visitation rights
upon payment of all arrearages in child support, and in being current in his continuing
payments. However, not having been favored with a complete record of the testimony below,
we must presume that the evidence warranted such limitations, and that they are reasonable in
the factual circumstances presented to the trial court. Cf. Chesler v. Chesler, 87 Nev. 335, 486
P.2d 1198 (1971).
[Headnote 3]
The appellant also challenges the award of attorney fees to the respondent, asserting that
the award was improper and an abuse of the court's discretion. Such an assignment is without
merit on the record before us. NRS 125.180(1) provides for an award of attorney fees in these
circumstances, and there is nothing in the record to indicate that the amount of the award
is unreasonable.
____________________

1
Cf. Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970), where the court suspended support payments during
the time the mother illegally denied the father visitation rights.
88 Nev. 261, 264 (1972) Prins v. Prins
nothing in the record to indicate that the amount of the award is unreasonable.
[Headnote 4]
We have considered the remaining points assigned as error by the appellant, and we find
them all to be without merit. Absent any showing of how the appellant has been prejudiced or
aggrieved, and without any citation of supporting authority, such assignments are not grounds
for reversal. Howarth v. El Sobrante Mining Corp., 87 Nev. 492, 489 P.2d 89 (1971).
Affirmed.
____________
88 Nev. 264, 264 (1972) Goff v. State
RANDEL HOWARD GOFF, Appellant, v. THE
No. 6709
May 1, 1972 496 P.2d 160
Appeal from conviction of robbery. Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
The Supreme Court, Zenoff, C. J., held, inter alia, that no error was shown in excluding
hearsay declaration against penal interest in absence of showing that purported declarant was
unavailable as a witness.
Affirmed.
Robert G. Legakes, Public Defender, and Stewart L. Bell, Deputy Public Defender, Clark
Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
No error was shown in excluding hearsay declaration against penal interest in absence of showing that
purported declarant was unavailable as a witness. NRS 51.055, 51.345, subd. 1(b).
2. Criminal Law.
Asserted error in excluding hearsay testimony with respect to statement which allegedly constituted
declaration against penal interest or alibi could not be considered on appeal where the alleged statement
was not preserved by offer of proof.
3. Criminal Law.
Viewing alleged admission by another that he committed crime for which defendant was accused as alibi,
there was no error in exclusion thereof where such alleged alibi was not noticed to the
district attorney ten days before trial and there was no good cause shown for not
doing so.
88 Nev. 264, 265 (1972) Goff v. State
exclusion thereof where such alleged alibi was not noticed to the district attorney ten days before trial and
there was no good cause shown for not doing so. NRS 174.087, subd. 1.
OPINION
Appellant stands convicted of robbing the Beer Barrel Bar in Las Vegas, Nevada, on April
1, 1970.
During the trial appellant testified that while he was in the Clark County jail shortly after
his arrest he met a person named Robert Lee Mason who, appellant alleges, indicated that he
had committed the crime for which appellant was accused. The transcript reads in pertinent
part:
[By defense attorney George H. Spizzirri:]
Q. Did you talk to Mr. Mason onat any time while you were in the same cell together?
A. Yes.
Q. And do you recall approximately when this conversation took place, the time?
A. All I know it was in the daytime.
Q. Was anyone else present besides yourself?
A. Yes, me and Carter.
Q. Could you tell us and tell the jury what exactly was said at this time?
Mr. Guy: [Deputy District Attorney] I'm going to object, Your Honor.
Mr. Spizzirri: Generally, an objection has a basis.
Court: Yes.
Mr. Guy: Very well, Your Honor, it concerns a man who is not present if my
understanding is clear on it.
Mr. Spizzirri: The statements were made in the presence of the defendant, Your Honor.
Court: I don't think you have shown that whatever the statements are, are an exception to
the hearsay rule.
No further foundation was laid or offer of proof made to elicit any testimony concerning
what appellant now alleges to be a declaration against penal interest.
Further on, the trial court sustained an objection for lack of foundation as to the
admissibility of Mason's photograph.
[Headnote 1]
Appellant raises two issues on appeal. Did the trial court err in excluding a hearsay
declaration against penal interest? Did the trial court err in excluding the photo of Mason? 1.
88 Nev. 264, 266 (1972) Goff v. State
1. Appellant asserts that the statement of Mason alluded to in the portion of the transcript
set out above was in fact a declaration against penal interest and therefore should have been
admitted as an exception to the Hearsay Rule. This court has held in Alexander v. State, 84
Nev. 737, 449 P.2d 153 (1968), that the exception sought to be applied is not recognized in
this state when the declaration is sought to be proved solely through the mouth of the
defendant. 84 Nev., at 742. However, the Nevada Legislature has seen fit to adopt the
exception which now appears in NRS 51.345(1)(b) as follows:
A statement which at the time of its making:
. . .
(b) So far tended to subject him to civil or criminal liability;
. . .
that a reasonable man in his position would not have made the statement unless he believed it
to be true is not inadmissible under the hearsay rule if the declarant is unavailable as a
witness.
[Headnote 2]
All of this, however, does not advance appellant's case, as there are two deficiencies in the
record presented to this court. First, there was no showing that the purported declarant was
unavailable as a witness within the contemplation of NRS 51.055. Secondly, whatever
Mason's statement or alleged admission was, it is not preserved for our review, and,
consequently, we are unable to determine whether it was a declaration against penal interest
which determination is required before we can say that the trial judge erred in excluding the
hearsay.
[Headnote 3]
If we view Mason's alleged admission as an alibi for Goff, still no relief is available. NRS
174.087(1) requires alibis to be noticed to the district attorney ten days before trial. This was
not done here, nor was there a good cause shown for not doing so. Founts v. State, 87 Nev.
165, 483 P.2d 654 (1971). Further, there was no offer of proof made which allows us to
determine whether the statement could be considered to be an alibi.
2. The appellant admits in his brief that there was insufficient foundation for the
photograph if the declaration was not admitted.
88 Nev. 264, 267 (1972) Goff v. State
insufficient foundation for the photograph if the declaration was not admitted. Resolution of
point one resolves point two.
Affirmed.
____________
88 Nev. 267, 267 (1972) McRoy v. Warden
FREDDIE McROY, Appellant, v. WARDEN, NEVADA
STATE PRISON, Respondent.
No. 6608
May 1, 1972 496 P.2d 162
Appeal from an order denying an application for post-conviction relief. Eighth Judicial
District Court, Clark County; Thomas J. O'Donnell, Judge.
The Supreme Court, Batjer, J., held that failure of petitioner's court-appointed counsel to
notify petitioner that he believed petitioner's appeal to be frivolous or without merit and that
petitioner had the right to present any arguments he might choose to raise on his behalf did
not entitle petitioner to relief where counsel sent petitioner a copy of the brief which he filed
with reviewing court, and more than a month thereafter petitioner had not raised any
additional issues to be considered on review either through court-appointed counsel or pro se.
Affirmed.
Rogers, Whitney, Lea & Woodbury, of Las Vegas, for Appellant.
Robert List, Attorney General; Roy Woofter, District Attorney, Charles L. Garner, Chief
1. Criminal Law.
Failure of petitioner's court-appointed counsel to notify petitioner that he believed petitioner's appeal to
be frivolous or without merit and that petitioner had the right to present any arguments he might choose to
raise on his behalf did not entitle petitioner to post-conviction relief where counsel sent petitioner a copy of
the brief which he filed with reviewing court, and more than a month thereafter petitioner had not raised
any additional issues to be considered on review either through court-appointed counsel or
pro se.
considered on review either through court-appointed counsel or pro se.
2. Criminal Law.
Absent a showing that petitioner was denied access to a copy of transcript and record, reviewing court, in
post-conviction proceeding, was without any basis upon which to consider whether petitioner had been
denied due process or equal protection in his appeal from his conviction. U.S.C.A.Const. Amends. 6, 14.
3. Criminal Law.
Petitioner's court-appointed counsel did not have to file a request to withdraw where he felt that
petitioner's appeal was frivolous or without merit.
OPINION
On August 22, 1969, appellant was charged by criminal complaint with the crime of
burglary. An information was filed following a preliminary hearing to which the appellant
entered a plea of not guilty. At trial the arresting officers testified that they observed the
appellant and a companion leave by the back door of the burglarized premises and that after a
short pursuit the appellant and his companion were captured. A window on the premises had
been broken by a large brick, the cigarette machine inside the building had been damaged and
pried open, and at the time of his arrest the appellant had in his possession keys that had been
left by the manager inside the building. A jury returned a verdict of guilty and the appellant
was sentenced to serve a term not exceeding five years in the Nevada state prison. On
December 30, 1969, a notice of appeal from the judgment of conviction was filed. During all
of the proceedings in the trial court and during the appeal from his conviction, appellant, an
indigent, was represented by the Clark County Public Defender who had been court
appointed. The deputy public defender who handled the trial and appeal for appellant filed an
opening brief with this court in which he summarized the testimony of each witness at the
trial and by way of argument stated that: This brief is filed as required by Anders v.
California, 386 U.S. 738 (1967), and Sanchez v. State, 450 P.2d 793 (Nev. 1969). The
evidence presented to the jury was insufficient in law to sustain a judgment of conviction for
burglary.
At the time the brief was filed the deputy public defender wrote to the appellant, enclosed
a copy of the brief, and advised him that it had been filed: Pursuant to the requirements of
Anders v. California.

On March 6, 1970, the state filed its motion to dismiss the appeal based on the brief filed
on behalf of appellant. This court granted the motion and dismissed the appeal. No request to
withdraw as counsel was ever filed by the office of the public defender.
On July 14, 1970, appellant filed his petition for post-conviction relief, contending that his
representation by the public defender in the appeal from his conviction was faulty and
inadequate and that pursuant to the Anders' doctrine he had been denied due process, equal
protection of the laws and effective assistance of counsel as required by the Sixth and
Fourteenth Amendments to the Constitution of the United States. The petition was denied by
the district court on September 10, 1970, and notice of appeal was filed by the appellant in
proper person on October 6, 1970. Present counsel was appointed on March 3, 1971 to
represent the appellant on this appeal from the denial of post-conviction relief.
The appellant, relying on Anders v. California, supra, contends that the trial court erred in
denying his petition for post-conviction relief because (1) his court-appointed counsel failed
to request a withdrawal and failed to give him notice that he believed the appeal to be
frivolous or without merit, (2) his court-appointed counsel failed to inform him that he had
the right to present to the appellate court any arguments he might choose to raise himself, and
(3) he was not given access to the transcript of his trial nor any part of the record on appeal.
He further contends that court-appointed counsel failed in the Anders' brief to refer to any
of the matters in the record which might have arguably supported the appeal, and as a result
he was denied due process of law, equal protection of the laws and effective assistance of
counsel.
[Headnote 1]
The appellant reads into Anders much that cannot be found in that case. He contends that
his court-appointed counsel is required to notify him that counsel believed the appeal to be
frivolous or without merit and that appellant had the right to present any arguments he might
choose to raise on his behalf. It is only suggested in Anders, supra at 744, that [a] copy of
counsel's brief should be furnished the indigent and time allowed him to raise any points that
he chooses. On February 20, 1970, counsel sent the appellant a copy of the brief which he
filed with this court. To and including March 24, 1970, when we dismissed his appeal from
the burglary conviction, the appellant neither through court-appointed counsel nor pro se
raised any additional issues to be considered on appeal.

[Headnote 2]
The appellant further contends that he was not given access to the transcript of his trial nor
any part of the record on appeal. At no time before the order dismissing his appeal was
entered did the appellant make an effort to obtain a copy of the transcript or the record from
either the public defender or from this court. Absent a showing that he was denied access to a
copy of the transcript and record, we are without any basis whatsoever upon which to
consider whether the appellant was denied due process or equal protection of the law. Cf.
Wade v. Wilson, 396 U.S. 282 (1970). In Gay v. State, 87 Nev. 540, 490 P.2d 666 (1971),
this court ordered that a transcript be supplied to Baron Kent Gay, who was determined to be
indigent.
[Headnote 3]
The appellant also contends that the failure of the public defender to withdraw as his
attorney was in violation of Anders. In Sanchez v. State, 85 Nev. 95, 97, 450 P.2d 793 (1969),
this court said: We will remove some of the circuitous requirements of Anders, supra, in
order that the litigants, counsel and the court can expeditiously get to the point of each case
with a minimum of procedural steps and still afford the maximum of constitutional protection
to the defendant. Appointed counsel for a defendant who demands an appeal need not file a
request to withdraw if he feels there is no reversible error to argue on appeal. If after a
conscientious examination of the record counsel believes that the appeal is frivolous, then he
must file the opening brief on the merits of all arguable issues raised by the record together
with an acknowledgment that he does not believe there is merit to the appeal. Thereafter the
state may either answer in normal course or move to dismiss the appeal as frivolous, but a
motion to dismiss must be accompanied with points and authorities in support of the claim of
frivolity.
Our holding in Sanchez does not, as the appellant contends, depart from the requirements
of Anders except in the particular that we do not require appointed counsel to request
permission to withdraw. In Anders, supra at 744, the High Court said: Of course, if counsel
finds his case to be wholly frivolous, after a conscientious examination of it, he should so
advise the court and request permission to withdraw. That request must, however, be
accompanied by a brief referring to anything in the record that might arguably support the
appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to
raise any points that he chooses; the courtnot counselthen proceeds, after a full
examination of all the proceedings, to decide whether the case is wholly frivolous.
not counselthen proceeds, after a full examination of all the proceedings, to decide whether
the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and
dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on
the merits, if state law so requires. On the other hand, if it finds any of the legal points
arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the
indigent the assistance of counsel to argue the appeal.
In our order of dismissal filed in McRoy v. State (Nevada Supreme Court case No. 6146),
we said: We have given full consideration to the appellant's brief and to the record on
appeal, and we find there is substantial competent evidence in the record to support the jury
verdict below. In that order we were not expressing mere idle words. Anders has been
complied with in every respect, except the suggestion that appointed counsel request
withdrawal and in that respect the procedures set out in Sanchez have been satisfactorily met.
The public defender having furnished the appellant with a copy of his brief, and the
appellant having been allowed a reasonable time within which to raise any points that he
chose in support of his appeal from conviction and having failed to respond thereto, this court
in consideration thereof and upon a full examination of the proceedings properly concluded in
its order of March 24, 1970, that the appeal from the conviction was frivolous.
The district court's order denying application for post-conviction relief is affirmed.
____________
88 Nev. 271, 271 (1972) Lagrange Construction, Inc. v. Kent Corp.
LAGRANGE CONSTRUCTION, INC., a Corporation,
Appellant, v. KENT CORPORATION, Respondent.
No. 6467
May 1, 1972 496 P.2d 766
Appeal from judgment on cross-claim entered on construction contracts. First Judicial
District Court, Douglas County; Richard L. Waters, Jr., Judge.
The Supreme Court, Zenoff, C. J., held that, on cross-claim of defendant construction
contractor for amount allegedly due on road construction contract, wherein it appeared
that portions which were difficult to build because of granite outcroppings had not been
completed by contractor but easily constructed portions had been completed, evidence
sustained finding that parties had not intended that contractor could do the easy portions
and be paid the full unit price therefor and leave the difficult portions not completed.
on road construction contract, wherein it appeared that portions which were difficult to build
because of granite outcroppings had not been completed by contractor but easily constructed
portions had been completed, evidence sustained finding that parties had not intended that
contractor could do the easy portions and be paid the full unit price therefor and leave the
difficult portions not completed.
Affirmed.
Robert A. Grayson, of Carson City, for Appellant.
Vargas, Bartlett & Dixon, and Robert W. Marshall, of Reno, for Respondent.
1. Contracts.
Where construction contract stated that unit price should prevail but also stated that contractor agreed to
take full payment as listed for quantities which were subject to variation, contract was ambiguous and
interpretation placed upon contract by parties was entitled to great, if not controlling, influence in
determining contract terms.
2. Contracts.
In proceeding on cross-claim of defendant construction contractor for amount allegedly due on road
construction contract, wherein it appeared that portion of roads difficult to build because of granite
outcroppings had not been completed by contractor but easily constructed portions had been completed,
evidence sustained finding that parties had not intended that contractor could do the easy portions and be
paid the full unit price therefor and leave the difficult portions not completed.
3. Damages.
Where contracts were entire, breaching party was obligated to place nonbreaching party in as good a
position as if contract had been performed.
Where there is conflicting evidence, finding will not be disturbed on appeal.
5. Evidence.
In action involving damage allegedly sustained because of construction contractor's failure to complete
contracts for road construction, wherein, to ascertain contract damages suffered by owner, it was necessary
to prove cost of completing the contracts and it appeared that owner had decided to complete only some of
the contracts, testimony of owner's engineers as to cost of work actually done and their estimates as to cost
of completing projects to terms of contracts was not precluded by the best evidence rule.
6. Evidence.
In action involving contractor's breach of contract to construct improvements, testimony of landowner's
engineers as to estimated cost of completing project to terms of contract was competent to be
weighed by fact finder, where the uncertainty in testimony applied not to existence of
damage but rather to its extent or measure.
competent to be weighed by fact finder, where the uncertainty in testimony applied not to existence of
damage but rather to its extent or measure.
OPINION
This appeal deals solely with the cross-claim of appellant against respondent, both of
whom were at one time codefendants in a suit brought by Taylor-Jett, Sacramento, Inc. The
parties were before this court on a prior occasion in Lagrange Constr. v. Kent Corp., 83 Nev.
277, 429 P.2d 58 (1967), wherein we remanded the case for additional proceedings.
Lagrange, the contractor, entered into four contracts with Kent, the landowner, whereby
certain improvements and development work was to be done, including the construction of
streets and water lines.
On May 11, 1961 a contract (No. 1) was entered into which provided in pertinent part:
The undersigned hereby proposes and agrees to furnish, Labor, Equipment, Materials to
be used in items #4, #5, & #7, and do all work described as follows for items No. 1 thru item
No. 7.
It is hereby understood and agreed that the quantities shown herein are approximate only,
the unit price shall prevail, for the construction. The quantities herein are subject to increase
or decrease and that the Bidder as Contractor will take full payment therefor the following
sums.
Thereafter followed a description of the work to be done, the approximate quantities, the
unit price and the total amount.
On June 15, 1961 contract No. 2 was entered upon the following terms:
FOR THE TOTAL SUM OF; TWENTY FIVE THOUSAND THREE HUNDRED TEN
DOLLARS ($25,310.00), We, propose to furnish all Labor, Equipment, Materials and do all
work for four (4) items of work in the subject subdivision as we have them listed below.
[The work description is deleted.]
It is further stipulated the Bidder as Contractor shall receive payment in full upon the
completion of the above work.
On August 30, 1961 contract No. 3 was entered upon the following terms:
The undersigned as Contractor hereby proposes and agrees to furnish All Labor,
Equipment and Materials, and do All Work described below for Eleven {11) items of work
in Unit No.
Work described below for Eleven (11) items of work in Unit No. 2 of Kingsbury Estates
Subdivision.
It is hereby understood and agreed that the quantities shown herein are approximate only,
the unit price shall prevail for the projects construction. The quantities herein are subject to
increase or decrease and that the Contractor will take full payment on the unit price basis for
the final quantities complete in place.
Thereafter followed a work description similar to that employed in contract No. 1.
On September 21, 1961 a fourth contract was agreed upon whereby Lagrange agreed to
install certain water lines and valves. Relative to this contract, the parties stipulated that each
party would engage an engineer to measure the quantities installed by Lagrange and compute
the monies earned. The trial court found that Lagrange had earned $36,707.40 on this
contract.
In addition to these contracts, an Extra Work Order No. 2 was agreed upon in connection
with contract No. 1.
Work was commenced by Lagrange, monthly billings were sent and payments were made.
The court found that Kent was not delinquent in making its payments. Apparently Lagrange
did not complete any of the contracts to Kent's satisfaction. Under the road construction
contracts, the evidence indicated that portions of the roads which were difficult to build
because of granite outcroppings were not completed, while, by and large, the easily
constructed portions were completed.
Lagrange voluntarily stopped work under all contracts on August 9, 1962 except that some
additional work on contract No. 2 was done later on. Kent was required to engage another
contractor to complete the job.
Lagrange sent a final statement to Kent on August 10, 1962 claiming amounts due on the
contracts to be $42,339.69.
After trial of the cross-claim, the district court treated contract No. 1 as indivisible but not
completed, treated contract No. 2 as indivisible but not completed, and treated contract No. 3
as divisible but substantially completed. By means of offsetting, the court determined that
Kent had overpaid Lagrange $5,515.36. Filed liens were discharged and attorney fees and
costs were awarded.
1. Appellant asserts here that the trial court erred in applying the theory that the contracts
were entire and indivisible. Lagrange believes that all the contracts are divisible and that he is
entitled to payment for work completed at the contract unit rates. Kent maintains that they are
entire contracts. Initially it may be noted that each contract employs different language,
therefore, we must analyze each separately.
may be noted that each contract employs different language, therefore, we must analyze each
separately.
[Headnote 1]
Relative to contract No. 1 and Extra Work Order No. 2 (which does not state any terms but
arises from contract No. 1), on one hand it is stated that the unit price shall prevail, but on the
other hand the contractor agreed to take full payment as listed for quantities which were
subject to variation. This contract is ambiguous. In this situation the rule in Nevada is that the
interpretation placed upon the contract by the parties is entitled to great, if not controlling,
influence in determining the contract terms. Flyge v. Flynn, 63 Nev. 201, 239-40, 166 P.2d
539 (1946); Woods v. Bromley, 69 Nev. 96, 104-05, 241 P.2d 1103 (1952); Fredricks v. City
of Las Vegas, 76 Nev. 418, 356 P.2d 639 (1960); Schieve v. Warren, 87 Nev. 42, 482 P.2d
303 (1971).
[Headnote 2]
The trial court found that it was the intent of the parties that Lagrange was to take the good
with the bad, the easy with the difficult, and not that Lagrange could do the easy and cheap
portions of the road and be paid the full unit price therefor and leave the expensive and
difficult portions not completed.
[Headnote 3]
Therefore, it appears that the trial court correctly found contract No. 1 and Extra Work
Order No. 2 to be entire contracts per the intent of the parties. The measure of damages was
correctly computed based on the rule that the breaching party must place the nonbreaching
party in as good a position as if the contract were performed. Cladianos v. Friedhoff, 69 Nev.
41, 49, 240 P.2d 208 (1952); Hutchens v. Sutherland, 22 Nev. 363, 366 (1895).
Contract No. 2 by its terms requires completion before payment in full is to be made. The
court found contract No. 2 not to be completed, but that the reasonable value of $20,310.00
was earned by Lagrange.
Contract No. 3 provides that the contractor will be paid for the final quantities complete in
place at the unit rate. The court found contract No. 3 to be substantially performed except that
$2,000 worth of cleanup work was not done according to the contract.
2. Appellant claims that the findings are not supported by the record. NRCP 52(a) states
that Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the witnesses."
given to the opportunity of the trial court to judge the credibility of the witnesses.
[Headnote 4]
Appellant contests all the findings against the evidence presented in Lagrange's case in
chief, but makes slight reference to respondent's evidence which does support the findings, if
believed. Nevertheless, the rule is still applied that where there is conflicting evidence a
finding will not be disturbed on appeal. Brandon v. Travitsky, 86 Nev. 613, 615, 472 P.2d
353 (1970); Sherman Gardens Co. v. Longley, 87 Nev. 558, 491 P.2d 48 (1971).
3. Finally, appellant alleges that the court erred in admitting secondary and speculative
evidence as to damages and in basing its judgment upon such evidence.
[Headnote 5]
In order to ascertain the contract damages suffered by respondent it was necessary to prove
the cost of completing the contracts. Because respondent had decided to complete only some
of the contracts, at trial evidence was presented whereby Kent's engineers and contractors
testified as to the cost of the additional work they had actually done and in addition made
estimates as to the cost of completing the project to the terms of Lagrange's contracts.
Appellant claims that the best evidence rule precluded this evidence by Kent's engineers
and contractors to prove the cost to complete the contracts. Appellant misunderstands the
rule. As stated by McCormick, The rule is this: in proving the terms of a writing, where such
terms are material, the original writing must be produced, unless it is shown to be unavailable
for some reason other than the serious fault of the proponent. C. McCormick, Handbook of
the Law of Evidence 409, 196 (1954). See NRS 52.235 and NRS 52.255.
[Headnote 6]
As to the speculative nature of the engineer's estimates, the uncertainty in the testimony
applies not to the existence of damages but rather to its extent or measure. The evidence was
competent to be weighed by the fact finder. Brown v. Lindsay, 68 Nev. 196, 205-06, 228 P.2d
262 (1951); Fireman's Fund Ins. v. Shawcross, 84 Nev. 446, 455, 442 P.2d 907 (1968).
Affirmed.
____________
88 Nev. 277, 277 (1972) Nevada St. Bd. of Pharmacy v. Garrigus
THE NEVADA STATE BOARD OF PHARMACY, Consisting of N. E. BROADBENT,
MURDELL EARL, JOSEPH McBEATH, LONNIE TRUELL and WILLIAM LOCKE,
Appellant, v. ERNEST D. GARRIGUS and ARDWIN J. BLOCK, Respondents.
No. 6713
May 2, 1972 496 P.2d 748
Appeal from district court's ruling reversing administrative disciplinary proceedings.
Eighth Judicial District Court, Clark County; Thomas J. O'Donnell, Judge.
The State Board of Pharmacy revoked licenses of two pharmacists, and judicial review
was sought. The district court reversed, and the board appealed. The Supreme Court, Zenoff,
C. J., held that revocation of pharmacy licenses on ground of unprofessional conduct was
required to be reversed where pharmacists had checked with prescribing physician before
dispensing large quantities of addictive, synthetic drug, no proof was elicited as to what did
or did not constitute unprofessional conduct in the pharmacy business and no evidence was
presented as to what were the contemporary standards in the profession and it was not shown
that pharmacists knew that person to whom drugs were dispensed was a cheat and an addict
and was using several names and addresses to acquire the drugs.
Affirmed.
Robert List, Attorney General, and Robert A. Groves, Deputy Attorney General, Carson
City, for Appellant.
Harry E. Claiborne and Annette R. Quintana, of Las Vegas, for Respondents.
Cooke & Roberts, of Reno, and Sidney H. Willig, of Philadelphia, Pennsylvania, Amici
Curiae.
Drugs and Narcotics.
Revocation of pharmacy licenses by State Board of Pharmacy on ground of unprofessional conduct was
required to be reversed where pharmacists had checked with prescribing physician before dispensing large
quantities of addictive, synthetic drug, no proof was elicited as to what did or did not constitute
unprofessional conduct in the pharmacy business and no evidence was presented as to what were the
contemporary standards in the profession and it was not shown that pharmacists knew that person to whom
drugs were dispensed was a cheat and an addict and was using several names and
addresses to acquire the drugs.
were dispensed was a cheat and an addict and was using several names and addresses to acquire the drugs.
NRS 639.210, subd. 1(d), 639.255, subd. 2.
OPINION
Block and Garrigus were charged by the Nevada State Board of Pharmacy with furnishing
excessive quantities of narcotic drugs to a certain Larry Chapman and that by so doing they
were guilty of unprofessional conduct for which their licenses as pharmacists were revoked
by the board. On review the trial court reversed the board's judgment from which the Board of
Pharmacy now appeals.
An investigation by the Clark County District Attorney revealed that substantial quantities
of numorphan were dispensed on prescription of a Dr. Hulse by the two respondents who
were employed as pharmacists at a large Las Vegas market center called Wonder World
South. Numorphan is a synthetic drug and is addictive. It is used primarily to alleviate pain.
Between the period of April 6, 1970 and August 22, 1970 Block sold to Chapman (the
name is an alias) a total of 5,800 tablets on 33 separate occasions. At all times a proper
prescription from Hulse was provided and on several instances, almost from the first, both
Block and Garrigus checked with the prescribing physician to verify the legitimacy of the
prescriptions. Garrigus dispensed 3,450 of the numorphan tablets on 19 occasions. Block also
sold to Chapman 580 hypodermic syringes between June and August of 1970.
Despite the uncontroverted testimony of Block and Garrigus that they had verified the
prescriptions with Hulse's office and had been told that Chapman was suffering from terminal
cancer, hence the large dosage, their licenses were revoked.
NRS 639.255(2) provides that the action of the Board of Pharmacy shall be final except
that the propriety of its disciplinary action is subject to review upon questions of law by a
court of competent jurisdiction. The question becomes, what is the question of law that gives
rise to this court's review?
NRS 639.210(1)(d) allows the state board to suspend or revoke the license of any
pharmacist who is guilty of unprofessional conduct or conduct contrary to the public
interest. . . . In its rules the board did not define what amounts of drugs are medically or
pharmaceutically excessive.
medically or pharmaceutically excessive. At the hearing before the board there was no
evidence or testimony produced that established what the standard was that constituted
conduct that became unprofessional if breached. Unlike Moore v. Board of Trustees, 88 Nev.
207, 495 P.2d 605 (1972), an ungloved doctor fingering a hypodermic needle just before it
was to be inserted into a patient's body was ipso facto unprofessional for the act in such
circumstances speaks for itself, but such blatancy does not exist here. See also Nevada State
Board of Chiropractic Examiners v. Babtkis, 83 Nev. 385, 432 P.2d 498 (1967). Narcotics in
proper doses are commonly prescribed.
The accused pharmacists have a right to know what they have violated. There is no
evidence in the record that the amount of drugs sold to Chapman was excessive under the
circumstances, no proof was elicited as to what does or does not constitute unprofessional
conduct in the pharmacy business, and no evidence was presented as to what were the
contemporary standards in the profession. Under what circumstances should a pharmacist set
up his judgment against that of a licensed physician? It would be a dangerous principle to
establish that a druggist cannot safely fill a prescription merely because it is out of the
ordinary. If that were done, many patients might die from being denied unusual remedies in
extreme cases. People's Service Drug Stores v. Somerville, 158 A. 12 (Md.App. 1932). While
that was an action for damages against a pharmacy for filling a prescription calling for a large
dose of strychnine the Maryland court stressed the absence of any witness to establish exactly
what would have required a pharmacist to decline to fill the prescription.
The profession of medicine calls for different requisites than the profession of pharmacy
and it is not for the pharmacist to second guess a licensed physician unless in such
circumstances that would be obviously fatal. The court in Somerville, supra, formulated the
test to be that where the doses prescribed were unusual inquiry of the physician should be
made to ascertain that there has been no error. Block and Garrigus did so inquire several
times. They discharged their duty.
We are furnished nothing in this record to tell this court what in the pharmaceutical
profession constitutes unprofessional conduct. The fact that the respected members of the
board felt respondents' conduct improper is not enough to provide their hearing with requisite
due process. That Chapman was a cheat and an addict and was using several names and
addresses to acquire all of the drugs that he could get was unknown to petitioners and no
circumstances are shown that Block and Garrigus should have known of it, or even if they
did, that their conduct breached any established standard for the record does not show
that a guideline standard exists.
acquire all of the drugs that he could get was unknown to petitioners and no circumstances
are shown that Block and Garrigus should have known of it, or even if they did, that their
conduct breached any established standard for the record does not show that a guideline
standard exists.
Affirmed.
____________
88 Nev. 280, 280 (1972) Tigner v. State
EDMUND TIGNER and LINDA PRESCOTT, Appellants, v.
THE STATE OF NEVADA, Respondent.
No. 6643
May 2, 1972 496 P.2d 159
Appeal from convictions of sale of narcotics. Second Judicial District Court, Washoe
The district court found defendant guilty of selling narcotics and codefendant guilty of
aiding and abetting in sale of narcotics and they appealed. The Supreme Court, Zenoff, C. J.,
held that where there was no indication in record as to why testimony of subsequent sale of
narcotics by defendant was elicited and jury was not instructed to consider evidence for
limited purposes, conviction on charge of selling narcotics would be reversed and that
evidence was insufficient to sustain codefendant's conviction on charge of aiding and abetting
sale of narcotics.
Reversed and remanded for new trial as to Tigner.
Reversed as to Prescott.
Cooke & Roberts, of Reno, and Carl F. Martillaro, of Carson City, for Appellants.
1. Criminal Law.
Where there was no indication in record as to why testimony of subsequent sale of narcotics by defendant
was elicited and jury was not instructed to consider evidence for limited purposes, conviction on charge of
selling narcotics would be reversed.
Evidence in prosecution on charge of aiding and abetting in sale of narcotics was not sufficient to sustain
conviction.
OPINION
Appellants Tigner and Prescott were convicted of selling narcotics following a jury trial at
Reno, Nevada.
1. Appellant Tigner raises several issues on appeal, however, we need only discuss one.
Tigner asserts that the trial court erred in permitting evidence of a subsequent sale of
narcotics. We agree.
The evidence of Tigner's subsequent sale of narcotics came into the record on rebuttal
wherein the following questions were posed to state's witness Jones:
By Mr. Ahlswede:
Q Did you ever purchase any other narcotics from Mr. Tigner?
A Yes. I purchased numorphan.
Q Was this prior to the sale or subsequent to the sale of September 18?
A This was subsequent to it.
Q Can you state what happened on that occasion?
Mr. Reese: Objection, your Honor.
[Headnote 1]
There is no indication in the record why this testimony was elicited, nor were instructions
given to the jury to consider the evidence for limited purposes. Nester v. State, 75 Nev. 41,
334 P.2d 524 (1959). For the reasons stated in Lindsay v. State, 87 Nev. 1, 478 P.2d 1022
(1971), we reverse Tigner's conviction and remand for a new trial.
[Headnote 2]
2. Appellant Prescott asserts that she is not guilty as a matter of law in aiding and
abetting. Testimony of witness Jones inconclusively indicated that Prescott was a participant
in the initial transaction involving the heroin; she, however, took the stand in her own behalf
and denied any knowledge of the sale. Ordinarily it was within the exclusive province of the
jury to determine the credibility of Jones and Prescott. Cross v. State, 85 Nev. 580, 460 P.2d
151 (1969). We have examined the record with care and find that the evidence implicating
Prescott is not sufficient to convict.
Prescott is not sufficient to convict. Also, the jury might well have been prejudicially affected
in its consideration of the case against Tigner. We reverse Prescott's conviction.
Reversed and remanded for a new trial as to Tigner.
Reversed as to Prescott.
____________
88 Nev. 282, 282 (1972) LaFever v. City of Sparks
CAROL LaFEVER, Individually and as Parent and Next Friend of
James Howard LaFever and Kenneth Wesley LaFever, Minors, Appellant,
v. THE CITY OF SPARKS, Respondent.
No. 6649
May 3, 1972 496 P.2d 750
Appeal from summary judgment of the Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
Surviving wife and sons brought action against city, driver of automobile in which
plaintiff's decedent was riding, and driver's employer for wrongful death of automobile
passenger in intersectional collision. The district court rendered summary judgment for City,
and plaintiff appealed. The Supreme Court, Thompson, J., held that under statutes charging
State with responsibility for construction and maintenance of state highways and precluding
local authority from placing a traffic control device thereon without State's prior approval,
City could not be held liable for failure to replace knocked down stop sign at intersection of
state highways.
Affirmed.
Hibbs & Bullis, and Stanley L. Lyon, of Reno, for Appellant.
Paul Freitag, Sparks City Attorney, and Leslie A. Leggett and Paul F. Hamilton, of Reno,
for Respondent.
1. Automobiles.
Under statutes charging State with responsibility for construction and maintenance of state highways and
precluding local authority from placing a traffic control device thereon without State's prior approval, City
could not be held liable, in action for wrongful death arising from intersectional collision, for
failure to replace knocked down stop sign at intersection of state highways.
wrongful death arising from intersectional collision, for failure to replace knocked down stop sign at
intersection of state highways. NRS 408.285, subd. 1, 484.783, subd. 2.
2. Automobiles.
A governmental decision to provide or not to provide traffic control cannot ground a cause of action;
such a decision is discretionary and falls within reach of statute precluding action against political
subdivision based on performance of or failure to perform a discretionary function by political subdivision.
NRS 41.032, subd. 2.
3. Automobiles.
Judgment of traffic officer, who drove through intersection one-half hour before fatal collision at 3:46 on
a Sunday morning and noticed downed stop sign, that downed stop sign did not constitute a traffic hazard
was within his discretion and did not subject City to liability, in action for wrongful death stemming from
collision, for failure to assign traffic officer to direct traffic at the intersection. NRS 41.032, subd. 2.
OPINION
This appeal is from a summary judgment in favor of a codefendant, City of Sparks, in a
wrongful death action commenced by the surviving wife and sons of a deceased passenger
against the City, the driver of the automobile in which the decedent was riding, and the
driver's employer.
1
With regard to the defendant City, the plaintiff alleged that it had failed
to replace a knocked down stop sign at the intersection of B Street (State Highway Rt. 1) and
Prater Way (State Highway Rt. 32(a)), in Sparks, Nevada, which omission caused the
automobile in which the decedent was riding to collide with a large semi-truck. The State of
Nevada owns B Street and Prater Way, including the intersection of those streets, installed the
stop signs there in place, and maintained them. We affirm the summary judgment.
[Headnote 1]
1. NRS 408.285(1) charges the State with the responsibility for the construction,
reconstruction, improvement and maintenance of state highways, and NRS 484.783(2)
precludes the local authority from placing a traffic control device thereon without the
State's prior approval.2 In these circumstances, the City may not be held liable for failing
to replace a stop sign since the duty to do so lies elsewhere.
____________________

1
The district court determined that there was no just reason to delay entry of a final judgment for the
codefendant, City of Sparks. NRCP 54(b).
thereon without the State's prior approval.
2
In these circumstances, the City may not be held
liable for failing to replace a stop sign since the duty to do so lies elsewhere. McNulty v.
Commonwealth of Pennsylvania, 314 F.Supp. 1274 (1970); Gillespie v. City of Los Angeles,
225 P.2d 522 (Cal. 1950); Bartlett v. State, 301 P.2d 985 (Cal.App. 1956).
3

[Headnote 2]
2. The appellant contends that the City may be liable for failing to assign a traffic officer
to direct traffic at the intersection. This contention is without force. A governmental decision
to provide or not to provide traffic control cannot ground a cause of action. Hoy v. Capelli,
222 A.2d 649 (N.J. 1966). Such a decision is discretionary and falls within the reach of NRS
41.032(2) precluding an action against a political subdivision which action is based upon the
performance or the failure to perform a discretionary function. Cf. Harrigan v. City of Reno,
86 Nev. 678, 475 P.2d 94 (1970); State v. Silva, 86 Nev. 911, 478 P.2d 591 (1970). Thus,
were we to assume City control of the intersection and the stop signs (which we may not
assume as discussed above), the City would enjoy immunity from this suit.
[Headnote 3]
The record before us points out the need for immunity where pure discretion is involved.
The accident occurred at 3:46 on a Sunday morning. A traffic officer had driven through the
intersection one-half hour earlier and had noticed the downed stop sign, but did not believe
that it constituted a traffic hazard. That was a judgment call on his partone within his
discretion to make.
Affirmed.
____________________

2
NRS 408.285(1): The highways which are constructed, reconstructed, improved and maintained by the
department. . . shall be state highways, and the department shall be charged with the responsibility of such
construction, reconstruction, improvement and maintenance. . . .
NRS 484.783(2): No traffic control device shall be placed by a local authority on a highway constructed
and maintained by the department. . . without prior approval by the department.

3
The appellant's reliance upon the opinion of this court in Las Vegas v. Schultz, 59 Nev. 1, 83 P.2d 1040
(1938), is misplaced since that case concerned the duty of a City to remove a temporary movable obstruction, a
load of poles, left by a third party on the surface of the street.
____________
88 Nev. 285, 285 (1972) Fox v. Morris
MOE FOX, Appellant, v. MILDRED L. MORRIS and TITLE
INSURANCE & TRUST COMPANY, Respondents.
No. 6712
May 3, 1972 496 P.2d 158
Appeal from order of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Action was brought by a maker of secured note against payee to enjoin sale of land
pursuant to power of sale provision in deed of trust securing the note. The district court
vacated the temporary restraining order and denied motion for preliminary injunction, and
plaintiff appealed. The Supreme Court held that note providing that money should be paid
within 60 days of date of note or sooner, if a portion of the real property securing note was
sold, required payment within 60 days even if subject property was not sold and maker of
note was not entitled to enjoin sale of property where he had defaulted in payments on note.
Affirmed.
Lester H. Berkson, of Stateline, for Appellant.
Lloyd V. Smith and Robinson & Cassas, of Reno, for Respondents.
1. Bills and Notes.
Clause in note providing that money should be paid within 60 days of date of note or sooner, if a portion
of the real property securing note was sold, required payment within 60 days even if subject property was
not sold.
2. Mortgages.
Where secured note provided that money should be paid within 60 days or sooner, if a portion of real
property securing note was sold, maker who defaulted in payments was not entitled to injunction
restraining payee from selling land pursuant to power of sale provision in deed of trust securing the note.
OPINION
Per Curiam:
This appeal stems from an action brought by appellant to enjoin respondents from selling
certain unimproved real estate pursuant to a power of sale contained in a deed of trust
covering said property. A temporary restraining order enjoining the proposed sale issued at
the commencement of the proceedings in the lower court was vacated and appellant's
motion for a preliminary injunction was denied.
88 Nev. 285, 286 (1972) Fox v. Morris
the proposed sale issued at the commencement of the proceedings in the lower court was
vacated and appellant's motion for a preliminary injunction was denied. Appeal is from the
order vacating the temporary restraining order and from the order denying appellant's motion
for a preliminary injunction.
The appellant Moe Fox and respondent Mildred L. Morris are each the owners of an
undivided one-third interest in unimproved real property located at Incline Village, Nevada.
On July 10, 1970, appellant together with Gary Sanders, owner of the remaining one-third
interest in the property, executed a promissory note for $80,312 in favor of respondent
Morris. This note was secured by a deed of trust on the Incline Village property covering the
two-thirds interest owned by appellant and Mr. Sanders.
[Headnotes 1, 2]
The portion of the note pertinent to this appeal provides that seventy-five thousand
($75,000) dollars shall be paid within sixty days of the date of this note or sooner, if a portion
of the real property securing the note is sold; . . . . No payments had been made on the note;
nor had any portion of the property been sold at the time Morris filed her notice of default on
December 21, 1970.
The trial court interpreted that clause in favor of respondent Morris, and determined that
the $75,000 was to be paid within sixty days, even without a sale of the subject property, and
that a default had occurred.
The ambiguity in the clause, if any, was resolved in favor of respondent Morris. We accept
the court's interpretation of the provision calling for payment within sixty days and its finding
that a default had occurred. Consequently, there is no reason why Morris should not be
permitted to sell the property pursuant to the power of sale provision in the deed of trust.
Bankers Trust Co. v. Bordwell, 79 Nev. 473, 386 P.2d 732 (1963). The decision of the lower
court vacating the temporary restraining order and denying appellant's motion for a
preliminary injunction is affirmed.
____________
88 Nev. 287, 287 (1972) Pease v. Taylor
ARTHUR E. PEASE, a.k.a. EMERY ARTHUR PEASE,
Appellant, v. WESLEY S. TAYLOR, Respondent.
No. 5909
May 4, 1972 496 P.2d 757
Appeal from action on promissory note. First Judicial District Court, Douglas County;
Richard L. Waters, Jr., Judge.
Action by lender against borrower to recover amount allegedly due on note. Upon remand,
86 Nev. 195, 467 P.2d 109 (1970), the district court entered judgment for plaintiff, and
defendant appealed. The Supreme Court, Zenoff, C. J., held that where lender deposited
$12,000 in escrow through which he received 90-day note for $16,500, and sum in escrow
was diminished by $1,100 in loan fees paid to lender's agents, the transaction was usurious,
and lender could recover only the actual cash advance of $10,900 without any interest
thereon. The Court further held that lender was entitled to recover attorney's fees, even
though the transaction was usurious where borrower made no offer of judgment nor offer of
payment of principal, and lender relied on prior decision which was overruled as to issue of
usury in his action, but award of $2,500 for attorney's fee would be modified to $1,500.
Affirmed, as modified.
Thompson, J., dissented in part.
Ross & Crow, of Carson City, for Appellant.
Lester H. Berkson, of Stateline, for Respondent.
Prince A. Hawkins and F. DeArmond Sharp, of Reno, Amicus Curiae.
1. Usury.
Burden of proving that a transaction is usurious rests upon the party attacking it.
2. Usury.
Standard of proof in usury actions is preponderance of the evidence.
3. Usury.
Extraction of a broker's fee by the lender or his agent is to be considered in computing amount of interest
due from the borrower.
4. Usury.
Court will look to the substance of the transaction and the intent of the parties in determining whether an
agreement is usurious.
5. Usury.
In absence of actual expense, extraction of additional compensation for the use of money under guise of
broker's fee violates the spirit, if not the letter, of the laws prohibiting usury.
6. Usury.
Although brokers who negotiate loans may be lawfully reimbursed for their services, and extraction by
agent, who is authorized to lend money for his principal, of money from the borrower for his own benefit,
without knowledge or authority of such principal, does not make the transaction usurious, when a lender,
through his authorized agent, makes loans under a general agreement that the lender's agent must look to
the borrower for a commission, such action may make the contract usurious, whether the lender knew of
the charge or not.
7. Usury.
In light of evidence establishing that broker's commissions in connection with loan were not legitimate
loan expenses, and inferring that lender either charged the fee himself or ratified such a charge, broker's fee
would be computed as interest in determining whether the agreement was usurious.
8. Usury.
A note is to be tested for usury with reference to the actual sum given by the lender to the borrower, and
not by the face of the note.
9. Usury.
In testing for a usurious exaction, a fee or bonus beyond the legal rate of interest constitutes an additional
charge for interest.
10. Usury.
Generally, a usury statute is penal in character and must be strictly construed.
11. Statutes.
To strictly construe a statute does not require a court to emasculate its purpose.
12. Usury.
A usury statute manifests a legislative intent to make it more drastic against usurer and more favorable to
the borrower.
13. Usury.
Excessive rate of interest, within statute providing that any agreement for greater rate of interest than
therein specified would be null and void and of no effect as to such excessive rate of interest, includes all
interest and not solely the excess. NRS 99.050, subd. 2.
14. Usury.
Where lender deposited $12,000 in escrow through which he received 90-day note for $16,500, and sum
in escrow was diminished by $1,100 in loan fees paid to lender's agents, the transaction was usurious,
and lender could recover only the actual cash advance of $10,900 without any interest thereon; overruling
Kline v. Robinson, 83 Nev. 244, 428 P.2d 190 (1967). NRS 99.050.
15. Usury.
Lender, in action against borrower to recover amount allegedly due on note, was entitled to recover
attorney's fee, even though the transaction was usurious, where borrower made no offer of judgment nor
offer of payment of principal, and lender relied on prior decision which was overruled
as to issue of usury in his action, but award of $2,500 for attorney's fee would be
modified to $1,500.
judgment nor offer of payment of principal, and lender relied on prior decision which was overruled as to
issue of usury in his action, but award of $2,500 for attorney's fee would be modified to $1,500.
OPINION
Respondent Taylor commenced this action against appellant Pease to recover $16,500,
which he claimed was due under the terms of a 90-day promissory note, plus attorney's fee
and costs. The note did not recite any interest rate but did provide that the makers, in case of
suit (there were two other makers, but these were not named party defendants in this action),
would pay all costs and expenses and such additional sums as the court may adjudge
reasonable as an attorney's fee in said suit or action. The district judge found in favor of
Taylor and against Pease and awarded him a judgment in the sum of $16,500 plus interest at
seven percent per annum running from the date of the note and $2,500 attorney's fee.
1

Pease has challenged the judgment of the district court on the grounds that (1) the $16,500
award is excessive because it includes usurious interest, (2) the $2,500 awarded as attorney's
fee is not an amount supported by the record, and (3) the trial judge erred in allowing seven
percent interest from the date of the note on the $16,500 award.
Taylor deposited but $12,000 in the escrow through which he received the note here
concerned, and this sum was diminished by $1,100 in loan fees paid out of the escrow to
his agents. Thus, we are concerned with a $16,500 note representing an actual cash advance
of $10,900.
2

[Headnotes 1, 2]
1. The burden of proving that a transaction is usurious rests upon the party attacking it.
McCullough v. Snow, 432 P.2d S11 {N.M. 1967); Brocke v. Naseath, 2S5 P.2d 291
{Cal.App. 1955). A great number of jurisdictions require the usual standard of proof in
civil matters, i.e., "preponderance of the evidence," which we now adopt.
____________________

1
This is the second time this case is before us. See Pease v. Taylor, 86 Nev. 195, 467 P.2d 109 (1970), where
we remanded the case to the district court so that adequate findings of fact and conclusions of law could be made
by the trial judge, to the end that the issues presented on appeal could be considered by this court.

2
The same agents also received $2,500 in loan fees from another contemporaneous transaction involving
appellant, who asks us to view such fees as diminishing further his obligations in the instant case. We decline to
do so because the record is unclear concerning the other transaction's relationship to the one before us and
concerning the present status of the obligation involved therein.
P.2d 811 (N.M. 1967); Brocke v. Naseath, 285 P.2d 291 (Cal.App. 1955). A great number of
jurisdictions require the usual standard of proof in civil matters, i.e., preponderance of the
evidence, which we now adopt. See Brocke v. Naseath, supra; Knoll v. Schleussner, 247
P.2d 370 (Cal.App. 1952); Damboorajian v. Woodruff, 214 N.W. 113 (Mich. 1927); 51
A.L.R.2d 1087 (1957).
[Headnote 3]
2. The exaction of a broker's fee by the lender or his agent is to be considered in
computing the amount of interest due from the borrower. National American Life Ins. Co. v.
Bayou Country Club, 403 P.2d 26 (Utah 1965); Clarke v. Horany, 27 Cal.Rptr. 901, 903
(Cal.App. 1963).
[Headnotes 4-6]
The court will look to the substance of the transaction and the intent of the parties in
determining whether an agreement is usurious. Kline v. Robinson, 83 Nev. 244, 428 P.2d 190
(1967). In the absence of actual expense, the exaction of additional compensation for the use
of money under the guise of a broker's fee violates the spirit, if not the letter, of the laws
prohibiting usury. Brokers who negotiate loans may be lawfully reimbursed for their services,
as for example, where one negotiates a loan through a third party with a money lender and the
latter bona fide lends the money at a legal rate of interest, the transaction is not made usurious
merely by the fact that the intermediary charges the borrower with a broker's commission, the
intermediary having no legal or established connection with the lender.
3
Or, when an agent
authorized to lend money for his principal exacts, without knowledge or authority of such
principal, money from the borrower for his own benefit, this does not make the transaction
usurious. However, when a lender, through his authorized agent, makes loans under a general
agreement that the lender's agent must look to the borrower for a commission, this may make
the contract usurious, whether the lender knew of the charge or not.
[Headnote 7]
In the instant case the evidence establishes that the commissions were not legitimate loan
expenses. Uncontroverted evidence inferred that the lender either charged the fee himself or
ratified such a charge. Pease having met his burden, the broker's fee may be computed as
interest in the determination of these issues.
____________________

3
See Altherr v. Wilshire Mortgage Corporation, 104 Ariz. 59, 448 P.2d 859 (1968).
broker's fee may be computed as interest in the determination of these issues.
[Headnotes 8, 9]
3. A note is to be tested for usury with reference to the actual sum given by the lender to
the borrower, and not by the face of the note. Taylor v. Budd, 18 P.2d 333 (Cal. 1933). In
testing for an usurious exaction, a fee or bonus beyond the legal rate of interest constitutes an
additional charge for interest. Haines v. Commercial Mortgage Co., 255 P. 805 (Cal. 1927);
Devers v. Greenwood, 293 P.2d 834 (Cal.App. 1956); Bochicchio v. Petrocelli, 11 A.2d 356
(Conn. 1940); Lydick v. Stamps, 316 S.W.2d 107 (Tex.App. 1958); Gilcrist v. Wright, 94
N.W.2d 476 (Neb. 1959).
4. NRS 99.050 provides in pertinent part:
1. Parties may agree, for the payment of any rate of interest on money due, or to become
due, on any contract, not exceeding, however, the rate of 12 percent per annum. . .
2. Any agreement for a greater rate of interest than herein specified shall be null and void
and of no effect as to such excessive rate of interest.
The note in this case made no express provision for any interest payment. Nevertheless, for
the reasons hereinafter set forth, NRS 99.050(2) should be read to bar the lender from
recovering any interest if the rate has exceeded the allowable 12 percent.
The purpose of laws prohibiting usury is stated in 91 C.J.S. 570-71, Usury 5:
Usury statutes form a part of the public policy of the state, so that contracts which are
usurious are contrary to the public policy of the state. The intent of usury statutes is to prevent
the charge of an excessive rate of interest, or usurious practices, on any pretext whatever. The
intent or purpose of the statute applies to extension and forbearance as well as to the original
loan.
Such statutes are enacted for the protection of the borrower and are for the prevention of
extortion and unjust oppression by unscrupulous persons who are ready to take undue
advantage of the necessitites [sic] of others. They proceed on the theory that a usurious loan is
attributable to such an inequality in the relation of the lender and borrower that the borrower's
necessities deprive him of freedom in contracting and place him at the mercy of the lender.
[Footnotes omitted.]
As stated by Justice Traynor in Stock v. Meek, 221 P.2d 15, 20 (Cal. 1950): "The theory
of [the usury] law is that society benefits by the prohibition of loans at excessive interest
rates, even though both parties are willing to negotiate them.
The theory of [the usury] law is that society benefits by the prohibition of loans at
excessive interest rates, even though both parties are willing to negotiate them.
. . .
If no loophole is provided for lenders, and all borrowers save fraudulent ones are
protected, usurious transactions will be discouraged.
In the construction of our own statute, the foregoing purpose must be kept in mind. It is
also to be remembered that usury was not illegal at common law; therefore, a statute which
prohibits the exaction of usury is the source from whence stems the power of the court in
dealing with such matters. Hawthorne v. Walton, 72 Nev. 62, 294 P.2d 364, 59 A.L.R.2d
519 (1956) (overruled on other grounds, 83 Nev. 244, 428 P.2d 190 (1967)).
[Headnotes 10-12]
As a general rule, a usury statute is penal in character and must be strictly construed.
Crisman v. Corbin, 169 Ore. 332, 128 P.2d 959 (1942). But to strictly construe a statute does
not require a court to emasculate its purpose. A usury statute manifests a legislative intent to
make it more drastic against the usurer and more favorable to the borrower. Milo Theater
Corp. v. National Theater Supply, 71 Idaho 435, 233 P.2d 425 (1951). The construction of the
usury statute by this court in Kline v. Robinson, 83 Nev. 244, 250, 428 P.2d 190 (1967), that
the sole penalty for a usurious contract consists of the denial to recover the interest exceeding
the 12 percent rate, is a much too mild reprimand.
When compared to our sister jurisdictions, this reprimand amounts to no penalty at all.
The statute (NRS 99.050) makes null and void any agreement calling for a greater rate of
interest . . . No reference is therein made to the excessive amount of interest as in the statutes
of Delaware, Missouri, Ohio, Pennsylvania and Tennessee.
4
It seems logical that all interest
be forfeited if the rate is illegal because our statute refers only to the rate, not the excess. By
such result the true concept that usury is wrong and should be penalized is thereby met.
Instead, by the view upon which the lower court relied, the lender suffers no penalty at all
for charging an illegal rate.
____________________

4
Delaware, Code Ann., Title 6, 2304:
(b) When a rate of interest for the loan or use of money exceeding that established by law has been reserved
or contracted for, the borrower or debtor shall not be required to pay the creditor the excess over the lawful rate .
. .
Missouri Ann. Code, 408.050:
. . . Any person who shall violate the foregoing prohibition of this
which the lower court relied, the lender suffers no penalty at all for charging an illegal rate.
In Arizona, if usurious interest is charged, the lender receiving such usurious interest loses
the right not only to the excess interest but all interest as well. ARS 44-1202.
In Oregon, the usury statute provides, [i]f it is ascertained in any action or suit brought on
any contract that a rate of interest has been contracted for greater than is authorized by this
chapter in money, [ORS 82.010(2) authorizes a maximum of 10 percent]. . . it shall be
deemed usurious, and shall work a forfeiture of the entire debt so contracted to the county
school fund of the county wherein such suit is brought. ORS 82.120(5). This statute was
construed in Crisman v. Corbin, supra.
In California, when an agreement is usurious, any stipulation to pay interest is null and
void, and no interest whatsoever is recoverable by the lender. West's Civil Code, 1916-2;
Stephans v. Herman, 225 Cal.App.2d 671, 37 Cal.Rptr. 746 (1964). As summarized by E.
Glushon, The California Usury Law, 43 Cal. St. B. J. 56, 65 (1968).
The borrower may recover all interest paid within two years on an usurious loan, not
merely the usurious excess, in an action for money had and received. Such action must be
brought within two years of payment but where the lender sues, the statute of limitations does
not preclude the borrowers from offsetting all interest paid, so as to reduce the principal of
the loan. [Footnotes omitted.]
Furthermore, in California, a plaintiff is entitled to recover treble the amount of interest
paid under the note during the year preceding the action.
____________________
section shall be subject to be sued, for any and all sums of money paid in excess of the principal and legal rate of
interest of any loan . . .
Ohio Rev. Code Ann., 1343.04:
Payments of money or property made by way of usurious interest, whether made in advance or not, as to the
excess of interest above the rate allowed by law at the time of making the contract, shall be taken to be payments
made on account of principal; and judgment shall be rendered for no more than the balance found due, after
deducting the excess of interest so paid.
Pennsylvania Stat. Ann., Title 41, 4:
When a rate of interest for the loan or use of money, exceeding that established by law, shall have been
reserved or contracted for, the borrower or debtor shall not be required to pay to the creditor the excess over the
legal rate . . .
Tennessee Code Ann., 47-14-112:
A defendant sued for money may avoid the excess over legal interest, by a plea setting forth the amount of
the usury. (Emphasis supplied.)
year preceding the action. Taylor v. Budd, 18 P.2d 333, 334 (Cal. 1933); West's Civil Code
1916-3(a).
5

Even in Nevada, in legislation entitled the Nevada Installment Loan and Finance Act (NRS
675.010-675.480, applicable to loans under $7,500), the legislature provided penalties
comparable to those in the jurisdictions above related for any violation of the statutory
provisions. NRS 675.480 provides:
Penalties for charging, contracting for, or receiving amounts in excess of charges
permitted by chapter.
1. If any amount in excess of the charges permitted by this chapter is charged, contracted
for, or received, except as the result of an accidental and bona fide error of computation, the
contract of loan shall be void, and the licensee shall have no right to collect or receive any
principal, charges or recompense whatever.
2. The licensee and the several members, officers, directors, agents and employees
thereof who shall have participated in such violation shall be guilty of a misdemeanor. See
also in this connection NRS 97.305.
[Headnote 13]
Therefore, it is our interpretation of NRS 99.050(2), stating that [a]ny agreement for a
greater rate of interest than herein specified shall be null and void and of no effect as to such
excessive rate of interest[,] that such excessive rate of interest includes all interest and not
solely the excess.
The Nevada case holding contrary to the foregoing position, Kline v. Robinson, supra, can
be distinguished on two grounds. First, the major issue in that case was whether a borrower
could recover excess usurious interest voluntarily paid. Hawthorne v. Walton, supra, was
overruled, and the court's attention was focused primarily on that facet of the case.
____________________

5
West's Civil Code 1916-3 also includes the following:
(b) Any person who willfully makes or negotiates, for himself or another, a loan of money, credit, goods, or
things in action, and who directly or indirectly charges, contracts for, or receives with respect to any such loan
any interest or charge of any nature, the value of which is in excess of that allowed by law, is guilty of
loan-sharking, a felony, and is punishable by imprisonment in the state prison for not more than five years or in
the county jail for not more than one year. This subdivision shall not apply to any person licensed to make or
negotiate, for himself or another, loans of money, credit, goods, or things in action, or expressly exempted from
compliance by the laws of this state with respect to such licensure or interest or other charge, or to any agent or
employee of such person when acting within the scope of his agency or employment. (Amended by Stats. 1970,
c. 784, p. 1497, 1, subject to approval by the people at a special election consolidated with the general election
to be held Nov. 3, 1970)
was focused primarily on that facet of the case. The statement that only the excess (as
opposed to all) interest would be recovered was interjected summarily. Second, when the
court in Kline stated, 83 Nev., at 250, that such excessive rate of interest over that allowed
by statute is recoverable by the borrower, the court considered neither legislative intent nor
public purpose and cited no authority in support of its statement over that allowed by
statute. Therefore, the precise issue was not subjected to such judicial deliberation as to
forestall questioning at this time.
[Headnote 14]
We conclude therefore that NRS 99.050(2) should be construed, as is clearly permitted by
a reading of its words, so that any agreement for a usurious rate of interest is null and void as
to all interest whatsoever.
[Headnote 15]
Under the circumstances the award of attorney's fee, having been predicated on the trial
court's assumption that the full recovery was proper, becomes excessive. Litigation was
unnecessary and the client should be responsible for his attorney's fee. Yet, the borrower
made no offer of judgment nor offer of payment of the principal and we expect that the lender
relied upon our Kline v. Robinson, supra, which we now overrule as to the issue of usury.
Under the circumstances we allow the attorney's fee modified, however, to the sum of $1,500.
Further discussion concerning computation of interest is obviated.
The judgment of the trial court is affirmed, but modified, so that judgment will enter for
$10,900 plus $1,500 attorney's fee and costs of the suit.
6

Thompson, J., dissenting in part only:
Parties may agree for the payment of any rate of interest not exceeding, however, the rate
of 12 percent per annum. NRS 99.050(1). Any agreement for a greater rate of interest is void
and of no effect as to such excessive rate of interest. NRS 99.050{2).
____________________

6
The court wishes to express its appreciation to Prince A. Hawkins and F. DeArmond Sharp of the law firm
Hawkins, Rhodes & Hawkins for filing an Amicus Curiae brief in this appeal at the request of the court.
99.050(2). It is clear to me that an agreement for a rate of interest greater than 12 percent per
annum is void only as to such excessive rate, that is, the rate in excess of 12 percent per
annum. In Kline v. Robinson, 83 Nev. 244, 428 P.2d 190 (1967), this court so ruled.
Although we have no duty to follow an absurd or obsolete decision and blindly adhere to
stare decisis (see dissenting opinion, Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618
(1972)), the interpretation placed upon NRS 99.050 by this court in Kline is sensible.
Consequently, I think that it is unwise to void such a recent holding and intrude upon the
legislative province. Otherwise, I agree with today's opinion.
____________
88 Nev. 296, 296 (1972) Himmage v. State
FRANKLIN DELONAR HIMMAGE, Appellant, v.
No. 6246
May 4, 1972 496 P.2d 763
Appeal from conviction of burglary. Second Judicial District Court, Washoe County; John
F. Sexton, Judge.
A motion to suppress evidence was denied, and defendant was convicted in the district
court and he appealed. The Supreme Court, Mowbray, J., held that where the parolee as a
condition of his parole had agreed in writing that his parole officer could search his person,
his residence or auto at any time of the day or night upon any occasion when the officer
believed there was reasonable cause to conduct such search, and where additionally the
parolee at time of search gave his parole officer express permission to search the parolee's
apartment, and the search was made as a result of information received from a police officer
that the parolee had been involved in a burglary, a nighttime search of the parolee's apartment
by the parole officer was constitutionally permissible.
Affirmed.
H. Dale Murphy, Public Defender, and William Whitehead, III, Deputy Public Defender,
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and Gary R.
Silverman, Deputy District Attorney, Washoe County, for Respondent.
1. Pardon and Parole; Searches and Seizures.
Condition of parole under which narcotics offender's parole officer could search parolee's person,
residence or auto at any time of day or night upon any occasion when parole officer believed there was
reasonable cause to conduct such search was valid and did not constitute unreasonable invasion of Fourth
Amendment rights. U.S.C.A.Const. Amend. 4.
2. Searches And Seizures.
Where parolee as condition of parole agreed in writing that his parole officer could search his person, his
residence or auto at any time of day or night upon any occasion when his parole officer believed there was
reasonable cause to conduct such search, and where additionally the parolee at time of search gave his
parole officer express permission to search parolee's apartment, and search was made as result of
information received from police officer that parolee had been involved in burglary, nighttime search of
parolee's apartment by parole officer was constitutionally permissible. U.S.C.A.Const. Amend. 4.
OPINION
The narrow issue presented for our consideration on this appeal is whether it is
constitutionally permissible under the Fourth Amendment to the Constitution of the United
States for a parole officer to make a nighttime search of a parolee's apartment when such
search is made as the result of information received from a police officer that the parolee had
been involved in a burglary.
Himmage, the appellant-defendant, was paroled from the Nevada State Prison, where he
had been serving time on a 5- to 6-year sentence for robbery. On July 21, 1969, in a burglary
of the Osborne & Dermody, Inc., store in Reno, four television sets were removed from the
premises. The Reno police obtained a description of each of the TV sets and their serial
numbers. The police also had information that Himmage had one of the sets in his apartment,
and they advised his parole officer, Robert Burns, of this information. Burns, with police
officers, went to Himmage's apartment in the early hours of September 10, 1969. They were
admitted to the apartment by Himmage, and they told him of the purpose of their visit. Burns
requested Himmage's permission to search the apartment. Permission was granted, and one of
the missing TV sets was located. Himmage was later charged with burglary and, after a
preliminary hearing, was held to answer the charge in the district court. He moved to suppress
the admission of the television set as evidence in the trial.
television set as evidence in the trial. The district judge properly denied the motion to
suppress.
When Himmage was paroled, he agreed in writing, as one of the conditions of his parole,
that his parole officer could search his person, his residence, or his auto at any time of the
day or night, upon any occasion when his parole officer believed there was reasonable cause
to conduct such a search. Additionally, in this case Himmage at the time of the search gave
Burns his express permission to search the apartment.
The recent case of People v. Mason, 97 Cal.Rptr. 302 (Cal. 1971), cert. denied, 405 U.S.
1016 (U.S. Mar. 27, 1972) (No. 71-803), is on point. The facts in Mason are almost identical
with those in this case, except that Mason, who was a probationer rather than a parolee, did
not expressly consent to the search in question, as Himmage did in the instant case. The
California Supreme Court, speaking through Mr. Justice Burke, said (97 Cal.Rptr. at 303-304,
305):
Our analysis of the question requires a two-step approach. First, we must determine
whether by the terms of the condition the officers were permitted to conduct a particular
search without obtaining defendant's prior consent to that search. Second, if no prior consent
was required, we must determine whether that condition constituted an unreasonable or
unconstitutional invasion of defendant's rights.
Defendant contends that since the condition required him to submit to a search whenever
requested to do so,' the officers should have requested permission to search, thereby affording
defendant the opportunity to grant or refuse permission. To so construe the condition would,
however, render it utterly meaningless. A condition' implies a qualification or restriction;
accordingly, a condition to a grant of probation contemplates some limitation upon the
probationer's rights. (See In re Bushman, 1 Cal. 3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727.)
If defendant had the right to withhold his consent to a warrantless search, the protection
thereby afforded him would have been as broad as that afforded all other persons under the
Fourth Amendment. . . .
We also note that to accept defendant's interpretation of the probation condition would
defeat the acknowledged purposes of such a provision to deter further offenses by the
probationer and to ascertain whether he is complying with the terms of his probation. With
knowledge he may be subject to a search by law enforcement officers at any time, he will be
less inclined to have narcotics or dangerous drugs in his possession.
The purpose of a unexpected, unprovoked search of defendant is to ascertain whether he is
complying with his terms of probation; to determine not only whether he disobeys the law,
but also whether he obeys the law. Information obtained under such circumstances would
afford a valuable measure of the effectiveness of the supervision given the defendant and his
amenability to rehabilitation.' (People v. Kern, 264 Cal.App. 2d 962, 965, 71 Cal.Rptr. 105,
107.)
Turning to the question of the validity of the condition as we have interpreted it, we are
guided by the principles set forth in In re Bushman, supra, 1 Cal. 3d 767, 776-777, 83
Cal.Rptr. 375, 381, 463 P.2d 727, 733, as follows: When granting probation, courts have
broad discretion to impose restrictive conditions to foster rehabilitation and to protect public
safety. . . . If the defendant considers the conditions of probation more harsh than the sentence
the court would otherwise impose, he has the right to refuse probation and undergo the
sentence. [Citations.] In such case he may challenge the legality of any proposed conditions
of probation on an appeal from the judgment or on habeas corpus. [Citations.]
. . .'
. . .
Defendant contends that a probation condition which requires submission to a warrantless
search constitutes an unreasonable invasion of his Fourth Amendment rights. We have
heretofore suggested, however, that persons conditionally released to society, such as
parolees, may have a reduced expectation of privacy, thereby rendering certain intrusions by
governmental authorities reasonable' which otherwise would be invalid under traditional
constitutional concepts, at least to the extent that such intrusions are necessitated by
legitimate governmental demands. (See In re Martinez, 1 Cal. 3d 641, 647, fn. 6, 83 Cal.Rptr.
382, 463 P.2d 734; cf. People v. Gilkey, 6 Cal.App.3d 183, 186-188, 85 Cal.Rptr. 642, and
cases cited.) Thus, a probationer who has been granted the privilege of probation on condition
that he submit at any time to a warrantless search may have no reasonable expectation of
traditional Fourth Amendment protection. (Footnote omitted.)
[Headnotes 1, 2]
We approve the reasoning of Mason, and we affirm Himmage's judgment of conviction.
____________
88 Nev. 300, 300 (1972) Swogger v. Sunrise Hospital, Inc.
BETTY SWOGGER, Appellant, v. SUNRISE HOSPITAL,
INC., Respondent.
No. 6662
May 4, 1972 496 P.2d 751
Appeal from judgment of the Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Action by hospital against wife to recover reasonable value of services provided deceased
husband. The district court found for hospital and wife appealed. The Supreme Court held
that where husband had not abandoned or deserted wife, neither had secured decree of
separate maintenance, and wife had not availed herself of sole trader statute, hospital which
furnished services to husband who died leaving no community or separate property was
entitled to recover reasonable value of such services from wife.
Affirmed.
Boyd, Leavitt & Freedman, of Las Vegas, for Appellant.
R. Ian Ross, of Las Vegas, for Respondent.
As general rule, separate property of wife is not liable for debts of her husband nor are her earnings so
liable. NRS 123.040, 123.210.
Where husband had not abandoned nor deserted wife, neither had secured decree of separate
maintenance, and wife had not availed herself of sole trader statute, hospital which furnished services to
husband who died leaving no community or separate property was entitled to recover reasonable value of
such services from wife. NRS 123.040, 123.090, 123.110, 123.210, 124.010 et seq.
OPINION
Per Curiam:
Sunrise Hospital brought an action against Betty Swogger to recover the reasonable value
of hospital services furnished to her husband, Thomas Swogger, during his last illness.
Thomas died leaving no community or separate property. The sole issue tendered to the
district court, and now to us, is whether Betty's separate property is liable for the hospital debt
incurred by her husband. This issue is presented in a context where the husband had not
abandoned or deserted his wife, neither had secured a decree of separate maintenance, nor
had the wife availed herself of the sole trader statute, NRS ch. 124
88 Nev. 300, 301 (1972) Swogger v. Sunrise Hospital, Inc.
secured a decree of separate maintenance, nor had the wife availed herself of the sole trader
statute, NRS ch. 124. This opinion is limited accordingly.
[Headnotes 1, 2]
As a general rule, the separate property of the wife is not liable for the debts of her
husband, NRS 123.210, nor are her earnings so liable, NRS 123.040. An exception to that
rule appears in NRS 123.110 which provides that the wife must support the husband out of
her separate property when he has no separate property and they have no community property
and he, from infirmity, is not able or competent to support himself. This duty to support
necessarily runs to the benefit of creditors who supply necessaries of life to the infirm,
impecunious husband. Cf. NRS 123.090.
1

Affirmed.
____________________

1
Were Sunrise Hospital a public rather than a private hospital, there would be no question about its right to
recover. See NRS 450.390(2) which provides: Every such inhabitant or person who is not a pauper and every
relative required by the laws of this state to support any such inhabitant or person who is a pauper shall pay to
the governing head, or such officer as it shall designate, a reasonable compensation for occupancy, nursing, care,
medicine and attendance, other than medical or surgical attendance, according to the rules and regulations
prescribed by the governing head. If after demand by the governing head, or such officer as it may designate,
such inhabitant, person or relative shall fail, refuse or neglect to pay such compensation, the same may be
recovered in a suit at law brought by the governing head.
____________
88 Nev. 301, 301 (1972) M-R Sign Co. v. Avery
M-R SIGN COMPANY, INC., a Minnesota Corporation,
Appellant, v. HOLLIS N. AVERY, Respondent.
No. 6739
May 5, 1972 496 P.2d 756
Appeal from a judgment of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
The district court entered order setting aside default judgment, and appeal was taken. The
Supreme Court held that evidence, in hearing on motion to set aside default judgment,
including movant's assertion in attached affidavit that he relied upon statements of his
counsel that matter would be resolved out-of-state and that answer had already been filed in
such state and including allegations in body of motion that third party had assumed
movant's liability supported findings of excusable neglect and a meritorious defense.
party had assumed movant's liability supported findings of excusable neglect and a
meritorious defense.
Affirmed.
Monte J. Morris, of Las Vegas, for Respondent.
1. Judgment.
In order for a movant to have a default judgment set aside, he must show mistake, inadvertence, surprise
or excusable neglect and the existence of a meritorious defense to the action. NRCP 60(b).
2. Judgment.
Evidence, in hearing on motion to set aside default judgment, including movant's assertion in attached
affidavit that he relied upon statements of his counsel that matter would be resolved out-of-state and that
answer had already been filed in such state and including allegations in body of motion that third party had
assumed movant's liability supported findings of excusable neglect and a meritorious defense. NRCP
60(b).
OPINION
Per Curiam:
On February 16, 1971, appellant filed an action against respondent to recover $1,370.21
allegedly due on a promissory note. The respondent failed to timely answer after he had been
served with process, and a default judgment was entered on April 7, 1971.
After appellant had begun proceedings to enforce the judgment, respondent moved to set it
aside on May 5, 1971. It was asserted by respondent, in an affidavit attached to the motion,
that he had relied upon statements of his Minnesota counsel that the matter would be resolved
in Minnesota and that an answer had already been filed there. In the body of respondent's
motion it was alleged that a third party had assumed respondent's liability to appellant.
When respondent's motion came on for a hearing, copies of several documents allegedly
served on appellant in Minnesota had not been received by respondent's local counsel, and the
district court therefore granted respondent an additional ten days in which to file these
documents. After these documents had been received and a hearing held, the district court
determined that respondent had established the requisite elements of excusable neglect and a
meritorious defense necessary to support his motion, and therefore an order vacating the
default judgment was entered.
to support his motion, and therefore an order vacating the default judgment was entered. It is
from this order setting aside the default judgment that this appeal is taken.
[Headnotes 1, 2]
In order for a movant to have a default judgment set aside he must show mistake,
inadvertence, surprise or excusable neglect [NRCP 60(b)] and the existence of a meritorious
defense to the action. Johnston, Inc. v. Weinstein, 88 Nev. 7, 492 P.2d 616 (1972); Minton v.
Roliff, 86 Nev. 478, 471 P.2d 209 (1970); Hotel Last Frontier v. Frontier Prop., 79 Nev. 150,
380 P.2d 293 (1963). The district court found excusable neglect in the instant action as
respondent, after being served with a copy of appellant's complaint, forwarded the pleading to
his counsel in Minnesota and relied upon the representations of that counsel that the matter
properly belonged before the Minnesota courts and would be disposed of there. The
respondent, in failing to file a responsive pleading, had no intent to delay the proceedings. He
was unfamiliar with the procedural aspects of a lawsuit and he relied upon representations of
his counsel in Minnesota. There were allegations in respondent's motion to set aside the
default judgment, regarding shifting of a liability on the note, which, if proven, would tend to
establish a defense to the action. The record contains sufficient evidence upon which the
district court could base its findings of excusable neglect and a meritorious defense. There
being no showing of a clear abuse of discretion by the court below, its judgment is affirmed.
Johnston, Inc. v. Weinstein, supra; Minton v. Roliff, supra; Hotel Last Frontier v. Frontier
Prop., supra.
____________
88 Nev. 303, 303 (1972) Martin v. Sheriff
CLIFFORD EUGENE MARTIN, Appellant, v. SHERIFF,
No. 6800
May 5, 1972 496 P.2d 754
Appeal from an order denying a pretrial petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Leonard I. Gang, Judge.
The district court denied the writ with leave to the district attorney to file an amended
information. The defendant appealed.
appealed. The Supreme Court held that where a magistrate, after showing of probable cause
at preliminary hearing, erred in ordering dismissal of a rape charge and in ordering defendant
bound over on a charge of lewdness with a minor, the district court in the habeas corpus
proceeding was without authority to deny the writ and order the information amended; the
only permissible course was to grant the writ with leave to the district attorney to refile the
rape charge.
Robert List, Attorney General; Roy A. Woofter, District Attorney, and H. Leon Simon,
1. Criminal Law.
Where evidence presented at preliminary examination showed probable cause to believe that crime of
rape had been committed and that defendant had probably committed it, magistrate erred in ordering
defendant bound over on charge of lewdness with minor, and also erred in ordering dismissal of rape
charge. NRS 200.263, 201.230, subd. 1.
2. Habeas Corpus.
Where magistrate, after showing of probable cause at preliminary hearing, erred in ordering dismissal of
rape charge and in ordering defendant bound over on charge of lewdness with minor, district court in
habeas corpus proceeding was without authority to deny writ and order information amended; only
permissible course was to grant writ with leave to district attorney to refile rape charge. NRS 34.520,
173.035, subd. 2, 173.095, 174.145, 178.562, 178.562, subds. 1, 2, 201.230, subd. 1.
Statutes do not permit court to order amendment of information to restate charge which has been
dismissed by magistrate at preliminary examination, even though magistrate's order was clearly erroneous.
NRS 173.035. subd. 2, 178.562, subd. 2.
OPINION
Per Curiam:
The appellant was charged by criminal complaint with rape (NRS 200.263) and lewdness
with a minor (NRS 201.230). The rape count alleged the infliction of substantial bodily harm
[NRS 200.263(1)(a)].
The alleged victim was a 9-year-old girl, whose testimony at the preliminary examination
was sufficient to constitute probable cause to believe that the offense had occurred and
that the appellant had probably committed it.
the preliminary examination was sufficient to constitute probable cause to believe that the
offense had occurred and that the appellant had probably committed it. In support of the
substantial-bodily-harm charge, the victim's mother testified that she had called the police
because of her daughter's bleeding vagina.
At the conclusion of the preliminary examination, the district attorney moved to strike the
portion of the rape charge alleging the infliction of substantial bodily harm, because of a lack
of evidence to support it. That motion was granted by the magistrate.
The magistrate then dismissed the rape charge. We cannot perceive upon what authority
such a dismissal order was entered, in view of the testimony adduced at the preliminary
examination, which showed that a rape had occurred. However, the magistrate did order the
appellant bound over to the district court for trial on the charge of lewdness with a minor by
the insertion of the penis into the vagina of the child. The district attorney thereupon filed an
information charging the crime for which the appellant had been bound over, namely,
lewdness with a minor by the insertion of the penis into the vagina of the child.
A petition for a writ of habeas corpus was then filed on behalf of the appellant. In the
petition it was contended that, inasmuch as the rape charge had been dismissed, and since the
language of NRS 201.230 explicitly excludes the act of rape from the lewdness statute,
1
the
appellant had been held to answer to a charge that is legally nonexistent.
At the hearing on the writ application, the district judge reviewed the transcript of the
preliminary examination and found that it contained sufficient evidence to constitute probable
cause to believe that the crime of rape had been committed and that the appellant probably
had committed it. He also found the testimony of the child's mother to be sufficient evidence
of substantial bodily harm to warrant reinstatement of that charge. As a result, the order of the
district court was that the writ of habeas corpus was denied, with leave to the district
attorney to file an amended information to charge the crime shown by the preliminary
examination transcript as probably having been committed, namely, rape with substantial
bodily harm.
____________________

1
Any person who shall willfully and lewdly commit any lewd or lascivious act, other than acts constituting the
crime of rape and the infamous crime against nature, upon or with the body, or any part or member thereof, of a
child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or
sexual desires of such person or of such child, shall be punished by imprisonment in the state prison for not less
than 1 year nor more than 10 years. (Emphasis added.)
habeas corpus was denied, with leave to the district attorney to file an amended information
to charge the crime shown by the preliminary examination transcript as probably having been
committed, namely, rape with substantial bodily harm.
The appellant's contention on appeal is that the denial of the writ, with leave to amend, in
these circumstances was error, because such a result is not authorized by our statutes. We
agree.
[Headnote 1]
The evidence presented by the State at the preliminary examination was sufficient to
constitute probable cause to believe that the crime of rape had been committed and that the
appellant had probably committed it. The magistrate erred when he ordered the appellant
bound over on a charge of lewdness with a minor. The two crimes are rendered mutually
exclusive by the language of NRS 201.230(1). On the evidence presented to the magistrate, it
was also error for him to order the dismissal of the rape charge.
[Headnotes 2, 3]
In the procedural posture in which the habeas petition was presented, the district court was
without authority to deny the writ and order the information amended. The only permissible
course under the circumstances was to grant the writ with leave to the district attorney to
refile the rape charge under NRS 173.035(2)
2
and NRS 178.562(2).
3
Neither NRS 173.095
nor NRS 174.145 nor NRS 34.520 permits the court to order the amendment of an
information to restate a charge that has been dismissed by the magistrate at the preliminary
examination, even though the magistrate's order was clearly erroneous.
4

____________________

2
NRS 173.035 subsection 2, in pertinent part:
If, however, upon the preliminary examination the accused has been discharged, . . . the district attorney may,
upon affidavit. . . by leave of the court first had, file an information. . . The affidavit mentioned herein need not
be filed in cases where the defendant . . . . has been bound over to appear at the court having jurisdiction.

3
NRS 178.562 subsection 2:
The discharge of a person accused upon preliminary examination shall be a bar to another complaint against
him for the same offense, but shall not bar the finding of an indictment or filing of an information.

4
The order of dismissal was not upon the motion of the district attorney, nor was the dismissal filed by him
pursuant to NRS 178.554, providing for voluntary dismissals; hence, the prohibition of NRS 178.562(1) is not
applicable. Nor does Turpin v. Sheriff, 87 Nev. 236, 484 P.2d 1083 (1971), preclude the refiling of the rape
charge under NRS 173.035(2), because there the dismissal was voluntarily sought by the State.
Consequently, we reverse the district court's order, and we authorize the district attorney to
refile the charge of rape
5
under NRS 173.035(2) and NRS 178.562(2). Further leave of the
court is not necessary. Nor is another preliminary examination required, for we find from the
transcript of the one which was conducted that there is probable cause to bind this appellant
over for trial on a charge of rape.
____________________

5
Because the district attorney voluntarily moved to strike that portion of the rape charge alleging the
infliction of substantial bodily harm, he is now precluded from realleging it if he refiles the rape charge against
the appellant. NRS 178.554 and NRS 178.562.
____________
88 Nev. 307, 307 (1972) Ildefonso v. State
RUDOLPH J. ILDEFONSO, Appellant, v. THE
No. 6691
May 10, 1972 496 P.2d 752
Appeal from judgment of conviction of robbery. Eighth Judicial District Court, Clark
County; Roscoe H. Wilkes, Judge.
The Supreme Court held that officers, who, about five minutes after receiving radio
broadcast that armed robbery had just occurred and that suspect had fled in a vehicle having
three tail lights, and some distance from robbery site observed a car which was not in
violation of any equipment or traffic regulations but which had three tail lights, had probable
cause to stop vehicle for investigation.
Affirmed.
Robert G. Legakes, Public Defender, and Steven L. Godwin, Deputy Public Defender,
Chief Deputy for Appeals, Clark County, for Respondent.
1. Arrest.
An officer may stop occupants of an automobile for legitimate police investigation so long as there is
probable cause for that action; this is proper although there is not probable cause for arrest at that moment;
if the subsequent investigation, together with the information originally received combines to supply
probable cause for arrest, the arrest may be made and a reasonable incidental search conducted.
2. Arrest.
Officers, who, about five minutes after receiving radio broadcast that armed robbery had just occurred
and that suspect had fled in a vehicle having three tail lights, and some distance from robbery site, observed
a car which was not in violation of any equipment or traffic regulations but which had three tail lights, had
probable cause to stop vehicle for investigation.
OPINION
Per Curiam:
On the night of December 29, 1970, Clark County sheriff's deputies received a radio
broadcast that an armed robbery had just occurred at a bar located on the Boulder highway,
and that the suspect was a male who fled in a vehicle having three tail lights. No other
descriptive information was contained in the broadcast. About five minutes after receiving the
broadcast, the deputies, some distance from the robbery site, observed a car which had three
tail lights. It was not in violation of any equipment regulations, nor was it observed to be
committing any traffic offenses. The vehicle was stopped for investigation, solely on the basis
of its similarity to the description received over the police radio.
As the appellant alighted from the vehicle one of the deputies observed in plain view paper
money and coins scattered on the floor. Also visible was the butt of a gun protruding from
under the seat of the car. Upon this evidence the appellant was then arrested, charged with the
robbery of the bar, tried before a jury and convicted.
This appeal challenges the legality of the initial stop of the vehicle on the ground that the
deputies lacked probable cause to make the stop for investigative purposes. We affirm the
judgment of conviction.
[Headnote 1]
An officer may stop the occupants of an automobile for legitimate police investigation so
long as there is probable cause for that action. This is proper although there is not probable
cause for arrest at that moment. If the subsequent investigation, together with the information
originally received combines to supply probable cause for arrest, the arrest may be made and
a reasonable incidental search conducted. Robertson v. State, 84 Nev. 559, 445 P.2d 352
(1968); People v. Bird, 56 Cal.Rptr. 501 (Cal.App. 1967); People v. Perez, 52 Cal.Rptr. 514
(Cal. App. 1966); People v. Propp, 45 Cal.Rptr. 690 (Cal.App. 1965); cf. People v.
Mickelson, 380 P.2d 658 (Cal. 1963).
[Headnote 2]
The information about a get-away vehicle with only three tail lights was sufficient to
supp]y probable cause to stop the vehicle for investigation.
The action of the deputies was neither arbitrary, harassing, capricious nor unreasonable.
Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966).
Affirmed.
____________
88 Nev. 309, 309 (1972) Nevada Tax Comm'n v. Southwest Gas Corp.
NEVADA TAX COMMISSION, Appellant, v. SOUTH-
WEST GAS CORPORATION, Respondent.
No. 6593
May 19, 1972 497 P.2d 308
Appeal from judgment of the First Judicial District Court, Carson City; Richard L. Waters,
Jr., Judge.
Action by gas pipeline company to recover real property taxes paid under protest. The
district court entered judgment for plaintiff and Tax Commission appealed. The Supreme
Court, Thompson, J., held that where gas pipeline company had no income during income tax
year and had not traded stock, Tax Commission reasonably concluded that capitalization of
income and stock-debt indicators of value of property were not available and applicable,
within the formula adopted by Tax Commission for assessment of gas and for gas pipeline
companies requiring only that book cost less depreciation, capitalized income and market
value of stock and debt, when available and applicable be considered in determining value
of property, thus expert testimony offered by taxpayer that such indicators of value could
have been used through processes of imputation and inference does not constitute clear,
convincing and substantial evidence that Commission applied a fundamentally wrong
principle in ascertaining value.
Reversed.
Christensen, D. J., dissented.
Robert List, Attorney General, and Irwin Aarons, Deputy Attorney General, for Appellant.
Guild, Hagen & Clark and Jack B. Ames, of Reno, for Respondent.
1. Taxation.
Formula which was used to fix value of gas and gas pipeline companies for property tax assessment
purposes and which required weighting of book cost less depreciation, capitalized income at reasonable
rate and market value of stock and debt was per se appropriate. NRS 361.410, subd. 2, 361.430.
2. Taxation.
Taxpayer's burden of showing by a clear and satisfactory evidence that valuation established by
Commission for property tax assessment purposes was unjust and inequitable is not met unless court can
find that the Tax Commission applied a fundamentally wrong principle, or refused to exercise its best
judgment, or that assessment was so excessive as to give rise to an implication of fraud or mala fides. NRS
361.410, subd. 2, 361.430.
3. Taxation.
Generally, taxpayer's burden of proving that valuation established by Tax Commission for property tax
assessment purposes is unjust and inequitable is not met by merely showing a difference of opinion
between witnesses and the assessing authority. NRS 361.410, subd. 2, 361.430.
4. Evidence; Taxation.
Where gas pipeline company had no income during tax year and had not traded stock, Tax Commission
reasonably concluded that capitalization of income and stock-debt indicators of value of property were not
available and applicable within Tax Commission's formula for assessment of gas and for gas pipeline
companies requiring that book cost less depreciation, capitalized income and market value of stock and
debt when available and applicable, be considered in determining value of property for real property tax
purposes, thus company's expert testimony that such indicators could have been used through processes of
imputation and inference did not constitute clear, convincing and substantial evidence that Commission
applied a fundamentally wrong principle in ascertaining value. NRS 361.410, subd. 2, 361.430.
OPINION
This appeal is from a judgment in an action brought by Southwest Gas to recover taxes
paid under protest. At issue is whether the Nevada Tax Commission properly applied its
valuation formula for property tax assessment purposes to Nevada Northern Gas Company
for the 1963-64 tax year.
1
Following a trial de novo, the district court found an improper
application of formula which caused an excessive tax in the amount of $20,457. Southwest
Gas was given judgment for that amount and this appeal followed.
____________________

1
On December 31, 1963, Nevada Northern merged into Southwest Gas.
[Headnote 1]
The formula adopted by the Commission to fix the value of gas and gas pipeline
companies for assessment purposes requires the proper weighting of three indicators of value
when available and applicable. Those indicators of value are the book cost less depreciation
of the properties, the capitalized income at a reasonable rate, and the market value of the
stock and debt. The formula per se is appropriate. State v. Nevada Power Co., 80 Nev. 131,
390 P.2d 50 (1964). The application of it to the properties of Nevada Northern was
challenged in the district court for the reason that the Tax Commission utilized only the book
cost less depreciation indicator of value in assessing Nevada Northern's gas pipelines. The
capitalized income and stock and debt indicators of value were not used in making the
assessment. It was and is the Commission's position that those indicators of value were
neither available nor applicable since Nevada Northern had no income during the tax year in
question, and had not traded stock. The taxpayer contends that all three indicators of value
were available and applicable notwithstanding the absence of income and stock trading,
and should have been utilized and properly weighted in the assessment process. The trial
court was persuaded to adopt the taxpayer's contention, imputed an income where none
existed, and inferred a market value for the taxpayer's stock though none had been traded. The
court's decision rests upon the testimony given by the taxpayer's expert witness to the effect
that it was good appraisal practice to impute income and infer stock market value in the
circumstances here present. That testimony was controverted by witnesses for the
Commission who believed that the capitalization of income indicator of value and the
stock-debt indicator were unreliable in circumstances where the income had to be imputed
and the market value of the stock inferred.
[Headnote 2]
1. The parties agree that it is the taxpayer's burden to show by clear and satisfactory
evidence that the valuation established by the Commission is unjust and inequitable. NRS
361.410(2); NRS 361.430. This burden is not met unless the court can find that the Tax
Commission applied a fundamentally wrong principle, or refused to exercise its best
judgment, or that the assessment was so excessive as to give rise to an implication of fraud or
mala fides. Pittsburg Silver Peak v. Tax Commission, 49 Nev. 46, 55, 235 P. 643 (1925). The
taxpayer does not here contend that the Commission is chargeable with fraud or bad faith, nor
does it suggest that the Commission failed to exercise its best judgment.
exercise its best judgment. The thrust of the taxpayer's position, below and here, is that the
Commission applied a fundamentally wrong principle in that it failed to utilize all three
indicators of value in the assessment process. We are told that the testimony of its expert
witness constitutes substantial evidence of a clear and convincing nature in support of this
proposition, and that we may not, therefore, set aside the trial court ruling.
[Headnotes 3, 4]
At best, the valuation of property is an illusory matter upon which experts hold differences
of opinion. As a general proposition, the taxpayer's burden of proof is not met by merely
showing a difference of opinion between witnesses and the assessing authority. Chicago and
North Western Railway Co. v. Prentis, 161 N.W.2d 84 (Iowa 1968). There exists no absolute
mathematical formula to establish market value. Indeed, the formula adopted by the Tax
Commission for the assessment of gas and gas pipeline companies requires only that the three
indicators of value, properly weighted, be considered when available and applicable. The
very existence of the phrase when available and applicable points to a recognition that
some of those indicators of value may not appropriately be utilized in certain limited
situations. That phrase leaves room for the exercise of reasonable judgment by the assessing
authority. It is our opinion that the Tax Commission and staff reasonably could conclude that
the capitalization of income and stock-debt indicators of value were not available and
applicable in the circumstances here present, and that the expert testimony offered by the
taxpayer that such indicators of value could have been used through the processes of
imputation and inference does not constitute clear, convincing and substantial evidence that
the Commission applied a fundamentally wrong principle in ascertaining value. Pittsburgh
Silver Peak v. Tax Commission, supra.
2. Although the taxpayer suggests the possible existence of a constitutional problem in
this case, we perceive none.
Reversed.
Christensen, D. J., dissenting:
This suit was brought by Southwest Gas Corporation to recover property taxes paid under
protest for the 1963-64 tax year. The excessive taxes paid under protest were levied in part
against Southwest Gas Corporation with the balance having been levied against Nevada
Northern Gas Company, which subsequently merged with Southwest Gas Corporation.
been levied against Nevada Northern Gas Company, which subsequently merged with
Southwest Gas Corporation.
After a trial by the court, judgment was entered for respondent on February 9, 1971, for the
sum of $30,202.34.
The general basis of complaint by respondent was improper valuation of property for tax
assessment purposes by the Nevada Tax Commission.
Appellant does not quarrel with the excessive levy against Southwest Gas Corporation,
and concedes as proper that portion of the trial court's judgment.
Appellant here contends that the valuation as to Nevada Northern Gas Company by the
Nevada Tax Commission was proper and that there was not sufficient evidence to support the
judgment of the trial court. Appellant urges proper application of indicators of value by the
Nevada Tax Commission and respondent urges excessive valuation resulting from improper
application of indicators of value in violation of the formula adopted by the Commission for
computing the value for assessment purposes of gas and gas pipeline companies, and in
violation of the Nevada Constitution art. 10, 1, which requires uniform and equal
assessment.
1

The specific formulae adopted by the Tax Commission (Defendant's Exhibit 1) states:
In fixing the value for assessment purposes of electric, gas and gas pipeline; telephone
and telegraph and water companies the following indicators of value properly weighted, shall
be considered when available and applicable:
(a) Book cost less depreciation of properties.
(b) Capitalized income at a reasonable rate.
(c) Market value of stock and debt, less investments and other deductions.
On the date of valuation, Nevada Northern Gas Company had a franchise and physical
assets, just purchased and installed, but its regular gas distribution business had not yet been
commenced. The only indicator of value utilized in assessment was book cost less
depreciation of properties weighted 100 percent.
The presumption stated in NRS 47.250(9) that an official duty has been regularly
performed, remains until or unless it is controverted by other evidence which makes this type
presumption a shifting of the burden to go forward with evidence.
____________________

1
The Legislature shall provide by law for a uniform and equal rate of assessment and taxation, and shall
prescribe such regulation as shall secure a just valuation and taxation of all properties, real, personal, and
possessory. . . .
The burden of proof which requires proofs by clear and satisfactory evidence is a trial court
standard, as are proof by preponderance of evidence or beyond a reasonable doubt. Since
any of these three degrees of proof amount to the convincing of the mind of the trier of fact,
they may not be reviewed on appeal if there is any evidence with probative force which
convinces the mind of the trier of fact.
The rebuttable presumption running in favor of the Nevada Tax Commission was
overcome with the evidence presented in the trial court by respondent. The appraiser, Mr.
Broley E. Travis, called as a witness by respondent, clearly showed that it was improper to
give 100 percent weight to book cost less depreciation of properties as an indicator of value.
Failure to take into consideration capitalized income at a reasonable rate or market value
of stock and debt less investment and other deductions as indicators of value resulted in
unjust and inequitable evaluation and resulting tax. It is obvious that other indicators of value,
in addition to book cost less depreciation of properties are necessary, because of the factors
which distort this one single indicator of value. Cash value under many circumstances is
disproportionate to cost.
Where property has been depreciated to zero or thereabouts, but has many years of useful
life remaining, it would be absurd to say that its cash value for assessment purposes is zero.
On the other hand, if property is new, but not yet in production, its cash value may or may not
be its cost, particularly when the property is production machinery that may or may not
produce a sufficient return to make its value equal to its cost.
Because the evidence presented below, mainly in the form of expert witness testimony,
was sufficient to support the findings of the trier of fact, this court should not reverse that
judgment on appeal. Moreover, assessed valuation based upon book cost less depreciation
alone, as in this case, violates Section 1, Article 10 of the Nevada Constitution which requires
a uniform and equal rate of assessment and taxation.
____________
88 Nev. 315, 315 (1972) Odom v. Sheriff
JOHN BENJAMIN ODOM, Appellant, v. SHERIFF,
No. 6802
June 6, 1972 497 P.2d 906
Appeal from an order denying a pre-trial petition for a writ of habeas corpus. Eighth
Judicial District Court; Leonard I. Gang, Judge.
Petitioner, bound over to the district court for trial on charge of larceny from the person,
petitioned for writ of habeas corpus. The district court denied the petition and petitioner
appealed. The Supreme Court held that actions of plainclothes police officer who while lying
in front seat of car feigning drunkenness as part of setup changed his position so as to expose
pocket containing money did not amount to consent to the taking.
Affirmed.
Robert G. Legakes, Public Defender, and Jerrold J. Courtney, Deputy Public Defender,
Larceny.
Actions of plainclothes police officer who while lying in front seat of car feigning drunkenness as part of
setup changed his position so as to expose pocket containing money did not amount to consent to the
taking. NRS 205.270.
OPINION
Per Curiam:
After a preliminary examination the appellant was bound over to the district court for trial
on a charge of larceny from the person, a felony under NRS 205.270.
1
He petitioned for a
writ of habeas corpus, contending that there was insufficient evidence presented at the
preliminary examination to hold him for trial.
____________________

1
NRS 205.270 reads: 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 less than one year nor more than
ten years, and may be further punished by a fine of not more than $5,000.00.
88 Nev. 315, 316 (1972) Odom v. Sheriff
for trial. Upon the denial of habeas by the district court this appeal was taken.
The victim of the crime was a plainclothes officer of the Las Vegas police department who
was on special assignment on the night in question. He parked a rental car bearing
out-of-state license plates in a parking lot, with the motor running and lights off, and feigned
drunkenness in the front seat of the car. The area was under police surveillance at the time.
The appellant and a companion approached the car and, upon observing the officer lying on
his side on the front seat, opened the car doors and got into the vehicle. When the appellant
reached into one of the officer's pockets, one not containing any money, the officer moved his
position on the front seat of the car so as to expose another pocket containing dollar bills in a
money clip. The appellant reached into that pocket, removed the money and the clip, returned
the clip, and fled with the money. He was apprehended in the area with the dollar bills.
It is the appellant's contention on appeal that the testimony of the police officer failed to
show one of the elements of the crime charged, namely, the lack of consent of the victim. In
fact, it is argued that the officer consented to the taking of the money by changing his position
on the front seat to expose the pocket containing the money, thereby assisting in the taking.
We find that contention untenable, and reject it.
While the appellant was caught in a situation amounting to a police set-up the record
cannot be read to show either a consent to or assistance in the taking of money from the
officer's pocket by the appellant. The officer's cooperation may have made the appellant's
removal of the money from the pocket less difficult, but there is nothing in the record to
demonstrate that the appellant understood that such cooperation by the officer amounted to a
consent to the taking of the money. Neither did it amount to an act of assistance. It simply
made the appellant's purpose, already formulated, easier to achieve. The criminal intent
originated with the appellant, according to the record, and the act of the officer in changing
his position on the seat merely improved the opportunity afforded the appellant to
consummate the crime. [Cf. Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Wyatt v. State,
77 Nev. 490, 367 P.2d 104 (1961).]
Affirmed.
____________
88 Nev. 317, 317 (1972) Carpenter v. State
JOHN LIND CARPENTER, Appellant, v. THE
No. 6771
June 6, 1972 497 P.2d 895
Appeal from a judgment of the Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Defendant was convicted in the district court of robbery and he appealed. The Supreme
Court held that evidence sustained conviction.
Affirmed.
Robbery.
Evidence, including eyewitness testimony, sustained conviction of robbery.
OPINION
Per Curiam:
Appellant was tried before a jury and found guilty of robbery. His sole allegation of error
on appeal is that there was insufficient evidence adduced at trial to warrant his conviction.
James Miller, a desk clerk at the Travel Inn Motor Lodge in Las Vegas, Nevada, testified
that at about 1:00 a.m. on April 26, 1971 he opened the locked office door to admit the
appellant, whom he positively identified, that the appellant stepped to the counter, exhibited
what appeared to be a revolver, and said: I don't want anyone to get hurt. Appellant told
Miller to take the paper money from the cash drawer and lay it on the counter, then he forced
Miller out of the office and down an alley. After a short time Miller returned to the motel
office and found the money missing.
Appellant, testifying in his behalf, admitted that he was in the motel at about the time of
the robbery, but that he made no threat towards Miller nor took any money. He further
testified that he owned no clothing fitting the description given by Miller.
88 Nev. 317, 318 (1972) Carpenter v. State
Upon review of the entire record, we find that there was substantial evidence to support
appellant's conviction, and therefore it is affirmed. Williams v. State, 88 Nev. 164, 494 P.2d
960 (1972); Marshall v. State, 87 Nev. 536, 490 P.2d 1056 (1971).
Affirmed.
____________
88 Nev. 318, 318 (1972) Easley v. Sheriff
GARY A. EASLEY, Appellant, v. SHERIFF, WASHOE
No. 6909
June 6, 1972 497 P.2d 905
Appeal from an order of the Second Judicial District Court, Washoe County, dismissing
petition for a writ of habeas corpus; John W. Barrett, Judge.
The Supreme Court held that where neither the State's motion for continuance of
scheduled preliminary examination nor the prosecutor's affidavit in support of the motion
were made a part of record on appeal from denial of petition for writ of habeas corpus and the
magistrate found that good cause for continuance had been shown, Supreme Court would not
disturb the dismissal of the habeas petition of petitioner who asserted that his restraint was
unlawful because the magistrate granted the continuance in reliance on affidavit which failed
to show good cause for continuance.
Affirmed.
Sloan & Meredith, of Reno, for Appellant.
Robert List, Attorney General, Robert E. Rose, District Attorney, and Calvin R. Dunlap,
Habeas Corpus.
Where neither the State's motion for continuance of scheduled preliminary examination nor the
prosecutor's affidavit in support of the motion were made a part of record on appeal from denial of petition
for writ of habeas corpus and the magistrate found that good cause for continuance had been shown,
Supreme Court would not disturb the dismissal of the habeas petition of petitioner who asserted that his
restraint was unlawful because the magistrate granted the continuance in reliance on affidavit
which failed to show good cause for continuance.
88 Nev. 318, 319 (1972) Easley v. Sheriff
granted the continuance in reliance on affidavit which failed to show good cause for continuance. DCR 21.
OPINION
Per Curiam:
This is an appeal from an order dismissing the appellant's petition for a writ of habeas
corpus. That petition alleged that the appellant's restraint was unlawful because the magistrate
granted the State's motion for a continuance of a scheduled preliminary examination. The
thrust of the habeas petition was that the prosecutor's affidavit filed in support of his motion
failed to show good cause for a continuance as required by DCR 21 and Hill v. Sheriff, 85
Nev. 234, 452 P.2d 918 (1969).
Neither the motion for the continuance nor the supporting affidavit have been made a part
of the record on appeal. Without benefit of the affidavit, we are not able to determine whether
the requirements of DCR 21 were met. The magistrate found that good cause for a
continuance had been shown. Upon the record before us, we cannot fault that finding or the
district court's order dismissing the habeas petition. Jasper v. Sheriff, Clark County, 88 Nev.
16, 492 P.2d 1305 (1972).
Affirmed.
____________
88 Nev. 319, 319 (1972) Markoff v. New York Life Ins. Co.
VASIL M. MARKOFF, Appellant, v. NEW YORK LIFE
INSURANCE COMPANY, Respondent.
No. 6645
June 6, 1972 497 P.2d 904
Appeal from judgment of the Eighth Judicial District Court, Clark County; George F.
Wright, Judge.
Action by insured against insurer. The district court found for insurer and insured
appealed. The Supreme Court held that evidence sustained trial court's finding that false
statements in insured's application for insurance were intentionally made, were relied on by
company, and materially affected acceptance of risk.
Affirmed.
88 Nev. 319, 320 (1972) Markoff v. New York Life Ins. Co.
[Rehearing denied July 10, 1972]
Wiener, Goldwater, Galatz & Raggio and R. Gardner Jolley, of Las Vegas, for Appellant.
Breen, Young, Whitehead & Hoy, of Reno, for Respondent.
Insurance.
Evidence sustained trial court's finding that false statements in insured's application for insurance were
intentionally made, were relied on by company, and materially affected acceptance of risk. NRS
692.040, subd. 3.
OPINION
Per Curiam:
Markoff brought suit to recover monthly benefits for total disability claimed to be due
under an income protection disability policy issued by New York Life Insurance Company.
The district court barred recovery and entered judgment for New York Life since false
statements in Markoff's application for insurance were found to have intentionally been made,
were relied upon by the company and materially affected the acceptance of the risk and the
hazard assumed. NRS 692.040(3). Although we do not have a complete transcript of the
evidence, it is apparent from the partial record before us that this finding is amply supported
and we may not tamper with it. Other assigned errors are without substance.
Affirmed.
____________
88 Nev. 320, 320 (1972) Schmitt v. State
ROBERT J. SCHMITT, Appellant, v. THE
No. 6524
June 6, 1972 497 P.2d 891
Appeal from judgment of conviction and sentence of the Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
Defendant was convicted before the district court of possession of marijuana, and he
appealed. The Supreme Court, Gunderson, J., held that even if defendant's warrantless arrest
for possession of marijuana was based on original observations by police officer trained in
narcotics, where such officer was unable to tell marijuana cigarette from conventional
tobacco one except by comparison of lights, and no one was able to say if hand rolled
tobacco cigarette would burn as rapidly as marijuana one, officer's observation of
youthful defendant over 50 yards away appearing to roll and light cigarette which burned
with bright red glow and to pass it to companions who cupped their hands did not
establish cause for the arrest.
by police officer trained in narcotics, where such officer was unable to tell marijuana cigarette
from conventional tobacco one except by comparison of lights, and no one was able to say if
hand rolled tobacco cigarette would burn as rapidly as marijuana one, officer's observation of
youthful defendant over 50 yards away appearing to roll and light cigarette which burned with
bright red glow and to pass it to companions who cupped their hands did not establish cause
for the arrest.
Reversed.
H. Dale Murphy, Public Defender, and William H. Whitehead, III, Deputy Public
Defender, Washoe County, for Appellant.
Robert List, Attorney General; Robert E. Rose, District Attorney, and C. Frederick
Pinkerton, Chief Deputy District Attorney, Washoe County, for Respondent.
1. Arrest.
Where police officers acted without a warrant in detaining and searching defendant who was
subsequently convicted of possession of marijuana, State was obliged to show defendant was searched
incident to a lawful arrest upon probable cause or his conviction could not stand. NRS 453.030.
2. Arrest.
Even if disorderly person ordinance of city was constitutional and if by being in a public park defendant
was loitering or wandering upon the streets from place to place without apparent reason or business in
violation of such ordinance and if arresting officers reasonably believed public safety demanded
defendant's identification, where defendant used his social security card to identity himself when requested,
and where the ordinance did not require citizens to corroborate their identity in any specific manner, any
arrest of defendant as a disorderly person would have been unlawful.
3. Arrest.
It is theoretically possible, if events are substantially contemporaneous, to have valid search incident to
an arrest which is not formally announced until after the search, but no arrest may be justified by what is
found in search.
4. Arrest.
Arrest may in some instances be justified on basis of composite knowledge of arresting officers.
5. Arrest.
Warrantless search of defendant could not be justified by imputing to one police officer the cause and
unspoken intention to arrest defendant on basis of another officer's observations, where such other officer,
who possessed all original knowledge of defendant's activities, did not himself assert cause to arrest
defendant but merely asserted cause to stop and inquire as to his activities.
6. Arrest.
Even if defendant's warrantless arrest for possession of marijuana was based on original observations by
police officer trained in narcotics, where such officer was unable to tell marijuana cigarette from
conventional tobacco one except by comparison of lights, and no one was able to say if hand rolled tobacco
cigarette would burn as rapidly as marijuana one, officer's observation of youthful defendant over 50 yards
away appearing to roll and light cigarette which burned with bright red glow and to pass it to companions
who cupped their hands did not establish cause for the arrest. NRS 453.030; U.S.C.A.Const. Amend. 4.
OPINION
[Headnote 1]
Convicted of possessing marijuana in violation of NRS 453.030, appellant contends police
officers violated his Fourth Amendment rights when they detained and searched him as he
and two companions left a public park near downtown Reno. As the officers acted without a
warrant, the State was obliged to show appellant was searched incident to a lawful arrest upon
probable cause, or his conviction cannot stand. Gordon v. State, 83 Nev. 177, 426 P.2d 424
(1967); Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966); cf. Beck v. Ohio, 379 U.S. 89
(1964).
Inspector Van Curen, who precipitated appellant's detention and search, testified that from
across the Truckee River, over 50 yards away, he saw appellant appear to roll and light a
cigarette that burned in the dusk with a bright red glow, and observed the cigarette passed
between appellant and his companions, who cupped their hands when smoking it. Van
Curen then radioed Lieutenant Williams, advised him of what I had observed, and sought
help to stop appellant and his companions as they left the park. From what I had seen, he
testified, we felt that we had reasonable cause to stop and inquire as to their activities, and
who they were at this point. Van Curen expressly testified: I did not arrest them.
According to Van Curen, although he handcuffed and searched appellant, he believed that
Lieutenant Williams had arrested appellant as a disorderly person because appellant had
only a social security card to establish his identity.
1
However, Lieutenant Williams testified
that although appellant was first asked for identification, then handcuffed and searched
twice, he was not arrested as a disorderly person.

____________________

1
Officer Van Curen testified:
A. As I arrived, Lieutenant Williams had advised the subject to lean against the car for a cursory weapons
search. They were patted down, and found no weapons. And, after checking their age, and
However, Lieutenant Williams testified that although appellant was first asked for
identification, then handcuffed and searched twice, he was not arrested as a disorderly person.
____________________
asking for identification, which they were unable to produce, Lieutenant Williams advised that I should handcuff
the defendant. And at this time I did, also stating that they were going to take them in for disorderly person.
Q. Take who in for disorderly person?
A. The defendant, one other subject that was there, and the juvenile. The male juvenile suspect that was
there was to be taken to Wittenberg. During this time the female that had been with them arrived back at the
scene. After being told that he was to be taken to jail, I handcuffed him and again I searched his person and his
pockets of his clothes.
Q. Why was he going to be taken to jail?
A. He had been arrested as a disorderly person, under our City Ordinance.
Q. Why was he arrested for disorderly person?
A. He was unable to identify himself.
Q. Was he asked for identification?
A. Yes.
Q. Did he produce any identification?
A. I believe he had a social security card, which is not to be used as identification. And, after being
handcuffed, he
Q. Were the other persons arrested for anything, other than the defendant?
A. Yes. The other subject that was over eighteen was arrested as a disorderly, and the juvenile subject was
taken to Wittenberg Hall as an unsupervised juvenile.
Q. Well, the defendant was handcuffed and he was searched; is that correct?
A. Yes, sir.
Obviously dissatisfied with this testimony, the prosecutor sought to clarify it:
Q. Are you absolutely positive that this defendant was placed under arrest for disorderly person?
Defense counsel: Your Honor, I believe the question has been asked and answered.
Prosecutor: I would like to clarify it, your Honor.
The Court: All right. It will go to credibility.
Prosecutor: There were three persons there.
By Prosecutor:
Q. Did you tell the defendant that he was under arrest as a disorderly person?
A. No, I did not. Both subjects that were adults were side by side, and I was between the two subjects, with
my back to Lieutenant Williams. And he said, Handcuff them.' And then I did.
At this time I didn't see who he was talking to; I had my back to him. I only assumed that when he said,
handcuff him,' that we were going to take them both into custody for this charge.
Q. Then you searched the defendant; is that right?
A. Yes.
Q. And you found this hand-rolled cigarette?
A. Yes.
While Williams' testimony suggests he believed there was cause to arrest appellant for
possessing marijuana, before any was found, he said Inspector Henry arrested appellant for
possession of narcotics after Van Curen found a marijuana cigarette on his person.
2

Inspector Henry's testimony established he had no substantial knowledge of events
occurring before he arrived to assist Van Curen and Williams. Then, when Van Curen's
search revealed marijuana, Henry arrested appellant for possession of narcotics.
3

The question, obviously, is whether this record establishes a lawful arrest, to which
appellant's search can be held incident.
____________________

2
Lieutenant Williams testified:
Q. Did you see where Inspector Van Curen obtained the handrolled cigarette?
A. I didn't see it when he found it, but he indicated to me that he had found it in the upper left-hand pocket
of the suspect's coat.
Q. Was the defendant informed that he was under arrest at that time?
A. Not by myself.
Q. Well, by any of the officers present?
A. Yes, sir. He was informed by Inspector Henry.
Q. And what reason was given for the arrest?
A. Possession of narcotics.

3
Inspector Henry testified:
A. When I arrived on Arlington, Inspector Van Curen and Lieutenant Williams were conversing with three
male subjects.
Q. Do you see one of those persons in the courtroom?
A. Yes, sir.
Q. Would you point him out, please?
A. He is seated at the defense table (pointing). . . .
Q. What happened at this meeting with the other officers and the defendant and his two companions?
A. As I say, when I arrived they were in a conversation. Shortly after I arrived the defendant here was
cuffed, and
Q. Who placed the handcuffs on the defendant?
A. I believe Inspector Van Curen did.
Q. After that was done, what happened?
A. He was then searched by Inspector Van Curen. In the defendant's jacket pocket, I believe the breast
pocket, I'm not sure whether it was the left or the right, Inspector Van Curen pulled out a handrolled cigarette. . .
.
Q. What did Inspector Van Curen say when he found the handrolled cigarette?
A. What's this'? And at that time the defendant replied, That's one of those cannabis things.'
Q. All right. What did you do, if anything?
A. Inspector Van Curen then walked away, and I immediately advised the defendant he was under arrest for
possession of narcotics, and advised him of his constitutional rights.
a lawful arrest, to which appellant's search can be held incident. The answer must be in the
negative.
1. Reno's disorderly person ordinance, under which Van Curen incorrectly thought
Williams had ordered appellant arrested, provides: (a) Every person is a vagrant who: . . . (8)
Loiters or wanders upon the streets or from place to place without apparent reason or business
and who refuses to identify himself and to account for his presence when requested by any
peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable
man that the public safety demands such identification; . . . Reno Municipal Code
11.12.070 (1966).
[Headnote 2]
Assuming that this ordinance is constitutional, that by being in a public park appellant was
loitering or wandering upon the streets or from place to place without apparent reason or
business, and that the officers reasonably believed the public safety demanded appellant's
identification, they still had no cause whatever to arrest appellant as a disorderly person.
Appellant identified himself when requested; the ordinance does not require citizens to
corroborate their identity in any specific manner; thus, Van Curen was quite mistaken in his
belief that appellant was subject to arrest because his social security card was inadequate
identification. Therefore, if Williams had in fact ordered appellant's arrest as a disorderly
person, which he denies doing, appellant's arrest would have been unlawful, and Van
Curen's search could not be sustained as incident thereto. Cf. Jones v. Payton, 411 F.2d 857
(4th Cir. 1969).
2. Except to the extent Van Curen believed Williams had arrested appellant as a
disorderly person, all officers agreed appellant was not formally arrested until Van Curen
found marijuana on his person. Thus, the record virtually impels a finding that appellant was
arrested after the contraband was found, and because it was found, in a search not incident to
any lawful arrest.
[Headnotes 3-5]
3. The State seems to suggest, however, that we should uphold Van Curen's search of
appellant as incident to an arrest for the crime of possessing marijuana, made by Van Curen
or Williams prior to and independent of Van Curen's search of appellant's person.4 We
cannot honestly do this, since a fair reading of the record makes it clear the officers did
not have and knew they did not have cause to arrest appellant for possessing marijuana,
before they searched his person.
search of appellant's person.
4
We cannot honestly do this, since a fair reading of the record
makes it clear the officers did not have and knew they did not have cause to arrest appellant
for possessing marijuana, before they searched his person. The State's argument that the
officers had expertise in narcotics matters, which we should consider in reviewing the record,
can have no weight when Van Curen himself did not assert cause to arrest appellant for
possession of narcotics, but merely reasonable cause to stop and inquire as to their
activities.
5

Headnote 6]
Furthermore, assuming appellant was arrested on the basis of Van Curen's original
observations, those observations would not justify the arrest, even considering Van Curen's
training and knowledge. Van Curen does not pretend he can distinguish the rolling of a
marijuana cigarette from the rolling of a tobacco one.
6
While he testified he has been taught
a marijuana cigarette burns with a brighter glow than a conventional tobacco cigarette, he
acknowledged he was not an expert, and was unable to tell one from the other except by a
comparison of their lights.
7
Moreover, neither he nor any other witness was able to say if a
hand-rolled tobacco cigarette would oxygenate as rapidly as one of marijuana, and therefore
burn as brightly.
____________________

4
There might theoretically have been a valid search incident to such an arrest, though formal announcement
of it followed the search, it the events were substantially contemporaneous. However, no arrest may be justified
by what is found in the search. Hinton v. State, 84 Nev. 68, 436 P.2d 223 (1968); Nootenboom v. State, 82 Nev.
329, 418 P.2d 490 (1966); Beck v. Ohio, supra; Henry v. United States, 361 U.S. 98 (1959); Brinegar v. United
States, 338 U.S. 160 (1949).

5
If it be suggested that this court should determine that Lieutenant Williams secretly intended to, and did,
arrest appellant on the basis of Van Curen's initial observations, the same result must obtain. Of course, an arrest
may in some instances be justified on the basis of the composite knowledge of arresting officers. Mears v. State,
83 Nev. 3, 422 P.2d 230 (1967). Still, we cannot justify appellant's warrantless search by imputing to Williams
cause and unspoken intention to arrest appellant for possession of marijuana, contrary to the apparent evaluation
and intention of Inspector Van Curen, who possessed all original knowledge of appellant's activities.

6
Van Curen was asked:
Q. Officer, are you so highly trained in narcotics work that you perceive distinctions in the rolling a
tobacco cigarette and a marijuana cigarette?
A. No.

7
Van Curen was also asked:
Q. Now, do you think at a distance of 50 yards, seeing the light from the cigarette, not seeing any
associative glow, that you can tell the
True, Van Curen testified that he has been taught marijuana is often smoked with
cupped hands, and that appellant was smoking with hands cupped, a gesture the record
does not describe. However, except for such suspicion as that mannerism, appellant's youth,
and his presence in the park might arouse, the record establishes no cause for his arrest, prior
to Van Curen's warrantless search of his person. We cannot hold that the police may stop,
handcuff, and search any young person seen in a park, and justify this action by saying they
saw a cigarette smoked with cupped hands. Cf. Henry v. United States, 361 U.S. 98 (1959).
8

Reversed.
____________________
distinction between the glow of a cigarette and the glow of a marijuana cigarette?
A. I would be able to tell which was the brighter of the two.
Q. But this was only one light, is that correct?
A. Yes.

8
The fact that packages have been stolen does not make every man who carries a package subject to arrest
nor the package subject to seizure. . . . Under our system suspicion is not enough for an officer to lay hands on a
citizen. Id., at 104.
____________
88 Nev. 327, 327 (1972) Merrick v. Metropolitan Life Ins. Co.
RUTH R. MERRICK, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY,
a Foreign Corporation, Respondent.
No. 6764
June 7, 1972 497 P.2d 890
Appeal from denial of double indemnity provisions of life insurance policies for death
allegedly caused by accidental means, Eighth Judicial District Court, Clark County; John F.
Mendoza, Judge.
Beneficiary of two life policies sued insurance company to recover on double indemnity
provisions. The district court rendered judgment for defendant, and beneficiary appealed. The
Supreme Court held that evidence including testimony that insured was in an unconscious
state when automobile crashed and testimony of doctor who performed autopsy that insured
died because of thrombosis in right coronary was sufficient to support findings that insured's
death was caused by disease and not by automobile accident and that insurer was not liable
under double indemnity provisions of two life policies.
not by automobile accident and that insurer was not liable under double indemnity provisions
of two life policies.
Affirmed.
McNamee, McNamee & Rittenhouse, of Las Vegas, for Respondent.
Insurance.
Evidence including testimony that insured was in an unconscious state when his automobile crashed and
testimony by doctor who performed autopsy that insured died because of thrombosis in right coronary was
sufficient to support findings that insured's death was caused by disease and not by automobile accident
and that insurer was not liable under double indemnity provisions of two life policies. NRCP 52(a).
OPINION
Per Curiam:
Appellant was the beneficiary of two life insurance policies on the life of her deceased
husband, John J. Merrick, in the total amount of $3,900, with a double indemnity provision
for accidental death.
On February 12, 1968, said John J. Merrick drove his automobile north on Maryland
Parkway, Las Vegas, Nevada, and at approximately 1:00 p.m. he was witnessed by three
persons to slump over the steering wheel and then proceed, in an unconscious state, without
control of the car, to jump a curb and crash into a light pole.
An autopsy was performed upon the deceased on February 12, 1968, which autopsy report
found that the deceased died of an occlusion of the right ventricle caused by myocardial
infarction (a blood clot-thrombosis of the right ventricle which blocked the flow of blood to
the muscle of the heart thereby restricting oxygen from entering that muscle, and death
resulted therefrom).
Dr. Thorne Butler, a pathologist who conducted the autopsy, stated that he found evidence
of past myocardial infarcts (not lethal in character) which had left scar tissue and that the
reasonable explanation for the cause of death was the thrombosis in the right coronary. Also
noted were some superficial and recent abrasion in the forehead area, which in the doctor's
opinion, did not contribute to the cause of death. Further, it was the opinion of the doctor that
the automobile accident had nothing to do with the cause of Mr. Merrick's death.
The court found that the respondent was not liable under the double indemnity provisions
of the policies as death was caused by disease or other bodily infirmity and that the death of
John J. Merrick was not accidental.
Appellant here presents what appears to be her final argument to the lower court. She
points to no errors of law but argues that the court came to the wrong conclusion.
While in appropriate cases we may look to documentary evidence contained in the
appellate record to determine whether or not the conclusion reached by the trial court was
clearly wrong, North Arlington Med. v. Sanchez Constr., 86 Nev. 515, 520, 471 P.2d 240
(1970), the instant case presents the situation where there is little if any evidence contrary to
the lower court's ruling. Appellant was determined by the court not to have carried her burden
of proof. There being substantial evidence to support the court's findings, the judgment based
upon said findings must be affirmed. NRCP 52(a); Lagrange Construction, Inc. v. Kent Corp.,
88 Nev. 271, 496 P.2d 766 (1972).
Affirmed.
____________
88 Nev. 329, 329 (1972) Reed v. Reed
DOLLYE FAYE REED, Appellant, v.
ROBERT D. REED, Respondent.
No. 6668
June 7, 1972 497 P.2d 896
Appeal from an order of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Former wife filed motion to recover alleged arrearages of child support. The district court
rendered judgment in favor of wife in sum of $11,303.75 and ordered that judgment be
enforced at a rate not exceeding $50 per month and the former wife appealed. The Supreme
Court, Batjer, J., held that order that judgment for child support arrearages be enforced at rate
not exceeding $50 per month was within trial court's discretion.
Affirmed.
Bell & LeBaron and James E. Barfield, of Las Vegas, for Respondent.
88 Nev. 329, 330 (1972) Reed v. Reed
District court is vested with discretion to make an order directing entry of judgment for arrearages
resulting from a husband's default in payment of child support. NRS 125.180.
2. Divorce.
Where no transcript of hearing on former wife's motion to recover alleged child support arrearages of
$13,285.75 had been filed, Supreme Court would assume that evidence supported trial judge's conclusion
that only $11,303.75 had accrued and that only that amount without interest was properly owing to the
former wife. NRS 125.180.
3. Divorce.
Trial court's order that child support arrearages of $11,303.75 be enforced at rate not to exceed $50 per
month was within its discretion despite former wife's contention that she should have been allowed to
execute immediately upon total amount of judgment entered by trial court. NRS 125.180.
In a proceeding to recover child support arrearages, granting of attorney's fees and costs is discretionary
with trial court. NRS 125.180.
5. Divorce.
Absent transcript of proceedings on wife's motion to recover alleged arrearages of child support, Supreme
Court would assume that evidence justified trial court's determination that payment of attorney's fees and
costs by former husband was not warranted. NRS 125.180.
OPINION
Appellant and respondent were divorced in Nevada in 1962. At that time they executed a
property settlement and custody agreement which provided that appellant was to receive
custody of the four minor children, and that respondent was to have visitation rights and was
to pay $75 per week for support of the children.
Respondent failed to make the required support payments, and on February 16, 1971,
appellant filed a motion pursuant to NRS 125.180 in the district court to recover alleged
arrearages in the amount of $13,285.75, plus costs and attorney's fees. Following a hearing,
the trial judge ordered judgment for appellant in the sum of $11,303.75, to be enforced at a
rate not exceeding $50 per month. Appellant was denied any attorney's fees or costs. Without
filing a transcript of the hearing or a narrative statement of the testimony with this court,
appellant now asks us to reverse the district court's order and remand the matter with
instructions to enter judgment for the full amount originally requested plus interest,
payable immediately, and for attorney's fees and costs.
88 Nev. 329, 331 (1972) Reed v. Reed
full amount originally requested plus interest, payable immediately, and for attorney's fees
and costs.
[Headnotes 1, 2]
The district court is vested with discretionary power to make an order directing entry of
judgment for arrearages resulting from a husband's default in the payment of child support.
NRS 125.180; Folks v. Folks, 77 Nev. 45, 359 P.2d 92 (1961). Since no transcript of the
hearing has been filed with this court, we must assume that the evidence supports the trial
judge's conclusion that only $11,303.75 had accrued, and that only this amount, without
interest, was properly owing to appellant. Meakin v. Meakin, 88 Nev. 25, 492 P.2d 1304
(1972); Leeming v. Leeming, 87 Nev. 530, 490 P.2d 342 (1971).
[Headnote 3]
Appellant asserts that she should have been allowed to execute immediately upon the total
amount of the judgment entered by the district court, and that it was error for the court to
order that such judgment be enforced at a rate not exceeding $50 per month. Since the district
court has discretion to enter judgment for all or none of the claimed arrearages (NRS
125.180; Folks v. Folks, supra), it follows that the liquidation of any judgment for arrearages
may be scheduled in any manner the district court deems proper under the circumstances. In
Chesler v. Chesler, 87 Nev. 335, 486 P.2d 1198 (1971), we approved of a district court order
requiring the defaulting party to pay $25 per month toward discharge of arrearages in child
support.
[Headnotes 4, 5]
Finally, appellant contends that she was entitled to attorney's fees and costs. The granting
of these items is discretionary with the trial court (NRS 125.180) and absent a transcript of
the proceedings below we must assume the evidence justified its determination that payment
of such fees and costs by respondent was not warranted under the circumstances. Meakin v.
Meakin, supra; Leeming v. Leeming, supra.
Affirmed.
____________
88 Nev. 332, 332 (1972) Neely v. State
CORA NEELY, Also Known As CODY WATKINS, Also Known As CORRINE LYELL,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 6318
June 7, 1972 497 P.2d 898
Appeal from judgment of conviction and sentence of the Sixth Judicial District Court,
Humboldt County; Llewellyn A. Young, Judge.
The Supreme Court held that where there was no timely objection on specific grounds at
trial to admission of testimony given at defendant's preliminary hearing, issue was not
preserved on appeal.
Affirmed.
Robert List, Attorney General, William Macdonald, District Attorney, and John Doyle,
Deputy District Attorney, Humboldt County, for Respondent.
Criminal Law.
Where there was no timely objection on specific grounds at trial to admission of testimony given at
defendant's preliminary hearing, issue was not preserved on appeal.
OPINION
Per Curiam:
Appellant contends that, for various reasons, the trial court erred in allowing the State to
introduce at trial certain testimony previously given at appellant's preliminary hearing.
Whatever the merits of such contentions might be if appellant's counsel had made a timely
objection, stating specific grounds, these issues have not been properly preserved for our
review. Merica v. State, 87 Nev. 457, 488 P.2d 1161 (1971); Kelley v. State, 76 Nev. 65, 348
P.2d 966 (1960); NRS 47.040(1)(a).
Other assignments of error are without merit.
Affirmed.
____________
88 Nev. 333, 333 (1972) Nevada Refining Co. v. Newton
NEVADA REFINING CO., a Corporation; and C. G. MORRISON and GUY L.
WEATHERLY, dba MORRISON AND WEATHERLY CHEMICAL PRODUCTS,
a Partnership, Appellants, v. GEORGE E. NEWTON and BONNIE NEWTON,
dba NEWTON PETROLEUM ENTERPRISES; and REFINERS SALES COMPANY,
a Corporation, Respondents.
No. 6696
June 7, 1972 497 P.2d 887
Appeal from a judgment and a denial of a motion for a new trial. Seventh Judicial District
Court, White Pine County; Roscoe H. Wilkes, Judge.
Action involving interpretation of conditional sales contract. From a judgment and denial
of motion for new trial by the district court the conditional buyer and others appealed. The
Supreme Court, Mowbray, J., held that where conditional sales contract for sale of oil
refinery required buyer to maintain taxes and insurance commencing on certain date, and the
record disclosed that a policy had been in effect when parties signed the agreement and that
seller had been and was named beneficiary therein, and that seller remained beneficiary until
removed by buyer thereafter, record supported trial court's finding that insurance was to be
for benefit of seller and hence seller had equitable lien on insurance proceeds.
Affirmed.
Lionel Sawyer Collins & Wartman and Steve Morris, of Las Vegas, for Appellant Nevada
Refining Co.
Gray, Horton and Hill, of Ely, for Appellants C. G. Morrison and Guy L. Weatherly, dba
Morrison and Weatherly Chemical Products.
Gregory & Gregory, of Las Vegas, for Respondents George E. Newton and Bonnie
Newton, dba Newton Petroleum Enterprises.
Vaughan, Hull & Marfisi, of Elko, for Respondent Refiners Sales Company.
1. Insurance.
Where provision of conditional sales contract for sale of oil refinery required buyer to pay all taxes and
insurance commencing on certain date, but provision failed to state for whose benefit insurance should
be maintained, district judge properly looked to surrounding circumstances and
relative positions of seller and buyer when contract was executed, in order to
interpret the provisions of the agreement.
insurance should be maintained, district judge properly looked to surrounding circumstances and relative
positions of seller and buyer when contract was executed, in order to interpret the provisions of the
agreement.
2. Sales.
The essence of a conditional sales contract is that the seller shall retain and not relinquish title to property
the subject of the sale until buyer pays in full the agreed purchase price; the title-retaining feature is the
seller's security in the transaction.
3. Insurance.
Where conditional sales contract for sale of oil refinery required buyer to maintain taxes and insurance
commencing on certain date, and record disclosed that a policy had been in effect when parties signed the
agreement and that seller had been and was named beneficiary therein, and that seller remained beneficiary
until removed by buyer thereafter, record supported trial court's finding that insurance was to be for benefit
of seller and hence seller had equitable lien on insurance proceeds.
OPINION
The principal issue presented for our consideration on this appeal is focused on the lower
court's interpretation of a clause in a conditional sales contract requiring the buyer named
therein to assume and pay all the taxes and insurance covering the property which was the
subject of the sale. The provision in the agreement is as follows:
13. That it is hereby agreed Buyer shall assume and pay all taxes and insurance
commencing on December 1, 1966.
The clause, unfortunately, failed to state for whose benefit the insurance should be
maintained.
The property, which consisted of an oil refinery at Eagle Springs, Nevada, was partially
destroyed by fire. Appellant Nevada Refining Co., a corporation, is the vendee or buyer of the
conditional sales contract, while Respondents George E. Newton and Bonnie Newton, doing
business as Newton Petroleum Enterprises, are the successors to the interests of the vendor or
seller, Refiners Sales Company, a corporation.
The case originated as an interpleader action filed by The Hartford Insurance Group, the
insurer, to determine which of the parties were entitled to the proceeds of the policy covering
the damaged property.
1
1.

____________________

1
Appellants C. G. Morrison and Guy L. Weatherly, dba Morrison and Weatherly Chemical products, were
named as defendants in the original interpleader action, as a result of their claim to the insurance proceeds,
which claim was based on a writ of attachment served on The Hartford Insurance Group.
1. At the time the conditional sales contract was signed, the property was insured by
Hartford. The insurance had been obtained by the seller, and the seller was the beneficiary
named therein. A premium payment on the policy was then due or about to become due. The
buyer paid that premium and kept the insurance in effect, except that at a later date, and
without notice to the seller, the buyer caused the seller to be removed as named beneficiary
and substituted itself as beneficiary.
[Headnote 1]
2. Since the pertinent clause in the conditional sales contract failed to name for whose
benefit the insurance should be maintained, it was ambiguous. The district judge therefore
looked to the surrounding circumstances and relative positions of the seller and the buyer
when the contract was executed, in order to interpret the provisions of the agreement. He was
correct in doing so. As early as 1878, this court ruled, in Kennedy v. Schwartz, 13 Nev. 229,
231 (1878):
The language of the contract is not free from doubt, and to enable us to determine its
meaning, we must look at the relative position of the parties at the time the contract was
made, and consider the object they had in view. In other words, the contract must be
interpreted by a consideration of all of its provisions with reference to the general subject to
which they relate, and in the light of the contemporaneous facts and circumstances, so as to
arrive at the intention of the parties at the time the contract was entered into. See also
Holland v. Crummer Corp., 78 Nev. 1, 8, 368 P.2d 63, 66 (1962).
3. The record presented to the district judge shows that the policy with Hartford had been
and was in effect when the parties signed the conditional sales agreement, and that the seller
had been and was the named beneficiary therein. The seller remained the named beneficiary
thereafter until removed by the buyer.
The pertinent clause also required the buyer to pay all taxes on the property. The district
judge stated in his findings of fact:
III
That by including Paragraph 13 in said conditional sales contract the parties intended that
Nevada Refining Co. [buyer] continue the insurance already in effect, with Refiners Sales
Company [seller] as the named insured, for the benefit of the seller, Refiners Sales Company,
until the full purchase price had been paid.
[Headnotes 2, 3]
The record supports that finding. The essence of a conditional sales contract is that the
seller shall retain and not relinquish title to the property the subject of the sale until the buyer
pays in full the agreed purchase price. This title-retaining feature is the seller's security in the
transaction. For that reason, the subject property is insured and protected against tax
foreclosures. Otherwise, the security may be lost. The district judge found that such was the
intent of the parties in the instant case, and the record below supports that finding. The court,
therefore, properly concluded that the seller had an equitable lien on the insurance proceeds
and ordered the funds paid to the seller.
2

____________________

2
Cf. Central Nat'l Bank & Trust Co. v. Simmer, 293 N.W. 460 (Iowa 1940).
____________
88 Nev. 336, 336 (1972) Mauldin v. Mauldin
GAYEL M. MAULDIN, Appellant, v.
WAYNE G. MAULDIN, Respondent.
No. 6685
June 7, 1972 497 P.2d 886
Appeal from order of Second Judicial District Court, Washoe County; John W. Barrett,
Judge.
Former husband moved to set aside judicial sale of real property to wife at execution sale
held to satisfy judgment for child support arrearages. The district court set aside the sale, and
wife appealed. The Supreme Court, Mowbray, J., held that where wife's judgment had been
satisfied by wife's acceptance of check in full and final satisfaction for balance due under
judgment and where wife, who subsequently obtained writ of execution against husband's real
property to satisfy balance due on judgment and purchased the property herself, thus had
notice of the payment and prior satisfaction of the judgment, the sale to wife was void and
conveyed no title, even though husband's satisfaction of judgment had not been entered in
record.
Affirmed.
Charles E. Springer, Ltd., of Reno, for Appellant.
Streeter, Sala & McAuliffe, of Reno, for Respondent.
Where wife's judgment against husband for child support arrearages had been satisfied by wife's
acceptance of check in full and final satisfaction for balance due under judgment and where wife, who
subsequently obtained writ of execution against husband's real property to satisfy balance due on judgment
and purchased the property herself, thus had notice of the payment and prior satisfaction of the judgment,
the sale to wife was void and conveyed no title, even though husband's satisfaction of judgment had not
been entered in record.
Where wife did not specify, in affidavit in opposition to husband's motion to set aside execution sale in
satisfaction of judgment against husband for child support arrearages, the basis for her conclusionary
allegation of husband's fraud which allegedly induced wife to sign agreement by which she accepted a
check in full satisfaction of balance of judgment prior to issuance of writ of execution against husband's
real property, wife was not entitled to opportunity to show that agreement was procured by fraud. Second
Judicial District Court Rule 11(e).
OPINION
This is an appeal from an order of the Second Judicial District Court setting aside as void a
sale of Respondent Wayne G. Mauldin's real property to Appellant Gayel M. Mauldin, which
she had purchased under a writ of execution sale, on the ground that the judgment that was
the predicate for the issuance of the writ had been fully satisfied.
Chronologically, the facts are as follows: Gayel obtained a divorce from Wayne on
September 30, 1960. The decree ordered Wayne to pay to Gayel for the support of their two
minor children the sum of $60 a month per child.
On June 15, 1964, Gayel obtained a judgment for child support arrearages against Wayne
in the amount of $5,220 plus $350 attorney's fee. Wayne paid $2,850 on the judgment,
leaving a balance due of $2,720. The partial satisfaction of the judgment was noted in the
record below. On July 20, 1967, Gayel and Wayne signed an agreement before a notary
public, pursuant to which Gayel accepted payment by check of a sum of money in full and
final satisfaction for the remaining balance due under the judgment, noting thereon, final
payment.
The check was cashed, but the satisfaction of judgment was never entered in the case below.
Two and one-half years later, and without notice to Wayne, Gayel obtained a writ of
execution issued to the Sheriff of Washoe County, directing him to levy upon and sell
Wayne's real property, to satisfy the remaining balance of record then due on the judgment.
The record below shows that the Sheriff filed his return to the writ of execution on January
13, 1970, wherein he stated that he had levied upon certain real property of Wayne's and had
sold it at an execution sale on December 30, 1969, to Gayel for the sum of $1,000. When
Wayne became aware of the sale to Gayel, he filed the present motion to set aside the sale,
with his affidavit in support thereof, and attached copies of the parties' agreement of July 20,
1967, and the canceled check bearing Gayel's endorsement. Gayel filed an affidavit in
opposition to Wayne's motion, wherein she did not deny the factual history of the case, but
alleged without any specificity that she had been fraudulently induced by Wayne to sign the
July 1967 agreement and cash the check.
[Headnote 1]
Although Rule 11(e) of the Rules of Practice for the Second Judicial District Court
provides that any party may request oral argument, where the granting of a motion would
dispose of the action on the merits, with prejudice, . . . no such request was made in this
instance, and the motion was submitted to the district judge for his decision. The district
judge found that the judgment had in fact been satisfied and that the execution sale to Gayel
was void. We affirm that ruling. In Walker v. Shrake, 75 Nev. 241, 247, 339 P.2d 124, 127
(1959), this court held:
A sale under a judgment that has been satisfied is void and conveys no title even though
the judgment has not been satisfied of record. Pope v. Benster, 42 Neb. 304, 60 N.W. 561, 47
Am.St.Rep. 703; Mayor and Council of City of Millen v. Clark, 193 Ga. 132, 17 S.E.2d 742.
This is particularly true where the purchaser has notice of the payment and the prior
satisfaction of the judgment, as in the instant case. Walker v. Shrake, supra. See also 30
Am.Jur. 2d Evidence 593 (1967).
[Headnote 2]
Gayel has urged on appeal that she be afforded an opportunity to show that her agreement
with Wayne was procured by fraud on his part. Yet nowhere in her affidavit does Gayel
specify the basis for her conclusionary allegation of fraud, nor has any such suggestion been
submitted to date.
has any such suggestion been submitted to date. We are uninformed as to what additional
facts, if any, would be forthcoming by a new hearing. Therefore, under the factual posture of
this case we conclude that the district judge ruled correctly, and we affirm his order setting
aside the sale to Gayel.
____________
88 Nev. 339, 339 (1972) State ex rel. Pagni v. Brown
THE STATE OF NEVADA, on the Relation of ROY D. PAGNI, ROBERT F. RUSK,
HOWARD F. McKISSICK, SR., DWIGHT A. NELSON and JOE COPPA, Members of and
Constituting the BOARD OF COUNTY COMMISSIONERS OF WASHOE COUNTY,
STATE OF NEVADA, Petitioners, v. H. K. BROWN, County Clerk of Washoe County, State
of Nevada, and ex Officio Clerk of the Board of County Commissioners of Washoe County,
State of Nevada, Respondent.
No. 6892
June 7, 1972 497 P.2d 1364
Original proceeding in mandamus to determine the constitutionality of NRS 244.013 as
amended by Stats. Nev. 1971, ch. 649, p. 1528.
Original proceeding in mandamus to determine constitutionality of statute governing
election of county commissioners in counties having a population of 50,000 or more. The
Supreme Court, Thompson, J., held that statute requiring that five county commissioners be
elected in each county having a population of 50,000 or more, with two from among residents
of incorporated city within county in which county seat is located, one from among residents
of other incorporated cities in county, one from among residents of unincorporated areas of
county, and one at large within county, is violative of equal protection in that deviation from
numerical equality ranges from an underrepresentation of approximately 13 percent in Reno
to an overrepresentation of approximately 20 percent in Sparks and unincorporated area.
Writ issued.
Russell W. McDonald, of Reno, for Petitioners.
Robert E. Rose, District Attorney, and John Frankovich, Deputy District Attorney,
Washoe County, for Respondent.
1. Mandamus.
Board of county commissioners pursued an appropriate remedy by instituting an original proceeding in
mandamus to determine constitutionality of statute governing election of county commissioners in counties
having a population of 50,000 or more, where county clerk had refused to attest county ordinance
purporting to create county commissioner districts based on population in compliance with Local
Government Reapportionment Law, and predicate for refusal was that statute was constitutional with result
that proposed ordinance was void. NRS 244.013.
2. Constitutional Law; Counties.
Statute requiring that five county commissioners be elected in each county having a population of 50,000
or more, with two from among residents of incorporated city within county in which county seat is located,
one from among residents of other incorporated cities in county, one from among residents of
unincorporated areas of county, and one at large within county, is violative of equal protection in that
deviation from numerical equality ranges from an underrepresentation of approximately 13 percent in Reno
to an overrepresentation of approximately 20 percent in Sparks and unincorporated area. NRS 244.013;
U.S.C.A.Const. Amend 14.
OPINION
[Headnote 1]
The purpose of this original proceeding in mandamus, instituted by the State on relation of
the Board of County Commissioners of Washoe County, is to determine the constitutionality
of NRS 244.013 as amended by Stats. Nev. 1971, ch. 649, p. 1528.
1
The County Clerk of
Washoe County has refused to attest Washoe County Ordinance No. 186 which purports to
create Washoe County Commissioner districts based on population in compliance with the
Local Government Reapportionment Law, Stats. Nev. 1971, ch. 648. The predicate for his
refusal to so attest is that NRS 244.013, as amended by Stats. Nev. 1971, ch. 649, p. 1528, is
constitutional with the result that proposed Washoe County Ordinance No. 186 is void.
1. NRS 244.013 (Stats. Nev. 1960, ch. 85, p. 91) provides that in each county having a
population of 50,000 or more, as determined by the last preceding national census of the
Bureau of the Census of the United States Department of Commerce, five county
commissioners shall be elected: two from among the residents of the incorporated city
within the county at which the county seat is located by the residents of such city; one
from among the residents of the other incorporated cities in the county by the residents of
such cities; one from among the residents of the unincorporated areas of the county by
the residents of such areas; and one at large within the county.2
____________________

1
The remedy is appropriate. State ex rel. Herr v. Laxalt, 84 Nev. 382, 441 P.2d 687 (1968); McDonald v.
Beemer, 67 Nev. 419, 220 P.2d 217 (1950); State v. Stoddard, 25 Nev. 452, 62 P. 237 (1900). Since a prompt
and final determination is significant to prospective candidates, the public, the taxpayers and the electors of
Washoe County, we accepted this proceeding rather than to refer the petitioners to the district court.
more, as determined by the last preceding national census of the Bureau of the Census of the
United States Department of Commerce, five county commissioners shall be elected: two
from among the residents of the incorporated city within the county at which the county seat
is located by the residents of such city; one from among the residents of the other
incorporated cities in the county by the residents of such cities; one from among the residents
of the unincorporated areas of the county by the residents of such areas; and one at large
within the county.
2

The official 1970 census of population for Nevada provided by the Bureau of Census
determined that Washoe County had a population of 121,068, the City of Reno, 72,863, and
the City of Sparks, 24,187. The City of Reno is the County Seat of Washoe County and the
specially chartered cities of Reno and Sparks are the only incorporated cities in Washoe
County. Stats. Nev. 1903, ch. 102, as amended; Stats. Nev. 1949, ch. 180, as amended.
Consequently, when the official 1970 census figures are applied to NRS 244.013, as amended
in 1971, we find that two county commissioners are to be elected from the City of Reno
having a population of 72,863, one commissioner is to be elected from the City of Sparks
having a population of 24,187, one commissioner is to be elected from the unincorporated
area of the county having a population of 24,018, and one commissioner at large.
This plan involves one multi-member district and one floterial district. The disparity,
expressed in percent of the ideal representation is portrayed below.
3
Accordingly, the
petitioners contend that the inhabitants of the City of Reno are not properly represented
because of constitutionally impermissible population variances.
____________________

2
When first enacted the statute applied to Clark and Washoe Counties since all other Nevada counties fell
below the required 50,000 population. In 1971, the Legislature amended NRS 244.013 to remove Clark County
therefrom. See: Stats. Nev. 1971, ch. 649, 2, p. 1529. NRS 244.013, by reason of the 1971 amendment, applies
to each county having a population of 100,000 or more, but less than 200,000. The 1970 census determined that
Clark County had a population of 273,288 and Washoe County, 121,068. Accordingly, Clark County was
automatically eliminated from the operation of NRS 244.013. That statute now applies only to Washoe County.
This classification according to population is constitutionally permissible. State v. Donovan, 20 Nev. 75 (1887).

Number of Percent

3
District Number Population Commissioners Disparity
1. Reno...................................................... 72,863 2 - 13.536
2. Sparks.................................................. 24,187 1 +20.110
3. Rural.................................................... 24,018 1 +20.814
4. Entire County........................................ 121,068 1 ____________
Positive entries indicate overrepresentation, and negative, underrepresentation.
contend that the inhabitants of the City of Reno are not properly represented because of
constitutionally impermissible population variances. The respondent urges that the variances
are within permissible limits.
4
We turn to consider this major issue.
2. In Baker v. Carr, 369 U.S. 186 (1962), the United States Supreme Court ruled that the
allegations of a denial of equal protection due to legislative malapportionment presented a
justiciable issue. The Court apparently believed that there existed no effective alternative to
accepting jurisdiction since legislative abnegation of responsibility maintained rural political
control over a vastly larger urban population. The following year, that Court proclaimed the
one man, one vote concept. Gray v. Sanders, 372 U.S. 368 (1963). The Court stated: How
then can one person be given twice or ten times the voting power of another person in a
statewide election merely because he lives in a rural area or because he lives in the smallest
rural county? Once the geographical unit for which a representative is to be chosen is
designated, all who participate in the election are to have an equal votewhatever their race,
whatever their sex, whatever their occupation, whatever their income, and wherever their
home may be in that geographical unit. This is required by the Equal Protection Clause of the
Fourteenth Amendment. The concept of we the people' under the Constitution visualizes no
preferred class of voters but equality among those who meet the basic qualifications." Id.
at 379, 3S0.
____________________

4
Proposed Washoe County Ordinance No. 186 provides for five nonoverlapping single seat commissioner
districts. The disparity in percent of ideal representation is:

Number of Percent

District Number Population Commissioners Disparity
1................................................................. Reno 24,197 1
+0.069
2................................................................. Reno 24,168 1
+0.189
3................................................................. Reno 24,286 1 -
0.298
4................................................................. Sparks 24,272 1 -
0.241
5................................................................. Balance of County 24,145 1
+0.284
Sec. 4(1) of the Local Government Reapportionment Law, 71 Stats. ch. 648, p. 1527, pursuant to which the
County Commissioners voted for Ordinance No. 186, directs the governing board of a local governmental unit
whose members are chosen by popular vote to divide the geographical area it serves into the number of election
districts which is identical with the number of members serving on such boardsuch division to be
accomplished before January 1, 1972. This directive, however, is inapplicable if the law otherwise has made
specific provision for the election of county commissioners. NRS 244.013 as amended does so specifically
provide and must be followed if constitutional. However, if NRS 244.013 as amended is unconstitutional and
void, it is the same as no law at all, State v. Malone, 68 Nev. 36, 43, 231 P.2d 599 (1951), and the directive of
the Local Government Reapportionment Law would be operative. We are not here concerned with the
constitutionality of Ordinance No. 186.
voters but equality among those who meet the basic qualifications. Id. at 379, 380.
This standard was extended to state legislative apportionment by Reynolds v. Sims, 377
U.S. 533 (1964). The Court wrote: . . . [W]e mean that the Equal Protection Clause requires
that a state make an honest and good effort to construct districts, in both houses of its
legislature, as nearly of equal population as is practicable. We realize that it is a practical
impossibility to arrange legislative districts so that each one has an identical number of
residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable
constitutional requirement. Id. at 577.
Finally, equal protection principles were extended to local government apportionment.
Avery v. Midland County, 390 U.S. 474 (1968). The Equal Protection Clause reaches the
exercise of state power however manifested, whether exercised directly or through
subdivisions of the State. Id. at 479. We hold today only that the Constitution permits no
substantial variation from equal population in drawing districts for units of local government
having general governmental powers over the entire geographical area served by the body.
Id. at 484, 485. This basic theme was reiterated in Hadley v. Junior College District, 397 U.S.
50 (1970), . . . whenever a state or local government decides to select persons by popular
election to perform governmental functions, the Equal Protection Clause of the Fourteenth
Amendment requires that each qualified voter must be given an equal opportunity to
participate in that election, and when members of an elected body are chosen from separate
districts, each district must be established on a basis that will insure, as far as is practicable,
that equal numbers of voters can vote for proportionally equal numbers of officials. Id. at 56.
The Court did note, however, that if the deviation from equal apportionment. . . resulted
from a plan that did not contain a built-in bias in favor of small districts, but rather from the
inherent mathematical complications in equally apportioning a small number of trustees
among a limited number of component districts, a different question would be presented. Id.
at 58. Other language in the Hadley opinion suggests that local government may enjoy greater
flexibility in apportionment than national or state governments.
3. In the matter before us the deviation from numerical equality under NRS 244.013
ranges from an underrepresentation of approximately 13 percent in Reno to an
overrepresentation of approximately 20 percent in Sparks and the unincorporated area.
Neither from the record before us nor from the wording of the statute or its preamble may
we ascertain a reason for that deviation.
from the wording of the statute or its preamble may we ascertain a reason for that deviation.
Local needs and local problems are not mentioned. We know only that the deviation from
equal apportionment automatically discriminates in favor of Sparks and the unincorporated
area. Although mathematical exactness or precision may not be required, the Supreme Court
has not tolerated a deviation from numerical equality of the degree here presented.
5
The
burden is upon the state to justify each variance. Kirkpatrick v. Preisler, 394 U.S. 526, 531
(1969). As herebefore noted, justification is absent in this case.
[Headnote 2]
We, therefore, hold that NRS 244.013 as amended by Stats. Nev. 1971, ch. 649, violates
the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution
and direct that a peremptory writ of mandamus issue directing the respondent County Clerk to
attest Washoe County Ordinance No. 186.
____________________

5
(a) Congressional redistricting: Variations of 3.13 percent above and 2.84 percent below mathematical ideal
invalidated. Kirkpatrick v. Preisler, 394 U.S. 526 (1969). Variances of 6 percent above and below perfect
equality rejected. Wells v. Rockefeller, 394 U.S. 542 (1969).
(b) State legislature: Deviation up to 18 percent invalidated. Swann v. Adams, 385 U.S. 440 (1967);
variations up to 14 percent rejected. Kilgarlin v. Hill, 386 U.S. 120 (1967).
(c) The Supreme Court of California in Calderon v. City of Los Angeles, 481 P.2d 489 (Cal. 1971),
invalidated a city charter provision allowing variations of 10 percent from the ideal district figure.
____________
88 Nev. 344, 344 (1972) Bomar v. United Resort Hotels, Inc.
HAROLD V. BOMAR, Appellant, v. UNITED
RESORT HOTELS, INC., Respondent.
No. 6591
June 7, 1972 497 P.2d 898
Appeal from jury verdict and judgment thereon; Eighth Judicial District Court; Thomas J.
O'Donnell, Judge.
Plaintiff brought action against operator of hotel to recover for injuries sustained when he
fell on step while exiting from hotel. The district court rendered judgment in favor of the
hotel operator and the plaintiff appealed. The Supreme Court, Thompson, J., held that
trial court's refusal to permit plaintiff to cross-examine witness for hotel operator to show
that step had been painted shortly after accident was error where counsel for hotel
operator had previously asked witness whether there had been any change in step since
1955 and witness had testified there had been no change, but such error was harmless
where record contained references to fact that step had not been painted at time of
accident, that it was subsequently painted and that a recommended procedure would
have been to paint it.
hotel operator and the plaintiff appealed. The Supreme Court, Thompson, J., held that trial
court's refusal to permit plaintiff to cross-examine witness for hotel operator to show that step
had been painted shortly after accident was error where counsel for hotel operator had
previously asked witness whether there had been any change in step since 1955 and witness
had testified there had been no change, but such error was harmless where record contained
references to fact that step had not been painted at time of accident, that it was subsequently
painted and that a recommended procedure would have been to paint it.
Affirmed.
[Rehearing denied August 11, 1972]
Mowbray and Gunderson, JJ., dissented.
Foley Brothers, of Las Vegas, for Appellant.
Cromer and Barker, of Las Vegas, for Respondent.
1. Appeal and Error; Witnesses.
In action for injuries sustained when plaintiff fell on step while exiting from hotel, precluding plaintiff's
counsel from cross-examining defense witness to impeach such witness by showing that step had been
painted shortly after accident was error where counsel for hotel operator had previously asked defense
witness whether there had been any change in steps since 1955 and witness had responded there had not
been any change but such error was harmless where record contained references to fact that step had not
been painted at time of accident, that it was subsequently painted and that a recommended procedure would
have been to paint it. NRCP 61.
2. Trial.
Where jury could not agree on issue of whether defendant was negligent, jury properly determined issue
of plaintiff's contributory negligence even though trial judge had suggested that issue of defendant's
negligence be determined before issue of plaintiff's contributory negligence.
OPINION
Bomar brought suit against United Resort Hotels, Inc., d.b.a. Stardust Hotel, to recover
damages for injuries sustained when he fell on a step exiting from the hotel. The jury found
against him and this appeal followed.
[Headnote 1]
1. The trial court precluded plaintiff's counsel from cross-examining a defense witness to
show that the step was painted by the hotel shortly after the accident. This is asserted to be
reversible error. Although acknowledging that safety measures taken after the accident by the
defendant are generally not admissible to prove antecedent negligence or an admission of
negligence, Alamo Airways, Inc. v. Benum, 78 Nev. 384, 392, 374 P.2d 684 (1962), this rule,
he contends, does not here govern, since defense counsel opened the door to such
cross-examinations when he asked a defense witness whether there had been any change in
the step since 1955, and the witness responded no sir, there hasn't.
In our view the door was opened, however slightly, and counsel should have been allowed
to pursue his cross-examination to contradict or impeach the testimony given by the adversary
witness. This is a recognized exception to the general rule expressed in Alamo Airways, Inc.
v. Benum, supra. Daggett v. Atchinson, Topeka and Santa Fe Ry. Co., 313 P.2d 577 (Cal.
1957); Reynolds v. Maine Mfg. Co., 128 A. 329 (N.H. 1925); Lombardi v. Yulinsky, 119 A.
873 (N.J. 1923); Jefferson v. City of Raleigh, 140 S.E. 76 (N.C. 1927).
It does not automatically follow, however, that the error thus committed affected the
substantial rights of the plaintiff Bomar. Indeed, the record contains references to the fact that
the step was not painted at the time of the accident, that it was subsequently painted and that a
recommended procedure would have been to paint it. In these circumstances the error in
forbidding cross-examination on the subject to impeach an adversary witness must be deemed
harmless. NRCP 61. That evidence was before the jury in other ways.
[Headnote 2]
2. The jury could not agree whether the defendant was negligent and passed on to the
question of the plaintiff's contributory negligence, finding by a nine to three vote, that he was
contributorily negligent and precluded from recovery. In short, the jury attempted to resolve
the issues in the sequence suggested by the court but was unable to reach agreement on the
first issue. We cannot fault the jury for proceeding to the second issue and deciding the
litigation.
Affirmed.
Zenoff, C. J., and Batjer, J., concur.
The appellant-plaintiff, Harold V. Bomar, commenced this action against United Resort
Hotels, Inc., and Karat, Inc., dba Stardust Hotel, to recover damages for injuries suffered
when Bomar slipped and fell on a step leading to his hotel room at the Stardust. The case was
tried to a jury that found against Bomar, denying him any relief whatsoever.
1
Bomar has
appealed from the judgment on the verdict and the court's order denying his motion for a new
trial, on two grounds: (1) The trial judge erred in refusing to permit Bomar's counsel to
cross-examine one of respondent's witnesses regarding the changed condition of the step on
which Bomar had slipped, and (2) the judge erred in refusing to grant a new trial because of
alleged irregularities on the part of the jury.
I would sustain appellant's first assignment of error and on that ground reverse and remand
the case for a new trial.
1. After Bomar's accident, the hotel painted the step on which he had slipped. Bomar tried
to bring out this fact on his case-in-chief, as evidence of negligence on the part of the hotel.
The trial judge properly excluded the offer, as the suggested testimony was clearly
inadmissible for that purpose. It has long been the rule that safety measures taken after an
accident, which might have prevented the accident, are not admissible. This is so, not because
of the probative significance such evidence might have, but because of the overriding policy
against discouraging the taking of such safety measures after an accident has occurred. As
this court stated in Alamo Airways, Inc. v. Benum, 78 Nev. 384, 392, 374 P.2d 684, 688
(1962):
It is conceded that for many years in 47 states evidence of repairs, alterations, or other
precautions taken after an accident has been held inadmissible either as proof of antecedent
negligence or as an admission of negligence. The reason for the virtual unanimity is that the
admission of such evidence would discourage all owners, even those who had been genuinely
careful, from improving the place or thing that had caused the injury, because they would fear
the evidential use of such acts to their own disadvantage, and that innocent persons would
suffer by such refraining from improvements. . . . (Citation omitted.)
Therefore, the district judge ruled correctly in refusing Bomar's offer to prove that the step
had been painted after the accident for the purpose of showing the existence of a negligent
condition.
____________________

1
At the close of the trial and before the case went to the jury, the district judge, upon defense counsel's
motion, dismissed Karat, Inc., as a party defendant.
the accident for the purpose of showing the existence of a negligent condition.
2. Mr. Kermit Roosevelt McCulloch was called as a witness for the defense. He was and
had been for many years a maintenance engineer at the Stardust. Mr. McCulloch was asked
the following questions on direct examination:
Q. [by Mr. Cromer, defendant-respondent's attorney] Mr. McCulloch, let me show you a
picture that has been admitted into evidence as Plaintiff's Exhibit No. 1 [a photograph
showing the front elevation of the step on which Bomar allegedly slipped] and ask you if you
recognize that area from that picture?
A. Yes, sir. This is leading into the south wing of the old Royal Nevada. It's right by
Room No. 122.
Q. Do you know when that area was first built?
A. Around 1952 or 53.
Q. Was that area in existence when you first started to work for the Royal Nevada?
A. Yes, sir.
Q. Is that exactly as it appears in that picture?
A. Right.
Q. The concrete walkway was in there?
A. Right. Yes, sir.
Q. The porch?
A. Yes, sir.
Q. And the doors?
A. Yes, it's the same.
Q. Has the structure of that area changed since 1955 when you started to work for the
Royal Nevada until this time?
A. No, sir.
Q. It's still the same now?
A. Yes, sir.
Q. How many times have you been in and out of that particular righthand door?
A. Well, probably two or three times a day.
Q. Since 1955?
A. Right.
Q. Have you ever had occasion to stumble or fall in that area?
A. No, sir, I haven't.
. . .
Q. Has there been any change other than growth in the shrubbery so far as you can recall
since 1955?
A. No, sir, there hasn't.
Q. Have you ever had occasion to observe, in making your rounds three times a day
since 1955, anybody falling or stumbling off that particular area?
your rounds three times a day since 1955, anybody falling or stumbling off that particular
area?
A. No, sir.
Q. Do you know whether anyone his fallen or stumbled off this area with the exception
of Mr. Bomar?
Mr. Foley: Your Honor, I would object to that?
The Court: Objection overruled. He can state of his own knowledge whether or not he
knows whether anyone fell off of that platform other than Mr. Bomar at the time he went to
work there.
Q. [By Mr. Cromer] Answer the question, please.
A. No, sir.
Counsel for Bomar, on cross-examination, attempted to examine McCulloch on the
painting of the step after the accident, but he was effectively prevented from doing so by the
trial judge, who was of the apparent opinion that the inquiry on direct went only to structural
changes of the area and that the direct questioning did not sufficiently open the door to
permit inquiry concerning the painting.
2

Bomar claims that the trial judge's refusal to permit him to inquire constituted reversible
error. There are well recognized exceptions to the exclusionary rule mentioned above.
McCormick on Evidence 275, at 667-668 (E. Cleary ed. 1972), has summarized the
exceptions as follows:
. . . [E]vidence of subsequent repairs or changes has been admitted as evidence of the
defendant's ownership or control of the premises or his duty to repair where these are
disputed; as evidence of the possibility or feasibility of preventive measures, when properly in
issue; as evidence, where the jury has taken a view, or where the defendant has introduced a
photograph of the scene, to explain that the situation at the time of the accident was different;
as evidence of what was done later to show that the earlier condition as of the time of the
accident was as plaintiff claims, if the defendant disputes this; as evidence that the faulty
condition, later remedied, was the cause of the injury by showing that after the change the
injurious effect disappeared; and as evidence contradicting facts testified to by the
adversary's witness."
____________________

2
Q. [by Mr. Foley, counsel for plaintiff-appellant] I believe Mr. Cromer showed you Exhibit 1. Is that the
picture he showed you?
A. Yes, sir.
Q. And I believe you answered, in response thereto, that is in the same condition now as it was as is shown
in that picture?
The Court: The structural picture was the question and the answer as I understood it, Mr. Foley.
Mr. Foley: I thought he said the same condition.
The Court: The same structural.
Mr. Cromer: The same structural.
Mr. Foley: I thought he said the area.
the cause of the injury by showing that after the change the injurious effect disappeared; and
as evidence contradicting facts testified to by the adversary's witness. (Footnotes omitted.)
It is clear from reading the aforementioned colloquy on direct examination between
counsel for defendant-respondent and Witness McCulloch that the purpose was to convince
the jury that the step in question was in the same condition since its construction to the date
of the trial and that no one but Bomar had, to McCulloch's knowledge, slipped on the step. It
appears to me that to allow a defendant owner to strengthen his case by testimony that the
condition was at all times as safe as possible, without affording the plaintiff the opportunity
to contradict such evidence, is manifestly unjust. The apparent attempt to stay within the
exclusionary rule by narrowing the inquiry to structural changes is not enough. The effect
of the questioning was to convey the idea that there were no changes in the area and that there
had been no accidents on the step either before or after Bomar's slip. I believe that under the
factual posture of this case Bomar should have been permitted to examine McCulloch on the
painting of the steps and that it was error to preclude him from doing so.
I would reverse and remand the case to the district court for a new trial.
Gunderson, J., concurs.
____________
88 Nev. 350, 350 (1972) Sorce v. State
JAMES JEFFREY SORCE, Appellant, v. THE STATE
No. 6634
June 9, 1972 497 P.2d 902
Appeal from a judgment of the Second Judicial District Court, Washoe County; Joseph O.
McDaniel, Judge.
The district court found defendant guilty of selling narcotics and he appealed. The
Supreme Court, Batjer, J., held that where there was nothing to indicate that juror's statements
to other members of panel to effect that she believed defense counsel was concerned because
her husband had signed indictment returned by grand jury had any effect on deliberations of
jury and juror was removed and alternate seated, denial of motion for mistrial was not error.
Affirmed.
88 Nev. 350, 351 (1972) Sorce v. State
William K. Lohse, of Reno, for Appellant.
1. Criminal Law.
Where informer who had been searched prior to making alleged purchase of marijuana from defendant
described in detail what he purchased from defendant, description matched marijuana and container that
were offered and received in evidence, and informer testified that he went directly from purchase to meet
officer and did not enter any buildings or talk to any other persons during walk which took five to eight
minutes, there was sufficient chain of custody to permit jury to conclude that exhibit was identical to what
witnesses received on date of sale. NRS 453.030.
2. Criminal Law.
To establish chain of custody it is not necessary to negate all possibilities of substitution or tampering
with exhibit, or to trace its custody by placing each custodian on stand.
3. Criminal Law.
It is sufficient to establish chain of custody if it is established that it is reasonably certain that no
tampering or substitution took place, and doubt, if any, goes to weight of evidence.
4. Criminal Law.
Defendant is entitled to be tried by jury composed of fair and impartial persons, and trial court may, in
exercise of discretion, grant mistrial if it reasonably appears that one or several members of jury have
become biased and will not engage in honest deliberation.
5. Criminal Law.
Where there was nothing to indicate that juror's statements to other members of panel to effect that she
believed defense counsel was concerned because her husband had signed indictment returned by grand jury
had any effect on deliberations of jury and juror was removed and alternate seated, denial of motion for
mistrial was not error.
6. Criminal Law.
Failure to object to prosecutor's remarks at time they were made precluded reviewing court's
consideration of any error in remarks.
OPINION
Appellant was convicted by a jury of selling narcotics, a violation of NRS 453.030. He
appeals from that conviction and asserts that the marijuana was erroneously admitted into
evidence, the trial court erroneously refused to grant a mistrial after alleged misconduct
of a juror became known, and the prosecutor's closing statement went beyond
permissible scope.
88 Nev. 350, 352 (1972) Sorce v. State
asserts that the marijuana was erroneously admitted into evidence, the trial court erroneously
refused to grant a mistrial after alleged misconduct of a juror became known, and the
prosecutor's closing statement went beyond permissible scope. We find these allegations of
error to be without merit, and affirm the judgment.
Arrangements were made by Reno police officers to have an informer attempt to make a
purchase of marijuana from appellant. Prior to being transported to appellant's home, the
informer was searched and found to possess only his wallet, some change, and $15 which had
been given to him by the police for the purchase. Appellant did sell the informer a bag of
marijuana for $15. After making the purchase, the informer walked several blocks to a
prearranged meeting place, and there gave the bag and its contents to Officer Farlow. This
officer then transferred the marijuana to Officer Van Curen, who marked the items and placed
them in a locker to be preserved for trial.
[Headnotes 1-3]
While appellant concedes that a proper chain of custody existed from the time Officer Van
Curen received the items until the trial date, he asserts that no proper chain was established
prior to that time as the informer was not asked to identify the exhibit at trial, and Officer
Farlow made his identification based on marks placed on the exhibit by Officer Van Curen.
Essentially, appellant argues that a fatal defect in the chain of custody existed because the
informer, during his five to eight minute walk from appellant's house to where he met Officer
Farlow, could have tampered with or substituted the substance he purchased from appellant.
Although the informer was not asked to identify the exhibit at trial, he gave a detailed
description of what he purchased from appellant, and this description matched the marijuana
and container that were offered and received into evidence. The informer testified that he
took five to eight minutes to walk from appellant's house to where he met Officer Farlow;
that he went directly from one point to the other without entering any buildings; and that he
did not meet or even talk with any other persons along the way. This testimony laid a proper
foundation and established a sufficient chain of custody. It is not necessary to negate all
possibilities of substitution or tampering with an exhibit, nor to trace its custody by placing
each custodian upon the stand; it is sufficient to establish only that it is reasonably certain that
no tampering or substitution took place, and the doubt, if any, goes to the weight of the
evidence.
88 Nev. 350, 353 (1972) Sorce v. State
goes to the weight of the evidence. Oliver v. State, 85 Nev. 10, 449 P.2d 252 (1969); Carter v.
State, 84 Nev. 592, 446 P.2d 165 (1968); Eisentrager v. State, 79 Nev. 38, 378 P.2d 526
(1963). The jury was reasonably able to conclude from the informer's and Officer Farlow's
testimony that the exhibit was identical to what each of those witnesses received on the date
of the sale. Oliver v. State, supra; Carter v. State, supra.
It was discovered by defense counsel during trial that a juror's husband had been the
foreman of the grand jury that returned the indictment against appellant. In response to the
trial judge's questioning, out of the presence of other members of the jury, this juror stated
that she told other members of the jury that she believed defense counsel were concerned
because her husband had signed the indictment. She also told the judge that this fact would
definitely not affect her ability to give appellant the presumption of innocence and to be a fair
and impartial juror. Defense counsel at this point moved for a mistrial contending that the
jury could no longer be fair and impartial. This motion was denied and the juror in question
was removed and the alternate seated. Appellant asserts that it was reversible error for the
trial court to deny the motion for a mistrial under the circumstances.
[Headnotes 4, 5]
A defendant is entitled to be tried by a jury composed of fair and impartial persons, and a
trial court may, in the exercise of its discretion, grant a mistrial if it reasonably appears that
one or several members of a jury have become biased and will not engage in honest
deliberation. Merritt v. District Court, 67 Nev. 604, 222 P.2d 410 (1950). In the present
situation there is nothing to indicate that the juror's statements had any effect on the
deliberations of the jury, nor has there been any showing of coercion of the jury or prejudice
to appellant, and therefore the trial judge did not abuse his discretion in refusing to grant the
mistrial.
[Headnote 6]
Appellant's final assertion of error is that the prosecutor's closing argument regarding the
sale of marijuana was beyond the scope of permissible comment and was highly prejudicial to
the defense. A review of the record clearly shows that the prosecutor's remarks in reference to
the transaction were not improper as they were based upon and related to evidence received at
trial. Furthermore, since defense counsel failed to object to these remarks at the time they
were made, they need not be considered by this court. Bonnenfant v. State, 86 Nev.
88 Nev. 350, 354 (1972) Sorce v. State
393, 469 P.2d 401 (1970); Wilson v. State, 86 Nev. 320, 468 P.2d 346 (1970).
Affirmed.
____________
88 Nev. 354, 354 (1972) Clark County v. Lewis
CLARK COUNTY, NEVADA, CLARK COUNTY COMMISSION, L. F. LaPORTA, D.
LAMB, R. T. BASKIN, J. G. RYAN and W. BRIARE, as Commissioners Thereof,
WILLIAM W. GALLOWAY, Treasurer and Tax Collecter of Clark County, Nevada, and
JAMES BILBRAY, Assessor of Clark County, Nevada, Appellants, v. ROBERT J. LEWIS,
Trustee, and SUNRISE MOUNTAIN DEVELOPMENT COMPANY, a Nevada Corporation,
a Joint Venture, and ROBERT J. LEWIS, Trustee, and COLLEGE DEVELOPMENT CO., a
Nevada Corporation, a Joint Venture, Respondents, MELVILLE R. BISSELL, Jr., aka
MELVILLE BISSELL, MELVILLE R. BISSELL, HARVEY S. BISSELL, SABRA McKAY
CLARK, DOROTHY McKAY SCULLY, JOHN D. BISSELL, CLARA O. BISSELL,
MELVILLE BISSELL, III, WADSWORTH BISSELL, CHARLES BISSELL, and CARL L.
REED,
Special Administrator of the Estate of Mary Catherine Harvey,
aka May C. Harvey, Amicus Curiae.
No. 6733
June 20, 1972 498 P.2d 363
Appeal from denial of motion to set aside consent judgments. Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
County filed motion to set aside judgments quieting title to certain property which had
been purchased at tax sale. The district court denied the motion and the county appealed. The
Supreme Court, Zenoff, C. J., held that where county's agreement to withdraw with prejudice
its motion to set aside judgment in quiet title action in return for cash payment of $3,000 was
an arm's length transaction replete with litigious questions that might have kept county
occupied for years with questionable results to county and all facts, figures and necessary
information had been available to county commissioners at time agreement was made,
county was not entitled to have quiet title judgment or judgment entered after the
agreement set aside on theory that they were unauthorized and made an unwarranted
gift of public monies to private individuals.
necessary information had been available to county commissioners at time agreement was
made, county was not entitled to have quiet title judgment or judgment entered after the
agreement set aside on theory that they were unauthorized and made an unwarranted gift of
public monies to private individuals.
Affirmed.
Roy A. Woofter, District Attorney, and George F. Ogilvie, Deputy District Attorney, Clark
County, for Appellants.
Beckley, DeLanoy & Jemison, of Las Vegas, for Respondents.
Foley Brothers, of Las Vegas, for Amicus Curiae.
1. Counties.
County as a political subdivision has power to compromise disputed claims or causes of action brought
against it. NRS 244.165.
2. Judgment.
Consent judgment quieting title to land which had been purchased at tax sale could be set aside on motion
of county only if it was void where more than six months had elapsed since its entry. NRCP 60(b).
3. Judgment.
Consent decree can be attacked for fraud or violation of some law or public policy.
4. Judgment.
Where county's agreement to withdraw with prejudice its motion to set aside judgment quieting title to
land which had been purchased at tax sale in return for $3,000 was an arm's length transaction replete with
litigious questions that might have kept county occupied for years with questionable results to county and
all facts, figures and necessary information had been available to county commissioners when agreement
was made, county was not entitled to have original judgment or judgment entered after the agreement set
aside on theory that they were unauthorized and made an unwarranted gift of public monies to private
individuals, absent bad faith or fraud. NRCP 60; NRS 244.165; Const. art. 8, 9.
OPINION
This appeal is the aftermath of Bissell v. College Development Co., 86 Nev. 404, 469 P.2d
705 (1970), to which reference is made for a more detailed history of the facts supportive of
this litigation. In the present proceedings it is sufficient to note that prior to 1941 Mary
Harvey was the owner of the property herein involved.
the property herein involved. She lost the property to Clark County for default of tax
payments on September 11, 1941. John Bissell paid the taxes, interests and costs for which he
received a deed of reconveyance from the county on August 5, 1960. On July 12, 1960 Bissell
recorded a quitclaim deed bearing Mary Harvey's signature. Through a series of mesne
conveyances the respondents became title owners of the property and they and their
predecessors paid the property taxes for the period of 1960 through 1966 and have been in
continuous possession of the property. Respondents brought an action to quiet title in
themselves in order to render their title more certain. That action was commenced May 9,
1967.
On May 16, 1967 the Clark County District Attorney stipulated in writing with
respondents that judgment be entered for respondents and judgment was so entered. On July
15, 1970, three years later, appellants moved to set aside that judgment on the ground that
there had been no jurisdiction over the county, whereupon on December 10, 1970 for the cash
payment of $3,000 to the county, the county stipulated to withdraw with prejudice the motion
to set aside the judgment. Within the stipulation was an express acknowledgment of the
validity of the May 16 judgment. A second judgment was entered on the later stipulation.
Thereafter, the county moved to rescind the authorization for the $3,000 settlement
because it appears that the property had an appraised value as of December 12, 1970 of
$357,000 of which the commissioners claimed they were not aware. The county's motion
sought under NRCP 60(b) to set aside the judgments of May 16, 1967 and December 11,
1970 for the reason that the said judgments were improperly authorized and in effect made an
unwarranted gift of public monies to private individuals.
The trial court denied the motion on the ground that no showing was made that the
judgments were void, that they were entered pursuant to the written consent of the parties,
and that there was no evidence of fraud, concealment, mistake, bad faith, misrepresentation or
other misconduct that would vitiate the judgments. The county appeals.
[Headnote 1]
1. The parties concede and we concur that the county as a political subdivision has the
power to compromise disputed claims or causes of action brought against it. Since NRS
244.165 allows the board of county commissioners to control the prosecution or defense of all
suits to which the county is a party, such right to sue or be sued necessarily carries with it
the right to compromise and settle disputed or doubtful claims.
party, such right to sue or be sued necessarily carries with it the right to compromise and
settle disputed or doubtful claims. Washburn County v. Thompson, 75 N.W. 309, 311 (Wis.
1898); Franklin County v. Carstens, 122 P. 999, 1001 (Wash. 1912); Whitson v. City of Long
Beach, 19 Cal.Rptr. 668, 680 (Cal.App. 1962).
2. Principally the issue is, are the two consent judgments voidable under NRCP 60(b).
1
Certain commissioners claim to have been without knowledge of the true value of the
property, and seek therefore to be relieved from the judgments on the ground that their body
made a gift of county property which it had no right to do. Nev. Const. art. 8, 9.
[Headnotes 2-4]
The first consent judgment was beyond the six months purview requirement of NRCP
60(b) and can therefore only be considered on the ground that it is void, but the second can be
reviewed under the general provisions of Rule 60. While it is accurate to state that a consent
decree can be attacked for fraud or violation of some law or public policy, Lane v. Sumner
County, 298 S.W.2d 708 (Tenn. 1957), the transaction here bears none of the earmarks
attendant to the making of a gift. It was an arms-length transaction, replete with litigious
questions that might well have kept the county occupied for years and with questionable
results to the county. All facts, figures and necessary information were available at the
commissioners' deliberations. U.S. Auto Radiator Co. v. Meyers, 232 N.Y.S. 96 (N.Y. 1962).
In the absence of bad faith or fraud, which the county did not assert and the trial court
found none, we will not disturb their original conclusions.
____________________

1
NRCP 60(b) reads: 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; (2) fraud, misrepresentation or other misconduct of an adverse party which would
have therefore justified a court in sustaining a collateral attack upon the judgment; (3) the judgment is void; or,
(4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that an injunction should have prospective application.
The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than six months after
the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the
finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud
upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these
rules or by an independent action.
fraud, which the county did not assert and the trial court found none, we will not disturb their
original conclusions.
Affirmed.
Batjer, Thompson, and Gunderson, JJ., and Wilkes, D. J., concur.
____________
88 Nev. 358, 358 (1972) Horton v. Pringle
HERBERT A. HORTON, Appellant, v. GENE
PRINGLE, Respondent.
No. 6777
June 20, 1972 498 P.2d 372
Appeal from an order of the Sixth Judicial District Court, Pershing County, setting aside a
judgment; Llewellyn A. Young, Judge.
Proceeding on motion to set aside default and default judgment obtained in suit for
damages for default in sales agreement. The district court set aside judgment, and appeal was
taken. The Supreme Court held that setting aside of default judgment entered against
defendant, who asserted, via affidavit attached to motion to set aside, excusable neglect that
he had valid and substantial defense was not abuse of discretion.
Affirmed.
Leslie B. Gray, of Reno, for Appellant.
John M. Doyle, of Winnemucca, for Respondent.
1. Judgment.
Setting aside of default judgment obtained in suit for damages for default in sales agreement against
defendant, who asserted, via affidavit attached to motion to set aside, excusable neglect and that he had
valid and substantial defense was not abuse of discretion.
Absent clear showing of abuse, trial court's setting aside of a default judgment will not be disturbed on
appeal.
OPINION
Per Curiam:
The appellant filed suit against the respondent alleging a default by respondent in a sales
agreement and for damages in the amount of $7,000.
88 Nev. 358, 359 (1972) Horton v. Pringle
the amount of $7,000. After service of process upon respondent and his failure to timely
answer appellant took a default, and judgment was entered against respondent on March 5,
1971.
On March 26, 1971 respondent moved to set aside the default and default judgment.
Attached to his motion was an affidavit containing factual assertions to show excusable
neglect and the statement that respondent had been advised by counsel that he had a valid and
substantial defense to the claim for relief asserted. Also attached to the motion was an answer
generally denying appellant's claim.
On July 20, 1971 a hearing was held on the motion and argument was heard. The district
court then entered its order setting aside the judgment. It is from that order setting aside the
judgment that this appeal is taken.
[Headnote 1]
The single issue presented for our review is whether the lower court abused its discretion
in setting aside the default judgment. The respondent's motion was predicated upon NRCP
60(b)(1) which provides that the court may relieve a party. . . from a final judgment, order,
or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect.
[Headnote 2]
This court has repeatedly held that the determination of the existence of excusable neglect
is a matter within the sound discretion of the district judge. Ogle v. Miller, 87 Nev. 573, 491
P.2d 40 (1971); Minton v. Roliff, 86 Nev. 478, 471 P.2d 209 (1970); Cicerchia v. Cicerchia,
77 Nev. 158, 360 P.2d 839 (1961). In the absence of a clear showing of abuse, the trial court's
setting aside of a default judgment will not be disturbed upon appeal. Johnston, Inc. v.
Weinstein, 88 Nev. 7, 492 P.2d 616 (1972); Lentz v. Boles, 84 Nev. 197, 438 P.2d 254
(1968); Hotel Last Frontier Corp. v. Frontier Properties, Inc., 79 Nev. 150, 380 P.2d 293
(1963). Upon review of the record, we cannot say that the district court abused its discretion.
Affirmed.
____________
88 Nev. 360, 360 (1972) General Electric Co. v. Bush
GENERAL ELECTRIC COMPANY, a New York Corporation, and WESTINGHOUSE AIR
BRAKE COMPANY, a Delaware Corporation, Appellants, v. DEE ANN BUSH,
Individually, DEE ANN BUSH, as Guardian Ad Litem for KEITH BUSH, an Incompetent,
DEE ANN BUSH, as Guardian Ad Litem for DEBORAH SUE BUSH, KEITH DAVID
BUSH and DONALD THORPE BUSH, Minors, Respondents.
No. 6632
June 20, 1972 498 P.2d 366
Appeal from action upon strict tort liability for near fatal injuries. Second Judicial District
Court, Washoe County; Grant L. Bowen, Judge.
Wife of rigger, on her own behalf and as guardian ad litem of rigger and children, brought
action against manufacturer of large vehicle used in open pit mining and manufacturer of
control cabinet used on vehicle for injuries sustained when eyebolt broke while riggers were
placing cabinet in vehicle and cabinet fell on rigger. The district court rendered judgment in
favor of the wife and the manufacturers appealed. The Supreme Court, Zenoff, C. J., held
that, under doctrine of strict liability, manufacturers were liable for injuries sustained when
cabinet fell when eyebolt suddenly fractured during customary lifting operation where rigging
was in accordance with custom and usage in rigging trade, manufacturers did not warn that
different than customary rigging should have been used and eyebolt was shown to have been
defective, that wife was entitled to recover for loss of consortium but that children were not
entitled to recover for loss of consortium.
Goldwater, Hill, Mortimer & Sourwine, Ltd., of Reno, for Appellant General Electric
Company.
McDonald, Carano, Wilson & Bergin, of Reno, and Rust & Mills, of Sacramento,
California, for Appellant Westinghouse Air Brake Company.
Bradley & Drendel, of Reno, and Boccardo, Blum, Lull, Niland, Teerlink & Bell, of San
Jose, California, for Respondents.
1. Automobiles; Negligence.
If lifting of control cabinet designed for use in large mining vehicle should have been accomplished by
different rigging than was customary in rigging trade, manufacturers of cabinet and vehicle had duty to
furnish suitable instructions or warnings to that effect and without them, riggers were free to use accepted
method they felt proper.
2. Torts.
Defective product gives rise to strict tort liability even though faultlessly made if it was unreasonably
dangerous for manufacturer or supplier to place product in hands of user without giving suitable and
adequate warnings concerning safe and proper manner in which to use it.
3. Torts.
Doctrine of strict liability for an injury caused by defective product applies even though supplier has
exercised all possible care in preparation and sale of product.
4. Negligence.
Warning need not be given against dangers which are generally known.
5. Torts.
Under doctrine of strict liability, manufacturer is entitled to assume that his product will not be subjected
to abnormal and unintended uses and no liability follows injury resulting from an abnormal or unintended
use.
Under doctrine of strict liability where rigging used to lift heavy control cabinet which was to be placed
in large mining vehicle was in accordance with usage and custom in rigging trade, manufacturers did not
warn that different rigging should have been used and eyebolt which was supplied by manufacturer of
control cabinet for use in lifting cabinet was shown to have been defective, manufacturer of control cabinet
and manufacturer of mining vehicle were liable for injuries sustained when eyebolt suddenly fractured and
control cabinet fell on rigger.
Where defect in eyebolt which was being used to lift heavy control cabinet onto large mining vehicle and
which fractured causing cabinet to fall and injure rigger would not have been apparent even upon visual
inspection, rigger could not have assumed risk of danger and, therefore contributory negligence and
assumption of risk were not defenses to action against manufacturers of mining vehicle and control cabinet
for rigger's injuries.
Wife of rigger who was rendered an invalid when heavy control cabinet fell upon him because of
defective eyebolt could recover for loss of consortium; however, wife could have cause of action for loss of
consortium only if joined for trial with action for rigger's injuries to safeguard against danger of double
recovery.
9. Torts.
Children were not entitled to recover damages for their loss of consortium with their father who was
injured due to negligent acts of third persons.
10. Damages.
Award of $3,000,000 for injuries which rendered father who had normal life expectancy of 39 years from
time of trial and who had three children a permanent invalid who could neither communicate nor do
anything for himself and whose mentality was seriously affected was not exorbitant where evidence of
special damages went unchallenged and uncontroverted.
Assignments of error for which no case authority was cited would not be entertained on appeal.
12. Removal of Cases.
Defendant's failure to timely exercise option of removing case to federal court constituted waiver of right
to removal.
OPINION
On October 19, 1968, during the course of his employment, Keith Bush was horribly
injured while assisting in the reassembly of a giant vehicle specially designed for use in open
pit mining. The accident happened near the Kennecott Copper Company's operation at Ely,
Nevada.
The vehicle was a Haulpak, a truck-type that has as one of its major component parts a
heavy electrical control cabinet which consists of a metal box weighing about 1,130 pounds
and which contains a variety of electrical components such as switches, relays and the like.
The entire Haulpak unit was manufactured first and then shipped in parts by rail to Ely to be
reassembled by the crew of Pioneer Equipment Company, the dealer, distributor and
servicing company. Bush was a member of that crew. Westinghouse Air Brake Company was
the primary manufacturer of the unit, General Electric Company designed and manufactured
the electrical control cabinet. General Electric's design specified the use of certain eyebolts to
which further reference will hereafter be made.
In order to place the cabinet onto the truck it was necessary to lift it by crane by means of a
rigging that would be strong enough to get it into the air and placed on the truck chassis. To
accomplish this two standard 5/8-inch threaded lifting eyebolts were mounted into metal
blocks welded at each end of the cabinet's channelled frame. The eyebolts were manufactured
to meet the standards of the American Society of Testing and Materials which for this size
bolt was listed as having a minimum breaking strength of 3,900 to 4,000 pounds. Lifting at a
45-degree angle, the eyebolt is rated to withstand bending without cracking.
The eyebolts were in the cabinet at the time the shipment arrived in Ely. The rigging was
accomplished with a chain of 5/16-inch gauge, 34 feet long, run through each eyebolt and
twice over the hook hanging from the lifting crane. There were double chain legs from the
eyes to the hook and the excess chain was wrapped around the hook and legs and securely
fastened. In that fashion a triangle was created. None of the evidence established the angle at
the base legs to be less than 45 degrees which was the accepted critical safety angle for stress
on the eyebolts. The acknowledged criteria is that the nearer to vertical the safer the rig.
No rigging diagram or warning was given by any of the manufacturers. The rigging crew
was experienced and professional. A test lift was performed safely, then the cabinet was
raised 8 to 12 inches into approximate position above the truck's fender where the cabinet
remained suspended for about 20 minutes.
While the crew was aligning the cabinet with the fender and aligning both with the frame
one eyebolt broke. This allowed the cabinet to drop at that end and slide down the fender
toward the rear of the truck. Bush, who was under the suspended cabinet tending to his duties,
was struck on the head and his skull was crushed. His injuries are such that he is among the
living dead. He can neither communicate nor do anything for himself, nor will he ever be able
to do so. His bowel, bladder and feeding needs must be accomplished for him. His mentality
is seriously affected. He is paralyzed below the neck. His left eye is destroyed, his right eye is
almost useless and although he does perceive, he is mute. His normal life expectancy is 39
years from the time of trial.
When the accident occurred he was married, his wife was three months pregnant and they
had two other children. The jury favored the respondents with a verdict awarding damages to
Keith for three million dollars, to his wife, Dee Ann, for $500,000 for loss of consortium and
to their three children for $150,000, at $50,000 each, for their loss of companionship. The
judgment was rendered against Westinghouse and General Electric, which included costs and
disbursements.
The principal defense was that the bolt failed, not because it was defective in material or
design, but because the workmen's rigging was not in accordance with the custom and
practice to keep the angle at 45 degrees or above. They also sought to assert Bush's
contributory negligence and assumption of risk. On appeal, they attack variously the trial
court's instructions that related to the manufacturers for failing to warn and instruct the crew
on the rigging on the ground that the crew members were professionals and therefore
knew or should have known the rigging requirements without a warning; that the
damages were excessive and as to the wife and children, that their awards were beyond
the law; that they were deprived from showing Bush's contributory negligence should
have been an element for jury consideration; that the jury was incorrectly instructed on
strict liability upon which doctrine the case was principally tried; and that a fair trial was
denied these appellants because they were hastened into trial before they could
adequately prepare their defense and that certain procedural steps prevented them from
removing the case from the state court to the federal district court.
warn and instruct the crew on the rigging on the ground that the crew members were
professionals and therefore knew or should have known the rigging requirements without a
warning; that the damages were excessive and as to the wife and children, that their awards
were beyond the law; that they were deprived from showing Bush's contributory negligence
should have been an element for jury consideration; that the jury was incorrectly instructed on
strict liability upon which doctrine the case was principally tried; and that a fair trial was
denied these appellants because they were hastened into trial before they could adequately
prepare their defense and that certain procedural steps prevented them from removing the
case from the state court to the federal district court.
1. Appellants' first contention is based on the premise that the jury predicated liability on
the companies' failure to warn and instruct the reassembly crew. Appellants' position is that
such notice and warning is not required when the reassembly crew consists of professionals
who not only know how to rig but also know the dangers attendant therewith. Their
assignment of error is directed specifically to the trial judge's failure to sustain objections to
respondents' line of questioning contrived to establish a duty to give warning.
[Headnote 1]
The evidence showed that the rigging was in accordance with usage and custom in the
trade. Had the companies required a different rigging, such as vertical lifts using a spreader
bar which the companies claimed should have been done, suitable instructions or warnings to
that effect would have been appropriate. Without them the riggers were free to use the
accepted method they felt proper. Jacobsen v. Ducommun, Inc., 87 Nev. 240, 484 P.2d 1095
(1971).
2. The trial of the action established that the eyebolt suddenly fractured during a
customary lifting operation. The eyebolt was shown to have been defective, possibly from
previous use.
[Headnote 2]
We have heretofore held that a defective product is dangerous if it fails to perform in the
manner reasonably to be expected in the light of its nature and intended function. Ginnis v.
Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970). Beyond that a product being defective
gives rise to strict tort liability even though faultlessly made if it was unreasonably dangerous
for the manufacturer or supplier to place that product in the hands of a user without giving
suitable and adequate warnings concerning the safe and proper manner in which to use
it.
product in the hands of a user without giving suitable and adequate warnings concerning the
safe and proper manner in which to use it. Pike v. Frank G. Hough Co., 467 P.2d 229 (Cal.
1970); Johnson v. Standard Brands Paint Co., 274 Cal. App.2d 331, 340, 79 Cal.Rptr. 194
(1969); Barth v. B. F. Goodrich Tire Co., 265 Cal.App.2d 228, 245, 71 Cal.Rptr. 306 (1968);
Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 651, 55 Cal.Rptr. 94 (1966); Canifax v.
Hercules Powder Co., 237 Cal.App.2d 44, 52-53, 46 Cal.Rptr. 552 (1965).
[Headnotes 3, 4]
The doctrine of strict liability for an injury caused by a defective product applies even
though the supplier has exercised all possible care in the preparation and sale of his product.
Restatement Second of Torts, Sec. 402A(2)(a); cf. Pike v. Frank G. Hough Co., supra. When
classifying these riggers as professionals that term is used in the sense of their knowledge
and experience in their particular skill, which is a highly variable factor as compared to the
true sense of professional applied to doctors, lawyers, engineers and the like. Warning need
not be given against dangers which are generally known (Helene Curtis Industries, Inc. v.
Pruitt, 385 F.2d 841, 858 (5th Cir. 1967)), but the hazard here was not one generally known
to these workmen. Nothing in their work experience could have forewarned them of the
defective bolt or that a vertical lift was the only safe method of lifting this cabinet.
[Headnotes 5, 6]
Under strict liability the manufacturer is entitled to assume that his product will not be
subjected to abnormal and unintended uses, and consequently no liability follows an injury
resulting from an abnormal or unintended use. International Derrick & Equipment Co. v.
Croix, 241 F.2d 216, 222 (5th Cir. 1957). But here, the eyebolts were being used for lifting as
intended by a procedure that was approved by custom and usage in the trade. There was no
misuse or abuse. The eyebolt was being used in a manner which the seller should have
reasonably anticipated. Johnson v. Standard Brands Paint Co., supra; see also Preissman v.
Ford Motor Co., 1 Cal.App.3rd 841, 82 Cal.Rptr. 108 (1969).
3. We further disagree with appellants when they contend that contributory negligence
and assumption of risk should have been allowed as defenses and that the district court erred
when it refused to give the jury instructions on either or both. We must say parenthetically,
first of all, that the jury might well have concluded from the evidence that Bush, as a
member of the rigging team, was properly stationed and doing what he should have been
doing when the accident happened.1
well have concluded from the evidence that Bush, as a member of the rigging team, was
properly stationed and doing what he should have been doing when the accident happened.
1

The appellants point out that this action was prosecuted on three theories (a) that the
eyebolt was defective (b) that the design of the lifting provision for the cabinet was defective,
and (c) that the design was defective only in the sense that General Electric did not furnish a
warning as to the proper use of the product. If the third theory was accepted by the jury,
appellants claim it sounds in negligence and that therefore they were entitled to defense
instructions on contributory negligence and assumption of risk.
[Headnote 7]
Bush's contributory negligence would have had to consist of a failure to discover the defect
in the eyebolt or to guard against the possibility of its existence (Seely v. White Motor
Company, 403 P.2d 145 (Cal. 1965); Canifax v. Hercules Powder Co., supra; see Prosser,
Strict Liability to the Consumer in California, 18 Hastings L.J. 9, 48-50 (1966)), nor is there
evidence that the defect in the eyebolt was known to Bush nor to anyone for even upon visual
inspection it would not have been apparent. Thus, he could not have assumed the risk of a
danger that he did not know existed. Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 669,
448 P.2d 46 (1968); Downing v. Marlia, 82 Nev. 294, 299, 417 P.2d 150 (1966); Vierra v.
Fifth Avenue Rental Service, 383 P.2d 777, 780 (Cal. 1963); Bee v. Tungstar Corp., 65
Cal.App.2d 729, 151 P.2d 537 (1944).
[Headnote 8]
4. The trial court authorized the jury to award damages to respondent Dee Ann Bush, wife
of the injured husband, as compensation for her loss of consortium. The jury awarded her
$500,000. Appellants claim this to be error.
The question of the wife's right to recover for the loss of her husband's society has not
been heretofore decided by this court. An aging doctrine based upon the danger that she was
seeking a double recovery and that the loss of such things as companionship and society were
too indirect to measure in terms of money discouraged her compensation. West v. City of San
Diego, 6 Cal.Rptr. 289 (Cal. 1960). As time went on, however, the doctrine that the wife of
an injured spouse has a right of action developed. Hitaffer v. Argonne Co., Inc., 87 App.D.C.
57, 1S3 F.2d S11, 23 A.L.R.2d 1366 {1950).
____________________

1
It is also hard to imagine that he would place his head where it was if it weren't necessary to his duties.
App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366 (1950). In Millington v. Southeastern Elevator
Co., Inc., 239 N.E.2d 897, 36 A.L.R.3d 891 (N.Y.App. 1968), the New York court shifted
from the old to the new and ruled that the consortium action on behalf of the wife although
based upon the wife's right of support from her husband, more importantly, recognizes
instead that consortium covers a variety of other intangible interests which the wife has in the
welfare of her husband. These are described as love, companionship, affection, society,
sexual relations, solace and more. The court there emphasizes that the basis of the wife's
recovery is the anguish which she suffers when the injury to her husband destroys or impairs
those components that make for the traditional marriage she enjoys and that the right to
support is not included nor a part of her claim.
This character of harm is real and substantial rather than illusory. Incontestably, the
transformance of the husband in this case into a permanent invalid impairs the wife's relations
with her husband. In all respects the serious harm that the sadness, shock and anguish of
seeing a spouse suffering from all kinds of physical injury, in addition to her complete
inability to ever again bear children by her husband is fundamentally injury that the wife
suffers separate and distinctly apart from the question of support. See Gates v. Foley, 247
So.2d 40, 42 (Fla. 1971), for a listing of states which recognize this cause of action.
In the light of the foregoing the danger of double recovery is not real for presumably the
husband is recovering for his own injuries and she is recovering for injury done to herself by
the loss of his companionship. There is no duplication, instead, this is an example of a single
tortuous act which harms two people by virtue of their relationship to each other. To
eliminate the danger that there would be a double recovery a precaution would be to charge
the jury that the wife's compensation for loss of her husband's society and companionship
should not include additional damages for her right to support. See generally, Professor
Homer Clark, the Wife's Action for Negligent and Permanent Loss of Consortium, 3 Family
Law Quarterly 197 (Sept. 1969);
2
Troue v. Marker, 252 N.E.2d 800 (Ind. 1969).
As an additional safeguard against the danger of double recovery we require that she will
have her cause of action only if joined for trial with the husband's own action against the
same defendant.
____________________

2
Professor Clark, among other factors, places a value on the loss of the wife's sexual relations and states, . . .
presumably today even the judiciary, that stronghold of male supremacy, is aware that women enjoy sex.
recovery we require that she will have her cause of action only if joined for trial with the
husband's own action against the same defendant. Thill v. Modern Erecting Company, 170
N.W.2d 865, 869 (Minn. 1969).
[Headnote 9]
5. Are the children of a father injured by the negligent acts of third persons entitled to
maintain independent actions to recover damages for their loss of consortium with their father
the same as their mother?
The trial court instructed the jury that the children had a cause of action for their individual
losses occasioned by their father's injuries. The jury awarded the three minor children the sum
of $150,000.
Only one court has recognized their cause of action. Scruggs v. Meredith, 134 F.Supp. 868
(D.C. Hawaii 1955) (reversed on appeal by authority of Halberg v. Young, 41 Hawaii 634, 59
A.L.R.2d 445 (1957)). Substantial differences exist in the consideration of the children's
claim as against that of their mother, all of which have compelled the overwhelming weight
of authorities to be against an action for the children. Halberg v. Young, supra; Annot., 59
A.L.R.2d 454 (1958); Hayrynen v. White Pine Copper Co., 157 N.W.2d 502 (Mich.App.
1968). We are satisfied to await legislative action, if any, on this issue.
[Headnote 10]
6. Appellants challenge the award of $3,000,000 as exorbitant, yet, the evidence of special
damages went unchallenged and uncontroverted at the trial. We will not substitute our
opinion of damages for that of the jury. Southern Pacific Co. v. Watkins, 83 Nev. 471,
495-96, 435 P.2d 498 (1967). The award, in view of the damage done, does not shock our
judicial conscience.
[Headnote 11]
7. Appellants shotgun a number of alleged suberrors, i.e., refusal or failure of the trial
court to decide or rule on certain objections to interrogatories, frustrations of appellants'
attempt to take a certain deposition of a member of the Nevada Industrial Commission, undue
delay in granting leave to file third-party complaints and refusal to grant a continuance. No
case authority is cited, therefore, this court will not entertain any of those assignments of
error.
[Headnote 12]
8. All of the respondents in the action are residents of Nevada. All of the defendants are
foreign corporations with the exception of defendant American Standard, Inc., a Nevada
corporation.
exception of defendant American Standard, Inc., a Nevada corporation. Respondents had
never shown facts sufficient to support a cause of action against American Standard.
Appellants contend that American Standard should have been eliminated from the action at
an early stage which would have permitted them to attempt removal of the action to the
federal court. Instead, they claim, the trial court delayed dismissal against American Standard
until it was too late to do so.
Their failure to exercise the option in a timely fashion constituted a waiver of the right to
removal. Grigg v. Southern Pacific Company, 246 F.2d 613 (9th Cir. 1957); Southern Pacific
Company v. Haight, 126 F.2d 900 (9th Cir. 1942); Waldron v. Skelly Oil Co., 101 F.Supp.
425 (D.C.E.D. Mo. 1951).
Affirmed, save and except that the award to the children is reversed and set aside.
____________
88 Nev. 369, 369 (1972) Baker v. State
PATRICK BAKER, Appellant, v. THE STATE
No. 6582
June 21, 1972 498 P.2d 1310
Appeal from judgment of conviction and sentence of the Eighth Judicial District Court,
Clark County; John F. Mendoza, Judge.
Defendant was convicted before the district court of robbery and he appealed. The
Supreme Court, Gunderson, J., held that lineup conducted before defendant was formally
charged and in presence of public defender, whose counsel defendant rejected, but without
counsel of defendant's own choice did not deny defendant his right to counsel.
Affirmed.
Robert List, Attorney General, of Carson City, and Roy A. Woofter, District Attorney, and
Charles L. Garner, Chief Deputy of Appeals, Clark County, for Respondent.
88 Nev. 369, 370 (1972) Baker v. State
1. Criminal Law.
Lineup conducted before defendant was formally charged and in presence of public defender, whose
counsel defendant rejected, but without presence of counsel of defendant's own choice did not deny
defendant his right to counsel. U.S.C.A.Const. Amends. 6, 14.
2. Criminal Law.
Where record reflected no suggestion, either to justice of peace or to trial judge, that requiring defendant
to sit at counsel table with co-defendants during preliminary hearing was offensive to due process and it
was not claimed that trial counsel did not know how to raise issue, defendant's contention that in-court
identification was inadmissible because he was required to sit at counsel's table with co-defendants during
preliminary hearing could not be raised on appeal from conviction of robbery. NRS 200.380.
Even if impermissibly suggestive grouping occurred when defendant was required to sit with
co-defendants at preliminary examination, victim's identification of defendant at trial did not deny
defendant due process where the trial identification had an origin independent of any identification at
preliminary examination.
OPINION
Convicted of robbery in violation of NRS 200.380, appellant contends his constitutional
rights were violated:
(1) when police officers allowed the victim to view appellant and six other men in a
lineup conducted before he was formally charged, with a public defender present whose
counsel appellant rejected, but without counsel of his own choice;
(2) when a justice of the peace, conducting a preliminary examination to determine
probable cause for the criminal complaint filed after the lineup, denied a motion by counsel
for one of his co-defendants to allow defendants to sit in the spectator section of the
courtroom, rather than at counsel table.
Appellant contends the lineup violated his Sixth Amendment right to counsel as declared
by United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263
(1967). He apparently contends the preliminary examination deprived him of due process in
violation of the Fourteenth Amendment, by exposing him to identification in a prejudicially
suggestive grouping, contrary to Stovall v. Denno, 388 U.S. 293 (1967). Appellant therefore
urges he is entitled to a reversal of his conviction and to a new trial in which an in-court
identification will be prohibited. Rejecting these contentions, we affirm the judgment.
88 Nev. 369, 371 (1972) Baker v. State
[Headnote 1]
1. In United States v. Wade, cited above, the United States Supreme Court held the Sixth
Amendment was violated by a post-indictment lineup conducted in the absence of defendant's
counsel:
Since it appears that there is grave potential for prejudice, intentional or not, in the
pretrial lineup, which may not be capable of reconstruction at trial, and since presence of
counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there
can be little doubt that for Wade the post-indictment lineup was a critical stage of the
prosecution at which he was as much entitled to such aid [of counsel]. . . as at the trial itself.'
Powell v. Alabama, 287 U.S. 45, 57. Thus both Wade and his counsel should have been
notified of the impending lineup, and counsel's presence should have been a requisite to
conduct of the lineup, absent an intelligent waiver.' Id., at 236-237.
In Wade and the companion case of Gilbert v. California, the Court determined
courtroom identifications of an accused at trial are to be excluded from evidence because the
accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for
identification purposes without notice to and in the absence of the accused's appointed
counsel, unless the government establishes by clear and convincing evidence that the
in-court identifications were based upon observations of the suspect other than the lineup
identification. 388 U.S. at 219-220, 240. If an in-court identification is erroneously allowed,
reversal is required unless the error is shown harmless beyond a reasonable doubt. 388 U.S. at
242. The Court left open the question whether the presence of substitute counsel might not
suffice where identification and presence of the suspect's own counsel would result in
prejudicial delay, 388 U.S. at 237, and did not discuss the prospect that a defendant might
reject substitute counsel.
In Stovall v. Denno, cited above, the Court refused to apply the doctrine of Wade and
Gilbert retroactively, but held the defendant's Fourteenth Amendment rights might be
violated in any event if the confrontation was so unnecessarily suggestive and conducive to
irreparable mistaken identification that he was denied due process of law. 388 U.S. at 302.
This, the Court said, is a recognized ground of attack upon a conviction independent of
any right to counsel claim. 388 U.S. at 302.
On June 7 of this year, the United States Supreme Court held, contrary to common belief,
that the doctrine of Wade and Gilbert does not establish a right to counsel at an
identification lineup conducted before commencement of "any prosecution whatever."
88 Nev. 369, 372 (1972) Baker v. State
and Gilbert does not establish a right to counsel at an identification lineup conducted before
commencement of any prosecution whatever. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877
(1972).
1
The plurality opinion, delivered by Mr. Justice Stewart, indicates such lineups are to
be tested by the standards of Stovall:
What has been said is not to suggest that there may not be occasions during the course of
a criminal investigation when the police do abuse identification procedures. Such abuses are
not beyond the reach of the Constitution. As the Court pointed out in Wade itself, it is always
necessary to scrutinize any pretrial confrontation. . . .' 388 U.S., at 227. The Due Process
Clause of the Fifth and Fourteenth Amendments forbids a lineup that is unnecessarily
suggestive and conducive to irreparable mistaken identification. Stovall v. Denno, 3SS U.S.
293; Foster v. California, 394 U.S. 440.
____________________

1
Most courts, including the Ninth Circuit Court of Appeals, have held Wade and Gilbert applicable to lineups
conducted when a defendant is in custody but not formally charged. See, for example: United States v. Phillips,
427 F.2d 1035 (9th Cir. 1970); Commonwealth v. Guillory, 254 N.E.2d 427 (Mass. 1970); Hayes v. State, 175
N.W.2d 625 (Wis. 1970); In re Holley, 268 A.2d 723 (R.I. 1970); Commonwealth v. Whiting, 266 A.2d 738
(Pa. 1970); People v. Hutton, 175 N.W.2d 860 (Mich.App. 1970); People v. Fowler, 461 P.2d 643 (Cal. 1969);
Palmer v. State, 249 A.2d 482 (Md.App. 1969); Rivers v. United States, 400 F.2d 935 (5th Cir. 1968). This
court assumed that to be the law in Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969).
Indeed, at least one court has heretofore applied Wade and Gilbert to confrontations before arrest. United
States v. Greene, 429 F.2d 193 (D.C.Cir. 1970); Long v. United States, 424 F.2d 799 (D.C.Cir. 1969).
However, Arizona has held Wade-Gilbert applicable only to post-indictment or post-information
confrontations, not to one at a preliminary hearing held to determine probable cause. State v. Fields, 455 P.2d
964 (Ariz. 1969). Florida has held Wade-Gilbert inapplicable to out-of-court photographic and custodial
identifications, because they occurred before indictment. Perkins v. State, 228 So.2d 382 (Fla. 1969). Similarly,
Missouri has approved a lineup after arrest but before any formal charges, saying Wade and Gilbert apply only
post-indictment. State v. Walters, 457 S.W.2d 817 (Mo. 1970). Virginia has refused to apply Wade-Gilbert to a
lineup after arrest but before any formal charges, saying the time at which right to counsel accrues between arrest
and indictment depends on the totality of the circumstances. Buchanan v. Commonwealth, 173 S.E.2d 792,
794 (Va. 1970).
The District Attorney has assumed the applicability of the Wade-Gilbert doctrine to the case at bar, seeking
to avoid its force by contentions concerning the presence of adequate substitute counsel, the independent origin
of the victim's trial identification, and the harmlessness of any error in conducting the lineup without counsel of
appellant's choice.
We have withheld our decision pending examination of the opinion in Kirby v. Illinois, cited above.
88 Nev. 369, 373 (1972) Baker v. State
Denno, 388 U.S. 293; Foster v. California, 394 U.S. 440. When a person has not been
formally charged with a criminal offense, Stovall strikes the appropriate constitutional
balance between the right of a suspect to be protected from prejudicial procedures and the
interest of society in the prompt and purposeful investigation of an unsolved crime. 11 CrL
at 3075.
Chief Justice Burger, Justice Blackmun and Justice Rehnquist endorsed Justice Stewart's
view; Justice Powell said only: As I would not extend the Wade-Gilbert per se exclusionary
rule, I concur in the result reached by the Court. 11 CrL at 3075. Hence, a majority held
Wade-Gilbert does not apply to a lineup conducted before a defendant is charged. (What
the members of this majority consider a sufficiently formal charge is subject to question,
particularly in the case of Justice Powell, who may believe Wade-Gilbert applies only to
post-indictment or post-information.) The same majority concluded such lineups are
constitutional, at least when the doctrine of Stovall is not offended, and a four-member
plurality stated they are to be measured by Stovall.
Appellant has not urged the lineup here was prejudicially suggestive, within the purview of
Stovall, and because it was conducted before any charges were lodged against appellant, we
need not consider arguments presented under Wade and Gilbert.
2

2. Appellant's contention that he was required to sit at counsel table during his preliminary
examination, and thus unwillingly exposed to identification in a prejudicially suggestive
grouping, is inaccurate, an afterthought, and unsupported by authority.
While appellant's brief asserts that [a]t the preliminary hearing, counsel for defendants
asked to have the defendants remain in the audience until after an identification, the record
shows only counsel for co-defendant Williams made such a motion. The justice of the peace
denied that motion, saying: Well, I would be subject to ruling in favor of the defendant at
this time if the lineup had not been held and an identification made. Despite this, appellant's
counsel made no motion himself, nor did he point out that appellant was not identified at the
lineup. It appears appellant's counsel let him accept the usual seating arrangement, without
objection; thus, he cannot now be heard to complain.
____________________

2
Since lineups conducted before institution of charges will apparently remain subject to challenge for
unfairness under Stovall, and since defense counsel's presence will not only tend to assure fairness but to avoid
claims of unfairness, we suggest that police in Nevada should continue their practice of allowing counsel's
presence at identification lineups, and of preserving a record of photographic lineups as suggested in Thompson
v. State, 85 Nev. 134, 451 P.2d 704 (1969).
88 Nev. 369, 374 (1972) Baker v. State
usual seating arrangement, without objection; thus, he cannot now be heard to complain.
[Headnote 2]
Furthermore, although appellant's brief says his counsel moved to dismiss this charge
because of the defects of the lineup at the preliminary hearing (f.036) and at trial (f.192), the
cited portions of the record reflect no suggestion, either to the justice of the peace or to the
trial judge, that sitting at counsel table during preliminary hearing was offensive to due
process. Nor is it claimed now that trial counsel did not know how to raise the issue. Cf.
Henry v. Mississippi, 379 U.S. 443 (1965). Thus, we decline to entertain this objection to the
victim's trial identification of appellant, raised for the first time on appeal. Merica v. State, 87
Nev. 457, 488 P.2d 1161 (1971); Kelly v. State, 76 Nev. 65, 348 P.2d 966 (1960).
Moreover, appellant's counsel has referred us only generally to Stovall v. Denno, without
marshaling authorities or serious argument to show Stovall is applicable to in-court
identifications at preliminary examinations with counsel present. We reserve judgment, until
the question is properly preserved and adequately presented for our review. Cf. Carson v.
Sheriff, 87 Nev. 357, 487 P.2d 334 (1971).
3
[Headnote 3]
[Headnote 3]
____________________

3
In Stovall, the U.S. Supreme Court said: The practice of showing suspects singly to persons for the purpose
of identification, and not as part of a lineup, has been widely condemned. 388 U.S. at 302.
Referring to this language, the court in Coleman v. State, 258 A.2d 42 (Md.App. 1969), held that a
confrontation at a preliminary hearing conducted in the absence of counsel, while not per se unlawful under
Wade, may nonetheless deny due process by tainting later identification at trial, and whether it does or not
depends on all the relevant circumstances in each case. Id., at 47. The court reversed defendant's conviction,
where a witness had been unable to identify him at an earlier lineup, and trial identification was apparently
induced by seeing him alone and in custody at the preliminary hearing.
In Mason v. United States, 414 F.2d 1176 (D.C.Cir. 1969), the court held no exception to the Wade case
exists in relation to confrontations that occur at preliminary hearings, so that a bank teller's identification of
defendant at preliminary hearing, when he was without counsel, was inadmissible at trial. To be consistent, the
court would be constrained to hold that if counsel is present at a preliminary hearing, the propriety of any
confrontation should be measured by Stovall.
In People v. Laurenson, 268 N.E.2d 183 (Ill.App. 1971), the court held a robbery witness's view of a
defendant at a preliminary hearing was so suggestive, in light of a suggestive photo display that immediately
preceded it, that the defendant was deprived of a fair trial and due process of law.
As we have previously said: Before enunciating the effect of such authorities, and the validity of such
arguments, we prefer to wait until
88 Nev. 369, 375 (1972) Baker v. State
[Headnote 3]
Finally, appellant's position is untenable for other reasons. First, the trial judge held the
State had sufficiently shown the victim's trial identification had an independent origin. We
cannot say that determination was unsupported by the record. Hence, even if an
impermissibly suggestive grouping occurred at appellant's preliminary examination, his trial
identification did not deny him due process. Hernandez v. State, 87 Nev. 553, 490 P.2d 1245
(1971); Carmichel v. State, 86 Nev. 205, 467 P.2d 108 (1970); Thompson v. State, 85 Nev.
134, 451 P.2d 704 (1969). Second, this case would compel application of the harmless error
doctrine. United States v. Wade, cited above; cf. Chapman v. California, 386 U.S. 18 (1967).
4

Affirmed.
____________________
we are favored with briefs marshaling them in relation to the facts of a given case. Carson v. Sheriff, cited
above, 87 Nev. at 360, 487 P.2d at 336.
However, since the question is substantial, when doubt exists as to a witness's capacity to identify a
defendant, and a defendant raises the issue, we think preliminary examinations should be structured so that a
witness is required to make an honest and independent identification.

4
The victim immediately telephoned the police to report his robbery by three young black men. A mile and a
half away, while central control still was talking to the victim, officers who heard the radio alert saw a car
containing appellant and two other men, who fit this description, proceeding away from the victim's store. The
officers asked central control to ascertain if one of the robbers had been wearing a black jacket; the victim
responded affirmatively. When the officers then attempted to stop the car by displaying a red light, they saw one
of its occupants look back; the car then accelerated to a high speed, ran a red light, and did not stop until the
officers had fired two shots at it. The front seat was occupied by two men whom the victim not only identified at
appellant's preliminary examination, but picked out of the station house lineup. Appellant was in the rear seat
with a black jacket, and with wrapped and labeled merchandise like that taken from the victim. A gun was used
in the robbery; one was found in the vehicle. Appellant took the stand and explained possession of the gun and
merchandise by saying he was just helping a friend move. The gun, and the merchandise like that stolen from the
victim, were the only items in the car that appellant claimed to be moving for his friend. Appellant's testimony
was otherwise incredible and, even upon a reading of the cold record, totally unworthy of belief. We see no
possibility that an incorrect result was reached in this case.
____________
88 Nev. 376, 376 (1972) Cranford v. Warden
MELVIN L. CRANFORD, Appellant, v. WARDEN,
No. 6786
June 21, 1972 498 P.2d 377
Appeal from an order of the Sixth Judicial District Court, Humboldt County, denying
petition for a writ of habeas corpus; Kenneth L. Mann, Judge.
The Supreme Court held that where fatal injury was inflicted upon murder victim in
Humboldt County, the crime was committed and completed in that county, and the fact that
the victim was removed to a hospital in Washoe County, where he died, did not divest the
district court in Humboldt County of jurisdiction.
Affirmed.
Robert List, Attorney General; William Macdonald, District Attorney, and John M. Doyle,
Deputy District Attorney, Humboldt County, for Respondent.
1. Criminal Law.
Failure to object during trial or on direct appeal to allege defect in indictment may bar post-conviction
relief in absence of explanation of the failure.
2. Criminal Law.
Where fatal injury was inflicted upon murder victim in Humboldt County, the crime was committed and
completed in that county, and the fact that the victim was removed to a hospital in Washoe County, where
he died, did not divest the district court in Humboldt County of jurisdiction. NRS 200.110, subd. 1.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying Melvin L. Cranford's
application for post-conviction relief. Cranford was charged with the crime of murder in
Humboldt County, Nevada, and there convicted. His judgment of conviction was affirmed on
a direct appeal to this court. See Cranford v. State, 76 Nev 113, 349 P.2d 1051 (1960).
[Headnotes 1, 2]
Cranford predicates his present claim for relief on the assertion that the information
charging him with murder was fatally defective because it failed to state that the victim of
the murder died in Washoe County.1 This objection was never raised during the trial
proceedings in the district court or on the direct appeal to this court.
88 Nev. 376, 377 (1972) Cranford v. Warden
defective because it failed to state that the victim of the murder died in Washoe County.
1
This objection was never raised during the trial proceedings in the district court or on the
direct appeal to this court. Further, Cranford has offered no explanation of his failure to do so.
The absence of such an explanation may bar post-conviction relief. See Craig v. Warden, 87
Nev. 39, 482 P.2d 325 (1971); Nall v. Warden, 86 Nev. 489, 491-492, 471 P.2d 218, 219-220
(1970) (Zenoff, J., concurring). There is, however, no merit to Cranford's present contention.
The information was not defective. The crime was committed and completed in Humboldt
County. The fact that the victim was removed to a hospital in Washoe County, where he died,
did not divest the district court in Humboldt County of jurisdiction.
NRS 200.110, subsection 1, provides:
If the injury be inflicted in one county, and the party die within another county, or without
the state, the accused shall be tried in the county where the act was done, or the cause of death
administered.
The order of the district court denying Cranford's application for post-conviction relief is
affirmed.
Since counsel for the appellant was appointed by the district court to handle this appeal,
____________________

1
The charging portion of the information states:
That the said defendant, Melvin L. Cranford, at the time and place last aforesaid [September 23, 1957, at
the County of Humboldt] did, without authority of law, wilfully, unlawfully and with malice aforethought, kill
and murder one Andrew Schutt, a human being, by then and there striking him, the said Andrew Schutt[,] with a
22 caliber revolver, thereby mortally wounding him, the said Andrew Schutt, of which wound, he, the said
Andrew Schutt[,] died on the 23rd day of September, A.D. 1957.
____________
88 Nev. 378, 378 (1972) Reid v. Woofter
HONORABLE ROBERT L. REID Justice of the Peace, Las Vegas Township,
Nevada, Appellant, v. ROY WOOFTER District Attorney of Clark County, Nevada,
Respondent.
No. 6647
June 21, 1972 498 P.2d 361
Appeal from a judgment of the Eighth Judicial District Court, Clark County; Thomas O.
Craven, District Judge.
Action was brought to determine validity of statute prohibiting justices of the peace from
solemnizing marriages or performing marriage ceremonies in a commissioner township. The
district court declared statute to be constitutional and the justice of the peace appealed. The
Supreme Court, Batjer, J., held that statute was not invalid on theory that it violated
constitutional provision forbidding enactment of local or special laws regulating jurisdiction
and duties of justices of the peace or provision requiring general laws of uniform operation
throughout the state even though statute, due to population, applied only to certain townships
within two counties of state.
Affirmed.
Goodman and Snyder, of Las Vegas, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, and Raymond Jeffers and
Charles L. Garner, Deputy District Attorneys, Clark County, for Respondent.
1. Statutes.
Statute prohibiting justices of the peace from solemnizing marriages or performing marriage ceremonies
in a commissioner township did not violate constitutional provision forbidding enactment of local or
special laws regulating jurisdiction and duties of justices of the peace or provision requiring general laws of
uniform operation throughout the state even though, due to population, only certain townships within two
counties of state were commissioner townships to which statute was applicable. NRS 122.080,
122.080, subd. 1, 122.171, subd. 1, 122.173; Const. art. 4, 20, 21.
2. Statutes.
Distinctions made in statute prohibiting justices of the peace from solemnizing marriages or performing
marriage ceremonies in a commissioner township were reasonable, the classification and object to be
accomplished were real and substantial in character and statute did not violate constitutional provision
requiring legislature to establish a uniform system of county and township government. NRS 122.080,
122.171, subd. 1, 122.173; Const. art. 4, 25.
3. Statutes.
To be objectionable under constitutional provisions requiring uniform legislation, act applying to only
one or several counties, due to population, must be based upon actual differences evincing a peculiar
relation to the legislative purpose. Const. art. 4, 25.
4. Justices of the Peace.
Statute prohibiting justices of the peace from solemnizing marriages or performing marriage ceremonies
in a commissioner township was not invalid on theory that it violated constitutional provision impliedly
allowing a justice of the peace to receive income incidental to his office. NRS 122.080, 122.171, subd.
1, 122.173; Const. art. 6, 10.
OPINION
Appellant, Justice of the Peace of the Las Vegas Township, is appealing from a judgment
of the district court declaring NRS 122.080 constitutional, thereby prohibiting him from
performing marriage ceremonies in the Las Vegas Township.
NRS 122.080
1
was amended in 1969 to provide that: Any justice of the peace in the state
who solemnizes marriages or performs marriage ceremonies in a commissioner township is
guilty of a misdemeanor. NRS 122.080(3). It is provided that instead of a justice of the
peace, a commissioner or deputy commissioner of civil marriages will solemnize marriages in
commissioner townships. NRS 122.080(1); NRS 122.173. A commissioner township, as
defined by NRS 122.171(1) is a township in which, at the close of registration for the last
preceding general election, there were 8,000 or more registered voters, and which is in a
county that had, at the close of registration for such election, 50,000 or more registered
voters.
2
At the close of the registration for the November, 1970 general election, there were
more than 8,000 registered voters in the Las Vegas Township, and more than 50,000
registered voters in Clark County. Appellant contends that NRS 122.080 is violative of: (1)
Nev. Const., art. 4, 20 prohibiting certain local and special laws and art. 4, 21 providing
for uniform operation of general laws; (2) art. 4, 25 providing for a uniform county and
township government; and (3) art. 6, 8 dealing with jurisdiction of justice courts and art. 6,
10 regarding fees or perquisites of judicial officers. Finding no constitutional infirmity in
NRS 122.0S0, we affirm the judgment of the district court.
____________________

1
Ch. 440, 5, Stats. of Nev. 764.

2
On and after January 1, 1973, the critical figures will be 6,000 for the township and 50,000 for the county.
NRS 122.171(2).
constitutional infirmity in NRS 122.080, we affirm the judgment of the district court.
[Headnote 1]
1. Appellant contends that Nev. Const., art. 4, 20,
3
forbidding the enactment of local or
special laws regulating the jurisdiction and duties of justices of the peace, and art. 4, 21,
4
requiring that general laws have uniform operation throughout the state, render NRS 122.080
unconstitutional. Appellant argues that since NRS 122.080 presently applies, due to
population, to only certain townships within Clark and Washoe counties, it is a prohibited
local or special law. This argument is without merit, as we have held that a statute is not
rendered an unconstitutional local or special law merely because it applies to only one or a
few areas due to their population, for if there were others of the same population they too
would be included. Fairbanks v. Pavlikowski, 83 Nev. 80, 423 P.2d 401 (1967); Viale v.
Foley, 76 Nev. 149, 350 P.2d 721 (1960); State v. Woodbury, 17 Nev. 337 (1883); cf. State v.
Boyd, 19 Nev. 43 (1885). The mere fact that at the present time only two counties fall within
the statute is immaterial, as the validity of NRS 122.080 is determined by ascertaining its
effect, and not by the number of counties coming within its scope. Since NRS 122.080 in its
operation and effect is so framed as to apply in the future to all counties coming within its
designated class, it is neither local nor special within the provisions of Nev. Const., art. 4,
20 or 21. Fairbanks v. Pavlikowski, supra; State v. Donovan, 20 Nev. 75, 15 P. 783 (1887).
[Headnotes 2, 3]
2. Next, appellant asserts that NRS 122.080 is rendered unconstitutional by Nev. Const.,
art. 4, 25
5
which requires that the legislature establish a uniform system of county and
township government. One purpose of this constitutional provision, and of the others
discussed above, is to prevent crude and vicious local and special legislation which would
not be permitted were it to affect the whole state.
____________________

3
Nev. Const., art. 4, 20: The legislature shall not pass local or special laws in any of the following
enumerated casesthat is to say: . . . Regulating the jurisdiction and duties of justices of the peace and of
constables, and fixing their compensation; . . . Regulating the practices of courts of justice; . . . Regulating
county and township business; . . . .

4
Nev. Const., art. 4, 21: In all cases enumerated in the preceding section, and in all other cases where a
general law can be made applicable, all laws shall be general and of uniform operation throughout the State.

5
Nev. Const., art. 4, 25: The Legislature shall establish a system of County and Township Government
which shall be uniform throughout the State.
and vicious local and special legislation which would not be permitted were it to affect the
whole state. Singleton v. Eureka County, 22 Nev. 91, 35 P. 833 (1894) (concurring opinion).
To be unobjectionable under these constitutional provisions requiring uniform legislation, an
act applying to only one or several counties presently, due to population, must be based upon
actual differences evincing a peculiar relation to the legislative purpose. Singleton v. Eureka
County, supra; State v. Donovan, supra. It does not appear that the legislature created any
absurd or unreasonable distinctions, either in the subject of the act or in the classification of
voters, as justices of the peace in the populous counties must devote full time to judicial
functions, or an unacceptable backlog will result. In the less populous counties, justices of the
peace usually have more time to devote to the performance of marriages, and their judicial
function is not impaired thereby. Although the record contains no empirical evidence
regarding the exact time requirements of a justice of the peace in a populous county for
performance of marriages, nor the precise effect on the judicial operation of the court, it is
presumed that the legislature fully investigated facts upon which the legislation was based.
Hendel v. Weaver, 77 Nev. 16, 359 P.2d 87 (1961). Inasmuch as the distinctions made in
NRS 122.080 were reasonable, and the classification and object to be accomplished were real
and substantial in character, the act does not violate Nev. Const., art. 4, 25.
[Headnote 4]
3. Finally, appellant argues that NRS 122.080 is rendered unconstitutional by Nev. Const.,
art. 6, 10,
6
which impliedly allows a justice of the peace to receive income incidental to his
office. This section merely contains a general prohibition against judicial officers receiving
any fees from office for their personal use, with an exception for justices of the peace and city
recorders. There is no implied prohibition in this section against legislative abrogation of this
privilege to receive perquisites of office, nor does that section provide for and guarantee any
perquisites to a justice of the peace. Not only are these perquisites of office not guaranteed to
appellant, but Nev. Const., art. 6, 8
7
allows the legislature to fix by law the duties, powers
and responsibilities of a justice of the peace.
____________________

6
Nev. Const., art. 6, 10: No Judicial Officer, except Justices of the Peace and City Recorders shall receive
to his own use any fees or perquisites of Office.

7
Nev. Const., art. 6, 8: The Legislature shall determine the number of Justices of the Peace to be elected in
each city and township of the State, and shall fix by law their powers, duties and responsibilities, . . . .
duties, powers and responsibilities of a justice of the peace. When the legislature enacted
NRS 122.080 it merely used this power to alter appellant's duties, and as an incidental effect
he lost the opportunity to perform marriages and profit personally.
Affirmed.
____________
88 Nev. 382, 382 (1972) Thomas v. State
JOEL EDWARD THOMAS, Appellant, v. THE
No. 6711
June 22, 1972 498 P.2d 1314
Appeal from sentence of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Defendant was convicted in the district court of assault with intent to commit rape, and he
appealed. The Supreme Court, Gunderson, J., held that intent of statute providing that
presentence report shall contain prior criminal record of defendant, personal information
about defendant's characteristics, recommendation of term of confinement and normal
punishment for like offenses was to specify how Department of Parole and Probation shall aid
the court in sentencing defendant but did not limit court's jurisdiction to proceed with
sentencing even if there were inadequacies in presentence report.
Affirmed.
Robert G. Legakes, Public Defender, and Jeffrey D. Sobel, Deputy Public Defender, Clark
Robert List, Attorney General, of Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Chief Deputy of Appeals, Clark County, for Respondent.
1. Statutes.
Generally, the word may is construed as permissive and the word shall is construed as mandatory
unless a different construction is demanded by statute in order to carry out clear intent of legislature.
2. Statutes.
Courts should place such construction upon statutes as will carry out the manifest purpose of legislature
and this may be done in opposition to very words of an act.
3. Criminal Law.
Intent of statute providing that presentence report shall contain prior criminal record of defendant,
personal information about defendant's characteristics, recommendation of term of confinement and normal
punishment for like offenses was to specify how Department of Parole and Probation shall aid the court in
sentencing a defendant but did not limit court's jurisdiction to proceed with sentencing even if there were
inadequacies in presentence report. NRS 176.145, subds. 1-3.
4. Infants.
Order certifying minor to be treated as an adult carried with it not only power over minor, but also the
right to consider, for proper purposes related to subject offense of assault with intent to commit rape,
records that related to him, and Department of Parole and Probation could view juvenile records and refer
to them in presentence report without an order of court's juvenile division. NRS 62.080, 62.270,
176.145, 200.400.
OPINION
Charged with the crime of rape at age 16, appellant was duly certified to be tried as an
adult. NRS 62.080. He pleaded guilty to a reduced charge of assault with intent to commit
rape. NRS 200.400. After the Department of Parole and Probation had submitted a report of
its presentence investigation, the court sentenced appellant to eight years in prison, as the
report recommended. On appeal, appellant claims the court erred because:
(1) the report did not contain a statement either that such recommendation is the normal
punishment for like offenses in the United States or of the reasons for recommending a
punishment more or less severe than the normal, as NRS 176.145 contemplates;
1
{2) the
report referred to appellant's juvenile record, without a disclosure order from the court's
juvenile division.2

____________________

1
176.145 Report of the presentence investigation. The report of the presentence investigation shall contain:
1. Any prior criminal record of the defendant;
2. Such information about his characteristics, his financial condition and the circumstances affecting his
behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the
defendant;
3. A recommendation of a definite term of confinement, amount of fine or both, with a statement either that
such recommendation is the normal punishment for like offenses in the United States or of the reasons for
recommending a punishment more or less severe than the normal; and
4. Such other information as may be required by the court.
(2) the report referred to appellant's juvenile record, without a disclosure order from the
court's juvenile division.
2

Neither contention has merit.
[Headnotes 1, 2]
1. Generally in construing statutes, may' is construed as permissive and shall' is
construed as mandatory unless a different construction is demanded by the statute in order to
carry out the clear intent of the legislature. Ewing v. Fahey, 86 Nev. 604, 607, 472 P.2d 347,
349 (1970). So also it is always the first great object of the courts in interpreting statutes, to
place such construction upon them as will carry out the manifest purpose of the legislature,
and this has been done in opposition to the very words of an act. Gibson v. Mason, 5 Nev.
283, 311 (1869). A statute must be construed in the light of its purpose, Berney v. Highway
Department, 42 Nev. 423, 178 P. 978 (1919); and it must be construed as a whole, Ex parte
Iratacable, 55 Nev. 263, 30 P.2d 284 (1930). All this in mind, we turn to consider the intent
of NRS 176.145.
[Headnote 3]
The apparent intent is not to limit the court's jurisdiction, but to specify how the
Department of Parole and Probation shall aid the court. If shall is mandatory, the command
is that the Department is required to supply available information that is commonly helpful in
sentencing, not that the court, as a condition to sentencing, must require information it
believes unnecessary, unavailable, unknown, or nonexistent. This seems obvious from an
examination of the whole statute. The report shall contain [a]ny prior criminal record of
the defendant, something most convicted felons would prefer to go undiscovered. NRS
176.145(1). The report shall contain certain specified personal information as may be
helpful . . . . NRS 176.145(2). It shall contain [s]uch other information as may be
required by the court. If the Department does not or cannot satisfy these mandates, surely no
one would contend the court is without jurisdiction to proceed. Does NRS 176.145(3) have a
uniquely jurisdictional nature? We think not.
The legislature surely knew normal punishment for like offenses could never be
determined with precision, even at great cost.
____________________

2
NRS 62.270 Records: Maintenance and inspection; . . . 1. The court shall make and keep records of all
cases brought before it. The records shall be open to inspection only by order of the court to persons having a
legitimate interest therein. . . .
great cost. Thus, we think the legislature merely intended the Department to state, to the
extent it can, how the recommended sentence relates to the national norm for similar
offenses. If the court needs more information, then the Department, within the limits of its
capacity, may have an obligation to obtain and supply it. However, when the court feels able
to impose a just sentence, we feel it may proceed to do so, notwithstanding inadequacies in
the Department's performance.
[Headnote 4]
2. Appellant's second complaint involves no claim that the presentence report was
inaccurate. Instead, he apparently contends the Department of Parole and Probation may view
juvenile records only upon order of the court's juvenile division (Op. Att'y Gen. 348, July 25,
1966), making reference to the records improper, and that therefore appellant's sentence was
tainted.
We need not consider the accuracy of the Attorney General's views; for appellant's premise
does not justify his conclusion. In our view, an order certifying a minor to be treated as an
adult carries with it not only power over the minor, but also the right to consider, for proper
purposes related to the subject offense, records that relate to him. Thus, if the sentencing
judge needed authority to consider appellant's juvenile record, we think it was supplied by the
juvenile division's certification order.
Affirmed.
____________
88 Nev. 385, 385 (1972) Harris v. State
WILLIAM HARRIS, Appellant, v. THE
No. 6776
June 26, 1972 498 P.2d 373
Appeal from judgment of conviction of burglary in Eighth Judicial District Court, Clark
County; Leonard I. Gang, Judge.
The Supreme Court, Mowbray, J., held that evidence sustained conviction and that jurors
were at liberty to reject defendant's testimony that he had been in parking lot outside
pharmacy when officers arrived, that one of officers forcibly dragged him into building and
that, as he was running to rear of store, one of police dogs butted him from the rear
knocking him into the box that he was in when arrested.
dragged him into building and that, as he was running to rear of store, one of police dogs
butted him from the rear knocking him into the box that he was in when arrested.
Affirmed.
Robert G. Legakes, Public Defender, and Steven L. Godwin and Thomas D. Beatty, Deputy
Public Defenders, Clark County, for Appellant.
1. Burglary.
Evidence sustained burglary conviction of defendant who was found by police hiding in large box in
burglarized pharmacy.
2. Criminal Law.
Credibility and weight to be given witness's testimony are for jury.
3. Criminal Law.
In prosecution for burglary of pharmacy, wherein prosecution alleged that defendant had been found
hiding in box in pharmacy, jurors were at liberty to reject defendant's testimony that he had been in parking
lot outside pharmacy when officers arrived, that one of officers had forcibly dragged him into building and
that, as he was running to rear of store, one of police dogs butted him from the rear knocking him into the
box.
OPINION
William Harris, the appellant-defendant, was tried to a jury and convicted of burglary. He
has appealed from his judgment of conviction on the sole issue that the evidence does not
support the verdict.
The B & N Pharmacy, located in the Golden West Shopping Center in Las Vegas, was
burglarized during the night of October 23, 1970. Police officers, who were summoned to the
premises by a burglar alarm, found the store locked. Upon investigation, the officers noticed a
hole in the roof, whereupon they called for two dogs from the police canine corps. The
pharmacy owner soon arrived at the scene, and he unlocked the front door, so that the police
officers could admit the dogs. The dogs immediately ferreted out Harris, hiding in a large
box. A police officer following the dogs ordered Harris to stand with his hands above his
head, so that a photo could be taken.
be taken. That photo was received in evidence during Harris's trial, showing Harris with the
dogs holding him at bay and an officer with his drawn revolver. At the time of his arrest,
Harris was wearing a new wristwatch, similar to ones sold in the store, with a tag string
dangling therefrom.
Against this evidence, Harris testified that he was in the parking lot outside the pharmacy
when the officers arrived. He claimed that one of the officers forcibly dragged him into the
building and that, as he was running to the rear of the store, one of the dogs butted him from
the rear, knocking him into the box that he was in when arrested.
[Headnotes 1-3]
It is axiomatic that the credibility and weight to be given a witness's testimony are matters
resting within the sound province of the jury. See Azbill v. State, 88 Nev. 240, 495 P.2d 1064
(1972). Under the facts presented, we feel that the jury, acting as reasonable men, were at
liberty to reject Harris's version of what occurred. The evidence supporting the verdict was
substantial, and in such cases it may not be disturbed on appeal.
Affirmed.
____________
88 Nev. 387, 387 (1972) Watkins v. Sheriff
FREDDIE LEE WATKINS and LUTHER GRAVES, Appellants, v.
SHERIFF, CLARK COUNTY, NEVADA, Respondents.
No. 6821
June 26, 1972 498 P.2d 374
Appeal from a pretrial order denying a petition for a writ of habeas corpus. Eighth Judicial
Habeas corpus proceeding to challenge sufficiency of evidence to hold defendants to
answer charge of burglarizing a beer truck. The district court denied petition, and defendants
appealed. The Supreme Court held that evidence was sufficient to hold defendants to answer
such charge.
Affirmed.
Clark County, for Appellants.
Criminal Law.
Evidence showing a crime had been committed and reasonable ground for believing defendants had
committed it was sufficient to hold defendants to answer charge of burglarizing a beer truck.
OPINION
Per Curiam:
After a preliminary hearing before Honorable Robert L. Reid, a Justice of the Peace of Las
Vegas Township in Clark County, Freddie Lee Watkins and Luther Graves were bound over
to stand trial in the district court on the charge of burglary.
1
Both men challenged the
sufficiency of the evidence presented at the preliminary hearing by filing in the district court a
petition for a writ of habeas corpus. After a hearing on the petition, the district judge denied
the writ and ordered the defendants-appellants to stand trial. Hence, this appeal.
There were two witnesses to the burglary, who testified at the preliminary hearing. Johnnie
Lee Williams testified:
Q [by Paul Goldman, Esq., Deputy District Attorney, Clark County] On that date, July 2,
1971, did anything unusual occur at approximately 2:25 in the afternoon?
A Yes. I was just pulling in Friendly Liquors, and this guy that drives the beer truck was
walking around. I asked him, I said, Say, man, what's going on?' He said someone broke the
lock on the door and he couldn't get in the truck. I said, Can I give you a hand?' He says,
Well, we might be able to unlock it by going to the other side,' so we did. We unlocked the
truck and he asked me to watch it while he delivered inside the bar because he didn't want to
lock it and go back through the other side.
____________________

1
The criminal complaint alleged that Watkins and Graves did then and there [July 2, 1971, within Clark
County, Nevada] wilfully, unlawfully, and feloniously enter, with the intent to commit larceny, that certain 1968
GMC cab-over van truck, bearing Serial No. F-32860 and 1971 Nevada License No. CT-4133, owned by
PIONEER TRUCKING COMPANY, a corporation, 2548 West Desert Inn Road, Las Vegas, Clark County,
Nevada, then and there leased to NEVADA BEVERAGE COMPANY, a corporation, being then and there
parked in front of FRIENDLY LIQUORS, 1602 North H Street, Las Vegas, Clark County, Nevada.
I was watching it, and these two gentlemen approached the truck.
The Court: What gentlemen?
The Witness: These two right here.
Mr. Goldman: Q When you refer to two men, to whom are you referring to?
A These two gentlemen right here.
Q Which two gentlemen? Where are they sitting and what are they wearing?
A One wearing blue and the other wearing brown. I don't know either one of them.
The Court: Are you talking about the two black Negro males?
The Witness: I am.
The Court: All right. The record will reflect the identification of the defendants.
Mr. Goldman: Q What occurred when the two defendants came up to you?
A Well, one of them said, You grab two cases and I will get two.'
I said, No, there is a soul brother driving it and he asked me to watch it. Let it alone.'
The Court: Do you understand what that means, Mr. Courtney [Deputy Public Defender,
attorney for defendants-appellants]?
Mr. Courtney: No, your Honor.
The Court: He doesn't know what you mean by soul brother.
The Witness: That means it is another Negro driving the truck.
So, when they started to open the truck, I reached and grabbed them to try to pull them
out of there.
One of them struck me and I struck back, so we started scuffling. This one gentleman in
the blue grabbed two cases and ran while me and this gentleman were scuffling.
The Court: Two cases of what?
The Witness: I don't know whether it was two cases of whiskey or what.
The Court: You mean two boxes?
The Witness: Yes.
Mr. Goldman: Q Go ahead.
A The driver came back out and they split. The police were called.
Rejoyce Williams, wife of Witness Johnnie Lee Williams, testified: "Q [by Mr.
Q [by Mr. Goldman] Did you, on July 2, 1971, have occasion to be at or near Friendly
Liquors?
A Yes, I was.
Q About 2:25 on that date, at Friendly Liquors, did anything unusual occur?
A Yes, it did.
Q Would you tell the Court, please, what it was.
A Burglary.
Mr. Courtney: Your Honor, I object.
The Court: Objection sustained. The answer will be stricken.
Mr. Goldman: Q Tell me what you saw and heard.
A I saw the liquor truck being robbed.
Mr. Courtney: Object as a conclusion.
The Court: The term robbed will be stricken.
Mr. Goldman: Q Just what did you see, in your own words.
A I saw two guys taking alcohol off the truck.
Q You say two guys. Are you talking about two men?
A Yes.
Q Are they here in Court today?
A Yes.
Q Would you tell me where they are and what they are wearing?
A One wearing blue and one in a black shirt.
Q There are two gentlemen wearing blue.
A The one with the handcuffs on.
The Court: The record will reflect the identification of the defendants.
Mr. Goldman: Q Can you describe the truck to me?
A All I know is it was a beer truck.
Q Do you know what color the truck was?
A Blue and white.
Q What did you see these two men do?
The Court: All you called this witness for was to identify the vehicle.
Mr. Goldman: All right. I am satisfied, if the Court is.
J. Lamar Bennett, another witness for plaintiff-respondent, testified:
Q [by Mr. Goldman] What is your occupation?
A I am employed with De Luca Importing Company.
Q Are you familiar with Nevada Beverage Company?
A Yes, I am.
Q Are you familiar with Pioneer Trucking? "A Yes, I am.
A Yes, I am.
Q What is the connection?
A I am secretary-treasurer and comptroller of both of them.
Q Were you secretary-treasurer of both of these organizations on July 2, 1971?
A That is correct.
Q Did you have in your employ at that time a Freddie Watkins or Luther Graves?
A No, I did not.
. . .
Mr. Goldman: Q Mr. Bennett, I hand you what has been marked as State's proposed
Exhibit 1 and 2.
With respect to No. 1, can you identify that?
A Yes. This is a registration on one of our vehicles, number 52.
Q Exhibit 2?
A This is a lease agreement between Pioneer Trucking Company and Nevada Beverage
Company.
The Court: Why do you need that agreement? You don't bring a deed in here when a
house is burglarized, do you?
Mr. Goldman: Q Do you know who was driving the truck leased on State's proposed
Exhibit 1 on July 2, 1971?
A Yes, our employee, Al Stark.
The Court: Was that truck owned by Pioneer Trucking Company on that date?
The Witness: Yes, sir.
Mr. Goldman: Q In whose possession was that truck?
A Nevada Beverage Company.
Q Pursuant to the lease agreement?
A Yes, sir.
Although Mr. Bennett testified regarding the aforementioned lease agreement, and it was
examined by counsel and the court, it was never received in evidence at the preliminary
hearing.
The defendants-appellants claim that the evidence adduced at the hearing was insufficient
to hold them to answer the charge, because the truck they burglarized was not described with
sufficient specificity by the witnesses who testified at the hearing. We reject that contention.
The evidence adduced was sufficient to show that a crime had been committed and that there
were reasonable grounds to believe that defendants-appellants had committed it. See State v.
von Brincken, 86 Nev. 769, 476 P.2d 733 (1970). The standard having been met, the justice
of the peace properly bound Watkins and Graves over to the district court for trial, and
the district judge ruled correctly in denying their petition for habeas.
met, the justice of the peace properly bound Watkins and Graves over to the district court for
trial, and the district judge ruled correctly in denying their petition for habeas.
Affirmed.
____________
88 Nev. 392, 392 (1972) Spencer v. State
JOHN C. SPENCER, Appellant, v. THE
No. 6752
June 29, 1972 498 P.2d 1335
Appeal from judgment of conviction and sentence of the Sixth Judicial District Court,
Pershing County; Llewellyn A. Young, Judge.
Defendant was convicted and sentenced for robbery in the district court and defendant
appealed. The Supreme Court held that there is no Sixth Amendment right to counsel at
confrontation shortly after arrest but before being charged.
Affirmed.
Robert List, Attorney General, of Carson City, and Roland W. Belanger, District Attorney,
Pershing County, for Respondent.
Where fact that no members of defendant's race were on jury which convicted him resulted not from their
systematic exclusion but from his decision to commit crime in county where only one resided, equal
protection clause of Fourteenth Amendment was not violated, though defendant sought change of venue to
place where there were more members of his race. U.S.C.A.Const Amend. 14.
2. Criminal Law.
There is no Sixth Amendment right to counsel at confrontation shortly after arrest but before being
charged. U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
[Headnote 1]
Convicted of robbery, appellant first assigns as error the district court's refusal to change
venue from Pershing County, where the crime occurred, to some place where there are
more members of appellant's race. "[A] jury verdict violates the equal protection clause of
the Fourteenth Amendment only if it can be shown that members of the appellant's race
were excluded systematically from jury duty." Collins v. State, SS Nev. 16S, 170
88 Nev. 392, 393 (1972) Spencer v. State
where the crime occurred, to some place where there are more members of appellant's race.
[A] jury verdict violates the equal protection clause of the Fourteenth Amendment only if it
can be shown that members of the appellant's race were excluded systematically from jury
duty. Collins v. State, 88 Nev. 168, 170, 494 P.2d 956, 957 (1972). Here, the fact no
members of appellant's race were on the jury resulted, not from their systematic exclusion,
but from appellant's decision to commit a crime in a county where only one resides.
[Headnote 2]
Appellant also contends he was denied his Sixth Amendment right to counsel at a
confrontation shortly after his arrest, but before he was charged. The right he claims does not
exist. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877 (1972); Baker v. State, 88 Nev. 369, 498
P.2d 1310 (1972). Other assignments of error are equally without merit.
Since counsel for the appellant was appointed by the district court to handle this appeal,
Affirmed.
____________
88 Nev. 393, 393 (1972) Hulse v. Sheriff
ROBERT C. HULSE, Appellant, v. SHERIFF,
No. 6742
June 29, 1972 498 P.2d 1317
Appeal from order dismissing pre-trial petition for writ of habeas corpus. Eighth Judicial
Pre-trial habeas corpus proceeding by a licensed physician who was charged by criminal
complaint with unlawfully prescribing narcotic drugs. The district court denied writ, and
petitioner appealed. The Supreme Court, Batjer, J., held that although licensed physician had
written numerous prescriptions for an extremely large number of numorphan tablets for use
by a patient who was suffering from recurring diverticulitis, in view of facts that relationship
between physician and patient was a genuine physician-patient relationship, that physician's
prescription of the drug was in good faith, that there was nothing to suggest that physician
was concerned with anything except treatment of a genuine physical ailment and relief of
pain that such ailment was causing to patient, and that even final prescription was given
to relieve patient's professed pain and in hope that it would lead to his hospitalization, it
was improper to bind physician over for trial on charge of unlawfully prescribing narcotic
drugs.
pain that such ailment was causing to patient, and that even final prescription was given to
relieve patient's professed pain and in hope that it would lead to his hospitalization, it was
improper to bind physician over for trial on charge of unlawfully prescribing narcotic drugs.
Reversed.
Wiener, Goldwater, Galatz & Raggio, Ltd., of Las Vegas, for Appellant.
Robert List, Attorney General, Roy A. Woofter, District Attorney, Charles L. Garner,
1. Criminal Law.
Presumption exists that whenever a physician attends a patient the treatment he renders is given in good
faith; good faith means good intent and the honest exercise of physician's best judgment as to needs of
his patient; mere errors of judgment are not evidence of bad faith. NRS 453.030, 453.080, subd. 1.
2. Criminal Law.
In order to bind over a physician charged with unlawfully prescribing narcotics to the district court for
trial, it is necessary for the state to present evidence tending to overcome presumption that the physician
prescribed the narcotics in good faith. NRS 453.030, 453.080, subd. 1.
3. Drugs And Narcotics.
Number of prescriptions or amount of pills prescribed or an infraction of dating requirements in and of
themselves do not show unlawful intent on part of a licensed physician charged with unlawfully prescribing
narcotics. NRS 453.030, 453.080, subd. 1.
It is incumbent upon the state to prove criminal intent of a physician who prescribes narcotics to a patient,
and absent operative facts in support of a lack of good faith there is no crime committed by a licensed
physician prescribing narcotics to a patient. NRS 453.030, 453.080, subd. 1.
5. Criminal Law.
Burden is not on accused by way of an affirmative defense to prove either good faith or absence of
criminal intent in circumstances where proof is deficient to show that a crime has been committed; only
when the evidence has established the commission of a crime, and that the accused probably committed it,
may such a burden be imposed. NRS 453.190.
6. Criminal Law.
Although licensed physician had written numerous prescriptions for an extremely large number of
numorphan tablets for use by a patient who was suffering from recurring diverticulitis, in view of facts
that relationship between physician and patient was a genuine physician-patient
relationship, that physician's prescription of the drug was in good faith, that there
was nothing to suggest that physician was concerned with anything except treatment
of a genuine physical ailment and relief of pain that such ailment was causing to
patient, and that even final prescription was given to relieve patient's professed pain
and in hope that it would lead to his hospitalization, it was improper to bind physician
over for trial on charge of unlawfully prescribing narcotic drugs.
in view of facts that relationship between physician and patient was a genuine physician-patient
relationship, that physician's prescription of the drug was in good faith, that there was nothing to suggest
that physician was concerned with anything except treatment of a genuine physical ailment and relief of
pain that such ailment was causing to patient, and that even final prescription was given to relieve patient's
professed pain and in hope that it would lead to his hospitalization, it was improper to bind physician over
for trial on charge of unlawfully prescribing narcotic drugs. NRS 453.030, 453.080, subd. 1.
OPINION
The appellant is a licensed physician practicing medicine in Las Vegas. He was charged by
criminal complaint with unlawfully prescribing narcotic drugs in violation of NRS 453.030
1
and NRS 453.080(1).
2
After a preliminary examination the appellant was bound over to the
district court for trial. He petitioned for a writ of habeas corpus, contending that there was not
sufficient evidence presented to the magistrate to constitute probable cause to believe that a
crime had been committed or that he had committed a crime. The district court denied the
writ and dismissed the petition. This appeal followed.
The appellant practiced medicine in Las Vegas in association with two other physicians.
On several occasions one Larry Chapman had been treated by one of the appellant's associates
for a bowel disorder known as diverticulitis. That physician had prescribed an antibiotic and
the drug numorphan,
3
a narcotic, to relieve the patient's pain. According to that doctor's
records the patient was allergic to analgesics, but he had been able to take numorphan without
a reaction.
____________________

1
NRS 453.030: It shall be unlawful for any person to manufacture, possess, have under his control, sell,
prescribe, administer, dispense, or compound any narcotic drug, except as authorized in NRS 453.010 to
453.240, inclusive.

2
NRS 453.080: (1) A physician or a dentist, in good faith and in the course of his professional practice
only, may prescribe, administer, and dispense narcotic drugs, or he may cause the same to be administered by a
nurse or intern under his direction and supervision.

3
Numorphan is the registered trade name for oxymorphone, also known as dihydrohydroxymorphinone, a
derivative of dihydrohydroxycodeinone. The Merck Index, (Encyclopedia of Chemicals and Drugs) 775, 8th Ed.
(1968); cf. State v. Livingston, 469 P.2d 632 (Ore.App. 1970).
In January of 1970, the appellant's associate was unable to see Chapman, and he was given
an appointment with the appellant. The appellant reviewed the patient's medical record and
took from him a history of abdominal pain which had been diagnosed as diverticulitis. The
patient also related that he had been treated by other physicians for that condition before
seeing the appellant's associate. A physical examination of the patient conducted by the
appellant revealed that he had considerable pain in the lower left side of his abdomen. This
fact, together with the patient's medical history, suggested to the appellant that Chapman was
suffering from recurring diverticulitis. The appellant suggested a diet and prescribed a
combination of antibiotics to combat any infection that might be causing intestinal
inflammation, and numorphan to relieve pain.
The appellant saw Chapman at periodic office visits during the next several months. He
testified that he continued to prescribe antibiotics and numorphan to enable the patient to
function normally in his occupation. On one of the office visits, when the appellant suspected
that a complication had developed in the nature of a diverticular abscess, he referred the
patient to another physician who saw him on several occasions. That physician's examination
of the patient essentially confirmed that Chapman suffered pain and had symptoms
characteristic of diverticulitis. A berium enema was given by a radiologist and x-rays were
taken, but the quality of the x-rays was such that the actual presence of diverticulitis could
neither be confirmed nor excluded. The appellant arranged for Chapman to receive hospital
treatment, but according to appellant's testimony the patient contended that his finances
would not permit hospitalization.
Over the course of approximately seven months the appellant saw Chapman some
twenty-four times. Some visits were at regularly scheduled appointments and some were
unscheduled. A total of sixty-eight prescriptions were written for the patient, all for ten
milligram numorphan tablets. The appellant's office records were somewhat sketchy.
Sometimes he would make an entry describing what occurred at an office visit, and
sometimes he would not. Sometimes he would note what medication he prescribed for the
patient, and sometimes he would not. On several of the patient's visits the appellant wrote out
more than one prescription for the drug numorphan, and some of the prescriptions were
undated. In all, the appellant prescribed numorphan for the patient at the rate of
approximately 50 tablets per day over the seven month period.
The appellant testified that he wrote multiple prescriptions, and that he wrote undated
prescriptions because occasionally he planned to be out of town and away from his office,
and he did not want the patient to run out of the medication.
and that he wrote undated prescriptions because occasionally he planned to be out of town
and away from his office, and he did not want the patient to run out of the medication. His
testimony was to the effect that he was genuinely concerned about the amount of pain the
patient was suffering and the persistence of that pain.
Eventually the appellant became concerned about the amount of numorphan Chapman
seemed to require, and he testified that they discussed its narcotic characteristics. He claimed
to have encouraged the patient to try to control his use of numorphan, and that he believed the
patient was tapering off in his use of the drug. Later, however, when the patient's tolerance
seemed to be increasing, the appellant became concerned about possible addiction. He further
testified that he had no prior experience with any addict so he made inquiry of the Las Vegas
police department to see if Chapman had any record of drug addiction. He was informed that
there was no record.
In August of 1970 an investigator from the Clark County District Attorney's office
informed the appellant that Chapman was being investigated for forged prescriptions, and that
several physicians were under investigation also. The appellant asked the investigator what he
should do if he saw Chapman again. He was told to telephone the investigator. The appellant
did have occasion to see Chapman again, at the hospital parking lot, and they discussed the
forged prescriptions. The appellant told the patient that unless he consented to being
hospitalized he could not prescribe any more medication for his pain. The patient continued
to deny financial means to become hospitalized, complained of continuing pain and requested
another prescription. The appellant gave the patient a final prescription, then called the
investigator and related what had happened at this confrontation with Chapman.
Throughout the entire period of some seven months the appellant charged the patient only
for the office visits, and then only the routine fee. No charge was made for the unscheduled
visits or for the times the appellant saw the patient without making a notation on his chart. No
charge was ever made for the prescriptions. The investigator who testified at the preliminary
examination admitted that there was no evidence that the appellant received anything by way
of profit from the prescriptions given to Chapman, and the state acknowledged that the
investigation of the appellant failed to disclose any evidence that he had prescribed the
narcotic numorphan for any other individual.
On the record before us it appears that the relationship between appellant and Chapman
was a genuine physician-patient relationship.
between appellant and Chapman was a genuine physician-patient relationship. Furthermore, it
appears that the appellant's prescription of the drug numorphan was in good faith. There is
nothing in the record to suggest that the appellant was concerned with anything except the
treatment of a genuine physical ailment and the relief of the pain that such ailment was
causing to the patient. Even the final prescription was given to relieve Chapman's professed
pain and in the hope that it would lead to his hospitalization. Moreover, the appellant reported
what he had done to the district attorney's office in accordance with instructions.
In order for a magistrate to bind a defendant over to the district court for trial it must
appear from the evidence at the preliminary examination that there is probable cause to
believe that a criminal offense has been committed and that the defendant has committed it;
otherwise the magistrate must discharge him. NRS 171.206; Kinsey v. Sheriff, 87 Nev. 361,
487 P.2d 340 (1971); State v. von Brincken, 86 Nev. 769, 476 P.2d 733 (1970). Here the
evidence must show probable cause to believe that the appellant prescribed the narcotic drug
either outside the scope of the physician-patient relationship, or that he did so without the
good faith required by the statute. The proof presented to support the charges against the
appellant fails to meet those criteria.
[Headnote 1]
The law affords every physician a presumption that whenever he attends a patient the
treatment he renders is given in good faith. Good faith means good intent and the honest
exercise of the physician's best judgment as to the needs of his patient. Mere errors of
judgment are not evidence of bad faith. Smith v. State, 13 N.E.2d 562 (Ind. 1938). The term
good faith has been defined as an honest, lawful intent, and as the opposite of fraud and bad
faith. People v. Nunn, 296 P.2d 813 (Cal. 1956).
[Headnote 2]
In order to bind over a physician charged with unlawfully prescribing narcotics to the
district court for trial, it is necessary for the state to present evidence tending to overcome the
presumption that the physician prescribed the narcotics in good faith.
We have before us evidence of numerous prescriptions of an extremely large number of
pills of narcotic nature, and we are certain that the magistrate as well as the district judge
were deeply concerned about this fact, yet we find no evidence in this record to show that the
prescribing of this volume of pills over a period of some seven months amounts to bad
faith.
a period of some seven months amounts to bad faith. Two physicians appearing as witnesses
for the state testified that numorphan administered intravenously or intramuscularly was ten
times stronger than morphine. However, there is no evidence of the potency of morphine, nor
evidence of what would constitute a bad faith prescription or prescriptions of morphine.
Courts cannot take judicial notice of the potency of either morphine or numorphan or of what
amount is excessive. Furthermore, there is no evidence of any prescription of numorphan to
be administered intravenously. All of the numorphan prescribed for Chapman by the
appellant was for oral consumption.
The appellant also testified that numorphan was considered to be ten times stronger than
morphine.
4
When asked on cross-examination about the known tolerance of narcotics he
stated that upon his personal knowledge addicts had on occasion been given and had tolerated
as much as five grams of morphine intravenously, which would be comparable in potency to
about five hundred 10-milligram numorphan tablets.
There appears to be only limited statutory controls on the kind or quantity of any narcotic
drug that may be prescribed for the use of any individual. In NRS 453.090(3)(a) the
legislature places a limit on the amount of paregoric and codeine that may be prescribed for
the use of any one person within a 48-hour period, but modifies the effect of that section by
NRS 453.090(4) which reads: Nothing in this section shall be construed to limit the kind and
quantity of any narcotic drug that may be prescribed, administered, dispensed, or sold to any
person or for the use of any person or animal when it is prescribed, administered, dispensed,
or sold in compliance with the general provisions of NRS 453.010 to 453.240, inclusive.
Pursuant to NRS 453.100(1), physicians are allowed, within limited amounts and time
periods, to administer narcotic drugs without making a record.5 They are limited to
dispensing, without record, to any one individual during any 4S-hour period a one-half
grain of morphine, and numorphan in an amount not to exceed in pharmacologic potency
any of the drugs named in NRS 453.100{1) in the quantity stated.
____________________

4
Dr. Robert C. Hulse being questioned on direct examination by his attorney:
Q. Doctor, we heard some testimony about comparative strengths of numorphan and morphine. Would you
tell His Honor what the comparative strengths of these two drugs are in various forms of administration?
A. Numorphan can be prescribed in two forms, either by injection or orally. The injectable form of
numorphan is approximately ten times as strong as the oral form. Which is to say, you give one milligram of
numorphan by injection. The tablet size is ten milligrams. Numorphan is also, by injection, ten times more
potent than morphine. This is an average figure. . . .
Q. One milligram of numorphan by injection versus one milligram of morphine by injection, what would be
the strength?
A. The numorphan is considered to be ten times stronger than the morphine.
limited amounts and time periods, to administer narcotic drugs without making a record.
5
They are limited to dispensing, without record, to any one individual during any 48-hour
period a one-half grain of morphine, and numorphan in an amount not to exceed in
pharmacologic potency any of the drugs named in NRS 453.100(1) in the quantity stated.
However, because the record does not reveal the relative pharmacologic potency of
numorphan to the drugs listed in NRS 453.199(1), we cannot nor could the magistrate or the
district court determine how much numorphan might be dispensed without record.
6
There
are no other statutory provisions to assist or guide the courts in determining when narcotic
prescriptions have been issued in bad faith.
[Headnotes 3, 4]
Some evidence of an unlawful intent is required. The number of prescriptions or amount
of pills prescribed or an infraction of the dating requirements in and of themselves do not
show unlawful intent. Criminal intent is the essential element of proof. It is incumbent upon
the state to prove it, and absent operative facts in support of a lack of good faith there is no
crime committed by a licensed physician prescribing narcotics to a patient.
____________________

5
NRS 453.100, in pertinent part reads as follows: 1. Every physician, dentist, veterinarian, or other person
who is authorized to administer or professionally use narcotic drugs, shall keep a record of such drugs received
by him, and a record of all such drugs administered, dispensed, or professionally used by him otherwise than by
prescription. It shall, however, be deemed a sufficient compliance with this subsection if any such person using
small quantities of solutions or other preparations of such drugs for local application shall keep a record of the
quantity, character, and potency of such solution or other preparations purchased or made up by him, and of the
dates when purchased or made up, without keeping a record of the amount of such solution or other preparation
applied by him to individual patients.
Provided: That no record need be kept of narcotic drugs administered, dispensed, or professionally used in
the treatment of any one patient when the amount administered, dispensed, or professionally used for that
purpose does not exceed in any 48 consecutive hours:
(a). Four grains of opium; or
(b). One-half of a grain of morphine or of any of its salts; or
(c). Two grains of codeine or of any of its salts; or
(d). One grain of extract of cannabis or 1 grain of any more potent derivative or preparation of cannabis, or
(e). A quantity of any other narcotic drug or any combination of narcotic drugs that does not exceed in
pharmacologic potency any one of the drugs named above in the quantity stated.

6
The approximate U.S. equivalent of a milligram is 0.015 grains. (Webster's Third New International
Dictionary, Unabridged, (1968).) Four 10-milligram tablets would contain slightly more than one-half of a grain
(approximately 0.616 grains).
crime committed by a licensed physician prescribing narcotics to a patient.
[Headnote 5]
The burden is not on the accused by way of an affirmative defense to prove either good
faith or the absence of criminal intent in circumstances where the proof is deficient to show
that a crime has been committed. Only when the evidence has established the commission of
a crime, and that the accused probably committed it, may such a burden be imposed. NRS
453.190;
7
Wrenn v. Sheriff, 87 Nev. 85, 482 P.2d 289 (1971).
[Headnote 6]
The magistrate erred in binding the appellant over for trial and the district court should
have granted habeas corpus. We reverse the order dismissing the petition, and the district
court is directed to issue the writ of habeas corpus discharging the appellant from restraint.
This opinion shall not be construed as barring further prosecution by the office of district
attorney. NRS 178.562(2).
Zenoff, C. J., and Thompson and Gunderson, JJ., concur.
Respectfully, I dissent.
Robert C. Hulse was charged by criminal complaint with unlawfully prescribing narcotic
drugs in violation of NRS 453.030 and NRS 453.080, subsection 1. After a lengthy
preliminary hearing before the magistrate, Doctor Hulse was held to answer the charge in the
district court. There he filed a habeas petition challenging the sufficiency of the evidence
adduced at the preliminary hearing. The district judge reviewed that evidence and found
therefrom probable cause to believe that an offense had been committed and Doctor Hulse
had committed it.
1
The district judge denied the habeas petition; hence, this appeal.
____________________

7
NRS 453.190: In any complaint, information, or indictment, and in any action or proceeding brought for
the enforcement of any provision of NRS 453.010 to 453.240, inclusive, it shall not be necessary to negative any
exception, excuse, proviso, or exemption contained in NRS 453.010 to 453.240, inclusive, and the burden of
proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.

1
NRS 171.206:
If from the evidence it appears to the magistrate that there is probable cause to believe that an offense has
been committed and that the defendant has committed it, the magistrate shall forthwith hold him to answer in the
district court; otherwise the magistrate shall discharge
appeal. I agree with the rulings of the magistrate and the district judge, and I would hold
Doctor Hulse to answer the charge in the district court.
Robert C. Hulse is a doctor of medicine and licensed to practice in the State of Nevada.
The evidence is uncontradicted that within a period of 7 months Doctor Hulse gave one Larry
Chapman numerous prescriptions, many undated, and on some occasions as high as 8
prescriptions on a single day, for a total sum of 10,680 ten-milligram Numorphan pills. As
the majority opinion recites: Two physicians appearing as witnesses for the state testified
that numorphan administered intravenously or intramuscularly was ten times stronger than
morphine. The majority is troubled because there is no [direct] evidence of the potency of
morphine. . . and therefore the record does not spell out with specificity when the number of
prescriptions given constitutes bad faith on the part of the doctor. Yet the record below is
clear that Doctor Hulse continued to give Chapman multiple, undated prescriptions for huge
dosages of the potent drug, many on a single day, even after he was advised by the authorities
that Chapman was an addict. Doctor Hulse kept no record of the 10,680 ten-milligram
Numorphan pills he prescribed for Chapman. This evidence in the record, to me, meets the
test. As this court has said so many times:
At a preliminary examination or in proceedings before a grand jury, the issue of guilt or
innocence of the accused is not involved. Marcum v. Sheriff, 85 Nev. 175, 451 P.2d 845
(1969). The evidence need not be sufficient to support a conviction. Maskaly v. State, 85
Nev. 111, 450 P.2d 790 (1969). Nor must the State produce the quantum of proof required to
establish the guilt of the accused beyond a reasonable doubt. Robertson v. Sheriff, 85 Nev.
681, 462 P.2d 528 (1969). To commit an accused for trial, the State is not required to negate
all inferences which might explain his conduct, but only to present enough evidence to
support a reasonable inference that the accused committed the offense. Johnson v. State, 82
Nev. 338, 418 P.2d 495 (1966); Beasley v. Lamb, 79 Nev. 78, 378 P.2d 524 (1963). Kinsey
v. Sheriff, 87 Nev. 361, 363, 487 P.2d 340, 341 (1971).
I would affirm the order of the district judge denying Hulse's petition for habeas and
order that Hulse be held to answer the charge in the district court.
____________________
him. The magistrate shall admit the defendant to bail as provided in this Title [Title 14, Procedure in Criminal
Cases]. After concluding the proceeding the magistrate shall transmit forthwith to the clerk of the district court
all papers in the proceeding and any bail taken by him.
petition for habeas and order that Hulse be held to answer the charge in the district court.
____________
88 Nev. 403, 403 (1972) Lightford v. Sheriff
CALVIN LIGHTFORD, Appellant, v. SHERIFF,
No. 6906
June 30, 1972 498 P.2d 1323
Appeal from decision and order of Eighth Judicial District Court, Clark County; Howard
W. Babcock, Judge.
Petition for habeas challenging indictment on ground that evidence presented to grand jury
concerning alleged unlawful sale of narcotics did not meet statutory standard. The district
court denied petition, and petitioner appealed. The Supreme Court held that grand jury
testimony of eyewitness police officer, who had been concealed in cab of cab-over-camper
pickup surveillance truck and who had witnessed from distance of about 25 feet the alleged
transfer of narcotics from defendant to another person was legal evidence, best evidence in
degree and was not hearsay or secondary evidence within statutory standard for grand jury
evidence, and thus State's failure to call as witness person to whom narcotics had allegedly
been turned over did not render inadmissible the eyewitness police officer's testimony.
Affirmed.
George E. Graziadei and Don Aimar, of Las Vegas, for Appellant.
1. Criminal Law.
Best evidence rule is confined to documentary evidence and does not apply to parol evidence so as to
exclude otherwise competent testimony of witness on ground that another witness, who might give more
conclusive evidence, ought to be called.
2. Criminal Law.
Grand jury testimony of eyewitness police officer, who had been concealed in cab of cab-over-camper
pickup surveillance truck and who witnessed from distance of about 25 feet the alleged
transfer of narcotics from defendant to another person was "legal evidence," and
"best evidence in degree" and was not "hearsay or secondary evidence" within
statutory standard for grand jury evidence, and thus State's failure to call as witness
person to whom narcotics had allegedly been turned over did not render inadmissible
the eyewitness police officer's testimony.
truck and who witnessed from distance of about 25 feet the alleged transfer of narcotics from defendant to
another person was legal evidence, and best evidence in degree and was not hearsay or secondary
evidence within statutory standard for grand jury evidence, and thus State's failure to call as witness
person to whom narcotics had allegedly been turned over did not render inadmissible the eyewitness police
officer's testimony.
3. Habeas Corpus.
On petition for habeas challenging indictment on ground that evidence presented to grand jury
concerning alleged unlawful sale of narcotics did not meet statutory standard that grand jury can receive
none but legal evidence, and the best evidence in degree, to exclusion of hearsay or secondary evidence,
record demonstrated that crime had been committed and that there was reasonable cause to believe
defendant committed it.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying Calvin Lightford's petition for
habeas. Lightford was indicted by the Clark County Grand Jury for the unlawful sale of
narcotics. He challenged the indictment by filing the instant petition for habeas, claiming that
the evidence presented to the grand jury did not meet the standard required by NRS 172.135,
subsection 2, which reads: The grand jury can receive none but legal evidence, and the best
evidence in degree, to the exclusion of hearsay or secondary evidence.
The transcript shows that a police officer concealed in the cab of a cab-over-camper
pickup surveillance truck witnessed from a distance of about 25 feet the alleged transfer of
narcotics from Lightford to one Elbert Toby Williams and that immediately thereafter
Williams turned over the narcotics to the police officer. The police officer testified regarding
what had occurred. Williams did not testify before the grand jury. Lightford urges on appeal
that the failure of Williams to testify violates the Best Evidence Rule and that Williams,
rather than the police officer who did testify, should have been called before the grand jury.
[Headnotes 1, 2]
The courts have repeatedly held that the Best Evidence Rule is confined to documentary
evidence and that the rule does not apply to parol evidence so as to exclude the otherwise
competent testimony of a witness on the ground that another witness, who might give more
conclusive evidence, ought to be called. The testimony of the eyewitness police officer was
legal evidence, and the best evidence in degree, and it was not hearsay or secondary
evidence.
or secondary evidence. The State's failure to call Williams did not render inadmissible the
eyewitness police officer's testimony.
1

[Headnote 3]
The record below demonstrates that a crime had been committed and that there was
reasonable cause to believe Lightford committed it. Therefore, the order of the district court
denying the habeas petition is affirmed.
____________________

1
The record also reflects that the transaction was photographed in color by a Super 8 motion picture camera.
____________
88 Nev. 405, 405 (1972) Miller v. Munger
GEORGE E. MILLER, NEVADA STATE WELFARE ADMINISTRATOR, and the
NEVADA STATE WELFARE BOARD, Appellants, v. SARAH MUNGER, Respondent.
No. 6747
July 5, 1972 498 P.2d 1336
Appeal from district court's reversal of administrative review board's determination.
Eighth Judicial District Court, Clark County; William P. Compton, Judge.
The district court found that applicant for ADC was entitled to aid and appeal was taken.
The Supreme Court, Zenoff, C. J., held that applicant for ADC established her right to aid
notwithstanding transfer of her home to her sister in satisfaction of debts due sister for past
assistance.
Affirmed and remanded.
Thompson and Mowbray, JJ., dissented.
Robert List, Attorney General, and Margie Ann Richards, Deputy Attorney General, for
Appellants.
B. Mahlon Brown, III, Clark County Legal Services Program, Las Vegas, for Respondent.
Regulation relating to effect of transfer or sale of real property by applicant for ADC benefits places on
applicant burden of establishing by sufficient record the bona fides of any transfer of real property and
that use must be made of all available evidence in order to discount fraud.
real property and that use must be made of all available evidence in order to discount fraud.
Applicant for ADC established her right to aid notwithstanding transfer of her home to her sister in
satisfaction of debts due sister for past assistance. NRS 425.010-425.250.
OPINION
This case involves the application of Sarah Munger for aid to her six dependent children
pursuant to the provisions of NRS 425.010-425.250.
Sarah Munger at one time was married to Marion Munger. They had six children. Marital
difficulties arose, a divorce was procured on June 12, 1969 and Sarah was given custody of
the children. After making only a few support payments totaling $724.00 Marion decamped.
Prior to the divorce and thereafter Sarah's sister, Lupe Morgan, had given great financial
assistance to Sarah and her children.
Sarah's first application for ADC benefits was made on May 23, 1969 and denied June 7,
1969 because the assessed value ($8,782) of her home was in excess of the agency limits.
On November 20, 1969 Sarah transferred her equity in the house to her sister, Lupe
Morgan, in satisfaction of the debts accumulated before and after the divorce. An allegation
was made that the mortgage company had been threatening foreclosure.
Sarah made a second application on April 9, 1970. This application was denied on the
basis that Sarah's [h]ome [was] sold to settle debts which were not legally enforceable.
A third application was made on May 19, 1970 and denied June 3, 1970 on the ground that
[p]roperty [was] transferred without consideration commensurate with value of property.
As to the second denial a notice of appeal was lodged on April 30, 1970 with the Welfare
Division and a request was made for a statutory fair hearing. The hearing was had on July 7,
1970 before hearing officer Vincent Fallon. Sarah was represented by her present counsel. At
the hearing Sarah presented evidence of the market value of the house (between $29,000 and
$30,000 less an estimated $1,000 cost to make the property salable). Next, evidence as to the
financial assistance from the Morgans was presented. Several payments were made by check,
but in the main no receipts were received for the various cash advances made by the
Morgans.
the various cash advances made by the Morgans. The Morgans signed a verified statement
listing $6,585.89 of advances to Sarah and the same was admitted into evidence.
The state then presented its case. No evidence was presented to rebut or impeach Lupe
Morgan's notarized statement as to the total money advanced to Sarah. No evidence was
presented to rebut why Sarah sold her house. Mrs. Miller, the case worker, stated that the fair
market value of the house was close to $30,000 encumbered with an $18,000 mortgage. The
assessed value of the house was $8,782 which exceeded the agency standard of $6,650 (since
increased to $7,500). The bulk of the state's case dealt with arguments as to what constitutes a
legally enforceable debt within the welfare context.
A petition for review was filed on August 17, 1970 in district court seeking judicial review
of the administrative action. The hearing was had based on the administrative record before
Judge Compton. Findings of fact and conclusions of law were incorporated in his decision
which reversed the Welfare Division's determination. The court basically found that Sarah
had established her case for ADC. The court found specifically:
4. That at the hearing, Petitioner proved that she transferred her equity in the family
home to her sister in full satisfaction of debts due the sister for support of the Petitioner and
her minor children.
5. That at the hearing, Petitioner proved a debt due to her sister of $6,500 and an equity
in the house of $6,000.
6. That at the hearing, Petitioner proved that it was necessary to transfer her equity in the
house to her sister to save the home from foreclosure, and further, to maintain a home for her
minor children.
7. That the conclusion reached by Respondents was in no way supported by the record
and was arbitrary, capricious, and in violation of Petitioner's rights of due process and
fundamental fairness; and further, that the Respondents offered no evidence contrary to that
of Petitioner.
8. That Petitioner transferred her equity in the real property for a legally enforceable debt
in accordance with Section 204.32 of the Welfare Manual.
9. That Petitioner was qualified for Aid to Dependent Children from the date of her
original application in April, 1970.
From this adverse ruling the Welfare Division has prosecuted their appeal asserting that
the lower court exceeded its jurisdiction by substituting its own judgment for that of the
Welfare Board.
The right for judicial review of an adverse administrative decision is afforded an applicant
for ADC statutorily by NRS 425.120(3). This right of review is limited in scope, viz:
The district court shall either affirm the decision of the welfare division, or, if it
concludes that the findings of the welfare division are not supported by evidence or that the
welfare division's decision is arbitrary, capricious or otherwise contrary to law, reverse the
decision and remand the case to the welfare division for further proceedings in conformity
with the decision of the court.
This has been held to mean that, [i]n reviewing the decision of the Welfare Division this
court is limited to the same scope of review as the district court. It is the function of this
court, as well as the lower court, to review the evidence presented to the board to determine if
the board's decision was supported by the evidence and to ascertain whether that body acted
arbitrarily, capriciously, or contrary to the law. NRS [425.120(3)]; Barnum v. Williams, 84
Nev. 37, 436 P.2d 219 (1968); Bd. Chiropractic Exam'rs v. Babtkis, 83 Nev. 385, 432 P.2d
498 (1967). Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972).
Focusing on the issue presented to the administrative review board, we find that Nevada
State Welfare Division Manual Chapter on Resource DeterminationADC (8/71 204.32
Effect of Transfer or Sale of Real Property) provides in effect that a period of ineligibility for
ADC benefits may be predicated on the sale of real estate for which commensurate value was
not received, or stated differently, but achieving the same result, property was transferred to
settle an unenforceable debt.
1

[Headnote 1]
As to Sarah's debt to the Morgans, a verified statement was used to prove the amount.
Welfare ignored all of these, even those evidenced by checks, in the computation of the
ineligibility period. In considering the requirements of Sec. 204.32(4) that the debt be a
"matter of record and verified," we must keep in mind the legislative admonishment that
the provisions of the ADC chapter shall be liberally construed to provide assistance for
dependent children and to keep these children in their own homes whenever possible.
____________________

1
204.32 EFFECT OF TRANSFER OR SALE OF REAL PROPERTY
A. PRIOR TO APPLICATION FOR ASSISTANCE
If the following conditions are met, the transfer or sale will not affect eligibility for assistance:
1. Consideration commensurate with the value of the property was received. Value of the property is based
on general property value of similar real estate in the community.
. . .
4. Transfer or sale was made to settle a legally enforceable debt which is a matter of record and has been
verified.
that the debt be a matter of record and verified, we must keep in mind the legislative
admonishment that the provisions of the ADC chapter shall be liberally construed to provide
assistance for dependent children and to keep these children in their own homes whenever
possible. NRS 425.020(1) and (2). A strict definition of matter of record appears in Black's
Law Dictionary (4th Ed. Rev. 1968): Any judicial matter or proceeding entered on the
records of a court, and to be proved by the production of such record.
2
Here we are
concerned with a welfare statute regulating applications by a class of persons not generally
possessed with sufficient sophistication to conduct their business affairs on the same level as
an attorney or businessman. To require a recorded court judgment or even a verified
promissory note signed by the party to be charged is beyond the standard to which welfare
applicants should be held. We interpret the requirements of Sec. 204.32(4) as placing upon
the applicant the burden of establishing by a sufficient record the bona fides of the particular
transaction and that use must be made of all available evidence in order to discount fraud.
3
Cf. Donato v. Wyman, 303 N.Y.S.2d 935 (N.Y.App. 1969).
Here, Sarah did the best she could to prove the debts. She used all available evidence.
There was no contention of fraud by Sarah (nor proof of same) upon the Welfare Division.
Also, it is not seriously contended that intra-family debts are not debts for the purposes of
ADC. At the district court hearing Mr. Samuelson, attorney for Welfare, stated: Your Honor,
as so often happens in these cases from fool statements made by some of our workers to
placate and we find in the record, Your Honor, on April 22, 1970, that the application was
denied because the house was sold to settle debts which were not legally enforcible. We
knocked that out of course. A debt owed to a brother or sister may be perfectly enforcible. . .
.
[Headnote 2]
Sarah met her burden that she was qualified to receive ADC benefits at the time of her
April 9, 1970 application. We affirm the district court's reversal of the administrative board's
decision and remand the case to the Welfare Division for further proceedings in conformity
with the decision of the lower court.
____________________

2
Similarly, A matter entered on the records of a court of record; a matter recorded in the place and manner
required by law. Ballentine's Law Dictionary (1948).

3
The issue as to legal sufficiency of the proof was neither raised nor briefed by the parties. We have included
the foregoing discussion for guideline purposes.
further proceedings in conformity with the decision of the lower court.
Affirmed and remanded.
Batjer and Gunderson, JJ., concur.
Thompson, J., with whom Mowbray, J., agrees, dissenting:
Although we grieve for Sarah and her six children, we cannot find that Welfare acted
arbitrarily, capriciously, or contrary to law in denying her application for A.D.C. benefits.
NRS 425.120(3). When Sarah first applied she was ineligible since the assessed value of her
home exceeded agency limits. Later, she transferred her home to her sister in satisfaction of
an alleged debt, and once more applied for benefits. That transfer would not affect eligibility
for assistance if made to settle a legally enforceable debt which is a matter of record and has
been verified. Welfare Manual Sec. 204.32. We presume that a record of the debt
contemplates a written acknowledgment of its existence made at or about the time the debt
was incurred, and given to the creditor for his or her protection. This requirement is
reasonable and apparently is designed to protect Welfare against the act of one who transfers
property away in order to become eligible for benefits. No such record of the debt exists in
this case. True, Sarah's sister testified at the agency hearing that she had advanced to Sarah
money, goods and services valued at $6,585.59 before receiving Sarah's home. This
testimony, given seven months after the transfer, cannot constitute the record contemplated
by the regulation. The absence of a record of the debt leads us to presume that the aid
supplied to Sarah by her sister was in the nature of a gift prompted by love and affection. Cf.
Donato v. Wyman, 303 N.Y.S.2d 935 (1969).
Only the parties to that transfer know of the motivation therefor, and only they are in a
position to prove that it was effectuated in good faith. Welfare is helpless to prove otherwise.
It can do no more than ask for the record of the debt which prompted the transfer, and if
such record is nonexistent, assume that the transfer was made solely for the purpose of
depleting Sarah's assets to a point where she would be entitled to benefits. Cf. NRS
427.200(5) of Nevada Old Age Assistance Act; NRS ch. 112, Uniform Fraudulent
Conveyance Act. Perhaps the understandable concern of the majority of this court for the
Munger family should be visited, instead, upon those families who are without assets
which disqualify them for assistance.
those families who are without assets which disqualify them for assistance. This, indeed, is
the true concern of Welfare.
____________
88 Nev. 411, 411 (1972) Notaro v. Sheriff
SAMUEL J. NOTARO, Appellant and Cross-Respondent, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent and Cross-Appellant.
No. 6824
July 7, 1972 498 P.2d 1351
Appeal from a pre-trial order denying a petition for a writ of habeas corpus, and
cross-appeal from a pre-trial order granting the writ and discharging the petitioner. Eighth
Judicial District Court; Howard W. Babcock, Judge.
The district court denied first petition but granted second. Petitioner appealed and the state
cross-appealed. The Supreme Court held that where preliminary transcript to which district
court referred in ruling on petitions for habeas corpus had not been docketed on petitioner's
appeal nor on state's cross-appeal, meaningful appellate review of order denying habeas
corpus was precluded, requiring affirmance of order; and that where order discharging
petitioner from restraint was entered on November 10, and filed on same date, and state's
notice of appeal was not filed until following January 5, state's cross-appeal was not timely
and Supreme Court lacked appellate jurisdiction.
Affirmed. Cross-appeal dismissed.
Raymond E. Sutton, of Las Vegas, for Appellant and Cross-Respondent.
Chief Deputy, Clark County, for Respondent and Cross-Appellant.
1. Habeas Corpus.
Where preliminary transcript to which district court referred in ruling on petitions for habeas corpus had
not been docketed on petitioner's appeal nor on state's cross-appeal, meaningful appellate review of order
denying habeas corpus was precluded, requiring affirmance of order.
2. Habeas Corpus.
Where order discharging petitioner from restraint was entered on November 10 and filed on same date,
and state's notice of appeal was not filed until following January 5, state's cross-appeal was not timely and
Supreme Court lacked appellate jurisdiction. NRS 34.380, subd. 4.
OPINION
Per Curiam:
Two separate criminal proceedings were brought against the appellant, each charging him
with possession of dangerous drugs in violation of NRS 454.395. After a preliminary
examination had been held on each of the charges the appellant was bound over to the district
court for trial in each case. The appellant petitioned for a writ of habeas corpus seeking his
release on each of the separate charges. The district court rendered its written decision on the
writ application on October 29, 1971, with reference to one of the cases, and on November
10, 1971, the court entered its order discharging the appellant from restraint and exonerating
his bond in that case. On December 17, 1971, the court entered its order denying the writ in
the other case. The appellant filed his notice of appeal on December 20, 1971. The state filed
its notice of appeal on January 5, 1972.
[Headnote 1]
In its written decision rendered on October 29, 1971, the district court made reference to
the preliminary hearing transcript in at least two instances. The order of November 10, 1971,
discharging the appellant in one of the cases, and the order of December 17, 1971, denying
habeas in the other case, both refer to the court's written decision rendered on October 29,
1971, which contained references to the preliminary hearing transcript. Yet neither the
appellant nor the state in its cross-appeal have caused a copy of that transcript to be docketed
here. As a result we have before us less than the complete record of the proceedings below,
and no part of the preliminary examination transcript upon which the district court's orders
placed at least some degree of reliance. A meaningful appellate review of the order denying
habeas is thus precluded, and that order is therefore affirmed.
[Headnote 2]
With respect to the state's cross-appeal, the order discharging the appellant from restraint
was entered on November 10, 1971, and filed on that same date.
1971, and filed on that same date. The state's notice of appeal not having been filed until
January 5, 1972, the appeal is not timely. NRS 34.380(4). The cross-appeal is therefore
dismissed for want of appellate jurisdiction.
____________
88 Nev. 413, 413 (1972) Wilson v. State
CHARLES LEE WILSON, Appellant, v. THE
No. 6656
July 11, 1972 498 P.2d 1342
Clark County; Clarence Sundean, Judge.
Defendant was convicted before the district court of robbery, and he appealed. The
Supreme Court, Gunderson, J., held that permitting witness, who was investigator for district
attorney and who was not listed in information, to testify was not reversible error where, as
soon as it appeared that prosecutor intended to adduce incompetent evidence, trial court,
which had thought that investigator could give competent evidence and believed that State
was excused from listing investigator because it had not reasonably expected to call him,
intervened sua sponte and sustained hearsay objection and defense counsel made no motion
for mistrial.
Affirmed.
Robert G. Legakes, Public Defender, and Michael A. Cherry, Deputy Public Defender,
Robert List, Attorney General, of Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Chief Deputy for Appeals, Clark County, for Respondent.
1. Criminal Law.
Even if admission, during redirect examination of officer who arrested accused, of pistol found in
automobile in which accused was riding when arrested was error, such error was harmless where testimony
was previously elicited during cross-examination of officer that he arrested accused because officer
believed accused guilty of a different robbery, and then found a gun with a shiny barrel. NRS 200.380.
2. Criminal Law.
Permitting witness, who was investigator for district attorney and who was not listed in information, to
testify in criminal prosecution was not reversible error where, as soon as it appeared that prosecutor
intended to adduce incompetent evidence, trial court, which had thought that investigator could give
competent evidence and believed that State was excused from listing investigator because it had not
reasonably expected to call him intervened sua sponte and sustained hearsay objection and defense counsel
made no motion for mistrial. NRS 173.045, subd. 2.
OPINION
Convicted of robbery in violation of NRS 200.380, appellant contends the trial court erred:
(1) in admitting into evidence a pistol which was found in the car in which Appellant was
riding when he was arrested;
(2) in permitting Luther J. Wills [an investigator for the District Attorney] to testify at the
trial since his name was not listed in the Information.
In the factual context of this case, neither contention has merit.
[Headnote 1]
1. The first claim of error relates to the fact that during redirect examination of the officer
who arrested appellant three nights after the robbery for which he was convicted, the
prosecutor offered into evidence a chrome-plated gun found in a car occupied by appellant
and three companions. In essence, appellant argues there was no evidence connecting this gun
with appellant; no evidence it was like the weapon used in the robbery, except that the victim
testified the robber's weapon also had a shiny barrel; no evidence, indeed, that appellant even
knew the gun was in the car; and therefore no foundation for its admission against appellant
as circumstantial evidence of another crime. This argument would require the most serious
attention, if the State had proved the gun's existence and offered it during direct examination
of the arresting officer. State v. Thompson, 364 P.2d 783 (Ore. 1961); People v. Smith, 108
N.E.2d 596 (Ill. 1952); People v. McCall, 52 P.2d 500 (Cal.App. 1935); People v. Yee Fook
Din, 39 P. 530 (Cal. 1895).
However, the record shows that on direct examination, neither the prosecutor nor the
witness mentioned the gun.
neither the prosecutor nor the witness mentioned the gun. It was on cross-examination, by
appellant's counsel, that testimony was first elicited that the witness originally arrested
appellant because he believed appellant guilty of a different robbery, and then found a gun
with a shiny barrel. With these facts proved by appellant, if subsequent admission of the
gun in specie was error, which we do not decide, that error was certainly harmless because it
did not substantially add to facts already properly before the jury. State v. Tranmer, 39 Nev.
142, 154 P. 80 (1915); see also Wyatt v. State, 77 Nev. 490, 499, 367 P.2d 104, 109 (1961).
[Headnote 2]
2. Appellant also assigns error because during the State's case in chief the prosecutor
called his own investigator to testify, seeking to elicit testimony about conversations with
another witness who was not called to testify. On appeal, the State has had the candor and
perception to admit that the investigator, who had no personal knowledge of any relevant
evidence, was not a competent witness.
However, the record shows that when the prosecutor called investigator Wills to the stand,
appellant's counsel did not object that the investigator's testimony would be incompetent as
hearsay, or deny appellant's right to confrontation. An objection then made, that forms the
predicate for appellant's claim of error, was that the investigator's name was not endorsed on
the Information in accord with NRS 173.045(2).
1
Apparently, because appellant's counsel
did not initially mention hearsay and related problems, the trial court thought the investigator
could give competent evidence, and believed the State was excused from listing him because
it had not reasonably expect[ed] to call him. Id.; cf. Dalby v. State, 81 Nev. 517, 406 P.2d
916 (1965).
As soon as it appeared the prosecutor intended to adduce incompetent evidence, the court
properly intervened sua sponte, cf. Garner v. State, 78 Nev. 366, 374 P.2d 525 {1962), and
sustained a hearsay objection appellant's counsel then made.2 Appellant's counsel made
no motion for a mistrial.
____________________

1
2. He [the District Attorney] shall endorse thereon [on the information] the names of such witnesses as are
known to him at the time of filing the same, and shall also endorse upon such information the names of such
other witnesses as may become known to him before the trial at such time as the court may, by rule or otherwise,
prescribe; but this shall not preclude the calling of witnesses whose names, or the materiality of whose
testimony, are first learned by the district attorney upon the trial. He shall include with each name the address of
the witness if known to him. He shall not endorse the name of any witness whom he does not reasonably expect
to call.
(1962), and sustained a hearsay objection appellant's counsel then made.
2
Appellant's
counsel made no motion for a mistrial.
Finding the assigned claims of error without merit, we affirm appellant's conviction and
sentence.
3

____________________

2
After establishing the investigator had gone to see one Oscar Feinhold, examination proceeded:
Q. Did you ask him if he was present on that night?
Defense Counsel: Object on the grounds [of] no foundation. What night?
Court: Sustained.
Q. All right. Why did you contact Mr. Feinhold?
A. To see
Defense Counsel: Objection, Your Honor, on the grounds there's no materiality.
Court: The objection is overruled.
A. To see if he would testify in this case for the State to the effect that
Court: Just a minute. That's enough.
Q. And in asking him if he would testify, what did he say?
Defense Counsel: Your Honor, I object. It's hearsay.
Court: Objection sustained.
Prosecutor: Your Honor, this would not be for the truth of the matter herein stated, just for the reason
defense counsel has consistently brought the point
Court: It's hearsay. Sustained.
Q. All right. In yourMr. Wills, what is your background in law enforcement?
Defense Counsel: I object. He can testify to anything he wants him to testify to, but I object to his
background. I think it's wasting the court's time. I haven't disqualified him as an expert, I've only disqualified
him as to what he's testifying here to today.
Court: Objection sustained.
Q. All right. Mr. Wills, did you feel that the capacity in law enforcement, that this witness was a necessary
witness?
Defense Counsel: I'll object, Your Honor, on the grounds it's asking for a conclusion.
Court: Yes, and it's a highly improper question. Objection sustained. The Court admonishes the jury to
draw no inferences from the question.
The court precluded further questioning, stating the only place you'll find out if a witness is called is right
here.

3
Neither the public Defender nor his staff represented appellant at trial of this matter in the court below.
____________
88 Nev. 417, 417 (1972) Sibson v. Farmers Insurance Group
PAT SIBSON, Appellant, v. FARMERS
INSURANCE GROUP, Respondent.
No. 6790
July 11, 1972 498 P.2d 1331
Appeal from the granting of summary judgment. Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
Action by insured against insurer after settlement of claim and release of claim to recover
additional damages. The district court granted summary judgment in favor of the insurer and
the insured appealed. The Supreme Court, Zenoff, C. J., held that where insured knew at time
she signed release in full of all claims and rights that it was to cover possible future medical
expenses resulting from automobile accident for which she obtained a one-year open medical
coverage, she knew that her condition could worsen in the future and there was no duress,
fraud, undue influence or overreaching by insurer's claim adjuster in obtaining the release,
release was valid and there was no mutual mistake or fact or overbearance which would
require that release be set aside.
Affirmed.
Echeverria and Osborne, and John T. Coffin and Arthur T. Nicholls, of Reno, for
Appellant.
Goldwater, Hill, Mortimer & Sourwine, and C. Frederick Pinkerton, of Reno, for
Respondent.
Release.
Where insured knew at time she signed release in full of all claims and rights that it was to cover possible
future medical expenses resulting from automobile accident for which she obtained a one-year open
medical coverage, she knew that her condition could worsen in the future and there was no duress, fraud,
undue influence or overreaching by insurer's claim adjuster in obtaining the release, release was valid and
there was no mutual mistake of fact or overbearance which would require that release be set aside.
OPINION
Pat Sibson was injured on November 4, 1968 when the car in which she was a passenger
was rear-ended by an uninsured motorist. Shortly after the collision Pat developed a
headache and the next day her neck became stiff.
headache and the next day her neck became stiff. She had X-rays taken and was treated by
one Dr. Sonderegger for her then-apparent injuries. The headache lasted about six weeks.
On February 4, 1969 Pat signed a Trust Agreement and Release in Full of All Claims and
Rights wherein, for a consideration of $2,500 and medical benefits for a one-year period, Pat
released Farmers Insurance Group from any claim arising from the November 4th accident.
AND FURTHER: In consideration of such payment and as a further consideration for this
release in settlement the undersigned represents and warrants that this is a full and final
release applying to all unknown and unanticipated injuries, deaths or damages arising out of
said accident, casualty, or event as well as those known or disclosed.
Settlement discussions occurred over a period of four months. Mrs. Sibson rejected the
company's initial offer of $1,300 and then demanded $2,500, plus open medical coverage for
one year, to which demand the company agreed. Prior to signing the above release Dr.
Sonderegger advised Pat that it was possible that she could continue to have difficulties for an
indefinite period of time in the future. She knew at that time not only of her neck discomfort
but of low back distress as well. There is no evidence of duress, fraud, undue influence or
overreaching by respondent's claim adjuster in obtaining the release.
In April or early May of 1969 Pat developed additional symptoms of injury to her back.
Her left leg went numb from the knee down, she experienced double vision and she
developed a very painful low backache. As the result of an examination and electromyogram
by one Dr. Morelli it was determined that Pat had a degenerating disc between the fourth and
fifth lumbar attributable to the accident.
On February 3, 1971 Pat filed her complaint against respondent for additional recompense
to cover her damages from the accident, all without noting or, indeed, offering to return the
release and the moneys received therefrom.
On motion by respondent a summary judgment was entered against Pat on two bases: (1)
the release was a valid contract binding upon Pat for all claims arising against respondent
from the uninsured motorist coverage, and (2) that a one-year contractual limitation period
appearing in the insurance contract was not complied with.
Appellant attacks these two grounds. We prefer to base our affirmance on the first ground
only. When Pat signed the release she knew it was to cover possible future medical expenses
for which she exacted a one-year open medical coverage.
expenses for which she exacted a one-year open medical coverage. She knew that her
condition could worsen in the future. There was no mutual mistake of fact or overbearance
which would allow us to set aside the release. The release is valid. Las Vegas Insurance
Adjusters v. Page, 88 Nev. 16, 492 P.2d 616 (1972).
Affirmed.
____________
88 Nev. 419, 419 (1972) Bussey v. Haymore
SHIRLEY BUSSEY, Appellant, v. RONALD
HAYMORE, Respondent.
No. 6809
July 11, 1972 498 P.2d 1332
Appeal from the granting of habeas corpus. First Judicial District Court, Carson City;
Frank B. Gregory, Judge.
Habeas corpus action by father to obtain custody of children from mother. The district
court awarded custody to father and mother appealed. The Supreme Court, Zenoff, C. J., held
that California court which granted divorce and awarded custody of children to mother had
continuing jurisdiction to enter custody change order on the basis of which father instituted
habeas corpus action in Nevada. The court also held that California court was not required to
make finding of changed circumstances.
Affirmed.
Robert A. Grayson, of Carson City, for Appellant.
Laxalt, Berry & Allison and Andrew MacKenzie, of Carson City, for Respondent.
1. Divorce.
Under California law, once jurisdiction attaches to grant a divorce and award custody of minor children
such jurisdiction is continuing and power to amend, modify or annul an award of custody as existing
conditions demand remains.
2. Divorce.
California court which granted divorce to mother and awarded her custody of children had continuing
jurisdiction to make binding change-of-custody order even though neither mother nor the children, who
resided in Nevada, participated in the custody hearing.
3. Notice.
Where a party proceeds to trial or hearing without protest as to any deficiencies in notice, such
deficiencies are waived.
4. Habeas Corpus.
Where mother who had obtained divorce and custody of children in California court and who had
subsequently moved to Nevada consulted a California attorney with reference to father's motion for
modification of custody, and the attorney generally appeared on mother's behalf, the Nevada Supreme
Court, in affirming habeas corpus order granting custody to father pursuant to California modification
decree, would assume that the California court's actions were regular, as against mother's contention that
she was denied procedural due process because proper service of father's motion for modification was not
made.
5. Divorce.
Under California law, there is no requirement of showing changed circumstances in order to obtain
change of custody provision in divorce decree. Cal.Civ.Code 4600.
6. Divorce.
As bearing on whether California order changing custody provision of divorce decree was entitled to full
faith and credit, Nevada court had at least as much leeway to disregard the order, to qualify it or to depart
from it as did the state where it was rendered.
7. Divorce.
Order of California court modifying custody provision of divorce decree and awarding custody of
children to father was not an abuse of discretion.
8. Habeas Corpus.
Where California proceedings resulting in order modifying custody provision of divorce decree and
awarding custody of children to father were had only 13 days before husband instituted habeas corpus
action in Nevada, habeas corpus court did not abuse its discretion in not conducting a full
change-of-custody hearing.
OPINION
Shirley (Haymore) Bussey obtained in California an interlocutory judgment of divorce by
default on May 19, 1967 wherein she attained the custody, care and control of Tammy
Haymore and her then-unborn child (now Shelly) plus an order for child support and other
relief. A final judgment of dissolution was entered August 7, 1970 incorporating the terms of
the interlocutory order.
After a remarriage, Shirley, with her children and new husband, moved to Carson City,
Nevada, where they have remained and where they intend to remain.
Ronald Haymore filed a modification motion with the California court during a support
payment contempt hearing on July 6, 1971, which motion was heard on November 4, 1971,
and culminated in an order modifying the custody award in favor of Ronald. Prior to the
modification hearing the court had ordered a marriage counselor to investigate the merits of
the request and report back to the court. An investigation was made by a Nevada probation
officer as to Shirley's home and environment in Carson City, also with a report back to the
court.
Shirley received actual notice of the custody hearing whereupon she contacted her
California counsel to represent her therein. On advice of counsel neither Shirley nor the
children attended or participated in any fashion in the custody hearing. Her counsel, however,
did appear and actively participated.
Armed with the custody change order Ronald instituted a habeas corpus action in Nevada
which was granted after a hearing on November 17, 1971, thirteen days after the California
modification, from which order this appeal is taken. The Nevada court refused to consider
evidence offered by appellant which in effect would have converted the habeas corpus
proceeding into a full custody hearing.
1. Appellant claims that the California court did not have jurisdiction over Shirley and
therefore could not make a binding change-of-custody order.
[Headnotes 1, 2]
The rule in California is very clear that once jurisdiction attaches to grant a divorce and
award custody of minor children such jurisdiction is continuing and power to amend, modify
or annul an award of custody as existing conditions demand remains. Noon v. Noon, 84
Cal.App.2d 374, 191 P.2d 35 (Cal.App. 1948); Rosin v. Superior Court, 5 Cal. Rptr. 421
(Cal.App. 1960); Fox v. Fox, 286 P.2d 521 (Cal.App. 1955).
[Headnotes 3, 4]
Appellant contends she was denied procedural due process because proper service of
respondent's motion for modification was not made. However, her present counsel
acknowledged to the court below that appellant had consulted a California attorney with
reference to the modification motion, and the record reflects that the attorney generally
appeared on her behalf. She has not attempted to show that such California counsel objected
to proceeding on grounds of insufficient notice. Where a party proceeds to trial or hearing
without protest as to any deficiencies in notice, such deficiencies are waived, 1 Witkin,
California Procedure 2d 651-52 {1970), and no contrary showing having been made, we
assume the California court's actions were regular. Cf. Raps v. Raps, 125 P.2d S26 {Cal.
protest as to any deficiencies in notice, such deficiencies are waived, 1 Witkin, California
Procedure 2d 651-52 (1970), and no contrary showing having been made, we assume the
California court's actions were regular. Cf. Raps v. Raps, 125 P.2d 826 (Cal. 1942).
[Headnote 5]
2. Notwithstanding that the California court had jurisdiction appellant asserts that the
California order is not valid as there was no express finding of changed circumstances.
Nowhere in the appropriate California Civil Code section
1
is there a requirement of
showing changed circumstances, in fact, that rule has been repudiated (see Stack v. Stack,
11 Cal.Rptr. 177, 187 (Cal.App. 1961)) and now the paramount and controlling
consideration is the welfare of the child. That question is directed to the discretion of the trial
court and in making its determination the court has broad latitude. Its ruling will not be
disturbed by a reviewing court, a clear showing of abuse absent, and every presumption
supports the reasonableness of the decree. In re Walker, 39 Cal.Rptr. 243, 247 (Cal.App.
1964); Russo v. Russo, 98 Cal.Rptr. 501, 511 (1971).
____________________

1
4600. Custody order; preferences; findings; allegations; exclusion of public
In any proceeding where there is at issue the custody of a minor child, the court may, during the pendency of
the proceeding or at any time thereafter, make such order for the custody of such child during his minority as
may seem necessary or proper. If a child is of sufficient age and capacity to reason so as to form an intelligent
preference as to custody, the court shall consider and give due weight to his wishes in making an award of
custody or modification thereof. Custody should be awarded in the following order of preference:
(a) To either parent according to the best interests of the child, but, other things being equal, custody should
be given to the mother if the child is of tender years.
(b) To the person or persons in whose home the child has been living in a wholesome and stable
environment.
(c) To any other person or persons deemed by the court to be suitable and able to provide adequate and
proper care and guidance for the child.
Before the court makes any order awarding custody to a person or persons other than a parent, without the
consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the
child and the award to a nonparent is required to serve the best interests of the child. Allegations that parental
custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the
pleadings. The court may, in its discretion, exclude the public from the hearing on this issue.
[Headnotes 6, 7]
3. Is the order entitled to full faith and credit in Nevada? The rule is 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. Halvey v. Halvey, 330 U.S. 610, 615 (1947);
Ferguson v. Krepper, 83 Nev. 408, 411, 432 P.2d 668 (1967). Although our preference is to
award custody of minor children of tender years to the mother, Peavey v. Peavey, 85 Nev.
571, 460 P.2d 110 (1969), we cannot fault the California court for an abuse of discretion on
this ground alone.
[Headnote 8]
Appellant asserts that the lower court abused its discretion in not conducting a full
change-of-custody hearing. The California proceedings were had only 13 days before. To
require another hearing in Nevada in such close succession would be to engage in a judicial
game of badminton with the position of the shuttlecock varying from week to week. There is
no abuse of discretion. Dean v. Kimbrough, 88 Nev. 102, 492 P.2d 988 (1972).
Affirmed.
____________
88 Nev. 423, 423 (1972) Sheriff v. Cross
SHERIFF, CARSON CITY, NEVADA, Appellant, v.
RICHARD WAYNE CROSS, Respondent.
No. 6810
July 14, 1972 498 P.2d 1341
Appeal from a pre-trial order granting a writ of habeas corpus, First Judicial District Court,
Carson City; Frank B. Gregory, Judge.
The district court ordered petitioner discharged and the State appealed. The Supreme Court
held that district court properly confined itself to record rather than considering evidence
rejected by magistrate.
Affirmed.
Robert List, Attorney General, and Michael E. Fondi, District Attorney, Carson City, for
Appellant.
88 Nev. 423, 424 (1972) Sheriff v. Cross
Gary A. Sheerin, State Public Defender, Carson City, for Respondent.
Habeas Corpus.
On habeas corpus challenging sufficiency of evidence at preliminary hearing to support order binding
petitioner over, court properly confined itself to record rather than considering evidence rejected by
magistrate.
OPINION
Per Curiam:
Respondent was charged with felony battery under NRS 200.481(2)(c), and following a
preliminary hearing was bound over to district court for trial. Respondent sought habeas relief
in the district court, contending that the evidence adduced at his preliminary hearing was
insufficient to demonstrate probable cause. The district court agreed, and ordered him
discharged. The State has appealed.
None of the State's witnesses saw respondent strike anyone during the brawl out of which
the charge against him arose. The State contends, however, that evidence rejected by the
magistrate would have established probable cause to hold respondent to trial, and apparently
urges that the district court erred in confining itself to the record before it. Obviously, this
argument urges us to depart from all orderly procedures, and to determine probable cause
ourselves in the first instance, on the basis of evidence the defendant has not had the
opportunity to test or rebut.
If the District Attorney feels he has sufficient evidence to proceed, he has avenues to do
so. Cf. Martin v. Sheriff, 88 Nev. 303, 496 P.2d 754 (1972).
Affirmed.
____________
88 Nev. 424, 424 (1972) State Engineer v. American Nat'l Ins. Co.
STATE ENGINEER OF THE STATE OF NEVADA, Appellant, v.
AMERICAN NATIONAL INSURANCE COMPANY, Respondent.
No. 6544
July 17, 1972 498 P.2d 1329
Appeal from judgment of the Sixth Judicial District Court, Humboldt County; Llewellyn
A. Young, Judge.
Proceeding to set aside the State Engineer's cancellation of permit to appropriate water
from well to cultivate land. The district court set aside cancellation and reinstated the permit,
and the State Engineer appealed. The Supreme Court, Thompson, J., held that statute
directing State Engineer to cancel permit to appropriate water from well when permittee
failed to file proof of application of water to beneficial use did not affect power of district
court to grant equitable relief to the permittee when warranted.
Affirmed.
Robert List, Attorney General, and L. William Paul, Deputy Attorney General, for
Appellant.
McDonald, Carano, Wilson & Bergin, Hawkins, Rhodes and Hawkins and F. DeArmond
Sharp, of Reno, for Respondent.
1. Waters and Water Courses.
Statute directing State Engineer to cancel permit to appropriate water from well when permittee failed to
file proof of application of water to beneficial use did not affect power of district court to grant equitable
relief to the permittee when warranted. NRS 533.410.
Where defendant did not question fairness of trial court's ruling or any of the court's significant findings
upon which decision rested, reviewing court would affirm decision. NRS 533.450.
OPINION
This proceeding, in the nature of an appeal [NRS 533.450], was commenced in the district
court to set aside the State Engineer's cancellation of a permit to appropriate water from a
completed well to cultivate 350 acres of land in Humboldt County. The permit was cancelled
because the permittee failed to file proof of the application of water to beneficial use. All
other proofs were filed before the dates fixed therefor, and the parties agree that the well was
in fact completed, the pump installed, and the water was used to cultivate the land before the
time for filing proof of beneficial use passed. That proof, for some reason undisclosed by the
record, simply was not filed with the State Engineer.
The district court found that approximately $35,000 had been spent in improving the
land; that there were no plans to grant new permits in the area in the near future; that no
other person would be damaged if the permittee is allowed to use the water appropriated
under the permit; that the tax revenues to Humboldt County would be increased if the
land was cultivated by the use of appropriated water; and concluded that the failure to
file proof of beneficial use, in these circumstances, did not warrant cancellation of the
permit and the forfeiture of rights which inevitably would follow.
been spent in improving the land; that there were no plans to grant new permits in the area in
the near future; that no other person would be damaged if the permittee is allowed to use the
water appropriated under the permit; that the tax revenues to Humboldt County would be
increased if the land was cultivated by the use of appropriated water; and concluded that the
failure to file proof of beneficial use, in these circumstances, did not warrant cancellation of
the permit and the forfeiture of rights which inevitably would follow. Accordingly, that court
set aside the cancellation and reinstated the permit.
The findings of the district court are not challenged by the State Engineer, nor does he
suggest that the equities do not lie with the permittee. By this appeal, however, he does press
the point that the court should not have overruled him since the word shall as used in NRS
533.410 required him to cancel the permit. We turn to resolve this major contention.
1

[Headnotes 1, 2]
The statute does provide that the permit shall be cancelled by the State Engineer when
the permittee fails to file proof of application of water to beneficial use. This directive to his
office does not, however, affect the power of the district court to grant equitable relief to the
permittee when warranted. Donoghue v. T.O.M. Co., 45 Nev. 110, 198 P. 553 (1921). As
already noted, the State Engineer does not question the fairness of the district court ruling, or
any of the significant findings upon which it rests. Accordingly, we are compelled to affirm.
We recognize that this decision places the State Engineer in an awkward and unenviable
position. NRS 533.410, by its mandatory language, requires the State Engineer to summarily
cancel a permit if the provisions of that statute have not been strictly adhered to. Except for
granting an extension of time he is without discretion, and is subject to court reversal for a
decision he is required to make. Legislative action would be appropriate to allow the State
Engineer discretion in a permit cancellation under NRS 533.410.
____________________

1
Technical points also are presented. For example, the State Engineer points out that the permittee, in
commencing the district court proceeding, failed to give the additional notice required by NRS 533.450(3) and
argues that the suit is, therefore, barred. On the other hand, the permittee notes that the State Engineer sent the
cancellation notice by certified rather than registered mail as required by NRS 533.410 as it then read, and urges
that the cancellation was voided by that error. (Now, either certified or registered mail is proper. See Stats. Nev.
1967, p. 194.)
Since it is apparent in this case that the mentioned technical failures did not affect the substantial rights of
either party, we shall do no more than mention their occurrence.
appropriate to allow the State Engineer discretion in a permit cancellation under NRS
533.410. With such a change court reversal would only be appropriate in the event of an
abuse of discretion.
____________
88 Nev. 427, 427 (1972) Unruh v. Nevada National Bank
PAUL UNRUH and RETA MAE UNRUH, Appellants, v.
NEVADA NATIONAL BANK, Respondent.
No. 6708
July 19, 1972 498 P.2d 1349
Appeal from judgment of the First Judicial District Court, Douglas County; Frank B.
Gregory, Judge.
Action upon renewal promissory note. The district court entered judgment, and appeal was
taken. The Supreme Court, Thompson, J., held that where bank paid $10,000 to railroad on
same day it took a promissory note for that amount from defendant and defendant received
notice of that payment and thereafter acknowledged his obligation to bank when he paid the
bank $1,000 and signed, along with his wife, second renewal note upon which suit was
brought, trial court did not err when it found that defense of want of consideration was not
established.
Affirmed.
Ross & Crow, of Carson City, for Appellants.
Guild, Hagen & Clark and Jack B. Ames, of Reno, for Respondent.
1. Bills and Notes.
A bargained-for consideration for note may be given to promisor or to some other person.
2. Bills and Notes.
Where bank paid $10,000 to railroad on same day it took a promissory note for that amount from
defendant and defendant received notice of that payment and thereafter acknowledged his obligation to
bank when he paid the bank $1,000 and signed, along with his wife, second renewal note upon which suit
was brought, trial court did not err when it found that defense of want of consideration was not established.
NRS 104.3104, 104.3306.
3. Bills and Notes.
Rejected offer of proof that would show that bank manager invited defendant to come to bank to discuss
a business transaction and persuaded him to borrow $10,000 to purchase stock, if allowed, would not
establish want of consideration for note. NRS 104.3104, 104.3306.
OPINION
The Nevada National Bank commenced this action upon a renewal promissory note dated
August 24, 1970, for $9,000 in favor of the Bank, signed by Paul and Reta Unruh, and
payable on November 22, 1970, if prior demand was not made. Prior demand was made, but
payment was not.
On December 11, 1969, Paul Unruh had executed a promissory note to the Bank for
$10,000 payable on demand, or if no demand was made, then on March 11, 1970. Thereafter,
on May 12, 1970, Paul and Reta Unruh executed a renewal note for the same $10,000 which
was to become payable on August 10, 1970, if no prior demand for payment was made.
Payment was not made, and on August 24, 1970, the Unruhs paid the Bank $1,000 and
executed the second renewal note upon which this suit is based.
The Unruhs did not receive $10,000, or any amount, directly from the Bank in return for
the original or for the renewal notes. When the original note was made, the Bank issued a
cashier's check for $10,000 to V. & T. Railroad, and Unruh received in the mail a copy of a
receipt for that check. Also on that day, V. & T. Railroad issued two treasury stock
certificates, each for 5,000 shares, to Fritz Von Geldern, the Bank's manager. The record may
be read to show that Von Geldern, in turn, delivered one of those certificates to Paul Unruh,
but repossessed it because it was not made out right. Sometime before the trial of this case,
Von Geldern was discharged as the Bank's manager. No effort was made to secure his
attendance as a witness for either side.
The Unruhs defended this action on the ground that they had received no consideration
from the Bank in return for the original promissory note which Paul Unruh had signed. The
main appellate issue is whether that defense was established. Subordinately, an issue is
tendered as to whether a rejected offer of proof was probative of that defense.
1. The renewal promissory note contains all the requisites of a negotiable instrument.
NRS 104.3104. Although the payee Bank may have been a holder in due course, NRS
104.3302{2), we shall, for the purposes of this opinion, assume that the Bank was not a
holder in due course and took the instrument subject to the defense of want of
consideration, NRS 104.3306.
payee Bank may have been a holder in due course, NRS 104.3302(2), we shall, for the
purposes of this opinion, assume that the Bank was not a holder in due course and took the
instrument subject to the defense of want of consideration, NRS 104.3306.
[Headnotes 1, 2]
A bargained-for consideration may be given to the promisor or to some other person.
Haygood v. Stevenson Company, 151 S.E.2d 462 (Ga.App. 1966); Restatement, Contracts,
Sec. 75(2).
1
The Bank paid $10,000 to V. & T. Railroad on the same day it took a
promissory note for that amount from Paul Unruh, and Unruh received notice of that
payment. He thereafter acknowledged his obligation to the Bank on August 24, 1970, when
he paid the Bank $1,000, and signed, along with his wife, the second renewal note upon
which this suit was brought. In these circumstances it cannot successfully be contended that
the trial court erred when it found that the defense of want of consideration was not
established.
[Headnote 3]
2. The rejected offer of proof would show that the Bank manager, Von Geldern, invited
Unruh to come to the Bank to discuss a business transaction and persuaded him to borrow
$10,000 to purchase stock. That evidence, if allowed, would not establish a want of
consideration. Indeed, the proffered evidence appears to confirm that which actually occurred.
Affirmed.
____________________

1
The Restatement example: A makes a promissory note payable to B in return for a payment by B to C. The
payment is consideration for the note. This is precisely what happened in the case at hand.
____________
88 Nev. 429, 429 (1972) Rahn v. Warden
RUSSELL C. RAHN, Appellant, v.
WARDEN, NEVADA STATE PRISON, Respondent.
No. 6787
July 19, 1972 498 P.2d 1344
Appeal from denial of post-conviction application for relief; Sixth Judicial District Court,
Humboldt County; Kenneth L. Mann, Judge.
88 Nev. 429, 430 (1972) Rahn v. Warden
Defendant's probation was revoked after a hearing in the district court and defendant
appealed. The Supreme Court, Thompson, J., held that the Sixth and Fourteenth Amendments
of the Federal Constitution require that an indigent criminal defendant be afforded assistance
of counsel at a probation revocation hearing.
Reserved in part; affirmed in part.
Robert List, Attorney General, and William Macdonald, District Attorney, Humboldt
1. Courts.
Opinion of Ninth Circuit Federal Court of Appeals that Sixth and Fourteenth Amendments of Federal
Constitution required that indigent criminal defendant be afforded assistance of counsel at Nevada
probation revocation hearing did not bind Nevada State Supreme Court, but did bind Nevada Federal
District Court. U.S.C.A.Const. Amends. 6, 14.
Sixth and Fourteenth Amendments of Federal Constitution require that indigent criminal defendant be
afforded assistance of counsel at probation revocation hearing. U.S.C.A.Const. Amends. 6, 14.
3. Criminal Law.
Where defendant when charged with being ex-felon in possession of concealed weapon was represented
by counsel and voluntarily entered plea of guilty, and did not contend that plea was coerced, conviction
was not open to collateral attack, i.e., attack on appeal from revocation of probation, by reason of alleged
unlawful search and seizure at time of arrest; guilty plea, entered voluntarily and with advice of competent
counsel, superseded any such alleged errors. U.S.C.A.Const. Amends. 6, 14.
OPINION
In May 1969, the appellant was convicted of being an ex-felon in possession of a
concealed weapon, was sentenced upon his plea of guilty to serve a term of four years in the
Nevada State Prison, but the sentence was suspended and he was placed on probation for a
period of two years. He was represented by counsel at that time. In August 1970 he was
brought before the court to answer the charge that he had violated the terms of his probation.
At that time he requested the appointment of an attorney to represent him and claimed that he
did not have funds to employ an attorney.
88 Nev. 429, 431 (1972) Rahn v. Warden
that he did not have funds to employ an attorney. His request was denied, his probation
revoked after a hearing, and he was placed in the custody of the respondent to serve the
sentence which had previously been imposed. He now asserts that his constitutional rights
were violated by the denial of counsel at the probation revocation hearing and, in addition,
that he was the victim of an unlawful search and seizure when arrested for the underlying
crime.
1. Beginning with Shum v. Fogliani, 82 Nev. 156, 413 P.2d 495 (1966), this court
consistently has ruled that an indigent person on probation is not entitled to appointed counsel
at a revocation hearing if sentence already had been imposed for his underlying felony
conviction, but the execution thereof suspended during good behavior on probation. In re
DuBois, 84 Nev. 562, 445 P.2d 354 (1968); Smith v. Warden, 85 Nev. 83, 450 P.2d 356
(1969); Bargas v. Warden, 87 Nev. 30, 482 P.2d 317 (1971). On May 24, 1972, the Federal
Court of Appeals for the Ninth Circuit held that the Sixth and Fourteenth Amendments of the
Federal Constitution require that an indigent criminal defendant be afforded the assistance of
counsel at a Nevada probation revocation hearing. Flint v. Hocker, 462 F.2d 590 (1972). That
court wrote: The effect of revocation of probation in Nevada is to enhance punishment.
When probation is granted, the original sentence is suspended on condition that the terms of
probation are fulfilled. When probation is revoked, the sentence first begins to run, without
any credit for the time served on probation. Flint's one-to-fifteen-year sentence commenced
upon revocation of his probation without allowing him any credit for the two years he had
been on probation. The result of the Nevada revocation procedure is, therefore, to increase the
period during which Flint would be in actual and constructive custody from a maximum of
fifteen years to a maximum of almost seventeen years. Flint was not, therefore, serving a part
of his sentence outside of the walls of prison. Under these circumstances, probation
revocation is a critical stage of the criminal process, and Flint was entitled to the appointment
of counsel.
[Headnotes 1, 2]
Although that opinion does not bind this court, the Nevada Federal District Court is
obliged to follow it. We, therefore, choose to follow it as well, since to do otherwise would
place an unnecessary burden upon the Nevada Federal District Court in processing
post-conviction applications asserting this particular ground for relief.
88 Nev. 429, 432 (1972) Rahn v. Warden
[Headnote 3]
2. When sentenced for the underlying crime, the appellant was represented by counsel and
voluntarily entered his plea of guilty to that charge for which sentence was imposed. He does
not contend that his plea was coerced. In these circumstances, his conviction is not open to
collateral attack for an alleged unlawful search and seizure at the time of arrest. The plea of
guilty, entered voluntarily and with the advice of competent counsel, supersedes any such
alleged errors. Mathis v. Warden, 86 Nev. 439, 471 P.2d 233 (1970); Powell v. Sheriff, 85
Nev. 684, 462 P.2d 756 (1969); Hall v. Warden, 83 Nev. 446, 434 P.2d 425 (1967);
Rainsberger v. State, 81 Nev. 92, 399 P.2d 129 (1965).
We affirm the district court denial of post-conviction relief on this point, but remand the
matter to the district court for a new revocation hearing at which the appellant shall be
represented by the State Defender or appointed counsel.
____________
88 Nev. 432, 432 (1972) Loddy v. State
DELBERT LODDY, Appellant, v. THE
No. 6740
July 19, 1972 498 P.2d 1341
Appeal from judgment of conviction and sentence of the Fourth Judicial District Court,
Elko County; Joseph O. McDaniel, Judge.
Affirmed.
Gary A. Sheerin, Public Defender, of Carson City, for Appellant.
Robert List, Attorney General; Mark C. Scott, Jr., District Attorney, Elko County, for
Respondent.
OPINION
Per Curiam:
Convicted of receiving stolen property in violation of NRS 205.275, appellant's principal
assignment of error is that there was a break in the chain of custody of corpus of the theft,
between the time it was recovered and the time it was introduced into evidence at
appellant's trial.
88 Nev. 432, 433 (1972) Loddy v. State
between the time it was recovered and the time it was introduced into evidence at appellant's
trial. In the facts of this case, we believe the chain of custody was adequately established. Cf.
Eisentrager v. State, 79 Nev. 38, 378 P.2d 526 (1963).
Other assignments of error are equally without merit.
Affirmed.
____________
88 Nev. 433, 433 (1972) B & C Enterprises v. Utter
B & C ENTERPRISES and WILLIAM H. BOEGLE,
Appellants, v. CHESTER UTTER, Respondent.
No. 6789
July 19, 1972 498 P.2d 1327
Appeal from judgment of the Second Judicial District Court, Washoe County; James J.
Guinan, Judge.
Action on note. The district court awarded judgment in favor of payee, and maker and
guarantor appealed. The Supreme Court, Mowbray, J., held that where payees had devoted
considerable time and effort in obtaining lease and released all interest in lease for note, there
was consideration for note.
Affirmed.
Seymour H. Patt, of Reno, for Appellants.
Paul A. Richards and Richard J. Legarza, of Reno, for Respondent.
The substantial evidence test is particularly applicable where there is conflicting evidence and the
credibility of witnesses is in issue.
2. Bills and Notes.
Where payees had devoted considerable time and effort in obtaining lease and released all interest in
lease for note, there was consideration for note.
3. Corporations.
In absence of evidence tending to show that corporate president did not have authority, actual or
apparent, to bind corporation, president's signature on note was presumed to be authorized. NRS
104.3307, subd. 1.
4. Evidence.
Where testimony given by two witnesses was conflicting as to whether guaranty on note was obtained by
duress, judge was at liberty to accept statement of one witness and reject the other's
testimony.
liberty to accept statement of one witness and reject the other's testimony.
5. New Trial.
In absence of request for continuance of trial on basis of unavailability of a witness, motion for new trial
so that witness' testimony could be heard was meritless.
OPINION
This is an appeal from a judgment of the district court based on a $7,500 promissory note
signed by Appellants B & C Enterprises, a corporation, as maker, and William H. Boegle, as
guarantor, in favor of Respondent Chester Utter, the payee.
The case was tried before the district judge, sitting without a jury, who awarded judgment
in favor of Utter and against B & C Enterprises and Boegle for the sum of $8,428.72,
representing the principal due on the note plus accrued interest; $1,000 for attorney's fees; and
$104.30 for costs.
B & C Enterprises and Boegle have appealed from the judgment, claiming that the district
judge erred in not sustaining their affirmative defenses to the promissory note.
1. Chester Utter is a realtor and developer. In the spring of 1970, he commenced
negotiations to lease the Holland Livestock Ranch. Utter's son, Jerry, and one Bill Victor
assisted in the preliminary negotiations. Later, B & C Enterprises, through its officers,
became interested in the project and was named the lessee in a lease agreement with Holland
Livestock Ranch. As so often happens in such ventures, difficulties arose among the parties,
and they agreed to settle their differences and part company. It was agreed that the Utters
(Chester and his son, Jerry) and Bill Victor would release all interests we have in any
contracts or agreements between B & C interprises [sic] and ourselves. . . for the $7,500 note
signed by B & C Enterprises and guaranteed by Boegle. The note was not paid, and this suit
resulted.
2. The defendants-appellants set up the following affirmative defenses to the note: (1)
Failure of consideration, (2) lack of corporate authority to sign the note, and (3) duress
exercised by Utter to obtain Boegle's guaranty. These defenses presented factual issues to be
resolved by the district judge. A review of the record shows substantial evidence therein to
support the judge's decision to reject the defenses alleged.
[Headnote 1]
This court recently reiterated the well established rule, in Savini Constr. Co. v. A & K
Earthmovers, Inc., 88 Nev. 5, 7, 492 P.2d 125, 126 (1972):
. . . There is no showing by the appellant that the judgment of the trial court was clearly
erroneous or was not based upon substantial evidence. . . . [Citations omitted.] The
substantial evidence test is particularly applicable here where there is conflicting evidence
and the credibility of the witnesses is in issue. . . . [Citations omitted.]
[Headnote 2]
A. The record shows that the Utters and Victor released the interests they had in the
project and that they had devoted considerable time and effort in negotiating the lease. The
record supports the judge's finding that there was consideration for the note.
[Headnote 3]
B. Regarding the lack of corporate authority to execute the note, NRS 104.3307,
subsection 1, places the burden of proving a signature on the party claiming under it, but the
statute also provides that a signature is presumed to be authorized except in limited situations
not applicable in this case.
1
The appellant's proof on this issue focused upon whether there
had been formal corporate authorization for William H. Boegle's signature on this
particular note. However, there is nothing in the record that would tend to show that Boegle,
as president of the corporation, did not have the authority, actual or apparent, to bind the
organization. The appellant's proof thus failed to dispel the statutory presumption.
[Headnote 4]
C. As to the charge that Boegle's guaranty was obtained by duress, there is a conflict in
the evidence. Boegle claimed Utter threatened him, and Utter denied that he did. The judge
accepted Utter's statement, and he was at liberty to do so. See Savini Constr. Co. v. A & K
Earthmovers, Inc., supra.
____________________

1
1. Unless specifically denied in the pleadings each signature on an instrument is admitted. When the
effectiveness of a signature is put in issue:
(a) The burden of establishing it is on the party claiming under the signature; but
(b) The signature is presumed to be genuine or authorized except where the action is to enforce the obligation
of a purported signer who has died or become incompetent before proof is required.
[Headnote 5]
3. Finally, appellants urge that they be given a new trial on the basis of newly discovered
evidence. The following rather novel statement appears in the appellants' pretrial statement:
Notice is hereby given that in the event judgment is entered in favor of the plaintiff
[Utter] that leave will be requested to re-open the case at a future date due to the
unavailability of a witness to whom the plaintiff allegedly bragged of how he forced the
defendant BOEGLE to sign the document in question. The present whereabouts of the
witness is unknown and he may very well be out of the country proper, but he maintains his
residence within the State of Nevada.
Appellants claim that they have now located the witness and would appreciate a new trial
so that his testimony might be heard. Appellants did not request a continuance of the trial, as
provided under our Nevada Rules of Civil Procedure. Their suggestion that they be given a
new trial is meritless.
The judgment of the lower court is affirmed, with costs of this appeal to be borne by
appellants.
____________
88 Nev. 436, 436 (1972) Graves v. Sheriff
MADISON BAYLES GRAVES, Appellant, v. SHERIFF,
No. 6768
July 20, 1972 498 P.2d 1324
The district court denied petition, and defendant appealed. The Supreme Court, Batjer, J.,
held that evidence received at preliminary examination was sufficient to support a reasonable
inference that death of elderly pedestrian, who suffered from arteriosclerosis or hardening of
the arteries, who, as result of being struck in crosswalk by defendant's automobile sustained a
skull fracture, multiple rib fractures and a fracture of thoracic vertebrae, and who, according
to testimony of medical examiner, died from a traumatic rupture of an aortic aneurysm with
hemothorax, was caused by acts of defendant, thus authorizing magistrate to find probable
cause to hold him to answer charge of involuntary manslaughter.
Affirmed.
George Foley, of Las Vegas, for Appellant.
Robert List, Attorney General; Herbert F. Ahlswede, Chief Criminal Deputy, for
Respondent.
1. Criminal Law.
The word inference, in issue whether evidence received at preliminary examination supports a
reasonable inference that decedent's death was caused by action of defendant, is a deduction which the trier
of facts makes from facts proved without an express direction of law to that effect; it must be reasonable
and not so remote as to be unwarranted. NRS 171.206.
2. Criminal Law.
For purposes of statute requiring magistrate to hold an accused to answer in district court if from
evidence produced at preliminary examination it appears that there is probable cause to believe that an
offense has been committed and that the defendant has committed it, probable cause requires that
evidence be weighed toward guilt, though there may be room for doubt; the facts must be such as would
lead a person of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion.
NRS 171.206.
3. Criminal Law.
Under statute requiring magistrate to hold an accused to answer in district court if from evidence
produced at preliminary examination it appears that there is probable cause to believe that an offense has
been committed and that the defendant has committed it, state does not have burden of negating all
inferences that victim may have died of natural causes, but it does have responsibility of establishing facts
that will lead to reasonable inference that victim's death was caused by acts of defendant. NRS 171.206.
4. Criminal Law.
Evidence received at preliminary examination was sufficient to support a reasonable inference that death
of elderly pedestrian, who suffered from arteriosclerosis or hardening of the arteries, who, as result of
being struck in crosswalk by defendant's automobile, sustained a skull fracture, multiple rib fractures and a
fracture of thoracic vertebrae, and who, according to testimony of medical examiner, died from a traumatic
rupture of an aortic aneurysm with hemothorax, was caused by acts of defendant, thus authorizing
magistrate to find probable cause to hold him to answer charge of involuntary manslaughter. NRS
171.206, 200.070.
OPINION
This appeal is from the denial of a pre-trial application for habeas corpus testing probable
cause at a preliminary hearing.
A criminal complaint was filed against the appellant charging him with involuntary
manslaughter in violation of NRS 200.070,1 and alleging that the appellant caused his
automobile to strike and kill a pedestrian who was crossing a roadway within a marked
crosswalk.
200.070,
1
and alleging that the appellant caused his automobile to strike and kill a pedestrian
who was crossing a roadway within a marked crosswalk. After a preliminary examination the
appellant was bound over to the district court for trial. He sought a writ of habeas corpus.
Upon denial of habeas this appeal was taken.
The appellant contends that there was insufficient evidence introduced at the preliminary
examination from which the magistrate could find probable cause to hold him to answer the
charge of involuntary manslaughter, because the state had failed to show that the death of the
pedestrian was caused by the automobile accident. We reject that contention.
The victim of the accident was elderly and according to the medical examiner who
performed the autopsy she suffered from arteriosclerosis or hardening of the arteries. The
medical examiner further found that she had an aortic aneurysm caused by the
arteriosclerosis, and he testified that the cause of death was traumatic rupture of an aortic
aneurysm with hemothorax on the left, and that there was no other cause of death.
On cross-examination, counsel for the appellant sought to elicit testimony from the
medical examiner to show that the rupture of the aneurysm was from natural causes, or that it
was a spontaneous bursting unrelated to the trauma, but the witness persisted in his testimony
that while such a rupture could have been caused naturally from internal blood pressure
within the aorta, it was his opinion that internal blood pressure was not the cause of death in
this victim, but that the association of the fractured vertebrae and ribs resulting in a pressing
injury to the victim's chest caused the rupture of the aneurysm.
From an examination of the expert testimony of the medical examiner in the light most
favorable to the appellant, the most that can be said is that counsel's cross-examination raised
the possibility that the victim's death could have occurred from natural causes. However, the
medical examiner testified that it was the trauma which caused the pedestrian's death.
We must determine whether the evidence received at the preliminary examination was
sufficient to support a reasonable inference that the death of the pedestrian was caused by
the acts of the appellant.
____________________

1
NRS 200.070: Involuntary manslaughter shall consist in the killing of a human being, without any intent
so to do, in the commission of an unlawful act, or a lawful act, which probably might produce such a
consequence in an unlawful manner; but where such involuntary killing shall happen in the commission of an
unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, or is committed in
the prosecution of a felonious intent, the offense shall be deemed and adjudged to be murder.
inference that the death of the pedestrian was caused by the acts of the appellant.
NRS 171.206 requires the magistrate to hold an accused to answer in the district court if
from the evidence produced at the preliminary examination it appears: . . . [T]hat there is
probable cause to believe that an offense has been committed and that the defendant has
committed it. . . .
[Headnotes 1, 2]
An inference is a deduction which the trier of facts makes from the facts proved without an
express direction of law to that effect. It must be reasonable and not so remote as to be
unwarranted. Probable cause requires that the evidence be weighed toward guilt, though there
may be room for doubt. The facts must be such as would lead a person of ordinary caution
and prudence to believe and conscientiously entertain a strong suspicion. State v. von
Brincken, 86 Nev. 769, 476 P.2d 733 (1970); Ex parte Kline, 71 Nev. 124, 282 P.2d 367
(1955).
In Azbill v. State, 84 Nev. 345, 350, 440 P.2d 1014 (1968), this court held: 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. 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. Beasley v. Lamb, 79
Nev. 78, 80, 378 P.2d 524 (1963).
[Headnote 3]
The state does not have the burden of negating all inferences that the victim may have died
of natural causes; it does have the responsibility of establishing facts that will lead to the
reasonable inference that her death was caused by the acts of the appellant. State v. von
Brincken, supra.
The evidence introduced at the preliminary examination revealed that the victim was
struck by an automobile while crossing a public street in a crosswalk, and that the appellant
was the driver of the automobile. The victim suffered a skull fracture on the left and rear of
the head, multiple rib fractures which were not displaced except on the left, and a fracture of
the ninth thoracic vertebrae with lacerations of the pleura associated with the fractures.
associated with the fractures. The medical examiner testified that the only cause of death was
the traumatic rupture of an aortic aneurysm with hemothorax. While he conceded that it was
possible that the rupture could have been caused from internal blood pressure, he concluded
that in his opinion it was caused by the pressing injury to the victim's chest. He further
testified that the aneurysm was not punctured by the fractured ribs.
[Headnote 4]
We believe that the expert opinion expressed by the medical examiner, together with the
evidence of the extent of injury, established an inference of criminal agency causing the
victim's death. As long as an inference of criminal agency could be drawn, it was proper for
the magistrate to draw it, and leave to the trier of fact in district court the determination of
guilt or innocence. Azbill v. State, supra; Miner v. Lamb, 86 Nev. 54, 464 P.2d 451 (1970).
Affirmed.
____________
88 Nev. 440, 440 (1972) Gehrke v. Sheriff
DENNIS GEHRKE, Appellant, v. SHERIFF,
No. 6792
July 20, 1972 498 P.2d 1316
Appeal from order denying petition for pre-trial habeas relief, Eighth Judicial District
Court, Clark County; Howard W. Babcock, Judge.
Affirmed.
Alfred Becker, of Las Vegas, for Appellant.
Chief Deputy for Appeals, Clark County, for Respondent.
OPINION
Per Curiam:
In this case, we believe the district court correctly determined, contrary to appellant's
contentions, that there was probable cause to believe that an offense [burglary] has been
committed and that the defendant has committed it."
88 Nev. 440, 441 (1972) Gehrke v. Sheriff
committed and that the defendant has committed it. NRS 171.206.
Affirmed.
____________
88 Nev. 441, 441 (1972) Bishop v. Sheriff
BARNELL BISHOP, Appellant, v. SHERIFF,
No. 6820
July 20, 1972 498 P.2d 1340
Appeal from an order denying a petition for pre-trial writ of habeas corpus. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Proceeding on petition for pre-trial writ of habeas corpus alleging that petitioner was being
confined in isolation cell in jail in which inmates were denied access to television,
newspapers and books and were afforded only limited exercise and bathing facilities. The
district court denied writ but ordered sheriff to afford prisoner exercise privileges outside of
his cell for certain period each day, to permit prisoner to purchase newspapers daily and to
provide wider selection of magazines, and prisoner appealed. The Supreme Court held that
prisoner was not entitled to writ of habeas corpus on ground that his confinement in isolation
cell constituted cruel and unusual punishment, inasmuch as occurrence complained of was
unrelated to legality of prisoner's confinement.
Affirmed.
Robert G. Legakes, Public Defender, and Jeffrey D. Sobel, Deputy Public Defender, Clark
Habeas Corpus.
Prisoner was not entitled to writ of habeas corpus on ground that his confinement in isolation cell
constituted cruel and unusual punishment, inasmuch as occurrence complained of was unrelated to legality
of prisoner's confinement. U.S.C.A.Const. Amend. 8; Const. art. 1, 6.
OPINION
Per Curiam:
The appellant filed a petition in pro per complaining to the district court that he was being
confined in an isolation cell in the Clark County jail where inmates are denied access to
television, newspapers and books, and where there are afforded only limited exercise and
bathing facilities.
the Clark County jail where inmates are denied access to television, newspapers and books,
and where there are afforded only limited exercise and bathing facilities. While it is not clear
what relief the appellant sought, his petition was treated by the court, and by counsel who was
appointed for him, and by the district attorney, as a petition for a writ of habeas corpus. After
a hearing at which testimony was taken from the appellant, from other inmates of the Clark
County jail, from an officer with the Sheriff's Department, and from the officer in charge of
the jail, the district court denied the writ of habeas corpus and remanded the appellant to the
sheriff's custody; but, in addition, the court ordered the sheriff to afford the appellant exercise
privileges outside of his cell for a period of one and one-half hours each day, to permit the
appellant to purchase newspapers daily, and to provide a wider selection of magazines.
Although, as noted, the relief sought by the appellant's petition was unstated, and although
substantial relief was provided by the district court's order, the appellant has appealed that
court's refusal to grant him a writ of habeas corpus, contending that his confinement in an
isolation cell constitutes cruel and unusual punishment in violation of the Eighth Amendment
to the U.S. Constitution and Article 1, Section 6, of the Nevada Constitution. We affirm the
district court's order.
Substantially the same issue as is presented by this appeal was considered in Rogers v.
Warden, 84 Nev. 539, 445 P.2d 28 (1968), where the charge was that the appellant was
entitled to be released from prison because an alleged brutal beating constituted cruel and
unusual punishment. While recognizing that some authorities have extended habeas relief to
Eighth Amendment violations, we declined to do so where the conduct or occurrence is
unrelated to the validity of the restraint. It was there noted that other redress is available.
Here, in fact, relief other than release from confinement was afforded the appellant.
Perceiving no difference in principle between the post-conviction petition in Rogers,
supra, and the habeas petition here, and finding that the conduct or occurrence about which
the petitioner complained to the district court was unrelated to the legality of his confinement,
we find no error in the district court's order declining to grant the writ of habeas corpus and
remanding the appellant to the custody of the sheriff.
Affirmed.
____________
88 Nev. 443, 443 (1972) Davis v. Warden
ARNOLD DAVIS and WILBUR DAVIS, Appellants, v.
WARDEN, NEVADA STATE PRISON, Respondent.
No. 6745
July 21, 1972 498 P.2d 1346
Appeal from an order denying post-conviction relief. Second Judicial District Court,
Washoe County; Thomas O. Craven, Judge.
The Supreme Court, Thompson, J., held that since defendants were enrolled members of
the Pyramid Lake Paiute Tribe of Indians, since the crime of attempted murder of a
non-Indian to which they pleaded guilty occurred on patented land within the exterior
boundaries of the Pyramid Lake Indian Reservation, Washoe County, since the Governor, by
proclamation, had honored petition of the Washoe County Board of Commissioners to
exclude the reservation from the operation of statute providing for state assumption of
jurisdiction over public offenses committed in areas of Indian country in the State, and since
the Governor has been delegated only a discretion with respect to the statute's execution, not
the power to make law, exclusive jurisdiction of defendants' offense was vested in the federal
district court.
Reversed.
Paul H. Lamboley, of Reno, for Appellants.
Robert List, Attorney General; Robert E. Rose, District Attorney, and Kathleen M. Wall,
Joseph L. Ward, United States Attorney, and Raymond B. Little, Assistant United States
Attorney, Amicus Curiae. Robert D. Stitser, of Reno, and Daniel J. Taaffe, David H. Getches,
Robert S. Pelcyger, Native American Rights Fund, Boulder, Colorado, Amicus Curiae.
1. Indians.
Since defendants were enrolled members of the Pyramid Lake Paiute Tribe of Indians, since the crime to
which they pleaded guilty occurred on patented land within the exterior boundaries of the Pyramid Lake
Indian Reservation, Washoe County, since the Governor, by proclamation, had honored petition of the
Washoe County Board of Commissioners to exclude the reservation from the operation of statute providing
for state assumption of jurisdiction over public offenses committed in areas of Indian country in the State,
and since the Governor has been delegated only a discretion with respect to the statute's
execution, not the power to make law, exclusive jurisdiction of defendants' offense
was vested in the federal district court.
discretion with respect to the statute's execution, not the power to make law, exclusive jurisdiction of
defendants' offense was vested in the federal district court. 18 U.S.C.A. 1151, 1153; NRS 41.430,
41.430, subds. 2, 3, 194.030.
2. Judgment.
Judgments of conviction are subject to collateral attack absent a challenge to the jurisdiction of the
sentencing court at the time of arraignment, plea or sentence.
3. Constitutional Law; Indians.
Statute providing for state assumption of criminal and civil jurisdiction over public offenses committed or
civil causes of action arising in areas of Indian country in Nevada, except in counties where the board of
county commissioners petitions the Governor to exclude the area of Indian country within that county from
the operation of the statute and the Governor, by proclamation, honors that petition, has not delegated to
the Governor the power to make law, but has only conferred on him a discretion with respect to the statute's
execution. NRS 41.430.
OPINION
The state district court denied the appellants' application for post-conviction relief
challenging state court jurisdiction to entertain and dispose of the criminal charges filed
against them.
[Headnote 1]
In 1966 they had pleaded guilty to attempted murder, were adjudged guilty and sentenced
to serve terms of not less than three nor more than twenty years in the Nevada State Prison.
They are currently serving their sentences. Since they are enrolled members of the Pyramid
Lake Paiute Tribe of Indians, and since the crime of attempted murder of a non-Indian to
which they pleaded guilty occurred on patented land within the exterior boundaries of the
Pyramid Lake Indian Reservation, Washoe County, they assert that exclusive jurisdiction of
their offenses was vested in the Federal District Court and that the state court was powerless
to act.
1
This is the main issue to be resolved.
[Headnote 2]
1. It is not suggested that the sentencing court knew that the appellants were enrolled
members of the Pyramid Lake Paiute Tribe of Indians or that their crimes occurred in
Indian country.
____________________

1
Indian country within the meaning of 18 USC, 1151, 1153, extends to all land within the exterior
boundaries of an Indian reservation, patented or unpatented. Seymour v. Superintendent, 368 U.S. 351 (1962).
Paiute Tribe of Indians or that their crimes occurred in Indian country. The record of the
sentencing court does not disclose a jurisdictional infirmity. Consequently, we first must
consider whether the judgments of conviction are subject to collateral attack absent a
challenge to the jurisdiction of the sentencing court at the time of arraignment, plea or
sentence.
Washington has ruled that a state cannot acquire jurisdiction over Indians by estoppel,
stipulation, or waiver by the failure to question jurisdiction at the time of arraignment, plea,
or sentence. A collateral attack is there permitted and evidence of the status of the defendant
and the situs of his crime may then be received.
2
In 1957, California held to the contrary,
limiting the collateral attack to the face of the record of the convicting court unless
exceptional circumstances showing a denial of constitutional rights are asserted.
3
The
California case, however, proceeded into the federal court system, and the Federal District
Court entertained the collateral attack upon the state judgment, considered facts dehors the
record in order to test the jurisdiction of the state court over an Indian, and set aside the
conviction. In re Carmen's Petition, 165 F.Supp. 942 (1958); affirmed, Dickson v. Carmen,
270 F.2d 809 (9 Cir. 1959). It would be futile for this Court to adopt a view at variance with
the Court of Appeals for the Ninth Circuit. Rahn v. Warden, 88 Nev. 429, 498 P.2d 1344
(1972). Therefore, we hold that this collateral attack is permissible.
2. The power of the federal government over Indians is derived from Art. 1, sec. 8, cl. 3,
of the United States Constitution [Perrin v. United States, 232 U.S. 478 (1914)] and flows
from the necessity of giving uniform protection to a dependent people [United States v.
Kagama, 118 U.S. 375 (1885)]. As noted in Williams v. Lee, 358 U.S. 217, 220, 221 (1959),
Congress consistently has acted on the assumption that the states have no power to regulate
the affairs of Indians on a reservation. When Congress has wished the states to exercise this
power it has expressly granted jurisdiction. See 18 USC 1162 granting such jurisdiction to
Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin. And, on August 15, 1953,
by Sec. 7, ch. 505, Public Law 280, being 67 Stat. 588, the United States gave its consent to
any other State not having jurisdiction with respect to criminal offenses or civil causes of
action, or with respect to both, . . . to assume jurisdiction at such time and in such manner
as the People of the State shall, by affirmative legislative action, obligate and bind the
State to assumption thereof."
____________________

2
Wesley v. Schneckloth, 346 P.2d 658 (1959); Roberts v. Schneckloth, 346 P.2d 668 (1959); Application of
Monroe, 346 P.2d 667 (1959); Charley v. Rhay, 348 P.2d 977 (1960); White v. Schneckloth, 351 P.2d 919
(1960).

3
Application of Carmen, 313 P.2d 817 (1957).
action, or with respect to both, . . . to assume jurisdiction at such time and in such manner as
the People of the State shall, by affirmative legislative action, obligate and bind the State to
assumption thereof.
Nevada responded to Public Law 280 in 1955 when the legislature enacted NRS 41.430.
That statute provides for state assumption of criminal and civil jurisdiction over public
offenses committed or civil causes of action arising in areas of Indian country in Nevada 90
days after July 1, 1955, except in counties where the Board of County Commissioners
petitions the Governor to exclude the area of Indian country within that County from the
operation of the statute and the Governor, by proclamation, honors that petition.
4

The Washoe County Board of Commissioners did petition the Governor to exclude the
Pyramid Lake Indian Reservation from the operation of NRS 41.430, and the Governor, by
proclamation, honored that petition on June 27, 1955. That proclamation has not been
superseded by another as provided for by section 3 of the statute.
3. The state district court denied relief on the ground that subsecs. 2 and 3 of NRS 41.430
unconstitutionally delegated legislative power to the governor, and went on to hold that sec. 1
of the statute was severable from the afflicted sections thereby resulting in total state
assumption of criminal and civil jurisdiction over Indians.
5

[Headnote 3]
The power to make law was not delegated to the governor; only a discretion with respect
to its execution was conferred.
____________________

4
Another statute, NRS 194.030, approved March 27, 1953, extended all laws concerning crimes and
punishments to all Indians in Nevada, whether on or off an Indian reservation, and whether the crimes were
committed on or off such reservation. That statute is ineffective and void since it was enacted before the United
States, by Public Law 280, gave its consent to state assumption of jurisdiction.

5
NRS 41.430: 1. Pursuant to the provisions of section 7, chapter 505, Public Law 280 of the 83d Congress,
approved August 15, 1953, and being 67 Stat. 588, the State of Nevada does hereby assume jurisdiction over
public offenses committed by or against Indians in the areas of Indian country in Nevada, as well as jurisdiction
over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian
country in Nevada, subject only to the conditions of subsection 2 of this section.
2. This section shall become effective 90 days after July 1, 1955, and shall apply to all the counties in this
state except that, prior to the effective date, the board of county commissioners of any county may petition the
governor to exclude and except the area of Indian country in that county from the operation of this section and
the governor, by
This is permissible. Pine v. Leavitt 84 Nev. 507, 445 P.2d 942 (1968); City of Las Vegas v.
Mack, 87 Nev. 105, 481 P.2d 396 (1971); State v. Paul, 337 P.2d 33 (Wash. 1959).
Since the criminal proceedings against the appellants did not fall within the jurisdiction of
the state district court, their petitions for relief must be granted, their convictions set aside and
they are ordered released from state custody.
____________________
proclamation issued before the effective date of this section, may exclude and except such Indian country.
3. In any case where the governor does exclude and except any area of Indian country, as provided in
subsection 2 of this section, he may, by subsequent proclamation at the request of the board of county
commissioners of any county which has been excluded and excepted, withdraw and remove the exclusion and
exception and thereafter the Indian country in that county shall become subject to the provisions of this section.
____________
88 Nev. 447, 447 (1972) Hodges v. Kotecki
SHARON RAE HODGES, Individually and as Guardian Ad Litem of DEBRA DEAN
HODGES, DIANA DEE HODGES, CHERYL ANN HODGES, and DONALD ARTHUR
HODGES, Appellant, v. FLORENCE KOTECKI, General Administratrix of the Estate of
DORIS M. PARKER, Also Known as DORIS M. AUGUSZINE, Respondent.
No. 6868
July 25, 1972 499 P.2d 354
Appeal from judgment dismissing action, Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Wrongful death suit. The district court dismissed action for failure to bring it on for trial
within five years, and plaintiffs appealed. The Supreme Court held that in view of fact that
until new general administratrix was appointed, wrongful death claimants, who previously
had sought to institute action against decedent, not knowing of her demise, did not have a
viable defendant to whom claims could be presented, against whom an action could be
instituted, and upon whom service of process could be had, 5-year mandatory dismissal
requirement was not applicable.
[Rehearing denied August 21, 1972] R.
88 Nev. 447, 448 (1972) Hodges v. Kotecki
R. Paul Sorenson, of Las Vegas, for Appellant.
Cromer & Barker and Kent W. Michaelson, of Las Vegas, for Respondent.
Dismissal and Nonsuit.
In view of fact that until new general administratrix was appointed, wrongful death claimants, who
previously had sought to institute action against decedent, not knowing of her demise, did not have a viable
defendant to whom claims could be presented, against whom an action could be instituted, and upon whom
service of process could be had, 5-year mandatory dismissal requirement was not applicable. NRCP
41(e).
OPINION
Per Curiam:
In a related appeal we ruled, inter alia, that notice of an estate proceeding under the
decedent's married name was not notice to wrongful death claimants who knew the decedent
under a name she had assumed for professional purposes, and that closing of her estate did
not preclude those claimants from thereafter asserting their claims. Kotecki v. Augusztiny, 87
Nev. 393, 487 P.2d 925 (1971). Following remittitur in 1971, the wrongful death claimants
obtained the appointment of Kotecki as general administratrix of the decedent's estate,
presented their claims, and sought to assert those claims through legal action by obtaining an
order making the newly appointed general administratrix a party to an action they had
previously sought to institute against the decedent in 1966, not knowing of her demise.
Thereafter, relying on NRCP 41(e), the district court dismissed their action for failure to bring
it on for trial within 5 years.
It is evident that in the circumstances disclosed by this record, until the new general
administratrix was appointed, the wrongful death claimants did not have a viable defendant to
whom claims could be presented, against whom an action could be instituted and proceed,
and upon whom service of process could be had. The 5-year mandatory dismissal requirement
of NRCP 41(e) does not touch this situation.
____________
88 Nev. 449, 449 (1972) Blotzke v. Christmas Tree, Inc.
BASILOUS BLOTZKE, Also Known as BILL BLOTZKE, Appellant, v.
THE CHRISTMAS TREE, INC., a Nevada Corporation; F. ALBERT KUCKHOFF
and JEAN KUCKHOFF, as Individuals and Doing Business as THE CHRISTMAS TREE;
HERBERT P. BECK, et al., Respondents.
No. 6757
July 26, 1972 499 P.2d 647
Appeal from an order dismissing action; Second Judicial District Court, Washoe County;
John W. Barrett, Judge.
Personal injury action by employee against his employers and licensed contractor. The
district court dismissed action as being time barred, and plaintiff appealed. The Supreme
Court, Thompson, J., held that the action sounded in tort rather than in contract, even though
plaintiff alleged a breach of implied contract to provide safe place to work, and would be so
treated in considering bar of limitations, and that running of statute of limitations was not
tolled with respect to claim against defendant contractor.
Affirmed.
Hibbs & Bullis and Stan L. Lyon, of Reno, for Appellant.
Vargas, Bartlett & Dixon and Jon J. Key, of Reno, for Respondents The Christmas Tree,
Inc., F. Albert Kuckhoff and Jean Kuckhoff.
Richard P. Wait, of Reno, for Respondent Herbert P. Beck.
Personal injury action by employee against his employers and a licensed contractor sounded in tort rather
than in contract, even though employee alleged a breach of implied contract to provide safe place to work,
and would be so treated in considering bar of limitations. NRS 11.190, subd. 4(e).
Where non-resident defendant contractor was continuously engaged in business in state and amenable to
both personal service of process and to substituted service by reason of minimum contacts he had
established with state, running of statute of limitations was not tolled with respect to claim asserted against
him. NRS 11.300.
OPINION
The district court ruled that this personal injury action, commenced by an employee, Bill
Blotzke, against his employers, F.
88 Nev. 449, 450 (1972) Blotzke v. Christmas Tree, Inc.
commenced by an employee, Bill Blotzke, against his employers, F. Albert and Jean
Kuckhoff, d.b.a. The Christmas Tree, and a licensed Nevada contractor, Herbert P. Beck, was
barred by the two-year statute of limitations [NRS 11.190 (4)(e)], and ordered it dismissed.
This appeal is from that order.
The appellant contends that his action was timely commenced since he alleged a breach of
an implied contract to provide a safe place to work, thus avoiding the bar of limitations
applicable to personal injuries and gaining the benefit of a longer period of time within which
to commence suit. Moreover, that the contractor Beck was absent from the state much of the
time and that the running of the statute was tolled [NRS 11.300] with respect to the claim
asserted against him. Neither contention has merit.
[Headnote 1]
The gravamen of this action is in tort to recover damages for personal injuries and is to be
so treated in considering the bar of limitations. Walz v. Hood, 87 Nev. 319, 487 P.2d 344
(1971); State Farm Mut. Auto. Ins. v. Wharton, 88 Nev. 183, 495 P.2d 359 (1972); Hartford
Ins. v. Statewide Appliances, 87 Nev. 195, 484 P.2d 569 (1971).
[Headnote 2]
The non-resident contractor Beck was continuously engaged in business in Nevada and
amenable to both personal service of process and to substituted service thereof by reason of
the minimum contacts he had established with this state. Gambs v. Morgenthaler, 83 Nev.
90, 423 P.2d 670 (1967); CertainTeed Prods. v. Dist. Ct., 87 Nev. 18, 479 P.2d 781 (1971).
His absence from the state is immaterial in these circumstances since he was continuously
liable to service of process. Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1 (1966).
Affirmed.
____________
88 Nev. 451, 451 (1972) Dunn v. City of Carson City
HAROLD V. DUNN, Jr., LEROY PHOENIX and HARRY JOSEPH
GARDNER, Appellants, v. CITY OF CARSON CITY, Respondent.
No. 6605
July 26, 1972 499 P.2d 653
Appeal from an order dismissing complaint for Declaratory Relief, First Judicial District
Court, Carson City; Frank B. Gregory, Judge.
Former city police officers brought action to obtain payment in money for overtime work.
The district court dismissed the complaint, and plaintiffs appealed. The Supreme Court,
Zenoff, C. J., held that within ordinance which declared it to be policy of city that overtime
work be discouraged and which provided that if overtime work was performed, it should be
compensated for by allowing commensurate time off if practicable, and otherwise by payment
of the employee's current pay rate, provisions as to discouraging overtime and as to allowing
commensurate time off were directives addressed to supervisors, and where employees
worked overtime and were not given commensurate time off, they were entitled to be
compensated in money; and that sentence of ordinance providing that payment for overtime
work must first be approved by the city council did not defeat right of plaintiffs to payment
but merely contemplated that claims be presented to the city council.
Theodore H. Stokes and F. Thomas Eck, III, of Carson City, for Appellants.
Michael E. Fondi, District Attorney, of Carson City, for Respondent.
Within ordinance which declared it to be policy of city that overtime work be discouraged and which
provided that if overtime work was performed, it should be compensated for by allowing commensurate
time off if practicable, and otherwise by payment at the employee's current pay rate, provisions as to
discouraging overtime and as to allowing commensurate time off were directives addressed to supervisors,
and where employees worked overtime and were not given commensurate time off, they were entitled to be
compensated in money.
Where municipal employees earned right to compensation for overtime, such right could not be defeated
because their superiors failed to see that compensation was provided promptly, or because
such superiors may have failed to advise employees of their right, or because such
superiors may have intended that employees never be compensated at all.
failed to see that compensation was provided promptly, or because such superiors may have failed to
advise employees of their right, or because such superiors may have intended that employees never be
compensated at all.
In action by former city employees seeking compensation in money for overtime, affirmative defense of
waiver might be available to the city if it could show that employees, with knowledge of their rights, had
refused to accept commensurate time off.
Within ordinance concerning compensation for overtime worked by city employees, sentence providing
that payment for overtime work must be first approved by the city council did not contemplate advance
council approval before overtime work was allowed nor authorize city to refuse compensation for overtime
work performed, but merely contemplated that, when cash compensation for work performed was sought,
claims were to be presented to the city council.
Under ordinance providing that overtime work by city employees was to be compensated by allowing
commensurate time off if practicable, and otherwise by payment at the current pay rate, employees who
resigned were entitled to payment in cash for overtime work which remained uncompensated upon their
separation from service.
Under ordinance providing compensation for overtime work performed by city employees by allowing
commensurate time off if practicable, and otherwise by payment at the current pay rate, statute of
limitations on right to demand payment in cash commenced to run when employees resigned with overtime
work remaining uncompensated.
OPINION
Appellants, former Carson City police officers, appeal from an order dismissing an action
brought to obtain payment in money for overtime work. The ordinance under which they
submitted claims to the city after leaving its employ, and on which their action is based,
provides:
It is the declared policy of the city that overtime work is to be discouraged. However,
when overtime work is performed by an employee, such overtime shall be compensated for
by allowing commensurate time off within thirty calendar days following the performance of
such overtime work. If in any case it is impracticable to compensate for overtime work by
giving the employee commensurate time off, the employee performing such overtime may
be compensated for such overtime at the current pay rate of the employee concerned.
performing such overtime may be compensated for such overtime at the current pay rate of
the employee concerned. However, payment for overtime work must first be approved by the
city council. Carson City Mun. Code 2.04.330 (1966).
The sole question before us is whether appellants' complaint states cognizable causes of
action. We hold it does.
1

[Headnote 1]
At least one court has held that a public employee has the right to recover for
uncompensated overtime work, even in the absence of a law, ordinance or rule establishing
that right. Grossman v. City of New York, 316 N.Y.S.2d 542 (N.Y. City Ct. 1970). While
there may be much to say for such a view, we need not now adopt it. Here, an ordinance
expressly declares that when overtime work is performed by an employee, such overtime
shall be compensated for by allowing commensurate time off within thirty calendar days
following the performance of such overtime work.
It is immaterial that this declaration is preceded by the words: It is the declared policy of
the city that overtime work is to be discouraged. Clearly, this statement of policy was
intended to guide appellants' superiors, and not to limit appellants' right to compensation if, in
fact, their superiors have not discouraged overtime work but instead have sanctioned it.
Certainly no one will say appellants should, or could, discourage themselves from working
overtime. Nor can this court implement the city's policy of discouraging overtime by
denying appellants' rights. Indeed, for us to deny appellants relief would encourage
supervisors to exact overtime work without compensation, which is precisely what the
ordinance seeks to avoid.
[Headnotes 2, 3]
It is equally immaterial that appellants' superiors may have omitted to allow compensatory
time off within thirty calendar days following the performance of overtime work, as the
ordinance contemplates. Again, such directive was not to appellants, who were powerless to
comply with it, but to their superiors, who were the only persons who could implement its
terms.
____________________

1
Appellant Dunn alleges that while employed from April, 1961, through July, 1969, he performed 1050
hours of overtime work for which he has not yet been compensated either with commensurate time off or at his
current pay rate. Appellant Phoenix alleges 371 hours of uncompensated overtime between October, 1964, and
October 11, 1969. Appellant Gardner alleges 789 hours of uncompensated overtime between August, 1964, and
July 23, 1969.
terms. If appellants have earned the right to compensation, that right is not defeated because
their superiors failed to see that compensation was provided promptly, or because appellants'
superiors may have failed to advise appellants of their right to compensation, or because their
superiors may have intended that appellants never be compensated at all. The City, as an
employer, should be in no more favored position than a private employer in its dealing with
its employees. Certainly, a private employer should not be permitted. . . to deprive an
employee of that which he has earned and the City should be held to at least the same
standard, if not a higher one. Vaccaro v. Board of Education of City of New York, 282
N.Y.S.2d 881, 887 (N.Y. City Ct. 1967). However, we note, without deciding the question,
that an affirmative defense of waiver may be available to the respondent city as to some or all
of appellants' claims, if it can show appellants refused to accept commensurate time off with
knowledge of their rights. Cf. Pohle v. Christian, 130 P.2d 417 (Cal. 1942).
[Headnote 4]
Finally, it is immaterial that the ordinance recites: However, payment for overtime work
must first be approved by the city council. If this provision be construed as we understand
respondent to suggest it may be, to require advance council approval before overtime work is
allowed, then again we would consider its directive as one to appellants' superiors rather than
to appellants themselves. The ordinance does not contemplate that public employees such as
police officers shall refuse to perform work desired by their superiors, until proof is produced
that the city council has met and approved payment therefor. In any event, to us the provision
in question seems merely to contemplate that when cash compensation for work performed is
sought, claims must be presented to the city council. Appellants' complaint alleges that this
was done.
Briefly then, by any fair reading, the ordinance intends that if an employee's superiors do
not discourage overtime work, but instead sanction its performance, the employee shall be
compensated, by commensurate time off if his superiors deem this practicable; or
alternatively, if his superiors deem commensurate time off impracticable, then they may have
him compensated at the current pay rate of the employee concerned. An employee's
superiors have discretion only as to how, and not whether, he is to be compensated for
overtime work. The employee is to be compensated, one way or the other.
other. The last sentence of the ordinance cannot fairly be construed as allowing respondent
city the third option it now contends for, which is not to compensate its employees at all. To
place the latter construction on the ordinance would render it entirely meaningless.
[Headnote 5]
Thus, we arrive at the only significant issue in this case, to wit: whether appellants, who
have resigned their employment with respondent, are now entitled to insist on payment in
cash for overtime work heretofore performed and not yet compensated by commensurate time
off. We believe they are.
[Headnote 6]
Whether an employee remains technically an employee but receives time off with pay, or
quits and then seeks the same monetary compensation, should not affect respondent's
obligation. Such a situation can develop only if respondent fails to allow either commensurate
time off, or payment in cash, as its ordinance contemplates. For all we know, appellants may
have resigned because such conditions of their employment were not being met. Furthermore,
appellants had no effective means by which to compel their superiors to give them time off at
any specific time, or at all. Thus, only if overtime work remained uncompensated upon
appellants' separation from service did their right to demand payment in cash become fixed,
and the statute of limitations commence to run. Adams v. City of Modesto, 350 P.2d 529,
534-535 (Cal. 1960); Martin v. Henderson, 255 P.2d 416, 422 (Cal. 1953); Howard v.
Lampton, 197 P.2d 69, 73 (Cal.App. 1948). See also: Grossman v. City of New York, and
Vaccaro v. Board of Education of City of New York, supra.
Appellants are therefore entitled to attempt to prove, as their complaint alleges, that they
have performed overtime work for which they have not received payment or commensurate
time off. The burden of course is on appellants to establish these facts, essential to their cause
of action.
____________
88 Nev. 456, 456 (1972) Casentini v. Nevada National Bank
ANSEL CASENTINI, Appellant, v. NEVADA NATIONAL
BANK, a National Banking Corporation, Respondent.
No. 6724
July 27, 1972 499 P.2d 652
Appeal from a judgment of the First Judicial District Court, Douglas County; Frank B.
Gregory, Judge.
Suit on note by bank against maker. The district court entered judgment for plaintiff, and
defendant appealed. The Supreme Court, Zenoff, C. J., held that proffered evidence, that bank
manager requested defendant to borrow $1,500 from plaintiff to be approved by the manager
and persuaded defendant to turn the money over to him as a personal accommodation and that
defendant signed a promissory note for $1,500 to plaintiff, received the money and gave it to
manager who subsequently was discharged by plaintiff, would not have shown want or failure
of consideration for the note; rather, execution of note under such circumstances justified
judgment for plaintiff.
Affirmed.
Carl F. Martillaro, of Carson City, for Appellant.
Guild, Hagen & Clark, of Reno, for Respondent.
1. Evidence.
Showing of failure of consideration does not contravene parol evidence rule.
2. Bills and Notes.
Proffered evidence, that bank manager requested defendant-maker to borrow $1,500 from bank to be
approved by the manager and persuaded maker to turn the money over to him as a personal accommodation
and that maker signed a promissory note for $1,500 to the bank, received the money and gave it to manager
who subsequently was discharged by bank, would not have shown want or failure of consideration for the
note; rather, execution of note under such circumstances justified judgment for bank in its suit against
maker on the note.
OPINION
Fritz Von Geldern, while manager of respondent bank, requested Ansel Casentini to
borrow $1,500 from the bank, which Von Geldern would approve as manager, and
persuaded Casentini to turn the money over to him, Von Geldern, as a personal
accommodation.
88 Nev. 456, 457 (1972) Casentini v. Nevada National Bank
which Von Geldern would approve as manager, and persuaded Casentini to turn the money
over to him, Von Geldern, as a personal accommodation. Casentini signed a promissory note
for $1,500 to the bank, received the money and gave it to Von Geldern who subsequently was
discharged by the bank. See Unruh v. Nevada National Bank, 88 Nev. 427, 498 P.2d 1349
(1972).
After demand and refusal to pay, the bank sued on the note and Casentini defended by
denying generally the claim under the note but did not allege failure of consideration as an
affirmative defense. In such absence the trial court refused to allow proof of the foregoing
facts of the Von Geldern-Casentini transaction as violative of the parol evidence rule and
failure to plead the affirmative defense so that the evidence would not be germane to any
issue.
From the judgment in favor of the bank Casentini appeals.
[Headnotes 1, 2]
While a showing of failure of consideration does not contravene the parol evidence rule,
Dixon v. Miller, 43 Nev. 280, 184 P. 926 (1919), the proffered evidence would not have
shown want or failure of consideration.
The execution of the note under these circumstances justifies the judgment. Furthermore,
we find no merit to appellant's contention that the loan is void as having been made to an
employee of the bank in violation of statute. The loan here was made to Casentini, not to Von
Geldern.
Affirmed.
Batjer, Mowbray, and Gunderson, JJ., and Barrett, D. J., concur.
____________
88 Nev. 457, 457 (1972) Solar, Inc. v. Electric Smith Constr.
SOLAR, INC., Appellant, v. ELECTRIC SMITH CONSTRUCTION AND
EQUIPMENT COMPANY, a Washington Corporation, Respondent.
No. 6534
July 28, 1972 499 P.2d 649
Appeal from a judgment awarding respondent $8,045.55 in damages resulting from
appellant's failure to timely deliver electrical materials. Second Judicial District Court,
Washoe County; Grant L. Bowen, Judge.
The Supreme Court, Zenoff, C. J., held that evidence supported finding that delay and
consequent damage were due solely to supplier's failure to deliver on time.
Affirmed.
Paul A. Richards, of Reno, for Appellant.
Stanley H. Brown and Michael Specchio, of Reno, for Respondent.
Issue with respect to which appellant failed to cite authorities and neglected to supply Supreme Court
with recorded facts to enable review would not be entertained by the court.
Where trial court failed to refer to privity of contract issue in any respect in its findings of fact and
conclusions of law or judgment, and appellant failed to move to amend the findings or judgment, such issue
was not preserved for appellate consideration. NRCP 52(b).
3. Contracts.
Evidence, in proceeding on cross-claim by electrical contractor against electrical materials supplier
seeking damages for delay in supplying materials, supported finding that delay and consequent damage
were due solely to supplier's failure to deliver on time.
OPINION
Alfred Brown Company was the general contractor for the construction of the
Broadway-Hale/Weinstock Store in Reno. The rigmarole starts with Brown, the general
contractor, designating Smith, the respondent, to do the electrical work. Smith ordered the
materials from Valley Electric Company who, in turn, ordered the materials from Solar, Inc.
Valley Electric sued Smith for monies due it on this and other jobs. Smith, alleging damages
by reason of certain delays in supplying the materials, claimed that Valley Electric was the
agent of Solar and sought damages for the delay. The trial court gave judgment for Valley
Electric for certain amounts it had coming from Smith, ruled that Valley Electric was not the
agent of Solar and dismissed any further implication of Valley Electric. The dismissal left
standing Smith's cross-claim against Solar.
The only question for the trial court was whether Smith should recover against Solar on
its claim for damages because of late delivery by Solar.
should recover against Solar on its claim for damages because of late delivery by Solar.
Damages were awarded for Solar's delay in exactly the same amount that Smith owed Solar
for materials, to wit, $8,045.55.
Solar appeals from the entire judgment.
[Headnote 1]
1. Appellant has failed to cite authorities for its first appellate proposition that no privity
of contract existed between the appellant and the respondent to allow an action on the
contract or the third-party claim, and further, neglected to supply this court with recorded
facts to enable the court to review that issue. Therefore, we will not entertain it. Howarth v.
El Sobrante Mining Corp., 87 Nev. 492, 489 P.2d 89 (1971); Carson v. Sheriff, 87 Nev. 357,
487 P.2d 334 (1971); Smithart v. State, 86 Nev. 925, 478 P.2d 576 (1970); Riverside Casino
Corp. v. Brewer Co., 80 Nev. 153, 390 P.2d 232 (1964).
[Headnote 2]
Further, although the issue of privity was before the lower court the trial court failed to
refer to that issue in any respect in its finding of fact and conclusions of law or judgment.
Appellant failed to move to amend the findings or judgment (NRCP 52(b)). Therefore, the
question was not preserved for appellate consideration.
[Headnote 3]
2. Appellant contends that respondent should have submitted a change order advising
appellant that because of the delay in delivery additional costs were being incurred and that
such inaction should preclude respondent's recovery of damages. The trial court found that
the delay and consequent damages were due solely to appellant's failure to deliver on time.
Substantial evidence is in the record to support that conclusion. Brandon v. Travitsky, 86
Nev. 613, 472 P.2d 353 (1970); Utley v. Airoso, 86 Nev. 116, 464 P.2d 778 (1970).
The record does not bear out any further contentions of the appellant's appeal.
Affirmed.
____________
88 Nev. 460, 460 (1972) Wright v. State
FERMAN WAYNE WRIGHT, Appellant, v. THE
No. 6482
August 1, 1972 499 P.2d 1216
Clark County; Thomas J. O'Donnell, Judge.
Defendant was convicted in the district court of burglary with intent to commit larceny,
and he appealed. The Supreme Court, Gunderson, J., held that if activities of officers, who
investigated vehicle when they learned that it was displaying stolen license plates, constituted
a search, officers nevertheless acted on probable cause where, when officers examined
contents of the vehicle, they knew that stolen license plates had been placed upon it, they
knew that defendant had a large wad of money stuffed under his shirt concerning which he
gave a questionable explanation, they knew that defendant was traveling with a gun at his
feet, and they knew that defendant and his companion had given conflicting stories
concerning their relationship.
Affirmed.
Robert G. Legakes, Public Defender, Clark County, for Appellant.
Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, and
Charles L. Garner, Chief Deputy for Appeals, Clark County, for Respondent.
1. Arrest.
Officers who knew that license plates on vehicle containing defendant were stolen acted properly when
they stopped and approached defendant and his companion, who alleged that only the Highway Patrol had
the duty to enforce statute relating to license plates, and that local police could not investigate when an
evident misdemeanor involving possession and use of stolen license plates was committed in their
presence. NRS 171.124, subd. 1(a), 482.545.
2. Searches and Seizures.
Police officer may summarily seize personal property in possession of another, wherever it may be, if
probable cause existed to believe that it is an instrumentality or evidence of a crime, if it has come
inadvertently into the officer's lawful plain view, and if inadequate opportunity to obtain a warrant gives
rise to genuinely exigent circumstances. U.S.C.A.Const. Amend. 4.
Police who halted two adult males in a vehicle bearing stolen out-of-state license plates could reasonably
fear that either passenger or driver was armed and dangerous, so that officer properly ordered defendant
from the vehicle and, particularly after officers discovered a gun where defendant had been sitting, officers
had a clear right to conduct a limited protective search for weapons on defendant's person, so that
discovery by officer of defendant's weapon, and the initial discovery of currency on person of defendant,
did not have to be justified on the basis of probable cause to arrest. U.S.C.A.Const. Amend. 4.
4. Arrest.
To be incidental to a lawful arrest a search must be limited to the person of the arrestee or the area under
his immediate control from which he might gain possession of a weapon or destructible evidence.
Examination of interior of vehicle, which officers decided to investigate after they learned that its license
plates were stolen, was proper where officers by that time had reasonable cause to believe that it contained
contraband or evidence in addition to currency already discovered on person of defendant and to gun found
in the vehicle in plain view.
If activities of officers, who investigated vehicle when they learned that it was displaying stolen license
plates, constituted a search, officers nevertheless acted on probable cause where, when officers examined
contents of the vehicle, they knew that stolen license plates had been placed upon it, they knew that
defendant had a large wad of money stuffed under his shirt concerning which he gave a questionable
explanation, they knew that defendant was traveling with a gun at his feet, and they knew that defendant
and his companion had given conflicting stories concerning their relationship. NRS 171.123, subd. 1,
482.545.
7. Criminal Law.
While it was improper for witness for State to mention that defendant had been on probation for another
crime, such comment would be considered harmless where evidence against defendant was overwhelming
in prosecution for burglary with intent to commit larceny. NRS 178.598.
OPINION
Convicted of committing burglary by entering the Henderson Bowling Alley with intent to
commit larceny, appellant contends officers who originally arrested him for displaying stolen
license plates on his car, in violation of NRS 482.545, infringed his Fourth Amendment rights
by warrantless searches of his person and vehicle that produced evidence linking
appellant to the burglary.
his person and vehicle that produced evidence linking appellant to the burglary. This
contention has no merit, in the factual context of this case.
About 2:00 a.m. on April 17, 1970, two Las Vegas patrol car officers, through a routine
check with central control, learned the 1964 Oldsmobile ahead of them bore stolen Texas
license plates. As the Oldsmobile turned into a motel parking lot, the officers pulled in
[a]pproximately ten to fifteen feet behind it. The Oldsmobile's driver, George Watts, got
out and walked toward the motel office. Officer Jones approached him, said he wanted to talk
to Watts, and asked him to step back to the police vehicle. When appellant Wright ignored
repeated requests to get out of the car, Officer Gates ordered him out at gunpoint, and took
him to the police vehicle also.
Returning to make sure the Oldsmobile was now unoccupied, Officer Gates saw a gun
protruding from under the front seat, visible because appellant had not closed the door as he
debarked. The officers then frisked appellant and Watts by patting down the exterior of
their clothing, found no more weapons, but discerned a large bulge inside appellant's shirt.
Officer Jones asked what the bulge was; appellant said it was money he had taken by force
from a man in California to satisfy a debt; and, since it seemed soft, the officers did not
remove it from his person.
When appellant and Watts asked why they were being detained, the officers explained
plates on the Oldsmobile were reported stolen. Appellant claimed ownership of the car,
saying he had borrowed the plates from a friend he would not name, for a purpose he would
not disclose. The officers then arrested appellant and Watts for fictitious license plates; they
gave the Miranda warning, and radioed for a tow truck to impound appellant's car.
1
Appellant and Watts continued to talk, each saying Watts was hitch-hiker appellant had
picked up on the way from California, but stating their meeting place differently. While
awaiting the tow truck's arrival, the officers inventoried the Oldsmobile's contents; on the
back seat, they found a case of assorted whiskey with a crowbar sitting on top of it; on the
floor behind the driver's seat, they found a bowling bag that bore the name of Elvis Russell,
346 Tungston, Henderson, Nevada. Inside the bowling bag, which was closed but not zipped,
Officer Gates discovered a large quantity of rolled coins.
____________________

1
The officers also arrested appellant for carrying a deadly weapon in an automobile and, because he
acknowledged using force to collect the money discovered on his person, for being a fugitive from justice. We
need not determine the legality of these arrests.
large quantity of rolled coins. Gates testified: When I pushed the front seat forward, I could
spread the top apart and look inside the bowling bag. On their inventory sheet, the officers
also listed suitcases found in the trunk, but apparently did not look inside. The tow truck
came; appellant's car was impounded at a private storage yard with all property, except the
gun and the bowling bag containing rolled coins. Those valuables were taken to police
headquarters. When appellant was booked into the jail, the bulge in his clothes proved to be
currency, as he had said.
The officers notified police agencies in Clark County to check bars and bowling alleys for
signs of forced entry. Henderson police discovered a burglary at the Henderson Bowling
Alley. Appellant was charged with the crime; and evidence at his trial showed the currency on
his person, the whiskey, the bowling bag, and the coins it contained, were proceeds of that
crime, committed within two hours of appellant's apprehension. The gun had been fired to
break the locking mechanism of the bowling alley's safe.
During trial, appellant acknowledged he, his wife, Watts and Watts' girlfriend had been in
the Henderson Bowling Alley the day before the crime. However, he said they had found
the property that linked him to the burglary there. He denied making incriminating oral
admissions while in jail, as two Henderson policemen testified he did, after again being
advised of his rights. Not surprisingly, the jury found him guilty; the court sentenced him to
10 years in prison; this appeal follows.
[Headnote 1]
1. Appellant contends only the Nevada Highway Patrol has a duty to enforce NRS
482.545, and concludes Las Vegas police may not investigate when an evident misdemeanor
involving possession and use of stolen license plates is committed in their presence.
Assuming his premise, his conclusion is a non sequitur; for any peace officer may act when a
public offense is committed or attempted in his presence. NRS 171.124(1)(a). Indeed, even a
private person may arrest in such circumstances. NRS 171.104; NRS 171.126(1).
2

We might agree the officers could not properly have arrested appellant under NRS
4S2.545, if he or his companion had shown the information from central control was
incorrect.
____________________

2
Appellant apparently recognizes that with stated exceptions NRS 482.545 declares it unlawful [t]o operate,
or for the owner thereof knowingly to permit the operation of, upon a highway any motor vehicle . . . which is
not registered or which does not have attached thereto and displayed thereon the number of plate or plates
assigned thereto by the department [of motor vehicles] for the current registration period; that NRS 482.555
declares violation a misdemeanor; and
appellant under NRS 482.545, if he or his companion had shown the information from central
control was incorrect. However, in Terry v. Ohio, 392 U.S. 1 (1968), the United States
Supreme Court recognized a police officer may in appropriate circumstances and in an
appropriate manner approach a person for the purpose of investigating possible criminal
behavior even though there is no probable cause to make an arrest. Id., at 22; in accord,
Robertson v. State, 84 Nev. 559, 445 P.2d 352 (1968). Indeed, before Terry, this court upheld
the right of a Las Vegas police officer to stop a vehicle that was without a regular plate,
saying: It is recognized that an officer need not and, in fact, should not ignore evidence of a
crime which comes to his attention. Harper v. State, S4 Nev. 233, 239
____________________
that appellant was not within the exception provided by NRS 482.385 (1) for nonresident owners with proper
plates issued by another state.
However, appellant argues that NRS 481.019 creates a Department of Motor Vehicles; NRS 481.027(4)
provides its functions concerning highway safety shall not be duplicated; NRS 481.130 creates the Nevada
Highway Patrol as a division within the Department of Motor Vehicles; NRS 481.180(3) confers on the Patrol a
duty to act for the Department, in enforcement of Chapter 482 of NRS; and appellant concludes it is only the
duty of the Nevada Highway Patrol to enforce the violation of N. R. S. 482.545.
To us, this argument seems flawed. First, if only the Patrol has the duty, it does not follow other peace
officers lack the right. Second, if others act when the Patrol is not present, the Patrol's functions seem
augmented, not duplicated. (Of course, a city's power to vest its municipal court with authority to punish
violations of NRS 482.545 would be a different question, about which we express no opinion.) Third, it Las
Vegas police had no right to arrest for violations of NRS 482.545, it must be conceded they could investigate
when the crime of possessing stolen property was apparently being committed in their presence. NRS 205.275.
Cf. United States v. Jones, 452 F.2d 884 (8th Cir. 1971).
Consider also: State v. Pappacostas, 407 P.2d 576 (Utah 1965), holding that where false license plates were
used on a car in Nevada, a misdemeanor was committed not only under NRS 482.545 but under NRS 482.275,
which requires plates issued for a vehicle to be attached thereto; that such misdemeanors being committed in the
presence of a Las Vegas police officer, he had power to arrest; and that a warrantless incident search, revealing
evidence of a burglary in Salt Lake City, was valid. Compare: People v. Franklin, 68 Cal.Rptr. 231 (Cal.App.
1968), upon which appellant relies. While holding local police had no right to stop an out-of-state vehicle solely
on speculation that its registration had expired, the court said: The right of a police officer or deputy sheriff. . .
to stop a vehicle and investigate where the license exhibited discloses what is in fact a misdemeanor of failure to
display a valid license . . . is not in issue in the instant case. Id., at 234, n. 5.
State, 84 Nev. 233, 239, 440 P.2d 893, 897-898 (1968). After Terry, our legislature declared:
Any peace officer may detain any person whom such officer encounters under circumstances
which reasonably indicate that such person has committed, is committing or is about to
commit a crime. NRS 171.123(1). Thus, we think the officers acted properly when they
stopped, and approached appellant and Watts.
[Headnote 2]
2. While automobiles are subject to search under certain other rules discussed later, a
police officer may summarily seize personal property in the possession of another, wherever
it may be, if probable cause exists to believe it is the instrumentality or evidence of a crime, if
it has come inadvertently into the officer's lawful plain view, and if inadequate opportunity
to obtain a warrant gives rise to genuinely exigent circumstances. See: Coolidge v. New
Hampshire, 403 U.S. 443, 464-469 (1971).
3
In accord: Chapman v. United States, 365 U.S.
610 {1961); Jones v. United States, 357 U.S. 493 {195S); McDonald v. United States, 335
U.S. 451 {194S); Trupiano v. United States, 334 U.S. 699 {194S);4 Johnson v. United
States, 333 U.S. 10 {194S); Taylor v. United States, 2S6 U.S. 1 {1932).
____________________

3
In passing, we note Coolidge involved seizure of a car reasonably believed to be evidence, parked in plain
view on the defendant's driveway. Since police had ample time to obtain a warrant, and did not come upon the
vehicle inadvertently, the Court held these prerequisites for a warrantless seizure were absent.
In Harris v. United States, 390 U.S. 234 (1968), where witnesses identified a getaway car, and defendant
was apprehended while entering it, the Court assumed without discussion that the car's warrantless seizure as
evidence was proper in such circumstances, and upheld use of evidence thereafter found inside it in plain
view. Harris did not involve an extensive search; its facts are peculiar because the officer testified he
discovered the challenged evidence as he was rolling up the car's windows to protect it from rain.
Cooper v. California, 386 U.S. 58 (1967), also had a peculiar factual basis. In Cooper, the Court said lawful
custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made
of it, but the reason for and nature of the custody may constitutionally justify the search (id. 61), and held that
lawful possession of an automobile held as evidence in a forfeiture proceeding is such custody (id. at 62).
Other recent cases have approved warrantless exploratory searches of the interior of vehicles previously
seized and held as evidence. See: Taylor v. State, 254 So.2d 728 (Miss. 1971); People v. Teale, 450 P.2d 564
(Cal. 1969); People v. Norman, 60 Cal.Rptr. 609 (Cal.App. 1967); People v. Talbot, 414 P.2d 633 (Cal. 1966);
People v. Miller, 53 Cal.Rptr. 720 (Cal.App. 1966); Johnson v. State, 209 A.2d 765 (Md.App. 1965). The
car-as-evidence concept presents various problems, e.g., are there any limitations on the extent to which a
delayed search of such a vehicle may be exploratory? Consider: Harris v. United States, cited above. Does the
right to search a vehicle seized as evidence ever terminate? Consider: Coolidge v. New Hampshire, cited above,
U.S. 610 (1961); Jones v. United States, 357 U.S. 493 (1958); McDonald v. United States,
335 U.S. 451 (1948); Trupiano v. United States, 334 U.S. 699 (1948);
4
Johnson v. United
States, 333 U.S. 10 (1948); Taylor v. United States, 286 U.S. 1 (1932). Here, appellant
apparently contests application of the plain view doctrine to seizure of his gun, only on the
theory that Officer Gates' view was unlawfully obtained by ordering appellant from his car
when, appellant says, no independent ground existed for the officer to question or detain
Appellant.
[Headnote 3]
As indicated, Gates' actions were not dependent on cause to arrest. Terry v. Ohio, cited
above, recognized that a policeman making a reasonable investigatory stop has the right to
protect himself when he is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous. 392 U.S., at 24.
See also: NRS 171.1232(1). In our view, when police see two adult males in a car bearing
stolen out-of-state license plates, they may reasonably fear either passenger or driver is armed
and dangerous.5 Hence, we think Gates properly ordered appellant from the car; and,
particularly after Gates discovered a gun where appellant had been sitting, the officers
had a clear right to conduct a limited protective search for weapons on appellant's person.
____________________
dissent of White, J., indicating belief it does not, while indicating right to conduct a delayed auto search on
probable cause under Chambers v. Maroney (hereinafter discussed) does terminate. See: 403 U.S., at 523.
Here, appellant's vehicle arguably could have been seized to prove where the stolen plates were discovered.
If examination of the car's interior were not otherwise justified, we would thus have to consider whether the
evidentiary nature of appellant's car, in regard to the offense for which he was arrested, justified its seizure and
subsequent search.

4
Trupiano may be cited in this regard.
United States v. Rabinowitz, 339 U.S. 56 (1950), held: To the extent that Trupiano . . . requires a search
warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the
search after a lawful arrest, that case is overruled. 339 U.S., at 66. However, this seemingly left Trupiano
viable, except for its requirement of exigent circumstances even to seize property in plain view at the time of a
lawful arrest. In Chapman v. United States, 365 U.S. 610 (1961), Justice Frankfurter, concurring, noted: While
the Court does not explicitly rely on it, underlying the present decision is the approach of Trupiano. Id. at 618.
Then, in Chimel v. California, 395 U.S. 752 (1969), the Court said that Rabinowitz was hardly founded on
an unimpeachable line of authority, that the approach taken in cases such as Go-Bart, Lefkowitz, and Trupiano
was essentially disregarded by the Rabinoivitz Court (id. at 760), and that Rabinowitz was no longer to be
followed (id. at 768).
Finally Coolidge, involving facts parallel to Trupiano, removed any doubt of Trupiano's viability; for
Trupiano was one of the authorities on which the Court in Coolidge most heavily relied.
and dangerous.
5
Hence, we think Gates properly ordered appellant from the car; and,
particularly after Gates discovered a gun where appellant had been sitting, the officers had a
clear right to conduct a limited protective search for weapons on appellant's person. Terry v.
Ohio, cited above; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921 (1972).
Therefore, Gates' discovery of appellant's weapon, and initial discovery of currency on
appellant's person, need not be justified on the basis of probable cause to arrest.
6

3. However, on at least two grounds, appellant contends Gates' subsequent discovery of
the whiskey and bowling bag cannot be sustained as an inventory, related to and occasioned
by a proper impound of the vehicle. First, relying particularly on Mozzetti v. Superior Court
of Sacramento County, 484 P.2d 84 (Cal. 1971), appellant contends the inventory was
exploratory in nature, and thus an unjustified and unconstitutional search.
____________________

5
Compare: People v. Superior Court of Yolo County, 478 P.2d 449 (Cal. 1970), upon which appellant most
heavily relies. In that case, the Supreme Court of California held an officer who had stopped a driver only for
exceeding the posted speed limit was unjustified in opening his vehicle's right front door, where a woman
passenger was sitting, although she had made what the officer construed as a furtive gesture downward when
he signaled the driver to stop, and although the driver had walked back to the officer's car rather than waiting for
the officer. The decision proceeds on the theory that a mere speeding violation justifies no inference that the
driver's vehicle contains contraband, and the nature of the offense precludes any prospect that the vehicle
contains instrumentalities, fruits or evidence thereof; that no logical inference of guilt or evasion may be
drawn when a driver gets out of his car in response to an officer's order to stop; and that gestures which may well
be innocent will not by themselves establish probable cause for an arrest or search, as we recently recognized in
Schmitt v. State, 88 Nev. 320, 497 P.2d 891 (1972).

6
Of course, actual recovery of the currency, when appellant was booked into jail, was not an
unconstitutional search. Arabia v. State, 82 Nev. 453, 421 P.2d 952 (1966); Nootenboom v. State, 82 Nev.
329, 418 P.2d 490 (1966); cf. Brett v. United States, 412 F.2d 401 (5th Cir. 1969). That recovery is, in any case,
unimportant to our analysis of later events, except that with the currency and the gun both lawfully seized and
linked to the burglary, evidence against appellant was quite sufficient to sustain his conviction, and any error in
admitting the other physical evidence would seem harmless beyond a reasonable doubt. Appellant's explanation
for having the physical evidence was that he had found it behind a bar; and if the jury had been disposed to
believe that explanation, they should have found it as plausible with all the physical evidence that was before
them, as they would considering only the currency and gun. In this case, we conclude that the minds of an
average jury' would not have found the State's case significantly less persuasive had the testimony as to [the
whiskey and bowling bag] been excluded. Schneble v. Florida, 405 U.S. 427, 31 L.Ed.2d 340, 345 (1972).
and unconstitutional search.
7
Second, appellant contends that since his vehicle was lawfully
parked on private property, there was no justification for an impound, hence no justification
for an inventory to protect its contents during impound.
8

[Headnote 4]
On at least two grounds, appellant further contends that this search, as he styles it, may
not be justified as incidental to an arrest under NRS 4S2.545.
____________________

7
This contention seems insubstantial.
Mozzetti involved marijuana in a closed but unlocked suitcase in a car left damaged on the highway by an
accident necessitating the owner's hospitalization. While recognizing an impound was appropriate in such
circumstances, the California Supreme Court held exploration of the suitcase was an unconstitutional search
because it exceeded what was necessary for protection of the vehicle and its contents. However, the court also
recognized that, given cause to impound a vehicle, the police may conduct an inventory confined to the
impound's legitimate purpose: We have no doubt that the police, in the course of such valid protective
measures, may take note of any personal property in plain sight within the automobile being taken into custody.
Any objects clearly visible without probingincluding the suitcase in this instancemay be listed in an
inventory or other police report. Id. at 89. See also: Williams v. United States, 412 F.2d 729 (5th Cir. 1969);
Brett v. United States, 412 F.2d 401 (5th Cir. 1969).
In this case, application of the Mozzetti standard would not benefit appellant; the stolen whiskey and bowling
bag were in plain view; thus, the most appellant could obtain is suppression of the bag's contents. We are not
totally persuaded that an unzipped bowling bag is exactly analogous to the closed suitcase in Mozzetti; however,
assuming this, we note again that the State's case would not have been significantly less persuasive had the
testimony as to [the bag's contents] been excluded. Schneble v. Florida, cited supra at footnote 6, 405 U.S. 427,
31 L.Ed.2d 340, 345 (1972).
Furthermore, this court has held a thief has no standing to object to a search of stolen property, except when
charged with an offense that makes possession of its contents a crime. Harper v. State, 84 Nev. 233, 440 P.2d
893 (1968). Appellant has not suggested we should overrule Harper, under which appellant would have no
standing to complain of the police looking into the stolen bowling bag.

8
The question is substantial.
The Las Vegas City Code only authorizes police to remove a vehicle from a street or highway when it is an
obstruction to traffic or illegally parked, and either unattended or its driver incapacitated to provide for its
custody or removal. Las Vegas City Code 10-21-10: (A) (1960).
In Williams v. United States, 170 A.2d 233 (D.C.App. 1961), defendant legally parked his car in front of the
police station after he was arrested for speeding and ordered to follow officers there, and the officers impounded
the vehicle while he was in custody. The court held an inventory of its contents was an unconstitutional search,
saying: The government has not shown that the automobile was impounded pursuant to this regulation [similar
to Las Vegas Code provision] by the mere statement that appellant could not leave the
to an arrest under NRS 482.545. First, relying on Chimel v. California, 395 U.S. 752 (1969),
appellant contends the search took place so far distant from where he was arrested, at the
police car, that it was impermissible in scope.
9
Second, relying on People v. Superior Court
of Yolo County, cited above, 478 P.2d 449 (Cal. 1970), he contends that where an arrest is for
a routine traffic violation, a search of the vehicle cannot be justified by reference to the
arrest because there exists no reason to believe the arrestee's vehicle contains either
weapons or evidence.10
____________________
automobile parked in front of the police station.' Because of the government's failure to make a showing that the
car was unlawfully parked, subject to removal under Section 91, we must rule that the police conducted a
forbidden exploratory search and seizure, even though the inspection was not motivated by a desire to discover
incriminating evidence. Id. at 234-235.
Similarly, in United States v. Pannell, 256 A.2d 925 (D.C.App. 1969), where defendant's car was parked on a
police parking lot while he was inside being booked and making bail for driving with a suspended license, the
court held a purported impound of his vehicle was improper and a purported inventory therefore an
unconstitutional search. While recognizing the government's need to protect by proper inventory-taking both
the property of those arrested and itself against future claims, the court stated: Nevertheless, the police must
first have had a lawful basis for acquiring custody of appellee's auto before they could employ safe-keeping
methods such as an inventory of its contents. Id. at 926.
Again, in Pigford v. United States, 273 A.2d 837 (D.C.App. 1971), where defendant's vehicle was parked on
the police lot, an inventory conducted there within an hour after his arrest on traffic warrants, while he was
obtaining collateral for his release, was determined to be an unconstitutional search.
See also: Mayfield v. United States, 276 A.2d 123 (D.C.App. 1971).
Whether the impound of appellant's vehicle could be justified in the instant case, either because the officers
could rightfully take protective action on behalf of the true owner who was not yet definitely determined [see
Williams v. United States, cited in footnote 7, supra, 412 F.2d 729 (5th Cir. 1969)], or because the car had
evidentiary value [see footnote 3, supra], or for some other reason, we need not decide for reasons stated later.

9
Chimel held that to be justified as incidental to a lawful arrest, a search must be limited to the person of the
arrestee or the area under his immediate control from which he might gain possession of a weapon or
destructible evidence.
However, even so limited a search is not necessarily constitutional merely because conducted
contemporaneously with a lawful arrest; the problem is subtler than that. Consider: People v. Superior Court of
Yolo County, and Agar v. Superior Court for County of Los Angeles, discussed infra, at n. 11. On the other
hand, where other justifications for a more extensive search exist, police are not limited to conducting a limited
Chimel-type search, although before Chambers v. Maroney, 399 U.S. 42 (1970), was decided, some
commentators thought this might be the case. See: Chimel v. California: A Potential Roadblock to Vehicle
Searches, 17 U.C.L.A.L.Rev. 626, 645 (1970).
because there exists no reason to believe the arrestee's vehicle contains either weapons or
evidence.
10

[Headnote 5]
We need not resolve these contentions; for we believe examination of the vehicle's interior
was proper in this case because the police by that time had reasonable cause to believe it
contained contraband or evidence in addition to the currency already discovered on
appellant's person and the gun found in plain view.
11

4. In Carroll v. United States, 267 U.S. 132 (1925), the United States Supreme Court long
ago rejected the contention that a warrantless search of an automobile can be justified only if
incidental to a lawful arrest, and announced a new exception to the general rule that a search
is unreasonable unless made pursuant to a search warrant.
12
That exception, prior to the
Court's decision in Chambers v. Maroney, 399 U.S. 42 {1970), could be stated generally as
follows:
"The two essential conditions to the validity of the reasonable cause auto search under
the Carroll exception are: 1) The officer must have reasonable cause to believe the auto
contains items subject to seizure, and 2) the auto must be 'movable' in the sense that the
officer reasonably believes that it may be moved by someone who is free to do so and that
it is therefore not 'reasonably practicable' to secure a search warrant." A. Murray and R.
____________________

10
Appellant's gratuitous assumption that operating a vehicle with stolen license plates is a routine traffic
offense, like the speeding violation concerned in People v. Superior Court of Yolo County, seems questionable.
See: United States v. Jones, 452 F.2d 884 (8th Cir. 1971).

11
In People v. Superior Court of Yolo County, the California Supreme Court held that though there be cause
to arrest for a routine traffic offense, even a search that does not exceed the scope ordinarily permissible under
Chimel v. United States, cited above, cannot be justified as incident thereto. To justify a warrantless search of
the car's interior, the court held, there must be independent probable cause to believe the vehicle does in fact
contain contraband. 478 P.2d at 453. Indeed, even a stationhouse inventory of the arrestee's clothing has been
held unlawful, in traffic cases where he is entitled either to be released on notice to appear, or to be taken before
a magistrate to have bail set. Agar v. Superior Court for County of Los Angeles, 98 Cal.Rptr. 148 (Cal.App.
1971).
Appellant also relies on People v. Blodgett, 293 P.2d 57 (Cal. 1956). In that case, Justice Traynor, for the
Court, said that while the driver could have been arrested for double parking, the search of his cab cannot be
justified on that ground, for it had no relation to the traffic violation and would not have been incidental to an
arrest therefor. Id. at 58; emphasis added. However, as we do in the instant case, the California Supreme Court
(one Justice dissenting) found independent cause to search the vehicle for contraband. In Blodgett, that cause
was the officer seeing defendant withdraw his left hand from behind the seat at the juncture of the seat and back
cushion. 293 P.2d at 58. While the sufficiency of this furtive gesture as independent cause is debatable, and
the California Supreme Court has since said it will be well to limit Blodgett to its facts (Yolo, 478 P.2d at 456,
n. 5), both Yolo and Blodgett recognize a vehicle may be searched for contraband upon independent reasonable
cause, even though there is present cause to arrest only for a traffic violation, or no present cause to arrest at all.

12
For a resume of major cases since decided, see: Auto Search: The Rocky Road from Carroll to Coolidge,
17 So.Dak.L.Rev. 98 (1972).
Court's decision in Chambers v. Maroney, 399 U.S. 42 (1970), could be stated generally as
follows:
The two essential conditions to the validity of the reasonable cause auto search under the
Carroll exception are: 1) The officer must have reasonable cause to believe the auto contains
items subject to seizure, and 2) the auto must be movable' in the sense that the officer
reasonably believes that it may be moved by someone who is free to do so and that it is
therefore not reasonably practicable' to secure a search warrant. A. Murray and R. Aitken,
Constitutional Limitations of Automobile Searches, 3 Loyola U.L.Rev. (L.A.) 95, 102 (1970).
Then came Chambers v. Maroney, cited above, in which occupants of a station wagon
were arrested on the basis of information provided by witnesses to a robbery; the vehicle was
driven to the police station, where a search revealed evidence used at petitioner's trial. As a
reigning expert on search and seizure has said:
Keeping in mind the fact that Carroll was based upon the impracticability of obtaining a
search warrant in advance of the search, and also the Court's more recent pronouncements in
Chimel and Vale that warrantless searches must be closely tied to necessity, one might well
have thought that the Supreme Court would find the search in Chambers unlawful. Once the
occupants of the automobile had been lawfully arrested, the car was no longer movable, so
that even a warrantless search at the time of the arrest was not necessary. As one court put it,
Exigencies do not exist when the vehicle and the suspect are both in police custody.' . . . W.
LaFave, Warrantless Searches and the Supreme Court: Further Ventures Into the
Quagmire. 8 Crim.L.Bull. 9, 18 (1972).
However, in Chambers the Court ruled otherwise. On reasoning questioned by Professor
LaFave, id. at 18-19, the Court not only concluded that the station wagon could have been
searched at the time and place of arrest under the principles of Carroll, but found the search
at the station lawful. The Court found exigency that would have justified the vehicle's search
on the spot when it was stopped; it upheld the delayed search at the stationhouse, saying
there is little to choose in terms of practical consequences between an immediate search
without a warrant and the car's immobilization until a warrant is obtained. 399 U.S., at 52.
Given this standard of continuing exigency, arresting officers in the instant case could
properly search appellant's car, although appellant's arrest rendered it nonmobile, if they had
reasonable cause to believe it contained items subject to seizure.
(Compare: Coolidge, cited above, in which there was no exigency when the initial seizure
occurred.)
[Headnote 6]
In the instant case, we think the probable cause element of the Carroll-Chambers doctrine
was satisfied. When the officers examined the contents of appellant's car, they lawfully knew
he had placed stolen license plates on it for some criminal purpose, quite likely connected
with robbery or burglary; they knew he had a large wad of money stuffed under his shirt,
concerning which he gave a most questionable explanation; they knew he was traveling with
a gun at his feet; and they knew he and his companion had given conflicting stories
concerning their relationship. Under such circumstances, if the officers indeed searched
appellant's car, we think they acted on probable cause.
13

[Headnote 7]
5. Appellant also contends the court should have granted a mistrial when a State witness
mentioned appellant had been on probation for another crime. While the witness's statement
was improper, as the trial court recognized, the court denied appellant's motion for a mistrial
because the evidence against him was overwhelming, and the comment therefore harmless.
NRS 178.598; Fairman v. State, 83 Nev. 287, 429 P.2d 63 (1967). After careful review of the
record, we agree.
Affirmed.
Zenoff, C. J., and Batjer and Thompson, JJ., concur.
Mowbray, J., concurring:
A jury in Clark County found Ferman Wayne Wright guilty of burglarizing a bowling
alley in Henderson, Nevada.
____________________

13
In short, we perceive in this case a pattern much like that in White v. United States, 448 F.2d 250 (8th Cir.
1971). See also: Thunder Horse v. State of South Dakota, 456 F.2d 1262 (8th Cir. 1972).
It should be noted that in Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967), this court upheld an
examination of a vehicle's interior on the basis of the inventory doctrine; in Heffley v. Hocker, 420 F.2d 881
(9th Cir. 1969), the Ninth Circuit Court of Appeals adjudged us incorrect; in Hocker, Warden v. Heffley, 399
U.S. 521 (1970), the United States Supreme Court vacated the Ninth Circuit's judgment and remanded the case
for further consideration in the light of Chambers v. Maroney; and in Heffley v. Hocker, 429 F.2d 1321
(1970), the Ninth Circuit denied Heffley relief. This line of authority establishes that, although an officer has not
articulated intent to make an exploratory search on probable cause, his actions will be upheld if they meet the
tests of Chambers v. Maroney.
of burglarizing a bowling alley in Henderson, Nevada. He has appealed from his judgment of
conviction and seeks reversal on the ground that the seizure of the pistol used to blow the
lock off a safe located in the bowling alley, a bowling ball bag that contained money taken in
the burglary, a crowbar, and a case of whiskeyall items that were found in Wright's car at
the time of his arrestwere improperly seized by the arresting officers in violation of
Wright's constitutional rights. He also claims that reversible error was committed when one
of the State's witnesses made a reference to Wright's probation status.
1. The Facts.
During the early morning hours of April 17, 1970, two police officers on patrol observed a
1964 Oldsmobile bearing Texas license LWK 373 stopped at a traffic light in Las Vegas. By
radio, the officers requested their headquarters to check the plates. They were informed that
the plates had been stolen. The officers followed the car into a motel parking lot and stopped
it. The driver, one George Watts, left the vehicle and headed for the motel. Appellant Wright
remained seated in the front passenger seat of the car. One of the officers ordered him to get
out of the car. Wright refused. The officer pulled his revolver and repeated his request. This
time, Wright complied. After Wright left the car, the officer noticed a pistol protruding from
under the front seat where Wright had been sitting. The officers then frisked both Wright and
Watts and found a bulge inside Watts's shirt. Upon the officers' inquiry, Watts said that the
bulge was currency he had taken by force from one of his debtors in California. Wright
claimed he owned the vehicle and that he had borrowed the stolen license plates from a friend
whom he did not care to name. The officers arrested both Wright and Watts for displaying
fictitious license plates and gave them the required Miranda warning. The officers then
radioed for a tow truck to impound the car, and they proceeded to inventory the vehicle. In
addition to the pistol, the officers found, in the back seat of the car, a case of whiskey and a
crowbar; and on the rear floor they found the bowling ball bag and money. The officers took
Wright and his friend Watts to the police station. Later, after a check with the law
enforcement authorities, they learned that the bowling alley had been burglarized.
2. The Search of Wright's Car and the Seizure of the Contraband.
Wright claims as his principal assignment of error that the pistol and the other items
mentioned above were taken from his car at the time of his arrest during a warrantless
search, in derogation of his Fourth Amendment rights.
pistol and the other items mentioned above were taken from his car at the time of his arrest
during a warrantless search, in derogation of his Fourth Amendment rights.
It appears to me that our review in the instant case, therefore, is limited to the facts
presented, and that it is focused and narrowed upon the validity of on-the-spot, warrantless
searches of defendants' automobiles that have been properly stopped by the police.
Before venturing further into the quagmire of warrantless searches, as so characterized
by the majority, I think it is well to keep in mind for whose protection the Fourth Amendment
is intended. As Chief Judge Murrah said in Sumrall v. United States, 382 F.2d 651, 654 (10th
Cir. 1967):
1

Throughout the long, tedious and controversial interpretative history of the Fourth
Amendment in which standing to invoke its protections has been almost constantly expanded
and enlarged, the keystone has been the protection of the right of privacy. The Fourth
Amendment has never been characterized as a rule of evidence, but rather a charter for
freedom from the invasion of the right of privacy. . . .
In quoting Mr. Justice Frankfurter, Judge Murrah wrote (also at 654):
. . . Mr. Justice Frankfurter unequivocally recognized [in Jones v. United States, 362 U.S.
257 (1960)] that the exclusionary rule incident to the prohibitions of the Fourth Amendment
is a means for making effective the protection of privacy'; that to come within the
exclusionary rule one must belong to the class for whose sake the constitutional provision is
given'; and that to come within the class, he must be the victim of the search in the sense that
his right of privacy was invaded. . . .
Certainly, under the factual posture of this case it cannot be said that Wright's right of
privacy was unlawfully invaded. The officers had every right, and a duty, to stop Wright's car,
because they had been advised that his license plates were stolen plates.
In Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966), the court, in quoting from Frye v.
United States, 315 F.2d 491, 494 {9th Cir.
____________________

1
The court, in sustaining a bank robbery conviction, held that police officers had probable cause to arrest the
defendant without a warrant for either speeding or driving without a proper license (a license in a name other
than his [Nabors'] own) and that, having made such lawful arrest, a subsequent search of the defendant at the
time and place of his arrest was appropriately incidental thereto and that the evidence obtained (a large amount
of money) as a result of the search was not inadmissible on the theory that it was in violation of the Fourth
Amendment.
the court, in quoting from Frye v. United States, 315 F.2d 491, 494 (9th Cir. 1963), said:
. . . [T]he local policeman, in addition to having a duty to enforce the criminal laws of
his jurisdiction, is also in a very real sense a guardian of the public peace and he has a duty in
the course of his work to be alert for suspicious circumstances, and, provided that he acts
within constitutional limits to investigate whenever such circumstances indicate to him that
he should do so.' (Emphasis added.)
In Wilson, the police officers on patrol saw the defendant drive by several times in his car
at a very slow speed during the predawn hours. The police followed the defendant, turned on
their red light, and directed the defendant to pull over to the curb. The officers had no specific
knowledge that a crime had been committed, and no traffic law had been violated. One of the
officers walked to the right-hand side of the car and requested the passenger to get out and
asked for his identification. As the passenger opened the door, the officer standing outside the
car shone his flashlight into the car and saw what appeared to be a gun barrel protruding from
under the front seat. The officer reached under the seat and pulled out a .22 caliber pistol. The
defendant and his companion were then placed under arrest and searched. The officers found
a dagger on the defendant's person. The court ruled, at 414:
We conclude that no right of the appellee was violated when the officers stopped the car
and that the subsequent seizure of the evidence upon which he was convicted [possession of a
firearm by a felon and possession of a concealed dagger] was justified as pursuant to a lawful
arrest. . . .
At 415, the court held:
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. [Citations omitted.] A line between reasonable
detention for routine investigation and detention which could be characterized as capricious
and arbitrary cannot neatly be drawn. But due 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.
And, finally, at 416, the court said: "The initial stopping of appellee's car having been a
lawful detention but not an arrest, the admissibility of the evidence subsequently seized
will depend upon the point in time when the arrest occurred.
The initial stopping of appellee's car having been a lawful detention but not an arrest, the
admissibility of the evidence subsequently seized will depend upon the point in time when
the arrest occurred. If discovery of the pistol preceded the arrest, that discovery provided
probable cause for a subsequent arrest and search.
The case before us is much stronger than Wilson, because in our case the officers knew
that the license plates on Wright's car had been stolen. They then had a right and a duty to
stop the car. They noticed, as Wright stepped from the car, a pistol protruding from under the
front seat. They then placed the defendant and his companion under arrest for having
fictitious plates and for possession of a concealed weapon. They proceeded to seize the other
contraband in the car, namely, the bowling ball bag and the money therein, the case of
whiskey, and the crowbar.
Just recently, the Colorado Supreme Court, in Avalos v. People, 498 P.2d 1141 (1972),
upheld the validity of the warrantless search of the purse of a defendant who had been
stopped because the right taillight on her car was not functioning. The Colorado court, in its
per curiam opinion, said:
. . . Upon being asked to produce her operator's license, she told the policemen that her
driver's license had expired. She was then asked to return with the officers to the police car so
that they could determine whether her license had expired or had been suspended or revoked.
This procedure was wholly proper and did not infringe upon any rights of the defendant.
[Citations omitted.]
While the officers were awaiting a report as to the status of the defendant's driver's
license, one of the officers noticed a fresh needle mark on the defendant's right wrist. The
needle mark was in plain view. The officer knew the defendant from past encounters and also
had information from a reliable informer, as well as from a fellow officer, that the defendant
was a narcotics user. . . . Under these circumstances, the officer clearly had probable cause to
arrest the defendant. . . .
Following the defendant's arrest, she was taken immediately to police headquarters,
where a search of her purse revealed five hand-rolled marijuana cigarettes. The warrantless
search of the defendant's purse and the seizure of the marijuana cigarettes may be upheld
either as a search incident to arrest or as an inventory procedure conducted prior to
incarceration. . . .
Any warrantless search that is exploratory or tainted with sham or pretense will not be
tolerated. See Mozzetti v. Superior Court, 94 Cal.Rptr.
Court, 94 Cal.Rptr. 412, 484 P.2d 84 (Cal. 1971). There was no such evidence in the case
before us. The police officers, in making the arrest and seizing the contraband, acted properly.
Wright may not complain that his right of privacy was unlawfully invaded.
3. The Reference to Wright's Probationary Status.
During direct examination of one of the State's witnesses, Officer Edwin R. Lattin of the
Henderson Police Department, the following occurred:
Q Was that the extent of the conversation or was more said?
A Oh, I would say that we probably were there for more than fifteen minutes and the gist
there endingwe were discussing his probation and a letter that he had received from his
mother regarding his wife and we spoke about it and we paraphrased part of the letterwell,
it's nothing relevant to the case probably.
The officer's observation that it's nothing relevant to the case . . . was accurate, because a
law enforcement officer should know that such testimony may be highly prejudicial to the
defendant and be a ground for a mistrial. In this case, the district judge denied Wright's
motion for a mistrial because the evidence was overwhelming in favor of conviction. The
district judge observed that, had it been a close case, the motion would have been granted.
Under the factual posture of this case, I believe that the district judge ruled properly in
denying the motion for a mistrial. Fairman v. State, 83 Nev. 287, 288-290, 429 P.2d 63, 64
(1965).
____________
88 Nev. 477, 477 (1972) Dumlao v. State
JOHNNIE PAUL DUMLAO, Appellant, v. THE STATE
No. 6629
August 3, 1972 499 P.2d 648
Appeal from judgment of conviction and sentence of the Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
Defendant was convicted in district court of being an ex-felon in possession of a firearm
and he appealed. The Supreme Court, Gunderson, J., held that police officer who stopped
vehicle in which defendant was a passenger and who ordered defendant from car when it
seemed he might be dangerous and arrested him for disorderly conduct when he
commenced shouting obscenities did not violate defendant's Fourth Amendment rights by
searching defendant and finding gun on which conviction was predicated.
ordered defendant from car when it seemed he might be dangerous and arrested him for
disorderly conduct when he commenced shouting obscenities did not violate defendant's
Fourth Amendment rights by searching defendant and finding gun on which conviction was
predicated.
Affirmed.
H. Dale Murphy, Public Defender, and William H. Whitehead, III, Deputy Public
Defender, Washoe County, for Appellant.
Robert List, Attorney General, of Carson City; Robert E. Rose, District Attorney, and
Searches and Seizures.
Police officer who stopped vehicle in which defendant was a passenger and who ordered defendant from
car when it seemed he might be dangerous and arrested him for disorderly conduct when he commenced
shouting obscenities did not violate defendant's Fourth Amendment rights by searching defendant and
finding gun on which conviction was predicated. NRS 202.360; U.S.C.A. Const. Amend. 4.
OPINION
Convicted of violating NRS 202.360 by being an ex-felon in possession of a firearm,
appellant contends his Fourth Amendment rights were violated by police who stopped the
vehicle in which he was a passenger, ordered appellant from the car when it seemed he might
be dangerous, arrested him for disorderly conduct when he commenced shouting obscenities,
and upon searching him found the loaded gun on which his conviction is predicated.
In Wright v. State, 88 Nev. 460, 499 P.2d 1216 (1972), decided August 1, 1972, this court
has extensively discussed the legal issues concerned in investigatory stops of vehicles,
protective measures police may take in making such stops, and searches incident to lawful
arrests. No useful purpose would be served by reiterating the governing principles again here,
in relation to the particular facts of this case. The trial court's order denying appellant's
Motion to Suppress appellant's weapon as evidence shows the court understood the issues to
be resolved in this case and, on the basis of the record, determined those issues against the
appellant.
As the record supports a determination that the State sustained its burden of proving
justification for appellant's warrantless arrest and incident search, the judgment of conviction
and sentence are affirmed. Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966).
____________
88 Nev. 479, 479 (1972) Cummings v. City of Las Vegas Mun. Corp.
BILL LEE CUMMINGS and NINA CUMMINGS, dba B & N PHARMACY, Appellants, v.
CITY OF LAS VEGAS MUNICIPAL CORPORATION, Respondent.
No. 6710
August 3, 1972 499 P.2d 650
Appeal from a judgment and order of the Eighth Judicial District Court dismissing
appellants' complaint for injunction; Clarence Sundean, Judge.
Action to enjoin city from arresting plaintiffs for operating pharmacy without a license.
The district court denied relief and plaintiffs appealed. The Supreme Court, Batjer, J., held
that where license for operation of pharmacy was not issued because plaintiffs failed to satisfy
requirement for obtaining tobacco license, city would not be enjoined from arresting plaintiffs
in absence of showing that plaintiffs would suffer irreparable injury or that property rights
would be invaded by enforcement of the licensing ordinance or that there would follow a
multiplicity of suits and in absence of showing of fraudulent use or abuse of legal process.
Affirmed.
David Abbatangelo, of Las Vegas, for Appellants.
Earl P. Gripentrog, City Attorney, and Joan D. Buckley, Deputy City Attorney, of Las
Vegas, for Respondent.
1. Judgment.
If motion to dismiss for failure to state claim upon which relief can be granted has been filed, and matters
outside pleadings are presented to and not excluded by the trial court, motion shall be treated as motion for
summary judgment. NRCP 12(b).
2. Judgment.
Defendant may move for summary judgment at any time. NRCP 56(b).
Legislative enactments are entitled to all presumptions in favor of validity.
4. Municipal Corporations; Statutes.
Courts will construe statutes and ordinances so as to give them effect rather than nullify them.
5. Injunction.
Even if a prosecution is based on an invalid ordinance, that does not in itself justify the intervention of a
court of equity for purpose of granting injunctive relief.
6. Injunction.
Equity will not intervene for purpose of restraining judicial enforcement of a penal city ordinance
although the licensing act is alleged to be invalid, because such invalidity may be interposed as a defense to
the prosecution.
7. Injunction.
Equity will intervene to protect a party from arrest or criminal prosecution under an unconstitutional
statute or ordinance, but only to avoid a multiplicity of suits or in the event it is plainly evident that there is
no adequate remedy at law.
8. Injunction.
Where license for operation of pharmacy was not issued because plaintiffs failed to satisfy requirement
for obtaining tobacco license, city would not be enjoined from arresting plaintiffs for operating business
without license in absence of showing that plaintiffs would suffer irreparable injury or that property rights
would be invaded by enforcement of the licensing ordinance or that there would follow a multiplicity of
suits and in absence of showing of fraudulent use or abuse of legal process.
Reviewing court would not consider assignments of error raised for the first time on appeal.
OPINION
In November of 1969, appellants filed an application for a business license to operate a
pharmacy in Las Vegas. The license fees were paid and they proceeded to operate the
pharmacy although a business license was never issued to them. The record is not clear, but
apparently the license had not been issued because the appellants had failed to satisfy the
requirements for obtaining a tobacco license. Some 18 months later they were notified by
respondent's agent that they would be arrested if they continued to operate without a license.
If, as they contend, they believed that they were entitled to a license, they took no steps
whatsoever to force the respondent to issue one, but instead voluntarily closed the pharmacy.
On June 17, 1971, appellants filed a complaint for injunction seeking to have the
respondent enjoined from arresting them for operating their business without a license. The
respondent filed an answer and a motion to dismiss. The motion to dismiss was granted upon
the ground that appellants had failed to exhaust their administrative remedies. This appeal
follows.
The appellants alleged in their complaint that they had not received a business license and
that they were therefore operating their pharmacy without a license. Title V, Ch. 1, 1 of the
Las Vegas City Code, which was admitted into evidence, renders such operation unlawful.
The record further disclosed that the appellants were never denied a business license, but
failed to comply with all the licensing requirements, and therefore no final decision on the
license was ever made.
[Headnotes 1, 2]
Appellants contend that the motion to dismiss, having been filed on the same day and a
few minutes after the answer, was untimely and should have been disregarded by the trial
court. If a motion to dismiss for failure to state a claim upon which relief can be granted has
been filed, and matters outside the pleadings are presented to and not excluded by the trial
court, the motion shall be treated as a motion for summary judgment. NRCP 12(b); Paso
Builders, Inc. v. Hebard, 83 Nev. 165, 426 P.2d 731 (1967); Kellar v. Snowden, 87 Nev. 488,
489 P.2d 90 (1971). Here the trial court did not expressly exclude matters outside the
pleadings from consideration (NRCP 12(b)), and it ordered and adjudged that the motion to
dismiss be granted. A defendant may move for summary judgment at any time. NRCP 56(b).
The constitutionality of the licensing ordinance was never raised by the appellants in the
district court. Rather, they alleged in general terms that they were being deprived of their
property and civil rights without due process of law, that they had been threatened with arrest
and as a consequence were forced to close their unlicensed place of business.
[Headnotes 3-7]
Legislative enactments are entitled to all presumptions in favor of validity. Ormsby County
v. Kearney, 37 Nev. 314, 142 P. 803 (1914). Likewise, courts will construe statutes and
ordinances so as to give them effect rather than nullify them. Carson City v. Red Arrow
Garage, 47 Nev. 473, 225 P. 487 (1924). Here, there is nothing in the record to cloud the
validity of the licensing ordinance. Even if a prosecution is based on an invalid ordinance,
that does not in itself justify the intervention of a court of equity.
on an invalid ordinance, that does not in itself justify the intervention of a court of equity.
Equity will not intervene for the purpose of restraining the judicial enforcement of a penal
city ordinance although the licensing act is alleged to be invalid, because such invalidity may
be interposed as a defense to the prosecution. An exception to this rule exists when an
injunction is necessary to protect a party from arrest or criminal prosecution under an
unconstitutional statute or ordinance, but the exception is only invoked to avoid a multiplicity
of suits or in the event it is plainly evident that there is no adequate remedy at law. City of
Amarillo v. Griggs Southwest Mortuary, Inc., 406 S.W.2d 230 (Tex.Civ.App. 1966); Spur
Distributing Co. v. Mayor And Council, 11 S.W.2d 30 (Ga. 1940); see Annot., 167 ALR 915;
42 Am.Jur.2d, Injunctions 246.
[Headnote 8]
There is nothing in this record to bring the appellants within the exception to the rule.
They have introduced no evidence to show that they will suffer irreparable injury or that their
property rights will be invaded by the enforcement of the licensing ordinance, nor have they
shown that there will follow a multiplicity of suits. Furthermore, they have not evidenced any
fraudulent use or abuse of legal process by the respondent. Mere inconvenience and expense
or apprehension of injury to property rights will not invoke equity jurisdiction. Spur
Distributing Co. v. Mayor And Council, supra.
Through their request for an order enjoining the city from arresting them for operating a
business without a license, the appellants were attempting to bypass the proper administrative
and judicial processes. This was recognized by the trial court when it found that they had not
exhausted their administrative remedies and were not entitled to relief because they had
available to them an adequate remedy at law.
[Headnote 9]
Appellants have also attempted to raise, for the first time on appeal, several other
assignments of error. We decline to consider them. Britz v. Consolidated Casinos Corp., 87
Nev. 441, 488 P.2d 911 (1971).
Affirmed.
Zenoff C. J., and Mowbray, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 483, 483 (1972) Tupper v. Kroc
LLOYD G. TUPPER, GERALD K. SHEPARD and SHEPARD & TUPPER, INC., a Nevada
Corporation, Appellants, v. RAY A. KROC, Respondent.
No. 6655
August 21, 1972 500 P.2d 571
Appeal from part of a conditional order setting aside a judgment; Eighth Judicial District
Court, Clark County; Roscoe H. Wilkes, Judge.
The Supreme Court held that reasonableness of order conditioning granting of motion on
movants' payment of costs and attorney's fees incurred by adversary in preparing and
defending against motion was not ripe for determination where statement of costs and fees
was submitted, movants objected, and matter was scheduled for hearing, but such hearing had
not been held.
Appeal dismissed.
Fulop, Rolston, Burns & McKittrick, of Beverly Hills, California, and George, Steffen &
Simmons, of Las Vegas, for Appellants.
Sonnenschein, Levinson, Carlin, Nath & Rosenthal, of Chicago, Illinois, and Lionel,
Sawyer, Collins & Wartman, of Las Vegas, for Respondent.
1. Judgment.
Rule pertaining to relief from judgment or order on grounds, inter alia, of mistake, inadvertence,
excusable neglect and fraud invests court with discretionary power to relieve party from final judgment
upon such terms as are just and such terms must be reasonable. NRCP 60(b).
2. Judgment.
Requirement, as condition to granting of motion to set aside judgment, that movants pay costs and
attorney's fees incurred by adversary in preparing and defending against motion was not per se
unreasonable. NRCP 60(b).
Reasonableness of order conditioning granting of motion to set aside judgment on movants' payment of
costs and attorney's fees incurred by adversary in preparing and defending against motion was not ripe for
determination where statement of costs and fees was submitted, movants objected, and matter was
scheduled for hearing, but such hearing had not been held. NRCP 60(b).
OPINION
Per Curiam:
The district court granted a Rule 60(b) motion of the defendants, Tupper and Shepard,
and their corporation, to set aside a judgment which the plaintiff, Kroc, had obtained
against them.
88 Nev. 483, 484 (1972) Tupper v. Kroc
defendants, Tupper and Shepard, and their corporation, to set aside a judgment which the
plaintiff, Kroc, had obtained against them. The order granting the motion and setting aside the
judgment, however, was made subject to the condition that the defendants pay to the plaintiff
all costs and attorney's fees incurred by the plaintiff in preparing for and defending against the
motion to set aside. This appeal is from that part of the order imposing a precondition to the
relief which they sought and to which the court found them entitled.
[Headnotes 1-3]
Rule 60(b) invests the court with a discretionary power to relieve a party from a final
judgment upon such terms as are just. Deros v. Stern, 87 Nev. 148, 483 P.2d 648 (1971).
The terms must, of course, be reasonable. Doyle v. Jorgensen, 82 Nev. 196, 203, 414 P.2d
707 (1966). Requiring the payment of costs and fees incurred by the adversary is not per se
unreasonable. The district court ordered the plaintiff to submit a cost bill and statement of
fees to defendants for approval and payment, and should the defendants fail to approve and
pay, the plaintiff could request a hearing thereon before the court. A statement of costs and
fees was submitted, the defendants objected, the matter was scheduled for hearing, but this
appeal intervened. Consequently, that hearing has not occurred. It is apparent that the
reasonableness of the conditional order in the light of the charges submitted is not ripe for
determination.
1

Appeal dismissed.
2

____________________

1
The defendants' Rule 60(b) motions were combined with Rule 59 motions for a new trial. The district court
decided all motions. Since the necessary consequence of setting aside the judgment conditionally is a new trial if
the condition is met and if either party elects to proceed with the litigation, we need not consider the propriety of
the conditional order granting a new trial.

2
Our earlier denial of a motion to dismiss this appeal was in error.
____________
88 Nev. 485, 485 (1972) Wheeler v. Twin Lakes Riding Stable
EDWIN JOEL WHEELER, Appellant, v. TWIN LAKES RIDING
STABLE, INC., a Nevada Corporation, Respondent.
No. 6734
August 30, 1972 500 P.2d 572
Appeal from judgment upon jury verdict for defendant; Eighth Judicial District Court,
Clark County; Thomas J. O'Donnell, Judge.
Action to recover for injuries sustained when plaintiff was allegedly knocked from dude
horse by overhanging tree branch while riding down trail under control of defendant from
whom horse had been rented. The district court found for defendant, and plaintiff appealed.
The Supreme Court, Thompson, J., held that giving of instruction, after motion for directed
verdict for defendant had been denied in such action in which defendant was alleged to have
been negligent because it had knowledge that horse was dangerous and failed to warn of that
fact and because it failed to maintain riding area, that there was not sufficient evidence to
support charge of undisclosed knowledge of dangerous propensities of horse constituted
comment on evidence and was reversible error.
Reversed.
Beckley, Delanoy & Jemison, Chartered, of Las Vegas, for Appellant.
Wiener, Goldwater, Galatz & Raggio, Ltd., of Las Vegas, for Respondent.
1. Appeal and Error; Trial.
In action for injuries sustained when knocked from dude horse by overhanging tree branch while riding
down trail under control of defendant from whom horse was rented and in which defendant was alleged to
have been negligent because it had knowledge that horse was dangerous and failed to warn of that fact and
because it failed to properly maintain riding area, giving of instruction, after motion for directed verdict for
defendant had been denied, that there was not sufficient evidence to support charge of undisclosed
knowledge of dangerous propensities of horse constituted comment on evidence and was reversible error.
Const. art. 6, 12; NRS 3.230.
2. Trial.
If trial court determines that reasonable minds could differ on issue of negligence and that such issue is a
jury question, court should not thereafter, by jury instruction or otherwise, comment on evidence bearing
on that issue. Const. art. 6, 12; NRS 3.230.
3. Trial.
If court believes that motion for directed verdict possesses merit, it should either grant motion or deny it
with leave to offer motion for judgment notwithstanding verdict, should jury find for
plaintiffs.
motion for judgment notwithstanding verdict, should jury find for plaintiffs. Const. art. 6, 12; NRS
3.230.
Violation of constitutional and statutory prohibitions is subject to rule of harmless error.
OPINION
Asserting that the district court impermissibly commented upon the evidence by jury
instruction, the appellant asks that we order another trial of his action to recover damages for
permanent injuries sustained when he was allegedly knocked from a dude horse by an
overhanging tree branch while riding down a trail under the control of the
respondent-defendant from whom he had rented the horse. The defendant's negligence was
alleged to have been its knowledge that the animal was dangerous and its failure to warn of
that fact, together with the failure to properly maintain the riding area. For reasons hereafter
expressed, we reverse and remand for another trial.
[Headnote 1]
1. At the close of the evidence the court denied the defendant's motion for a directed
verdict. Apparently, the court believed that the evidence and all reasonable inferences
therefrom, when viewed most favorably to the plaintiff, presented a jury question. Bliss v.
DePrang, 81 Nev. 599, 407 P.2d 726 (1965); Kline v. Robinson, 83 Nev. 244, 428 P.2d 190
(1967). Notwithstanding such denial, however, the court did instruct the jury that there was
not sufficient evidence to support one aspect of the charge of negligencethe defendant's
undisclosed knowledge of the dangerous propensities of the horse.
[Headnotes 2, 3]
Having decided that reasonable minds could differ on the issue of negligence and that such
issue was a jury question, the court should not thereafter, by jury instruction or otherwise,
comment upon the evidence bearing on that issue.
1
Judges shall not charge juries in
respect to matters of fact, but may state the testimony and declare the law."
____________________

1
If the court believed that the motion for a directed verdict possessed merit, it should either have granted that
motion, or denied it with leave to offer a motion for judgment notwithstanding the verdict, should the jury find
for the plaintiff. Some courts prefer the latter course in order to avoid a second trial in the event of appellate
reversal. Whatever the court's view as to the merit of the motion for a directed verdict, if it decides to allow the
jury to return a verdict, it should not comment upon the evidence.
shall not charge juries in respect to matters of fact, but may state the testimony and declare
the law. Nev. Const. art. 6, 12. Neither may the judge comment upon the probability or
improbability of the truth of the evidence nor the credibility thereof. NRS 3.230. This barrier
between court and jury preserves their respective functions and insures freedom in the jury to
decide facts and the reasonable inferences therefrom without influence or direction from the
court except as to applicable law.
The challenged instruction is quoted below
2
and is a direct comment upon the evidence
offered to substantiate one aspect of the plaintiff's charge of negligence. In the light of the
constitutional and statutory prohibitions, the court's error is apparent.
[Headnote 4]
2. A violation of the constitutional and statutory prohibitions is subject to the rule of
harmless error. Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 448 P.2d 46 (1968). Our
review of the record in this case, however, does not permit us to conclude that the error was
harmless. One half of the plaintiff's claim of negligence was removed from jury
consideration. Closing argument by plaintiff's counsel was concomitantly curtailed. A full and
fair jury trial could not occur in these circumstances.
3. We do not consider it necessary to decide other assigned errors.
Reversed and remanded for a new trial.
____________________

2
There has not been sufficient evidence adduced during the course of this trial upon which this jury could
base a determination or finding of negligence of the defendant by virtue of any inherent propensities of the horse
to act in an erratic manner. Therefore, there has been insufficient evidence to find that the defendant corporation
was negligent by virtue of having failed to inform the plaintiff of any propensities of the horse behaving in an
erratic manner. Contrast this instruction with the one given in Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662,
666, 448 P.2d 46 (1968), where the court merely advised the jury to consider the oral admission of a party with
caution.
____________
88 Nev. 488, 488 (1972) O'Brien v. State
TERRY R. O'BRIEN, Appellant, v. STATE OF
NEVADA, Respondent.
No. 6697
August 30, 1972 500 P.2d 693
Appeal from judgments of conviction of grand larceny and burglary following a jury trial;
Sixth Judicial District Court, Pershing County; Roscoe H. Wilkes, Judge.
The Supreme Court, Thompson, J., held that evidence supported grand larceny conviction,
and that denial of defense counsel's request for continuance in order to secure testimony of
person from FBI about comparison of pieces of wire in defendant's car following his arrest
and pieces of wire left at scene of crime was prejudicial error where defense counsel learned
of favorable FBI report in middle of trial and promptly sought to secure attendance of the
appropriate witness.
Grand larceny conviction affirmed; burglary conviction reversed.
J. Raynor Kjeldsen, of Reno, for Appellant.
Robert List, Attorney General, and Roland W. Belanger, District Attorney, Pershing
1. Larceny.
Identification of stolen property is generally a jury question.
2. Larceny.
Evidence that defendant brought radiators to scrap dealer in codefendant's car and that tire tracks from
codefendant's car were found at scene of theft of radiators and that receipt for radiators given by scrap
dealer to defendant was in possession of codefendant when codefendant was arrested and that radiators
stolen were similar to those sold was sufficient to present jury question as to whether property was
identified beyond a reasonable doubt. NRS 205.220.
3. Larceny.
Evidence in grand larceny prosecution was sufficient to prove stolen radiators had value of $100 or more.
NRS 205.220.
4. Criminal Law.
Denial of defense counsel's request for continuance in order to secure testimony of person from FBI
about comparison of pieces of wire in defendant's car following his arrest and pieces of wire left at scene of
crime was prejudicial error where defense counsel learned of favorable FBI report in middle of trial and
promptly sought to secure attendance of the appropriate witness.
5. Criminal Law.
Accused should have the same right to offer evidence in his favor which the prosecutor has gathered but
has failed to disclose in time for defense counsel to take all appropriate steps for its
production.
in time for defense counsel to take all appropriate steps for its production.
6. Criminal Law.
Duty of reviewing court is to avoid an unfair trial to the accused.
7. Criminal Law.
Denial of motion to sever grand larceny and burglary offenses, made after trial had commenced, was
permissible upon ground that motion was not timely presented. NRS 173.115, subd. 2.
OPINION
A jury convicted Terry O'Brien and his codefendant, Rickey Pinney, of grand larceny and
burglary. They were charged with the theft of three radiators valued at more than $100 from
the Poole Ranch and, by separate count, with having entered the power house on the SRY
Ranch with the intent to commit larceny. Only O'Brien has appealed.
The State's case was based solely upon circumstantial evidence and was flatly contradicted
by O'Brien and others who testified on his behalf. He contends that the evidence is
insufficient to support his conviction of grand larceny, and that his conviction for burglary
also must be set aside since the court precluded the reception of evidence favorable to him.
1. Grand Larceny. Three radiators, the two from trucks and the other from a diesel pump
engine, disappeared from the Poole Ranch. A few days later, O'Brien sold two small and one
larger radiators to Sierra Scrap and Salvage at Sparks, Nevada. The radiators bore no
identifying marks or serial numbers. The State was not able positively to identify the radiators
sold by O'Brien to be from the Poole Ranch. O'Brien asserts a failure of proof that he stole the
radiators.
[Headnotes 1, 2]
Identification is generally a jury question. The State offered the following circumstances
relevant to the issue of identity. O'Brien and Pinney were friends. O'Brien brought the
radiators to the scrap dealer in Pinney's car. Tire tracks from Pinney's car were found at the
theft scene. The receipt for the radiators given by the scrap dealer to O'Brien was in the
possession of Pinney when Pinney was arrested. The radiators stolen were similar in size,
appearance and number to those sold. This was the best proof available to the State and
contained sufficient substance to present a jury question as to whether the property was
identified beyond a reasonable doubt.
whether the property was identified beyond a reasonable doubt. State v. Handler, 50 P.2d 977
(Kan. 1935); Tatum v. United States, 88 A.2d 495 (D.C.Mun.App. 1952).
[Headnote 3]
Although the appellant asserts that the evidence fails to show that the radiators had a value
of $100 or more [NRS 205.220], we cannot agree. There was evidence received from which
the jury could find that the market value of the radiators or their reasonable selling price at the
time and place of the theft exceeded the statutory standard of $100. Cf. State v. Romero, 231
A.2d 830 (Sup.Ct.N.J. 1967). The radiators were in usable condition when removed from the
trucks and diesel pump and, according to the scrap dealer who purchased them, possessed a
value of $140 in usable condition.
2. Burglary. As noted, O'Brien also was charged with burglary at the SRY Ranch. His
fingerprint was lifted from a cellophane wrapper found at the power plant shed on the ranch
where the unlawful entry was supposed to have occurred. This established that he may have
been there at some prior time. He admitted that he had been hunting at the ranch prior to the
alleged burglary.
It was the State's belief that O'Brien had unlawfully entered the power plant shed with the
intent to commit larceny. Copper wire had been taken from various pieces of equipment
therein located. And, when O'Brien, using Pinney's car, transported the radiators to the scrap
yard, he also brought some copper wire and sold it to the scrap dealer as well. That wire,
however, was mixed with other copper wire in the scrap yard and could not be identified by
the dealer for the law enforcement officers who were investigating the case.
During the course of the trial, defense counsel learned that the investigating officers had
taken pieces of copper wire remaining in the trunk of Pinney's car following his arrest, and
had sent them to the FBI laboratory for comparison with pieces of wire left at the scene of the
crime. Counsel asked the prosecutor to make that report available, and when the prosecutor
objected, the court ordered its production.
1
[Headnote 4]
[Headnote 4]
____________________

1
Since the report was finally, by court direction, made available to defense counsel in time for use at the trial,
we are not directly concerned with the doctrine of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny,
relating to the suppression, by the prosecution, of evidence favorable to an accused, and declaring such
suppression to be a denial of due process requiring a new trial.
[Headnote 4]
The report contained the conclusion that the wire specimens from the scene and the wire
specimens from Pinney's car were not of common origin. The relevance of that conclusion is
apparent. It constituted opinion evidence favorable to the defense and adverse to the State's
theory of the case. It was a formidable opinion from the laboratory of the esteemed Federal
Bureau of Investigation. Defense counsel immediately requested a continuance of the trial in
order to secure the proper person from the FBI to testify about the testing of the wire
specimens and his conclusion or, in lieu thereof, that the report be received in evidence. Each
request was denied. This, we think, was prejudicial error.
Counsel did not have time to prepare the affidavit for a continuance contemplated by
D.C.R. 21, which is applicable to criminal trials in the district court. Rainsberger v. State, 76
Nev. 158, 350 P.2d 995 (1960). He learned of that report in the middle of the trial and
promptly, by oral motion for a continuance, sought to secure the attendance of the appropriate
witness. All necessary information for a ruling upon that motion was before the court, and
there is no question but that the application was in good faith and not for delay. The purpose
of D.C.R. 21 was substantially met. Cf. Rainsberger v. State, supra (where the State's
affidavit for a continuance was not in strict compliance with the rule, but a continuance was
granted nonetheless).
[Headnotes 5, 6]
The conclusion of the expert would tend to exculpate the defendant since it had a direct
bearing upon the issue of criminal intent. Without doubt, the prosecutor would have offered
that opinion evidence had the result of the testing been to the State's advantage. The accused
should have the same right to offer evidence in his favor which the prosecutor has gathered
but has failed to disclose in time for defense counsel to take all appropriate steps for its
production. Our duty is to avoid an unfair trial to the accused. Society wins not only when
the guilty are convicted but when criminal trials are fair; our system of the administration of
justice suffers when any accused is treated unfairly. Brady v. Maryland, 373 U.S. 83, 87
(1963). The defense motion for a continuance should have been granted.
[Headnote 7]
3. After trial commenced, defense counsel moved to sever the offenses so that each
would be separately tried.
the offenses so that each would be separately tried. He contended that they were not subject to
joinder since they were not based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan. NRS 173.115(2). It is obvious that the
motion to sever could have been made more than 10 days before the trial date. NRS 174.125.
No reason is offered for counsel's failure to do so. It was permissible for the district court to
deny the motion upon the ground that it was not timely presented.
4. Other claims of error have been considered and found to be without merit.
Grand larceny conviction affirmed. Burglary conviction reversed, and remanded for a new
trial.
____________
88 Nev. 492, 492 (1972) Kimberlin v. Lear
ROBERT KIMBERLIN and MARIE KIMBERLIN, Husband and Wife, Appellants, v.
WILLIAM P. LEAR and RENO/STEAD DEVELOPMENT CO., Respondents.
No. 6756
September 7, 1972 500 P.2d 1022
Appeal from final judgments of dismissal; Second Judicial District Court, Washoe
Action for wrongful death against vendor of property was dismissed by the district court
for failure to state a claim upon which relief could be granted, and appeal was taken. The
Supreme Court, Thompson, J., held that vendor of real property, which contained several
holes about 15 feet deep that had been dug with the knowledge and consent of the vendor
when vendor owned the property, was not liable for wrongful death of children who drowned
in one of such holes, under rule that failure of vendor to make disclosure to vendee of any
concealed conditions which involve an unreasonable danger to the health and safety of those
upon the premises can result in imposition of liability upon vendor for injury resulting from
such conditions to others upon the land with the consent of the vendee, where children were
trespassers upon the land of the vendee and were not there with vendee's consent.
Affirmed.
[Rehearing denied October 13, 1972] Zenoff, C. J., and Gunderson, J., dissented.
Zenoff, C. J., and Gunderson, J., dissented.
Echeverria & Osborne, of Reno, for Appellants.
Vargas, Bartlett & Dixon, of Reno, for Respondents.
1. Negligence.
A vendor of real property who parts with title, possession and control of it ceases to be either an owner or
an occupier, and generally all responsibility for the condition of the land shifts to the purchaser.
2. Fraud; Negligence.
A vendor of real property is under a duty to disclose to the vendee any concealed conditions known to
him which involve an unreasonable danger to the health or safety of those upon the premises and which he
may anticipate that the vendee may not discover, and failure to make such disclosure may result in
imposition of liability upon the vendor for injury resulting from such conditions to others upon the land
with the consent of the vendee.
3. Negligence.
Vendor of real property, which contained several holes about 15 feet deep that had been dug with the
knowledge and consent of the vendor when vendor owned the property, was not liable for wrongful death
of children who drowned in one of such holes, under rule that failure of vendor to make disclosure to
vendee of any concealed conditions which involve an unreasonable danger to the health and safety of those
upon the premises can result in imposition of liability upon vendor for injury resulting from such conditions
to others upon the land with the consent of the vendee, where children were trespassers upon the land of the
vendee and were not there with vendee's consent.
OPINION
The district court dismissed this wrongful death action against William P. Lear and
Reno/Stead Development Co., two of several joined defendants, for the failure of the
plaintiffs to state a claim upon which relief could be granted, and found no just reason to
delay the entry of appropriate judgments. This appeal followed.
The plaintiffs-appellants are the parents of two children, ages seven and nine, who
drowned in a natural body of water on land owned on the day of their accidental deaths by
Land Developers, Inc., another defendant against whom this action remains pending. During
the Spring of 1969, a dry lake bed, comprising some 56 acres, had become covered with
muddy water from the winter's runoff forming a lake two to four feet deep.
comprising some 56 acres, had become covered with muddy water from the winter's runoff
forming a lake two to four feet deep. In August 1968, several holes, about twenty feet square
and fifteen feet deep, were dug in the dry lake bed to test the water table. This was done with
the knowledge and consent of William P. Lear who then owned the property.
About six days after Mr. Lear had conveyed the property to Land Developers, Inc., the
plaintiffs' two children were wading in the lake without permission and drowned in one of the
test holes. Their claim for relief is premised solely upon the doctrine of attractive nuisance.
No other basis for liability is asserted.
1

This court has neither adopted nor rejected the attractive nuisance doctrine. We have
mentioned it. Smith v. Smith-Peterson Co., 56 Nev. 79, 45 P.2d 785 (1935); Orr Ditch Co. v.
Justice Ct., 64 Nev. 138, 178 P.2d 558 (1947). It is best defined in Rest. Torts 2d, Sec. 339
quoted below.
2
Liability may be fastened upon the possessor or occupier of the land if (a) the
place where the condition is found is one upon which the possessor knows or has reason to
know that children are likely to trespass, (b) the condition is one which the possessor should
recognize as involving an unreasonable risk of harm to such children, (c) the child, because of
his immaturity, either does not discover the condition or does not in fact appreciate the danger
involved and, (d) the utility to the possessor of maintaining the condition must be slight as
compared with the risk to children.
____________________

1
Following the dismissals the plaintiffs-appellants, by a motion for rehearing, sought to have the district court
consider NRS 455.010 regarding the duty to safeguard shafts, excavations, or holes, as a possible basis for
liability. On the same day, however, they also filed a notice of appeal to this court. Since it is clear from the
record that the district court did not rule upon the application of that statute to the circumstances of this case, we
shall not consider the point. Britz v. Consolidated Casinos Corp., 87 Nev. 441, 488 P.2d 911 (1971).

2
Rest. Torts 2d, Sec. 339: A possessor of land is subject to liability for physical harm to children trespassing
thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon
which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one
of which the possessor knows or has reason to know and which he realizes or should realize will involve an
unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do
not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area
made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to
exercise reasonable care to eliminate the danger or otherwise to protect the children.
risk to children. Prosser, Law of Torts 368-376 (4th ed. 1971). It is apparent that these
preconditions to liability usually involve factual determinations which may not be resolved at
the pleading stage of litigation.
[Headnotes 1, 2]
In the case at hand, however, the district court apparently was persuaded that the attractive
nuisance doctrine could not apply to fix liability upon either William P. Lear or Reno/Stead
Development Co., since neither defendant possessed nor occupied the land at the time of the
tragic drownings. The possessor was Land Developers, Inc.
3
A vendor of real property who
parts with title, possession and control of it ceases to be either an owner or an occupier, and
generally, all responsibility for the condition of the land shifts to the purchaser. An exception
to this proposition does exist. A vendor is under a duty to disclose to the vendee any
concealed conditions known to him which involve an unreasonable danger to the health or
safety of those upon the premises and which he may anticipate that the vendee may not
discover. The failure to make such disclosure may impose liability upon the vendor for injury
resulting from such conditions to others upon the land with the consent of the vendee. Rest.
Torts 2d, Sec. 353.
4

[Headnote 3]
Although the plaintiffs-appellants seek refuge in this exception, it cannot avail them since
their children were trespassers upon the land of Land Developers, Inc., and were not there
present with the consent or in the right of that company. Cf. Belote v. Memphis
Development Co.,
____________________

3
Rest. Torts 2d, Sec. 328E: A possessor of land is (a) a person who is in occupation of the land with intent
to control it or (b) a person who has been in occupation of land with intent to control it, if no other person has
subsequently occupied it with intent to control it, or (c) a person who is entitled to immediate occupation of the
land, if no other person is in possession under Clauses (a) and (b).

4
Rest. Torts 2d, Sec. 353: (1) A vendor of land who conceals or fails to disclose to his vendee any
condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to
liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical
harm caused by the condition after the vendee has taken possession, if (a) the vendee does not know or have
reason to know of the condition or the risk involved, and (b) the vendor knows or has reason to know of the
condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not
discover the condition or realize the risk. (2) If the vendor actively conceals the condition, the liability stated in
Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective
precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to
discover the condition and to take such precautions.
upon the land of Land Developers, Inc., and were not there present with the consent or in the
right of that company. Cf. Belote v. Memphis Development Co., 346 S.W.2d 441 (Tenn.
1961); A-F Corporation v. Caporaletti, 240 F.2d 53 (U.S. App.D.C. 1957); Derby v. Public
Service Co., 119 A.2d 335 (N.H. 1955); Southern v. Floyd, 80 S.E.2d 490 (Ga.App. 1954);
Herzog v. Capital Co., 164 P.2d 8 (Cal. 1945).
Affirmed.
Zenoff, C. J., with whom Gunderson, J., agrees, dissenting:
Appellants assert that Lear created an attractive nuisance and therefore a cause of action is
stated. At this stage of the game we believe that Lear should be held to answer because
having caused the holes to be drilled he has a responsibility to inform his vendees that they
existed.
Apparently, Nevada has not yet adopted the doctrine of attractive nuisance, Smith v.
Smith-Peterson Company, 56 Nev. 79, 85, 45 P.2d 785 (1938), but has referred to it in that
case and in Orr Ditch Co. v. Dist. Ct., 64 Nev. 138, 178 P.2d 558 (1947).
The rule is stated in Restatement of the Law of Torts 2d 339:
339. Artificial Conditions Highly Dangerous to Trespassing Children
A possessor of land is subject to liability for physical harm to children trespassing
thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or
has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and
which he realizes or should realize will involve an unreasonable risk of death or
serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the
risk involved in intermeddling with it or in coming within the area made dangerous by
it, and
(d) the utility to the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children involved, and
{e) the possessor fails to exercise reasonable care to eliminate the danger or
otherwise to protect the children."
(e) the possessor fails to exercise reasonable care to eliminate the danger or
otherwise to protect the children.
We would adopt the doctrine as stated in the Restatement and join the majority of states.
See W. Prosser, Trespassing Children, 47 Cal.L.Rev. 426 (1959); Restatement of the Law of
Torts 2d Appendix 339.
Putting aside for the moment the fact that Lear was not the possessor of the land
(Restatement of the Law of Torts 2d 328E), the question as to whether a body of water
constitutes an attractive nuisance must be resolved. This court in Orr Ditch, supra, at 167,
stated that, the mere presence of a body of water, such as a pond, or creek, or a conduit such
as a canal or ditch, is held by the great majority of the authorities not to be an attractive
nuisance.
Although this position is followed in many instances (see Atchison, T. & S. F. Ry. Co. v.
Powers, 206 Okl. 322, 243 P.2d 688 (1952); Mellas v. Lowdermilk, 58 N.M. 363, 271 P.2d
399 (1954); Jones v. Comer, 374 S.W.2d 465 (Ark. 1964)), we believe the better rule,
developed in California, to be that Restatement 339 prevents arbitrary categorization based
on type of condition involved (see King v. Lennen, 53 Cal.2d 340, 348 P.2d 98 (1959), where
a small artificial swimming pool was held to be an attractive nuisance).
The problem with the instant case is that the boys had to wade through a natural lake or
pond to find the artificial hole which was dangerous because of its unexpected depth. Annot.,
Liability of landowner for drowning of child, 8 ALR2d 1254, 1294, 36 Holes or ledges
under water.
As stated by the Florida Court of Appeals in Ansin v. Thurston, 98 So.2d 87, 88 (Fla.App.
1957), there is an exception to the rule that a pond of water is not an attractive nuisance, viz:
. . . the owner of an artificial body of water is not guilty of actionable negligence on account
of drowning therein unless it is constructed so as to constitute a trap or unless there is some
unusual element of danger lurking about it not existent in ponds generally. See also Allen v.
William P. McDonald Corporation, 42 So.2d 706 (Fla. 1949).
In the instant case, the boys were wading out into a lake on a formerly dry bed with a very
even bottom. Suddenly they fell into a large obscured hole. We would note the exception to
the general rule provided the other requirements of 339 are met by proof at trial.
Considering, as we do for purposes of this appeal that facts can be elicited to prove up
the requirements of 339 and the exception heretofore noted, there remains the problem
and fact that Lear was not the possessor of the land.
can be elicited to prove up the requirements of 339 and the exception heretofore noted,
there remains the problem and fact that Lear was not the possessor of the land.
As a general rule, a vendor of land is not subject to liability for physical harm caused by
any dangerous condition to his vendee or others while upon the land after the vendee has
taken possession, whether natural or artificial, which existed at the time that the vendee took
possession. Restatement of Torts 2d 352; Annot., Liability of vendor or grantor of real
estate for personal injury to purchaser on third person due to defective condition of premises,
8 ALR2d 218 (1949), where it is pointed out that under the prevailing rule a vendor is not
liable for injuries to the purchaser or third party lawfully there resulting from the existing
defective condition of the premises conveyed. All obligations generally cease at the time of
sale and transfer of possession. Porter v. Miller, 24 Ill.App.2d 424, 164 N.E.2d 601 (1960);
Conway v. Epstein, 49 Ill.App.2d 290, 200 N.E.2d 16 (1964); cf. Wiles v. Assoc. of
Commerce of Decatur, 332 Ill.App. 375, 75 N.E.2d 526 (1947); and Copfer v. Golden, 135
Cal.App.2d 623, 288 P.2d 90 (1955).
But, where the vendor knows of a dangerous condition upon the land and knows or
should realize that the vendee has no knowledge of the condition and probably would not
discover it or its potentiality for harm, the vendor owes the affirmative duty to disclose the
condition and to warn the vendee of its danger, and if he fails to do so, he becomes subject to
liability to the vendee and others upon the land with the consent of the vendee for any
physical harm caused by the condition after the vendee has taken possession of the land.
Gasteiger v. Gillenwater, 57 Tenn.App. 206, 417 S.W.2d 568, 571 (1966); Restatement of the
Law of Torts 2d 353.
1
Other than the factual questions raised by 353 to be
determined at trial, respondent both in its brief and oral argument stress that no case has
been found, and we have found none, wherein the vendor has been held liable over to a
trespassing child or his parents.

____________________

1
353. Undisclosed Dangerous Conditions Known to Vendor
(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or
artificial, which involved unreasonable risk to persons on the land, is subject to liability to the vendee and others
upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after
the vendee has taken possession, if
(a) the vendee does not know or have reason to know of the condition or the risk involved, and
(b) the vendor knows or has reason to know of the condition, and realizes the risk involved, and has reason to
believe that the vendee will not discover the condition or realize the risk.
(2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the
vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability
continues only until the vendee has had reasonable opportunity to discover the condition and to take such
precautions.
Other than the factual questions raised by 353 to be determined at trial, respondent both
in its brief and oral argument stress that no case has been found, and we have found none,
wherein the vendor has been held liable over to a trespassing child or his parents. However,
the attractive nuisance itself is the invitation which shields the children from being actual
trespassers and they are in law incapable of trespassing. Perry v. Tonopah Mining Co., 13
F.2d 865, 867 (D. Nev. 1915).
Therefore, accepting the facts in the light most favorable to appellants, they have
established a cause of action against William P. Lear. As to Reno/Stead Development
Company, similarly, a cause of action has been stated in view of the above should the facts be
as stated by appellants. The matter must go to trial to litigate whether Lear passed on to his
buyer the information of the excavation that caused the death of the two boys. We view NRS
455.010
2
as implying a continuing responsibility upon persons who may have lost the right
of possession, authority or power to barricade the holes or inform the buyer that they exist.
Jones v. Billings, 289 A.2d 39 (Me. 1972). Furthermore, NRS 455.010, being couched in
disjunctives, places the responsibility to safeguard not only upon those in possession, but
upon anyone in or out of possession if he has created a hole.
We dissent.
____________________

2
455.010 Erection of fences, safeguards around shafts, excavations required. Any person or persons,
company or corporation, who shall dig, sink or excavate, or cause the same to be done, or being the owner or
owners, or in the possession under any lease or contract, of any shaft, excavation or hole, whether used for
mining or otherwise, or whether dug, sunk or excavated for the purpose of mining, to obtain water, or for any
other purpose, within this state, shall, during the time they may be employed in digging, sinking or excavating,
or after they may have ceased work upon or abandoned the same, erect, or cause to be erected, good and
substantial fences or other safeguards, and keep the same in good repair, around such works or shafts, sufficient
to guard securely against danger to persons and animals from falling into such shafts or excavations.
____________
88 Nev. 500, 500 (1972) Chauncey v. Warden
EDWARD W. CHAUNCEY, Appellant, v. WARDEN,
No. 6743
October 4, 1972 501 P.2d 1039
Appeal from order of Eighth Judicial District Court, Clark County, denying petition for
post-conviction relief; Howard W. Babcock, Judge.
Accused filed post-conviction petition challenging robbery conviction. The district court
denied the petition and the accused appealed. The Supreme Court held that fact that accused
had completed service of sentence for robbery did not render issue of whether accused had
made intelligent waiver of right to counsel when he pleaded guilty to robbery charge moot.
Remanded for evidentiary hearing.
Gary Sheerin, State Public Defender, Carson City, for Appellant.
Charles L. Garner, Deputy District Attorney, Clark County, for Respondent.
Criminal Law.
Fact that accused had completed service of sentence for robbery did not, per se, render issue of whether
he had made intelligent waiver of his right to counsel at time he pleaded guilty to robbery charge moot.
OPINION
Per Curiam:
Appellant Edward W. Chauncey was, on his plea of guilty, convicted of the crime of
robbery on October 28, 1958, and he was thereafter sentenced to the Nevada State
Penitentiary.
On March 29, 1971, Chauncey filed in the district court a Motion to Vacate and Set Aside
Judgment and Conviction, which the district judge construed to be a petition for
post-conviction relief. Chauncey has heretofore been charged as a habitual criminal. The
conviction of robbery that he is presently challenging is one of the prior felony convictions
upon which the charge as a habitual criminal was predicated.
In his instant petition, filed some 12 1/2 years after entering his plea of guilty and some 8
years after serving his sentence, Chauncey claims that he did not make a intelligent waiver
of his right to counsel when he pleaded guilty to the robbery charge in 195S.
Chauncey claims that he did not make an intelligent waiver of his right to counsel when he
pleaded guilty to the robbery charge in 1958. See Von Moltke v. Gillies, 332 U.S. 708 (1948),
which then governed the standards for the taking of pleas in such cases. He therefore asks that
his 1958 robbery conviction be set aside.
Unfortunately, the court reporter's notes of the 1958 Chauncey arraignment and entry of
plea have been destroyed due to the time lapse involved. The only available court records
before us are the minutes of the Court Clerk.
1

The district judge denied Chauncey's petition on the grounds that (1) the plea of guilty was
voluntarily made in accordance with the law as it existed when Chauncey pleaded guilty to
the robbery charge and (2) Chauncey has served the sentence imposed by the court.
1. Counsel for the State and Chauncey have agreed during oral argument that an
evidentiary hearing should be held in the district court and that therefore the csae [case] must
be remanded for that purpose. We wish to point out that the fact Chauncey has served his
term in prison has not per se made the issue moot. It is settled that a conviction in which the
sentence has been served may be later challenged when the effects of that conviction remain.
As the High Court ruled in United States v. Morgan, 346 U.S. 502, 512-513 (1954):
Although the term has been served, the results of the conviction may persist. Subsequent
convictions may carry heavier penalties, civil rights may be affected. As the power to remedy
an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to
show that this conviction was invalid. (Footnote omitted.) See also Sibron v. New York, 392
U.S.40 (1968).
2. Counsel for the State stipulated during oral argument that the case be remanded for an
evidentiary hearing to determine, if possible, whether the standards of Von Moltke were met
when Chauncey entered his plea.
____________________

1
The minutes in pertinent part read:
The Court inquired of the defendant[s] if they had counsel to represent them and informed them that if they
had no money with which to obtain counsel, the Court would appoint counsel for them at the expense of the
State of Nevada. Thereupon, the said defendants and each of them informed the Court that they did not desire
the services of an attorney.
The Court then directed the clerk to hand the defendants a copy of the Information and to read same to
them.
Defendant, Edward Wilford Chauncey[,] entered a plea of Guilty' to the charge contained in the
Information. . . . Defendants waived the statutory time for passing of judgment and sentence.
met when Chauncey entered his plea. Accordingly, that will be the order of this court, and the
case is remanded to the district court for that limited purpose.
____________
88 Nev. 502, 502 (1972) Walker Bank & Trust Co. v. Smith
WALKER BANK & TRUST CO., Appellant, v. CARROLL SMITH, dba Smith Construction
Company, and CONTINENTAL KITCHENS, INC., Respondents.
No. 6570
October 4, 1972 501 P.2d 639
Appeal from judgment denying third party claim; Eighth Judicial District Court, Clark
County; William R. Morse, Judge.
Subcontractors brought action against contractor and attached funds which were in
possession of escrow agent and which represented owner's payment to contractor for cabinets
installed in owner's building project and assignee of contractor's accounts receivable filed
third-party claim. The district court denied assignee's third-party claim and it appealed. The
Supreme Court, Thompson, J., held that where assignee had perfected its security interest in
contractor's accounts receivable prior to subcontractors' attachment of funds, assignee's
interest had priority over interests of subcontractors even though contractor, which was a
foreign corporation, had not qualified to do business within State and had not obtained
contractor's license.
Reversed.
Foley Brothers, of Las Vegas, for Appellant.
Jeffrey Shaner, of Las Vegas, for respondent Smith.
Harry J. Mangrum, Jr., of Las Vegas, for respondent Continental Kitchens.
1. Secured Transactions.
Financing statement which has been properly filed and which describes collateral as accounts
receivable adequately describes debtor's contracts and accounts for purpose of perfecting a security
interest therein. NRS 104.9101 et seq., 104.9103, 104.9401, subd. 1(c).
Filing by assignee of contractor's accounts receivable of financing statement describing collateral as
accounts receivable with office of Secretary of State of Utah perfected assignee's
security interest in the accounts receivable where contractor which was a Utah
corporation kept its records in Utah and it did not thereafter lose such interest. NRS
S0.210, 104.9101 et seq., 104.9103, 104.9301, subds.
office of Secretary of State of Utah perfected assignee's security interest in the accounts receivable where
contractor which was a Utah corporation kept its records in Utah and it did not thereafter lose such interest.
NRS 80.210, 104.9101 et seq., 104.9103, 104.9301, subds. 1(b), 3, 104.9401, subds. 1(b), 1(c);
U.C.A. 1953, 70A-9-101 et seq., 70A-9-103, 70A-9-401, 70A-9-401(1)(b).
Though lien creditor may take priority over unperfected security interest in certain situations, security
interest which is perfected before one becomes a lien creditor enjoys a preferred position. NRS
104.9301, subds. 1(b), 3.
4. Attachment.
Attachment creditor reaches only interest which debtor had at time of attachment and debtor's assignment
of his interest before attachment gives assignee prior right if assignment was perfected. NRS 104.9301,
subds. 1(b), 3.
Where assignee of contractor's accounts receivable had perfected a security interest in accounts
receivable prior to subcontractors' attachment of funds due contractor from owner, assignee's interest had
priority over liens of subcontractors even though contractor, which was a foreign corporation, had not
qualified to do business as a foreign corporation within the State and had not obtained a contractor's
license. NRS 80.210, 104.9101 et seq., 104.9103, 104.9301, subds. 1(b), 3, 104.9401, subds.
1(b), 1(c), 205.010 et seq., 205.310, 624.320; U.C.A. 1953, 70A-9-101 et seq., 70A-9-103,
70A-9-401, 70A-9-401(1)(b).
6. Estoppel.
A plaintiff waives its right to question capacity of corporate defendant to defend when it brings suit
against such corporation and compels it to appear and answer. NRS 80.210.
7. Licenses.
Statute providing that one engaged in business of acting in the capacity of a contractor must allege and
prove that he was duly licensed if he maintains an action in courts of State does not preclude an unlicensed
contractor from defending an action brought against him. NRS 205.010 et seq., 205.310, 624.320.
Fact that foreign corporate contractor which assigned its accounts receivable had not qualified to do
business as foreign corporation within State and had not obtained contractor's license did not preclude
assignee of accounts receivable from asserting third-party claim against funds which were placed in
possession of escrow agent, which were owed contractor and which had been attached by subcontractors
who had performed work or supplied materials for contractor. NRS 80.210, 205.310, 624.320.
9. Principal and Agent.
Statute providing that one who has contracted to supply labor and materials and who receives payment
therefor is deemed to receive such payment as agent of party with whom such contract was made concerns
crime of embezzlement and does not create civil liability. NRS 205.310.
Statute providing that one who has contracted to supply labor and materials and who receives payment
therefor is deemed to receive such payment as agent of party with whom such contract was made for
purpose of paying all claims for labor and materials supplied did not give subcontractors who bad provided
contractor with supplies and labor priority over prior perfected interest of assignee of contractor's accounts
receivable with respect to funds which owner paid for work contracted for on theory that money received
by contractor from project was received by it as an agent for the owner for the purpose of paying claims for
labor and material. NRS 205.310.
OPINION
The district court denied the third party claim of Walker Bank to money in possession of
North American Escrow against which attachments had been levied by Smith Construction
and Continental Kitchens ancillary to actions brought by them against Lady Fair Kitchens,
Inc. Walker Bank contends that the decision is erroneous since it failed to verify the Bank's
preference to the money by reason of a perfected security interest therein.
Walker Bank and Lady Fair are Utah corporations. In June 1968, they entered into a
inventory and accounts receivable financing arrangement, executed a formal security
agreement and, on July 1, 1968, Walker Bank filed a financing statement with the Secretary
of State of Utah. The security agreement and financing statement gave Walker Bank
coverage over accounts receivable now existing or hereafter arising as a result of debtor's
operations wherever located, including without limitation, accounts arising in debtor's
manufacturing business, and the rights and interests of debtor in goods, the sale and delivery
which gave rise to an account.
Lady Fair was engaged in the business of manufacturing and installing kitchen cabinets,
and agreed to supply and install such cabinets for a building project of Panda Development
Co. in Clark County, Nevada. Lady Fair did not qualify to do business as a foreign
corporation in Nevada, nor did it obtain a contractor's license in this State.
In August 1969, a fire destroyed Lady Fair's Utah manufacturing plant. Consequently, it
arranged to purchase kitchen cabinets from Continental Kitchens in Washington for
installation on the Clark County project. Smith Construction was engaged to install the
cabinets and did so.
engaged to install the cabinets and did so. Walker Bank knew of these arrangements. The
records of Lady Fair's accounts were kept at its main business office in Utah.
North American Escrow handled the construction control account for the Clark County
building project of Panda Development Co. The third party claimant, Walker Bank,
contended below and now contends, that the money in possession of North American Escrow
and attached by Smith Construction and Continental Kitchens represented the proceeds of the
sales of inventory and the payment of Lady Fair's accounts receivable, concerning which it
had perfected a security interest in the manner designated by the Uniform Commercial Code.
The district court rejected that contention. It found that the installed kitchen cabinets were
fixtures and that the money in possession of North American Escrow represented the
proceeds of fixtures concerning which Walker Bank had not perfected a security interest since
it had failed to file a financing statement in Nevada. Subordinately, the district court
concluded that Walker Bank was without standing to assert its claim to the money since, as
the assignee of Lady Fair, it was saddled with the incapacity of Lady Fair arising out of the
fact that it was not qualified to do business in Nevada nor licensed as a contractor to operate
in this State. Finally, that court concluded that all monies received by Lady Fair from the
project in Clark County were received by it as agent for Panda Development Co. for the
purpose of paying all claims for labor and material supplied with the result that Lady Fair had
not earned such money until labor and material claims first were paid. Consequently, Walker
Bank as the assignee of Lady Fair was not entitled to the money until labor and material
claims were discharged. We turn to consider these several problems.
[Headnotes 1, 2]
1. The Security Interest of Walker Bank. Utah and Nevada each has adopted the Uniform
Commercial Code. The relevant provisions of Article 9 thereof concerning secured
transactions are the same in each state. Utah Code Annot. 70A-9-101 et seq.; NRS
104.9101 et seq. The financing statement filed by Walker Bank specifically granted the Bank
coverage over accounts receivable. Such a statement properly filed and which describes the
collateral as accounts receivable, adequately describes the debtor's contracts and accounts
for the purpose of perfecting a security interest therein. In re Varney Wood Products, Inc.,
458 F.2d 435 (4 Cir. 1972); Bramble Transportation, Inc. v. Sam Senter Sales, 294 A.2d 104
{Del.
104 (Del. 1972); Industrial Packaging Prod. Co. v. Fort Pitt Pack. Int., 161 A.2d 19 (Pa.
1960). The statement was properly filed with the Office of the Secretary of State of Utah
[Utah Code Annot. 70A-9-401(1)(b); NRS 104.9401(1)(c)] since that is the state where Lady
Fair, the assignor of accounts and contract rights, kept its records. Utah Code Annot.
70A-9-103; NRS 104.9103.
1
The official comment to that section of the Code is . . . . So far
as validity, perfection and filing are concerned, the subsections state the rule that the
applicable law, if it is not the law of this state, will be that of the jurisdiction where the
assignor keeps his records of accounts or contract rights. . . . If the jurisdiction whose law is
applicable has enacted this Article or comparable legislation, filing, for example, in that
jurisdiction will be recognized in this state as perfecting the security interest here. Uniform
Commercial Code sec. 9-103, Comment 6. We conclude that Walker Bank perfected its
security interest in the manner contemplated by the Code and did not thereafter lose it. The
district court erred when it found controlling, the provisions of the Code designating how one
perfects a security interest in goods which are to become fixtures. Utah Code Annot.
70A-9-401; NRS 104.9401(1)(b). The security interest of Walker Bank was not confined to
the kitchen cabinets which became fixtures, but embraced the proceeds of inventory and
accounts receivable. Matthews v. Arctic Tire, Inc., 262 A.2d 831 (R.I. 1970); Farnum v. C. J.
Merrill, Inc., 264 A.2d 150 (Me. 1970).
[Headnotes 3-5]
Continental Kitchens and Smith Construction are lien creditors under the Code since each
acquired a lien on the property involved by attachment. NRS 104.9301(3). We are not here
concerned with mechanic's or materialmen's liens since neither Continental Kitchens nor
Smith Construction attempted to perfect such a lien. Although a lien creditor may take
priority over an unperfected security interest in certain situations, NRS 104.9301(1)(b), it is
clear that a security interest which is perfected before one becomes a lien creditor enjoys a
preferred position. General Motors Acceptance Corp. v. Stotsky, 303 N.Y.S.2d 463
{Sup.Ct.N.Y. 1969).
____________________

1
If the office where the assignor of accounts or contract rights keeps his records concerning them is in this
State, the validity and perfection of a security interest therein and the possibility and effect of proper filing is
governed by this article; otherwise by the law (including the conflict of law rules) of the jurisdiction where such
office is located. Utah Code Annot. 70A-9-103; NRS 104.9103.
303 N.Y.S.2d 463 (Sup.Ct.N.Y. 1969). The attachment creditor reached only the interest
which the debtor had at the time of attachment. The debtor's assignment of his interest before
attachment gave the assignee a prior right if the assignment was perfected. Bramble
Transportation, Inc. v. Sam Senter Sales, 294 A.2d 104 (Del. 1972). Since Walker Bank
perfected its security interest in the proper manner long before Continental Kitchens and
Smith Construction attached the fund, the Bank must prevail.
[Headnotes 6-8]
2. Lady Fair did not qualify to do business as a foreign corporation in this State. Although
statute [NRS 80.210] declares that such a corporation shall not be allowed to commence,
maintain or defend any action, it is established law that a plaintiff waives its right to
question capacity to defend when it brings suit against such a corporation and compels it to
appear and answer. Scott v. Day-Bristol M. Co., 37 Nev. 299, 303, 142 P. 625 (1914).
Consequently, Lady Fair could assert its defenses and claims, and Walker Bank, as its
assignee, may do the same. The failure of Lady Fair to qualify is irrelevant to the disposition
of this case.
Equally irrelevant is the circumstance that Lady Fair did not obtain a contractor's license.
NRS 624.320 provides that one engaged in the business of acting in the capacity of a
contractor must allege and prove that he was duly licensed if he maintains an action in the
courts of this State. This statute, however, may not be construed to mean that an unlicensed
contractor may not defend an action brought against him. Milum v. Herz Brothers, 74 Nev.
309, 312, 329 P.2d 1068 (1958). Consequently, Lady Fair, although unlicensed, may defend,
and Walker Bank, as its assignee, may assert its claims.
3. NRS 205.310 declares that one who has contracted to supply labor or materials and
who receives payment therefor, is deemed to receive such payment as the agent of the party
with whom such contract was made . . . for the purpose of paying all claims for labor and
materials supplied, insofar as the money so received will pay such claims. Relying upon that
statute, Continental Kitchens and Smith Construction each contend that the money in
possession of North American Escrow for Lady Fair, if delivered to Lady Fair or its assignee,
Walker Bank, would be held in trust as agent for Panda Development Co. for the express
purpose of first paying the labor and material claims of Smith Construction and Continental
Kitchens.
[Headnotes 9, 10]
The mentioned statute is part of Chapter 205, crimes against property, and particularly
concerns the crime of embezzlement. It does not purport to create a civil liability.
Zalk-Josephs v. Wells Cargo, 77 Nev. 441, 445, 446, 366 P.2d 339 (1961). Since the statute
does not create a civil liability it is immaterial whether suit is commenced against the general
contractor as in Zalk-Josephs v. Wells Cargo, supra, or against the subcontractor as in the
instant matter. Labor and material suppliers and inventory financers are accorded protection
by other statutes dealing specifically with civil remedies. For example, Continental Kitchens
could have perfected a purchase money security interest as authorized by the Uniform
Commercial Code but failed to do so.
For the reasons expressed we conclude that the judgment below denying the third party
claim of Walker Bank must be and is reversed.
Zenoff, C. J., and Batjer and Mowbray, JJ., and Gang, D. J., concur.
____________
88 Nev. 508, 508 (1972) Barnato v. State
CHERYL LOUISE BARNATO and MICHAEL JAY BARNATO,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 6901
October 4, 1972 501 P.2d 643
Appeal from Order Denying Motion to Suppress Evidence and Quash Search Warrant,
First Judicial District Court, Douglas County; Richard L. Waters, Jr., Judge.
Prosecution for possession and cultivation of marijuana. The district court entered
interlocutory order denying motion to suppress evidence allegedly illegally seized, and
defendants appealed. The Supreme Court, Gunderson, J., held that where while setting cat
trap on defendants' premises, animal control officer observed plants he believed to be
marijuana, the following day officer and deputy sheriff surreptitiously entered the enclosed
yard and took a leaf from one plant, two days later, at suggestion of district attorney's deputy,
officer arranged to return lawfully for ostensible purpose of checking cat trap and while on
premises surreptitiously took another leaf, warrantless seizure of plant samples was unlawful,
since criteria of exigency and inadvertence were absent; seizure could not be justified
under the plain view doctrine.
exigency and inadvertence were absent; seizure could not be justified under the plain view
doctrine.
Reversed.
Noel E. Manoukian, of Zephyr Cove, for Appellant.
Robert List, Attorney General, of Carson City, and Howard D. McKibben, District
Attorney, Douglas County, for Respondent.
1. Criminal Law.
If State action culminates in a search and seizure that is unreasonable when tested by federal standards,
state court must exclude the tainted fruits of such a search. U.S.C.A.Const. Amend. 4.
If search warrant is issued on knowledge obtained in violation of one's right to be free from unreasonable
searches and seizures, fact that a subsequent search and seizure is made under warrant does not make such
search lawful. U.S.C.A.Const. Amend. 4.
Even if animal control officer could be considered a private individual, State action, allegedly
constituting unlawful search and seizure, was involved when officer surreptitiously seized plant samples
from defendants' garden while in company of deputy sheriff and when he thereafter, and at suggestion of
district attorney's deputy, obtained consent to enter premises for ostensibly unrelated legitimate purpose of
checking a cat trap and surreptitiously took another sample. U.S.C.A.Const. Amend. 4.
Plain view alone is not enough to justify warrantless seizure of evidence; the observer must have been
lawfully in area in which item was observed and discovery of item must have been inadvertent and not
anticipated. U.S.C.A.Const. Amend. 4.
Where while setting cat trap on defendants' premises, animal control officer observed plants he believed
to be marijuana, the following day officer and deputy sheriff surreptitiously entered the enclosed yard and
took a leaf from one plant, two days later, and at suggestion of district attorney's deputy, officer arranged to
return lawfully for ostensible purpose of checking cat trap and while on premises surreptitiously took
another leaf, warrantless seizure of plant samples was unlawful, since criteria of exigency and inadvertence
were absent; seizures could not be justified under the plain view doctrine. NRS 177.015, subd. 2;
U.S.C.A.Const. Amend. 4.
Consent of defendant wife to entry of garden by animal control officer for ostensible purpose of checking
cat trap, whereas real reason was to seize leaf of marijuana plant, did not constitute
waiver of right to be free from unreasonable searches and seizures.
real reason was to seize leaf of marijuana plant, did not constitute waiver of right to be free from
unreasonable searches and seizures. U.S.C.A.Const. Amend. 4.
OPINION
Charged in two counts with possession and cultivation of marijuana, Cheryl and Michael
Barnato have appealed from an interlocutory order of the district court denying their motion
to suppress evidence.
1
They contend, inter alia, that the district court should have suppressed
marijuana plants seized from their home and garden under a search warrant, because that
seizure was the fruit of prior seizures accomplished in violation of the Fourth Amendment as
interpreted by the United States Supreme Court. We are constrained to agree.
On August 13, 1971, the Animal Control Officer of Douglas County obtained a cat trap
from a neighboring county and took it to the residence of the Barnatos' neighbor, Mrs.
Giordano, who had complained about a domestic cat that had gone wild. When the Control
Officer returned on August 24, Mrs. Giordano informed him the trap had been placed in the
Barnatos' garage, apparently because the cat had been seen there. The Control Officer went to
the Barnato home with Mrs. Giordano, was introduced to Mrs. Barnato, inspected the trap,
and according to his testimony didn't think it was a good spot to set it, so I said maybe down
on the ground some place where the cat could get to it. He testified Mrs. Barnato then
suggested the other side of her house as a possible site, which he found satisfactory and
utilized. While setting the trap, he saw plants he believed might be marijuana. The following
day, on August 25, the Control Officer described the plants to a deputy sheriff, and together
they surreptitiously entered the Barnatos' enclosed yard, where they took a leaf from one of
the plants. Chemical testing showed it to be marijuana.
The District Attorney's deputy recognized the surreptitious entry of August 25 as unlawful,
having been made without the Barnatos' consent; therefore, he suggested that the Control
Officer arrange to return lawfully and then purloin another leaf, apparently being unaware
he was counseling conduct that was also unconstitutional for reasons hereinafter
discussed.2 On August 27, the Control Officer telephoned Mrs.
____________________

1
The appeal is authorized. NRS 177.015(2).
was also unconstitutional for reasons hereinafter discussed.
2
On August 27, the Control
Officer telephoned Mrs. Barnato, obtained her consent to his entering the Barnato yard for the
ostensible purpose of checking the cat trap, and while walking behind her in the Barnato yard,
surreptitiously took another leaf. Testing indicated this, too, was marijuana.
Later on August 27, affidavits were prepared, omitting reference to the Control Officer's
surreptitious entry on August 25, reciting he had taken a leaf while checking the cat trap
August 27, and setting forth the results of testing the leaf thus legally seized. On the basis
of this circumscribed recitation of the facts, a magistrate issued a warrant authorizing a search
of the Barnato home and yard, which revealed the evidence appellants have moved to
suppress.
[Headnote 1]
1. The federal exclusionary rule is applicable to the States. Mapp v. Ohio, 367 U.S. 643
(1961); Ker v. California, 374 U.S. 23 (1963). Hence, if State action here culminated in a
search and seizures at the Barnato premises that were unreasonable when tested by federal
standards, then this court must apply the exclusionary rule.
[Headnotes 2, 3]
2. Under decisions of the United States Supreme Court, the fact that the final search and
seizures were made under a warrant does not make them lawful, if that warrant was issued on
knowledge the State obtained in violation of appellants' Fourth Amendment rights.
Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920); Wong Sun v. United States,
371 U.S. 471 (1963). Furthermore, even if the Control Officer himself may be considered a
private citizen, State action clearly was involved when he surreptitiously seized plant
samples from the Barnato garden on August 25 and 27.
____________________

2
Officer Redford's testimony establishes that the District Attorney's deputy recognized the surreptitious entry
of August 25 was made without the Barnatos' consent, and was therefore unlawful:
Q. Why didn't you go for a warrant then?
A. I checked with the Deputy District Attorney, Bill Crowell, and he didn't want to do it right then.
Q. Did Mr. Crowell tell you that you had to get material like that when you were lawfully on the premises?
A. Yes.
Q. Isn't that why you sent Bud Markle [the Control Officer] back to get rightfully on the premises?
A. That's right.
It is also noteworthy that when appellants' counsel offered the leaf seized on August 25 into evidence at
appellant's preliminary hearing, the District Attorney's deputy said: Objected to on the grounds it's the fruit of
an illegal search. Then, he withdrew this objection, no doubt recognizing its implications.
himself may be considered a private citizen, State action clearly was involved when he
surreptitiously seized plant samples from the Barnato garden on August 25 and 27. Raymond
v. Superior Court, County of Sacramento, 96 Cal.Rptr. 678 (Cal.App. 1971). Thus, our task is
to decide if those seizures were reasonable or unreasonable under announced federal
standards.
[Headnote 4]
3. The United States Supreme Court's recent pronouncements in Coolidge v. New
Hampshire, 403 U.S. 443 (1971), are controlling in the case before us. In Coolidge, which
involved seizure of a car reasonably believed to be evidence, parked in plain view on the
defendant's driveway, the Court considered the circumstances in which warrantless seizures
may be justified as reasonable under the plain view doctrine. The High Court held police
may seize an item in lawful plain view, believed on probable cause to be an
instrumentality of the crime or mere evidence (id. at 464), subject to two limitations:
The first of these is that plain view alone is never enough to justify the warrantless
seizure of evidence. This is simply a corollary of the familiar principle discussed above, that
no amount of probable cause can justify a warrantless search or seizure absent exigent
circumstances.' Incontrovertible testimony of the senses that a incriminating object is on
premises belonging to a criminal suspect may establish the fullest possible measure of
probable cause. But even where the object is contraband, this Court has repeatedly stated and
enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v.
United States, 286 U.S. 1; Johnson v. United States, 333 U.S. 10; McDonald v. United States,
335 U.S. 451; Jones v. United States, 357 U.S. 493, 497-498; Chapman v. United States, 365
U.S. 610; Trupiano v. United States, 334 U.S. 699. 403 U.S., at 468; emphasis in original.
The second limitation is that the discovery of evidence in plain view must be inadvertent.
The rationale of the exception to the warrant requirement, as just stated, is that a plain-view
seizure will not turn an initially valid (and therefore limited) search into a general' one, while
the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But
where the discovery is anticipated, where the police know in advance the location of the
evidence and intend to seize it, the situation is altogether different. The requirement of a
warrant to seize imposes no inconvenience whatever, or at least none which is
constitutionally cognizable in a legal system that regards warrantless searches as 'per se
unreasonable' in the absence of 'exigent circumstances.' " 403 U.S. 469-471.
system that regards warrantless searches as per se unreasonable' in the absence of exigent
circumstances.' 403 U.S. 469-471.
[Headnote 5]
The situation concerned in the instant case is no different in principle from that in
Coolidge, and is indistinguishable from that in Trupiano v. United States, 334 U.S. 699
(1948), on which the High Court relied most heavily in deciding Coolidge.
3
Thus, under
holdings of the United States Supreme Court it is unimportant if one concludes that the
Control Officer, through his subterfuge, obtained a lawful "plain view" of the Barnato
garden on August 27.

____________________

3
In Trupiano, federal officers infiltrated an agent into a group engaged in manufacturing illegal liquor, aided
by the owner of the premises who had originally informed them of the operation. The agent reported a
description of the layout and equipment of the illegal distillery; yet, as in the instant case, although they had
ample opportunity, the investigators failed to procure any warrant. Instead, they staged a warrantless nighttime
raid, driven onto the premises by the owner, who had a right to bring them there. Looking through the doorway
of a shed, one of the officers saw one of the criminals standing beside the illegal distillery; he entered, made a
legal arrest, and seized the contraband still, mash vats containing fermenting mash, other distillery equipment,
and cans containing illicit alcoholall of which were in plain view, and all unquestionably contraband. The
Supreme Court held this evidence was inadmissible at trial, because there was no excuse for the agents' failure to
obtain a warrant, authorizing seizure of the property. Coolidge makes it clear that this part of the Trupiano ruling
remains viable.
The Court also held in Trupiano that even though the property was in plain view at the time of a lawful
arrest, its seizure was unjustified in view of the officer's preconceived intention to seize it. While this aspect of
Trupiano is no longer the law, our own court recognized in Wright v. State, 88 Nev. 460, 499 P.2d 1216 (1972),
that Trupiano still is viable on the principle for which it was cited in Coolidge. In Wright, we noted:
United States v. Rabinowitz, 339 U.S. 56 (1950), held: To the extent that Trupiano . . . requires a search
warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the
search after a lawful arrest, that case is overruled.' 339 U.S., at 66. However, this seemingly left Trupiano viable,
except for its requirement of exigent circumstances' even to seize property in plain view at the time of a lawful
arrest. In Chapman v. United States, 365 U.S. 610 (1961), Justice Frankfurter, concurring, noted: While the
Court does not explicitly rely on it, underlying the present decision is the approach of Trupiano.' Id., at 618.
Then, in Chimel v. California, 395 U.S. 752 (1969), the Court said that Rabinowitz was hardly founded on
an unimpeachable line of authority,' that the approach taken in cases such as Go-Bart, Lefkowitz, and Trupiano
was essentially disregarded by the Rabinowitz Court' (id. at 760), and that Rabinowitz was no longer to be
followed' (id. at 768).
Finally Coolidge, involving facts parallel to Trupiano, removed any doubt of Trupiano's viability; for
Trupiano was one of the authorities
Thus, under holdings of the United States Supreme Court it is unimportant if one concludes
that the Control Officer, through his subterfuge, obtained a lawful plain view of the Barnato
garden on August 27. His seizures of a plant sample on August 27, and before that on August
25, both constituted unreasonable seizures under the rule of Coolidge, because the criteria
of exigency and inadvertence were absent.
4
[Headnote 6]

____________________
on which the Court in Coolidge most heavily relied. 88 Nev., at 466, 499 P.2d at 1220.
Coolidge did not totally reinstate Trupiano; for as the Court noted, Tripiano's incident search aspect is
inconsistent with Chimel v. California, 395 U.S. 752 (1969), and in the special area of auto search, Trupiano is
arguably inconsistent with Cooper v. California, 386 u.S. 58 (1967), and Chambers v. Maroney, 399 U.S. 42
(1970). However, the Court made it abundantly clear that Trupiano is still viable as precedent in the area that
concerns us, expressly stating:
Our discussion of plain view' in Part C above corresponds with that given in Trupiano. Here, as in
Trupiano, the determining factors are advance police knowledge of the existence and location of the evidence,
police intention to seize it, and the ample opportunity for obtaining a warrant. 403 U.S., at 482.

4
Some mention should be made of the two state court decisions on which Justice Mowbray's dissent relies.
In our view, the California Supreme Court's four-to-three split decision in the 1969 case of People v.
Bradley, 460 P.2d 129 (Cal. 1969), has no significance as precedent in the instant case. First of all, Bradley
preceded Coolidge, in which the United States Supreme Court clearly formulated the test that must control our
decision. Any lesser authority like Bradley that applies some different formula, to reach a result contrary to
Coolidge, obviously must be disregarded. Moreover, Bradley involved facts more like those in Merica v. State,
87 Nev. 457, 488 P.2d 1161 (1971), than those in the case before us. In Bradley, like the situation in Merica,
contraband was found in an area the tenant apparently shared in common with his landlord, who lived on the
premises too, and was within 20 feet of a door to which tradesmen regularly came. In the instant case, we are
concerned with plants in the enclosed side yard of a single-family dwelling, only two to five feet from the house.
As one officer testified, the house is secluded, and when one approaches its door, there was nothing in your
plain or clear view to indicate that there was anything of a marijuana nature or substance on the property. Thus,
even before Coolidge was decided, application of the Bradley approach to vindicate a seizure like that in the
instant case would have been questionable in light of the Ninth Circuit Court of Appeals' holding in Wattenburg
v. United States, 388 F.2d 853 (9th Cir. 1968).
Blincoe v. People, 494 P.2d 1285 (Colo. 1972), is not authority contrary to Coolidge; nor could authority
contrary to Coolidge be credited in any event. In Blincoe, officers inadvertently discovered contraband while
legitimately on the defendant's premises, and want of a prior opportunity to obtain a warrant gave rise to
exigent circumstances. Thus, The Colorado Supreme Court decided the seizure met the test of Coolidge,
saying: Suppression was not required in this case primarily
[Headnote 6]
4. Of course, Mrs. Barnato's consent to entry of her garden on August 27 was not
tantamount to a waiver of the Barnatos' Fourth Amendment rights. In Gouled v. United
States, 255 U.S. 298 (1921), a business acquaintance of the defendant, acting for the
government, gained access to the defendant's office under the guise of making a friendly call.
While there, he surreptitiously seized papers having evidential value only. The High Court
suppressed these papers as unlawfully seized, and also suppressed other evidence discovered
as a result thereof, saying it was impossible to contend that because entry was obtained by
stealth instead of by force or coercion the seizure was reasonable. Id., at 305; cf. Lewis v.
United States, 385 U.S. 206 (1966), citing Gouled with approval.
The order appealed from is reversed.
Respectfully, I dissent.
The Barnatos, who were charged in the district court with the unlawful possession of
marijuana and the cultivation of marijuana, have appealed from an interlocutory order of the
district court denying their motion to suppress as evidence the marijuana seized in the
Barnatos' garden and home. They assert that the search and the seizure of the marijuana,
pursuant to a search warrant issued by the magistrate, violated their Fourth Amendment
rights. The district judge rejected their claim and denied their motion to suppress the
marijuana as evidence. I agree with the ruling of the district judge, and I would deny the
Barnatos' appeal.
On August 24, 1971, accompanied by a neighbor of the Barnatos' and with the permission
of Mrs. Barnato, the Animal Control Officer of Douglas County set a trap underneath the
Barnatos' house to catch a domestic cat that had become wild. Upon leaving, the Officer
noticed several plants growing in the garden and asked Mrs. Barnato what they were. She
replied that she didn't know. The Officer remarked that they looked like marijuana plants and
then left the premises.
____________________
because the record failed to support the defendant's contention that the officers were engaged in a search when
they observed the adding machine and cash register in plain view. See Coolidge v. New Hampshire, 403 U.S.
443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Id. at 1286. Obviously, quite the opposite is true of the two
surreptitious seizures that preceded the issuance of a warrant in the case before us.
The following day the Animal Control Officer described the plants to a deputy sheriff.
They decided to go to the Barnato home and inspect the plants. Without informing the
Barnatos of their intention, they proceeded onto the Barnato property and took a leaf from one
of the plants. That leaf was tested by a chemist and found to be a leaf from a marijuana plant.
The deputy district attorney was advised of this fact. He suggested that another leaf be
obtained on an occasion when the officers had the consent of the Barnatos to be on their
property. On August 27, the Animal Control Officer telephoned Mrs. Barnato and asked her
permission for him to come to her home for the ostensible purpose of checking the trap.
Permission was given. Upon arriving at the home, the Officer was met by Mrs. Barnato, who
accompanied him to the place where the trap had been set. The Officer retrieved the trap and
was walking behind Mrs. Barnato when he stopped and took a leaf from another plant. The
Officer reset the trap in the garage attic and then departed. This leaf was subjected to test and
found to be marijuana. Affidavits were then prepared to support a search warrant. A warrant
was issued authorizing a search of the Barnatos' home and surrounding property. Search and
arrest warrants were served on Mrs. Barnato, and she was advised of her rights. Several
marijuana plants were found both inside the home and in the garden where originally
observed by the Animal Control Officer. At preliminary hearing, all evidence seized pursuant
to the warrant was received in evidence and is, of course, the evidence to which the district
court motion to suppress was directed.
I would uphold the legality of the search in this case because, under the facts presented, in
my opinion the search was reasonable. The Officer was on the Barnato property with the
owners' permission. There was no unlawful invasion of the Barnatos' privacy. The marijuana
in the garden was in plain view. The officers did all that could be expected of them. After
they learned that the suspected plants were marijuana, they obtained a search warrant, upon
proper affidavit, from the magistrate. I simply cannot fault them for their actions in this case.
See People v. Bradley, 81 Cal.Rptr. 457, 460 P.2d 129 (Cal. 1969), where the California
Supreme Court held that an officer's discovery and seizure, without a warrant, of marijuana
plants growing under a tree adjacent to the defendant's residence, pursuant to a tip from an
unreliable informant, did not violate any constitutional prohibition against unreasonable
searches and seizures, where the plants were in plain sight of anyone within a foot of the tree
located approximately 20 feet from the defendant's door.
from the defendant's door. The California court held, 81 Cal.Rptr. at 459, 460 P.2d at 131:
. . . [W]e believe that an appropriate test is whether the person has exhibited a reasonable
expectation of privacy, and, if so, whether that expectation has been violated by unreasonable
governmental intrusion. [Citation omitted.]
Measured by that test we are satisfied that the officer's discovery and seizure of the
marijuana plants in the yard adjacent to defendant's residence did not violate the
constitutional prohibitions against unreasonable searches and seizures. From the recited
evidence it may be inferred that the marijuana plants were partially but not totally covered by
foliage. It does not appear that the plants were covered by nontransparent material, and it may
be inferred that at least part of the plants were in plain sight of anyone within a foot of the
tree. Although they were in a rear yard that was fenced to an undisclosed extent, they were
located a scant 20 feet from defendant's door to which presumably delivery men and others
came, and the front house, as well as defendant's house, apparently had access to the yard.
Under the circumstances it does not appear that defendant exhibited a subjective expectation
of privacy as to the plants. Furthermore, any such expectation would have been unreasonable.
[Citations omitted.]
See also the recent case of Blincoe v. People, 494 P.2d 1285 (Colo. 1972). In Blincoe, the
Colorado Supreme Court ruled that officers who were on the premises with consent were
entitled to seize stolen items in plain view. As in this case, a suppression hearing was held. At
the conclusion of the hearing, the district court denied the defendant's motion to suppress
evidence that had been seized by the police officers. In denying the motion, the district court
found that the articles were in plain view and that a warrant was not required. The Colorado
Supreme Court upheld the ruling of the lower court and said, 494 P.2d at 1286:
Suppression was not required in this case primarily because the record failed to support
the defendant's contention that the officers were engaged in a search when they observed the
adding machine and cash register in plain view. See Coolidge v. New Hampshire, 403 U.S.
443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) [the principal case cited by our majority in support
of their ruling today]. To the contrary, the officers' presence on the premises was for the
avowed purpose of making inquiry about the stolen articles. Only after the officers failed to
find anyone at home and were informed that one of the persons who resided in the house
was then present in the backyard, did the officers enter the curtilage of the premises.
persons who resided in the house was then present in the backyard, did the officers enter the
curtilage of the premises. The curtilage concept came from the court's desire to protect not
only a citizen's house, but his grounds as well, from intrusions and an invasion of privacy.
The police conduct was reasonable under the circumstances before us, and no claim can be
made that a right of privacy was infringed. In this limited factual situation, the officers'
presence on the property for the legitimate purpose of making inquiry about stolen goods was
justified. [Citations omitted.] Being legitimately on the property, the officers were entitled to
seize any stolen items which were in plain view. [Citations omitted.] (Emphasis in original.)
See also People v. McGahey, 500 P.2d 977 (Colo. 1972).
1

In the instant case, the seizure of marijuana leaves on August 25 and 27 did not violate the
Fourth Amendment. The marijuana plants were in plain view. No effort was made to conceal
them from the vision of anyone who happened to be in the yard. There is nothing to suggest
that the Barnatos exhibited a subjective expectation of privacy as to the plants. Indeed, to an
extent, Mrs. Barnato was forewarned, since on the first visit, which occurred with her
permission, the Animal Control Officer inquired about the plants, and she did nothing
thereafter to conceal or destroy them. She must have known of his interest and the probability
that on any later visit by him, or anyone else, a similar inquiry might be made, and more
definitive action taken. On August 27, the Animal Control Officer came to her home, once
more, with permission, for the ostensible purpose of checking the trap, and seized a leaf from
another marijuana plant. It cannot reasonably be asserted that, in these circumstances, Mrs.
Barnato exhibited a subjective expectation of privacy as to the marijuana plants.
The guaranty against unreasonable searches and seizures is not a haven behind which one
may seek refuge for violation of law committed on his property, the evidence of which he
makes no effort to conceal. What a person knowingly exposes to the public, even in his own
home or office, is not subject to Fourth Amendment protection. Since the seizures of
marijuana leaves on August 25 and 27 were constitutionally permissible, the subsequent
search and seizures of the marijuana plants pursuant to warrant could not have been
tainted thereby.
____________________

1
Mr. Justice Gunderson, in writing for the majority, has in his footnote 4, elected to criticize the authorities
that I have cited in support of my position. I prefer not to answer those comments, for the authorities I have cited
have not been overruled, and they speak for themselves. Further, the full texts of the cases cited in both the
majority and this minority opinion are available for reference to both bench and bar.
subsequent search and seizures of the marijuana plants pursuant to warrant could not have
been tainted thereby. Therefore, the evidence secured pursuant to warrant, in my opinion, is
not barred. I would uphold the validity of the search and seizures, and I would sustain the
district judge's ruling denying the defendants' motion to suppress.
____________
88 Nev. 519, 519 (1972) Tingle v. Warden
DONALD LEE TINGLE, Appellant, v. WARDEN,
No. 6925
October 4, 1972 501 P.2d 62
Appeal from denial of post-conviction relief; First Judicial District Court, Douglas
County; Richard L. Waters, Jr., Judge.
Affirmed.
Gary A. Sheerin, State Public Defender, for Appellant.
Robert List, Attorney General, and Howard D. McKibben, District Attorney, Douglas
OPINION
Per Curiam:
The appellant stands convicted of burglary. His appeal from the denial of post-conviction
relief acknowledges that the appeal is frivolous since the precise point tendered for our
decision was considered and determined adversely to the appellant in the recent case of Page
v. State, 88 Nev. 188, 495 P.2d 356 (1972).
Affirmed.
____________
88 Nev. 520, 520 (1972) Breckenridge v. Andrews
LORAINE BRECKENRIDGE and MARIETTA STEINERT, Appellants, v.
VIRGINIA S. ANDREWS, Individually and as Executrix of the Estate of
Julius Elbridge Smith, Jr., Deceased, Respondent.
No. 6773
October 4, 1972 501 P.2d 657
Appeal from judgment of the Fifth Judicial District Court, Nye County; Kenneth L. Mann,
Judge.
Trustee of testamentary trust created for benefit of testator's wife during her lifetime
petitioned for order authorizing distribution of the trust estate to persons entitled thereto upon
death of testator's wife. The district court rendered judgment in favor of testator's son, and
daughters of testator's wife by a previous marriage appealed. The Supreme Court, Mowbray,
J., held that final settlement and distribution decree which ordered that stock be placed in
income trust for benefit of testator's widow until her death or remarriage and that, in either of
said contingencies, corpus of trust estate be distributed to surviving son of testator and which
also ordered that whole of residuary estate be distributed to testator's son was not ambiguous
and, where no appeal had been taken from it, was res judicata as to rights of all persons
interested in the estate absent extrinsic fraud and was immune from collateral attack.
Affirmed.
Harry F. Publow, of Las Vegas, for Appellants.
Lloyd V. Smith, of Reno, and Pillsbury, Madison & Sutro, of San Francisco, for
Respondent.
Final settlement and distribution decree which provided that certain stock should be placed in income
trust for benefit of testator's widow until her death or remarriage and that, in either of said contingencies,
corpus of trust estate should be distributed to surviving son and only child of testator and that whole of
residuary estate should be distributed to surviving son, was res judicata as to rights of all persons interested
in the estate in absence of extrinsic fraud where no appeal had been taken and the decree was immune from
collateral attack in proceeding on petition of trustee of testamentary trust for order authorizing distribution
of the trust estate following death of testator's widow. NRS 151.110.
Decree of final settlement and distribution was appealable. NRS 155.190.
Once decree of distribution of testator's estate becomes final, adjudication is conclusive as regards terms
of testamentary trust and interests created thereby.
Decree of distribution which provided that testator's residuary estate should be distributed to testator's son
except for certain shares of stock which were liquidated to pay debts, bequest of 80 shares of stock to
testator's widow and trust estate for use and benefit of widow and which provided that corpus of trust
would go to testator's son upon widow's death or remarriage and that upon widow's death or remarriage,
balance of trust would revert to and become part of residuary estate was not ambiguous but made corpus of
trust available for distribution to son in whom title to residuary estate had vested.
5. Wills.
Under will which created trust for benefit of testator's widow during her lifetime or until she should
remarry, which provided that upon widow's death or remarriage, balance of trust estate would revert to and
become part of residuary estate, which left residuary estate to testator's son and which provided that if
testator's son should die before accession to his estate and leave no issue surviving, son's wife would
receive one-fourth of residuary estate and widow three-fourths of residuary estate, son acceded to vested
interest in remainder of trust where he survived testator even though he died prior to death of testator's
widow.
Where testator's widow had received notice of all probate proceedings resulting in final decree of
distribution until her death, it was not mandatory that judge who presided in probate proceedings appoint
counsel to represent her. NRS 136.200, subd. 1, 155.010.
OPINION
This is an appeal from a judgment of the district court wherein certain property was
ordered distributed to Respondent Virginia S. Andrews as the executrix of the estate of Julius
Elbridge Smith, Jr. The judgment enforced the terms of the decree of final settlement and
distribution of the estate of Julius Elbridge Smith (the senior), which had been previously
entered by the same court. The lower court ruled that the previous decree vested an absolute
and indefeasible interest in the subject property in Julius Elbridge Smith, Jr., and that the
previous decree was final and binding on all concerned parties. We agree, and affirm the
judgment of the district court.
1. Julius Elbridge Smith died testate on October 1, 1951.
His only survivors were Nell B. Smith, his second wife, and Julius Elbridge Smith, Jr., his
only child, by his first wife. His will and four codicils were admitted to probate in the Fifth
Judicial District Court, Nye County, Tonopah, Nevada, on November 6, 1951, and First
National Bank of Nevada (Bank) was appointed executor.
Smith's estate consisted of 1,000 shares of American Telephone and Telegraph Company
(AT&T) capital stock. He bequeathed 80 shares of that stock to Nell, and he also created a
testamentary trust for her benefit during her lifetime or until she should remarry. The corpus
of the trust consisted of 425 shares of the AT&T stock.
Paragraph 6(h) of the will provided that upon Nell's death or remarriage . . . the trust
herein created shall forthwith cease and determine, and the entire balance of the trust estate
shall thereupon revert to and be and become a part of my residuary estate.
Under the terms of Paragraph 7 of his will, as amended by the third codicil, Smith left to
his son [a]ll of the rest, residue and remainder of my estate and effects whatsoever, whether
real, personal or mixed, (and after payment of all costs, taxes, fees and other expenses
incurred in the administration of my estate).
And, finally, the will provided in Paragraph 8, as amended by the fourth codicil:
If my said son, JULIUS ELBRIDGE SMITH JR., shall die before accession to his estate,
and leave no issue surviving, then and in such event I give and bequeath to VIRGINIA
SMITH, the wife of my said son, one-fourth (1/4th) of my said residuary estate, and to my
said wife, NELL B. SMITH, three-fourths (3/4ths) of my said residuary estate; . . .
On May 30, 1952, the Bank, as executor, filed its first and final account and report for
settlement, together with its petition for distribution of Smith's estate. The district court on
June 17, 1952, entered a decree wherein the executor's final settlement was approved. As to
distribution of the estate, the court, in its decree, found that, by the terms of said decedent's
Will and Codicils thereto, Nell was given 80 shares of AT&T stock, and the Bank, as
trustee, was given 425 shares of AT&T stock to be held in trust for the benefit of Nell until
her death or remarriage, and thereupon, in either of said contingencies, the corpus of said trust
estate, and any accretions thereto, [are] to be distributed to JULIUS ELBRIDGE SMITH, JR.,
the surviving son and only child of said decedent. The court in 1952 expressly found that
Smith had devised and bequeathed to his son [a]ll the rest, residue and remainder of said
Estate, whether real, personal or mixed, and after first deducting all costs, taxes, fees and
other expenses incurred in the administration of said Estate."
remainder of said Estate, whether real, personal or mixed, and after first deducting all costs,
taxes, fees and other expenses incurred in the administration of said Estate. The court then
ordered the distribution of the estate in accordance with the foregoing findings and
additionally decreed:
7. . . .
. . .
(h) Upon the death or remarriage of decedent's said widow, NELL B. SMITH, the trust
herein created shall forthwith cease and determine, and the entire balance of the trust estate
shall thereupon revert to and be and become a part of said residuary estate.
2. On November 16, 1964, Julius Elbridge Smith, Jr., died testate and without issue. He
named his wife, Virginia S. Smith, as executrix and sole legatee under the will. Virginia, the
respondent herein, later married Laurence Andrews. Nell Smith died on April 23, 1970.
Loraine Breckenridge and Marietta Steinert, the claimants-appellants, are Nell's daughters by
a previous marriage, and her sole heirs.
Virginia contends that, since Nell is deceased, the estate of Julius Elbridge Smith, Jr., is
entitled to the remaining corpus of Nell's trust. Nell's daughters claim that they are entitled to
three-fourths of the remaining corpus. The Bank, as trustee, petitioned the court below on
May 22, 1970, for an order authorizing and directing the trustee to distribute the trust estate to
the person(s) entitled thereto. The district court ruled, on June 21, 1971:
That by a final decree of distribution, this Court distributed a vested interest in the
reversion of said trust property to Julius Elbridge Smith, Jr., which decree is not ambiguous
and which decree cannot be impeached by or contradicted by the terms of the will.
We agree with that ruling, and we affirm the judgment below.
[Headnote 1]
3. When the court in 1952 entered the decree of distribution, it was required to name in
the decree the persons entitled to receive the various portions of the estate and to specify the
portion of the estate to which each was entitled.
1
The 1952 decree of final settlement and
distribution provided in Paragraph 5 that the stock be placed in an income trust for the
benefit of the testator's widow, Nell Smith, "until her death or remarriage; and that
thereupon, and in either of said contingencies, the corpus of said trust estate, and any
accretions thereto, be distributed to JULIUS ELBRIDGE SMITH, JR., the surviving son and
only child of said decedent."
____________________

1
1943 NCL 9882.244 in relevant part (now NRS 151.110, subsection 2):
In the decree, the court shall name the persons and the proportion or parts to which each shall be entitled,
and such person shall have the right to demand and recover his or her respective share from the executor or
administrator, or any other person having the same in possession.
decree of final settlement and distribution provided in Paragraph 5 that the stock be placed in
an income trust for the benefit of the testator's widow, Nell Smith, until her death or
remarriage; and that thereupon, and in either of said contingencies, the corpus of said trust
estate, and any accretions thereto, be distributed to JULIUS ELBRIDGE SMITH, JR., the
surviving son and only child of said decedent.
That decree then ordered:
6.That the whole of said residuary Estate, of whatsoever kind and character, and
wheresoever situate, with particular reference to and expressly including therein any balance
of cash and the balance of shares of capital stock of said American Telephone and Telegraph
Company remaining in the hands of said Executor (after liquidation of the aforementioned
obligations, distribution of said specific bequest and the creation of said trust estate for the
use and benefit of decedent's said widow), together with any and all other property of
whatsoever character or description and wheresoever same may be situated, and together with
any and all other property not now known or discovered, which may belong to said Estate, or
in which said Estate may have any interest, claim or demand, be and the same is hereby
distributed to said JULIUS ELBRIDGE SMITH, JR., the surviving son and only child of said
decedent.
[Headnote 2]
It is clear that the court in 1952 distributed unconditionally the remainder interest in the
trust property to Julius Elbridge Smith, Jr. The decree was appealable.
2
No appeal was ever
taken. As this court said in Garteiz v. Garteiz, 70 Nev. 77, 82, 254 P.2d 804, 806 (1953):
. . . When the decree of distribution became final, it was res judicata as to the rights of all
persons interested in the estate in the absence of extrinsic fraud. [Citations omitted.]
The decree of distribution is now immune from collateral attack. . . .
In In re Estate of Callnon, 449 P.2d 186, 194 (1969), the California Supreme Court ruled:
. . . [A] decree of distribution is the judicial construction of the decedent's will. If the
decree erroneously construes the will, it must be attacked on appeal. Where no appeal is taken
the decree stands as the final and conclusive interpretation of the testator's intent and is
binding on all interested parties.
____________________

2
1931 NCL 9882.293 in relevant part (now NRS 155.190, subsection 12):
An appeal may be taken to the supreme court from an order or decree. . . distributing property;. . .
the testator's intent and is binding on all interested parties. Resort may not be had to the will
thereafter unless the provisions of the decree are ambiguous. Where, as in the instant case, the
decree was not challenged on appeal and is not ambiguous, we must insist that it remain
unassailable against any attempt to attack it collaterally. In this way, we preserve the finality
and conclusiveness of such decree and guaranty the integrity and stability of titles to
property.
[Headnote 3]
It is also the rule that, once a decree of distribution becomes final, the adjudication is
conclusive as regards the terms of the trust and the interests created thereby. As the court
decreed in In re Estate of Callnon, supra, 449 P.2d at 190:
The administration of a decedent's estate involves a series of separate proceedings, each
of which is intended to be final . . .' [Estate of Loring, 175 P.2d 524, 527 (Cal. 1946).] . . . A
decree of distribution is a judicial construction of the will arrived at by the court ascertaining
the interest of the testator. [Citations omitted.] Once final, the decree supersedes the will
[citations omitted] and becomes the conclusive determination of the validity, meaning and
effect of the will, the trusts created therein and the rights of all parties thereunder. [Citations
omitted.]
[Headnote 4]
4. Appellants claim that the lower court erred in not finding an ambiguity in the decree of
distribution, in that Paragraph 6 of the decree, supra, excluded the remainder interest in the
trust from the residuary estate that passed to the testator's son. They also contend that an
inconsistency exists between Paragraphs 5 and 7(h), supra.
Paragraph 6 of the decree provided that the whole of said residuary Estate, of whatsoever
kind and character, was distributed to the testator's son, except (1) those shares of stock
liquidated to pay debts; (2) the bequest of 80 shares of stock to the testator's widow, Nell
Smith; and (3) the trust estate for the use and benefit of decedent's said widow. That
paragraph excluded only Nell's life estate in the property; the remainder interest was included
in the residuary estate distributed to the testator's son.
Paragraph 5 of the decree provided that the corpus of the trust would go to the testator's
son upon Nell's death or remarriage; Paragraph 7(h) provided that, upon Nell's death or
remarriage, the entire balance of the trust estate shall thereupon revert to and be and become
a part of said residuary estate," thus eliminating the necessity of reopening the testator's
estate.
estate, thus eliminating the necessity of reopening the testator's estate. The effect of
Paragraph 7(h) was to make the corpus of the trust available for distribution to the person in
whom title to the residuary estate had vested.
We find no ambiguity in the decree of settlement.
[Headnote 5]
5. As did District Judge Mann, we too have examined Julius Elbridge Smith's will, and
we have concluded that the decree of settlement expressed the intent of the testator. The only
natural objects of the testator's bounty were Nell, his wife; and Julius, Jr., his only child. The
testator provided for Nell by making her the beneficiary of a lifetime trust, which trust
expressly terminated upon her death or remarriage; Julius, Jr., was named the beneficiary of
the residuary estate. The appellants would have us believe that Julius, Jr.'s interest in the
remainder of the trust never vested because he died before Nell. We believe, as did the lower
court, that the testator intended that Julius needed only to survive the testator in order to
accede to a vested interest in the remainder of the trust. Otherwise, Nell would receive a
greater interest in the testator's estate upon her death (three-fourths of the corpus of the trust)
than she would have received while living. We do not believe that such was the testator's
intent.
[Headnote 6]
6. Finally, appellants urge that Nell was not represented by counsel during the 1952
probate proceedings and that District Judge Hatton (who presided in the original probate
proceedings) should have appointed counsel to represent her, in accordance with the
provisions of 1931 NCL 9882.16 then in effect.
3
District Judge Mann rejected appellants'
contention and noted that the petition for letters testamentary stated that Nell was a resident
of Tonopah, Nevada, as well as Burbank, California. Appellants have stipulated that, until her
death on April 23, 1970, Nell received notice of all proceedings, as required by NRS
155.010.
____________________

3
1931 NCL 9882.16:
Whenever a will is offered for probate and it appears there are minors, or if it appears there are other
persons interested in the estate but who reside out of the county and are unrepresented, the court shall, whether
there is a contest or not, appoint an attorney for such minors or other persons. (This section was amended in
1961 by changing the word shall to may, and with that single change is now NRS 136.200, subsection 1.)
required by NRS 155.010. Under the statute then existing, it was not mandatory that Judge
Hatton appoint counsel for Nell.
The judgment of the lower court is affirmed.
To affirm the lower court's judgment, we need notice only that Julius, Jr., acceded to a
vested interest.
____________
88 Nev. 527, 527 (1972) Wood v. Southern Pacific Co.
LESLIE ANN WOOD; SHELLY M. WOOD, a Minor, By Her Guardian Ad Litem, Leslie
Ann Wood; KATHRYN M. PRADERE; ROSE FISHER; and GRACE IRENE LAMBERT,
MARGARET ROSE EASTON, and JAMES LUTHER FISHER, Jr.,
and DIANE MARIE FISHER, Minors, By Their Guardian Ad Litem, Rose Fisher,
Appellants, v. SOUTHERN PACIFIC COMPANY, ROBERT R. ROBINSON,
and JOHN A. EGGERS, Respondents.
No. 6623
October 4, 1972 501 P.2d 652
Appeal from judgment of the Second Judicial District Court, Washoe County, on jury
verdict; Emile J. Gezelin, Judge.
Action for deaths of passengers in a power company truck which was struck by defendant's
train on a bright, clear autumn afternoon at a point where truck driver and passengers had a
totally unobstructed view of more than 1,500 feet of track upon which train was proceeding
and after bell of train's engine had commenced ringing more than 1,325 feet therefrom. The
district court entered judgment from which plaintiffs appealed. The Supreme Court,
Thompson, J., held that evidence was for jury on issue of decedents' contributory negligence.
Affirmed.
Gunderson, J., and Zenoff, C. J., dissented.
Robert Gaynor Berry, of Carson City, Mack Fry, of Reno, and Richard E. Crow, of
Sacramento, California, for Appellants.
Vargas, Bartlett & Dixon, of Reno, for Respondents.
In light of fact that general verdicts were not accompanied by answers to interrogatories, substantial error
in charge of court as to theories of liability or defense would require a remand for another trial. NRCP
49(b).
2. Railroads.
Decedents, as passengers in power company truck which was struck by defendant's train, were under a
duty to exercise ordinary care for their own safety, and instruction to that effect was proper, and court was
under no duty to further elaborate upon concepts of contributory negligence or embellish its scope by
referring to particulars.
3. Negligence.
Contributory negligence, or absence thereof, is usually a question of fact and becomes one of law only
when evidence is of such a character that it will support no other legitimate inference.
4. Railroads.
Evidence, in action for deaths of passengers in a power company truck which was struck by defendant's
train on a bright, clear autumn afternoon at a point where truck driver and passengers had a totally
unobstructed view of more than 1,500 feet of track upon which train was proceeding and after bell of train's
engine had commenced ringing more than 1,325 feet therefrom, was for jury on issue of decedents'
contributory negligence. NRS 484.349, subd. 1(c).
5. Railroads.
In action for death of passengers in a power company truck which was struck by defendant's train, refusal
to give requested instruction that travelers using a public highway have the same right to the use of a grade
crossing as the railroad company has; their rights are mutual and reciprocal., did not constitute error.
Refusal to admit evidence that defendant railroad, whose train struck truck in which plaintiffs' decedents
were riding, did not investigate need for an automatic signal at crossing did not constitute prejudicial error,
where jury had abundant evidence before it upon which to decide whether the crossing, as it existed, was
maintained with reasonable care in light of conditions there present, and whether the condition thereof
caused the accident. NRCP 61.
OPINION
Wilber Wood, James Fisher and Russell Pradere, while in the course of their employment
with Sierra Pacific Power Company, sustained fatal injuries when the power company
truck in which they were riding as passengers was struck by a train.
Company, sustained fatal injuries when the power company truck in which they were riding
as passengers was struck by a train. This wrongful death action was commenced by their heirs
against Southern Pacific Company, John Eggers, the operator of the diesel locomotive, and
Robert Robinson, the senior engineer who supervised the operation of the locomotive and
occupied the left-hand seat in the engineer's cab. The jury returned general verdicts upon
which judgment was duly entered.
[Headnote 1]
The appellants concede that the jury properly could have found that the defendants were
not negligent but, by this appeal, assert that prejudicial error was committed by the trial court
in submitting instructions about contributory negligence of the decedents as passengers in the
truck. Since the general verdicts were not accompanied by answers to interrogatories, NRCP
49(b), substantial error in the charge of the court as to theories of liability or defense would
require a remand for another trial. Otterbeck v. Lamb, 85 Nev. 456, 463, 456 P.2d 855
(1969); Lightenburger v. Gordon, 81 Nev. 553, 579, 407 P.2d 728 (1965). Subordinate errors
also are assigned and will be considered.
[Headnote 2]
1. The decedents as passengers in the power company truck were under a duty to exercise
ordinary care for their own safety, and the court instructed the jury to that effect.
1
That
instruction, couched in general terms, obviously was proper. The court was under no duty to
further elaborate upon the concept of contributory negligence or embellish its scope by
referring to particulars. Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 392, 469 P.2d 399
(1970); Duran v. Mueller, 79 Nev. 453, 460, 386 P.2d 733 (1963).
The appellants offered an instruction based upon language from the opinion of this court in
Otterbeck v. Lamb, 85 Nev. 456, 456 P.2d 855 (1969), to the effect that the decedents as
passengers were not required to maintain a lookout nor were they under a duty to warn
the driver absent the special circumstances outlined in the Otterbeck case.2 Otterbeck
does not stand for the proposition that the court was obliged to so instruct the jury.
____________________

1
Instruction 29: If you find that there was negligence on the part of the driver of the vehicle in which the
decedents Wilber M. Wood, Russell M. Pradere, and James L. Fisher were riding as passengers, then the driver's
negligence cannot be charged to the said decedents. The care required of the decedent as passengers is their duty
to take ordinary precautions for their own safety, use ordinary care for their own protection, under similar
circumstances, and the determination of whether this duty is complied with is one of fact for the jury. This was
the sole instruction given dealing directly with the meaning of contributory negligence.
as passengers were not required to maintain a lookout nor were they under a duty to warn the
driver absent the special circumstances outlined in the Otterbeck case.
2
Otterbeck does not
stand for the proposition that the court was obliged to so instruct the jury. Indeed, Otterbeck
specifically approved the first part of an instruction there considered which was almost
identical to the instruction given here. That part read [A] passenger in an automobile is
under a legal duty to take ordinary precautions for her own safety, and to use ordinary care for
her own protection, and whether or not she exercises ordinary care for her own safety is a
question of fact for the jury to decide. We conclude, therefore, that the instruction given in
this case was correct and that the court was not compelled to instruct further on the subject.
[Headnote 3]
The appellants insist that there was absolutely no evidence in the record or inferences that
reasonably could be drawn from the evidence to warrant submission of the issue of the
decedents' contributory negligence to the jury. Contributory negligence, or the absence
thereof, is usually a question of fact and becomes one of law only when the evidence is of
such a character that it will support no other legitimate inference. Wagon Wheel v.
Mavrogan, 78 Nev. 126, 128, 369 P.2d 688 (1962); Carter v. City of Fallon, 54 Nev. 195,
201, 11 P.2d 817 (1932). Measured by this standard we are unable to find that the court erred
in submitting this issue to the jury for resolution.
[Headnote 4]
The accident occurred on a bright, clear autumn afternoon several miles west of Reno at a
point where Mayberry Drive crosses the main line of the Southern Pacific railroad tracks. The
driver of the truck and his passengers had a totally unobstructed view of more than 1500 feet
of track upon which the train was proceeding. The bell of the train's diesel engine
commenced ringing more than 1325 feet west of the accident scene, its air whistles were
blowing, and the headlight and oscillating light each was fully illuminated.
____________________

2
Whether the language in Otterbeck v. Lamb, supra, concerning lookout and warning governs railroad
crossing accidents is a question. We state this because in 1942, this court approved jury instructions advising,
inter alia, that the tracks of a railroad company are in themselves a warning of danger, and that a passenger in a
car does have the duty to look and listen for approaching trains, and the failure to do so would be negligence
which, if it proximately contributed to the accident, would bar recovery. L. A. & S. L. R. Co. v. Umbaugh, 61
Nev. 214, 238, 239, 240, 123 P.2d 224 (1942). We do not now decide whether Otterbeck overruled Umbaugh
sub silentio, or whether Umbaugh is still viable insofar as railroad crossing accidents are concerned. Cf.
Raymond v. Southern Pacific Company, 488 P.2d 460 (Ore. 1971).
commenced ringing more than 1325 feet west of the accident scene, its air whistles were
blowing, and the headlight and oscillating light each was fully illuminated. Independent,
disinterested witnesses heard the whistles blowing and stopped their conversation because of
the noise therefrom. None of the passengers in the truck apparently paid the slightest attention
to these circumstances. One must conclude that reasonable minds could differ as to whether
the passengers exercised ordinary care for their own safety. That issue properly was submitted
to the jury for decision.
[Headnote 5]
2. The trial court refused to give a requested instruction that travelers using a public
highway have the same right to the use of a grade crossing as the railroad company has; their
rights are mutual and reciprocal. In Southern Pacific Co. v. Watkins, 83 Nev. 471, 435 P.2d
498 (1967), we held that it was not error to give that instruction. Id. at 491.
3
It does not
follow, however, that error occurs when the instruction is not given. Duran v. Mueller, 79
Nev. 453, 460, 386 P.2d 733 (1963). It was not a necessary instruction.
Other errors regarding jury instructions have been considered and found to be without
merit.
[Headnote 6]
3. The trial court would not allow the appellants to offer evidence that the Southern
Pacific Company did not investigate the need for an automatic signal at the Mayberry
crossing. This ruling is assigned as prejudicial error. That evidence presumably was offered to
show that the intersection was dangerous. The record is full of evidence on that point. Large
photographs were received showing the crossing in detail and the surrounding area.
Testimony concerning the number of trains, cars and trucks using the crossing each day was
introduced. Indeed, an expert gave his opinion that the crossing was dangerous. The jury
apparently rejected any contention that the condition of the crossing proximately caused the
accident. In these circumstances, the bit of proffered evidence rejected by the court, if
admissible, cannot be deemed to have affected the substantial rights of the appellants.
____________________

3
NRS 484.349(1)(c) provides that the driver of a vehicle shall stop when a railroad train approaching within
approximately 1500 feet of the highway crossing emits a signal audible from such distance and such train, by
reason of its speed or nearness to such crossing, is an immediate hazard. Southern Pacific Co. v. Watkins, supra,
did not mention this statute. Depending upon the circumstances present, that statute obviously may affect the
propriety of the equal right instruction given in the Watkins case.
the substantial rights of the appellants. NRCP 61. The jury had abundant evidence before it
upon which to decide whether the crossing, as it existed, was maintained with reasonable care
in the light of conditions there present, Southern Pacific Co. v. Harris, 80 Nev. 426, 395 P.2d
767 (1964), and whether the condition thereof caused the tragic occurrence.
4. The remaining assignment of error regarding the admission of certain evidence is
unsupported by authority in either the appellants' brief or oral argument and will not be
considered.
Affirmed.
Gunderson, J., with whom Zenoff, C. J., agrees, dissenting:
In L. A. & S. L. R. Co. v. Umbaugh, 61 Nev. 214, 123 P.2d 224 (1941), this court in
substance held a jury was properly instructed that a railroad could kill an 11-year-old girl with
impunity, if she failed to keep a lookout as the car in which she was riding approached a
railroad crossing. However, we long ago repudiated that view of a passenger's duties. In
Duffy v. Flynn, 72 Nev. 278, 302 P.2d 967 (1956), we held evidence that a passenger was
sleeping did not constitute sufficient evidence of contributory negligence to support a verdict
adverse to him. Later, in Otterbeck v. Lamb, 85 Nev. 456, 456 P.2d 855 (1969), we expressly
endorsed what is certainly now the virtually uniform rule concerning the duties of an
automobile passenger, saying:
It is also unquestionably the majority rule in the United States that a passenger in an
automobile has no duty of lookout or duty to warn the driver in the absence of special
circumstances. Restatement of Torts Second, Sec. 495, Comments c-f, pages 556-558; Duffy
v. Flynn, 72 Nev. 278, 302 P.2d 967 (1956); Frame v. Grisewood, 81 Nev. 114, 399 P.2d 450
(1965); Drake v. Driscoll, 267 F.2d 274 (5th Cir. 1959); Watters v. Parrish, 115 S.E.2d 1
(N.C. 1960); Lamfers v. Licklider, 332 S.W.2d 882 (Mo. 1960); Robinson v. Cable, 11
Cal.Rptr. 377 (Cal. 1961); Pobor v. Western Pacific Railroad Co., 359 P.2d 474 (Cal. 1961);
Klein v. Southern Pacific Co., 21 Cal.Rptr. 233 (D.C.App. 1962); Van Pelt v. Carte, 26
Cal.Rptr. 182 (D.C.App. 1962); Mitchell v. Colquette, 379 P.2d 757 (Ariz. 1963); Borders v.
Borders, 376 S.W.2d 519 (Ky. 1964).
The special circumstances which create the duty are obvious, imminent, danger, of which
the passenger is aware and the driver is not; or where the driver is sleepy or intoxicated,
which is known to the passenger; or where road or weather conditions are particularly
hazardous.
and the driver is not; or where the driver is sleepy or intoxicated, which is known to the
passenger; or where road or weather conditions are particularly hazardous. Otherwise, the
passenger should refrain from advice, instruction or attempted control over the driver, for fear
of creating more danger by a distraction rather than lessening it by unwarranted, unwise
advice. If the passenger specifically undertakes a lookout, then he is under a duty to do an
ordinarily careful job of it. 85 Nev., at 461-462.
1. Appellants contend, first, that this being our law, the evidence was insufficient to
justify the district court in submitting a question of their decedents' contributory negligence to
the jury. The majority really do not meet this contention. Contributory negligence is an
affirmative defense that must be proved. NRCP 9(c). Here, it is questionable that the
defendant ever proved more than that appellants' decedents were unwatchful for, and
oblivious to, impending dangeri.e., that they were acting in accord with their rights as
passengers in a motor vehicle.
In Van Pelt v. Carte, 26 Cal.Rptr. 182 (Cal.App. 1962), upon which we relied in deciding
Otterbeck, the court noted that conjecture, surmise and guesswork will not justify a
determination of contributory negligence. The court noted an inference one saw what was in
plain sight may be drawn only when it is shown he did look, or was under a duty to look. The
court therefore said:
On the facts presented, we have no evidence whatever that plaintiff saw or heard anything
prior to the accident which would cause an ordinarily reasonable person to doubt the
reliability of her father as a driver or that danger threatened which required her survey of
traffic. There was no evidence suggesting she knew three cars were approaching from the
west or that she ever looked ahead and saw Avenue blocked in the intersection. There was no
evidence that she had any reason to believe that her father did not observe and take into
consideration all the action described in the evidence. Prior to the accident she may have had
her attention on a bird flying, a tree, the mountains, a house, or any other of a hundred things.
. . .
Since the guest's duty to look' does not arise until some factor of danger comes to his
attention, thus charging him as a person of ordinary prudence to take observation for his own
safety, and since no such factor appears in this case, we are unable to apply the duty to
plaintiff. Since nothing in the evidence indicates she did, in fact, look at the traffic condition,
no inference on either score can arise.
no inference on either score can arise. Defendant completely failed in its burden of proof as to
contributory negligence and plaintiff's own evidence produced nothing to show contributory
negligence on her part. The contributory negligence instruction should not have been given.
Id., at 186.
Furthermore, if one assumes there was evidence to show the decedents were or should
have been aware of impending danger, what Mr. Justice Thompson said in Frame v.
Grisewood, 81 Nev. 114, 399 P.2d 450 (1965), seems germane in the instant case:
[T]he guest's failure to warn was not, in the circumstances of this case [where the
passenger knew no more than the driver], probative of contributory negligence. Further, it
strikes us that once the trip was commenced, the race with the Austin-Healey underway, and
high speed attained [once danger was impending], there was little, if anything, the guest could
do to protect himself, except to sit tight and hope for the best. [This is especially true here,
where the decedents were in the back of the truck.] At that point a choice was not open to
him. In any event, there is absolutely nothing in the record to show that the guest's action was
a proximate or concurring cause of the accident. 81 Nev., at 120; 399 P.2d, at 453.
2. Appellants also contend that, at a minimum, they were entitled to have our law
concerning passengers' duties properly stated to the jury, as they requested the district court to
do. About this, there should be no question whatever. It was vital to appellants that the jury
know appellants' decedents had no duty to keep a lookout. Left to believe otherwise, the jury
could think they were negligent in not looking to see the headlight and oscillating light of
which the majority speakor negligent in listening to the world series on a portable radio (as
the evidence indicates they may have been), rather than listening for the bell and whistle the
majority mention. Obviously, the instruction for which appellants made a timely request was
necessary to enable the jury to evaluate the evidence properly and, therefore, its refusal was
prejudicial error.
3. The majority obscure these issues by suggesting there remains a possibility that
railroads, alone among tortfeasors, still enjoy the unconscionable protections this court
afforded them in Umbaugh. Obviously, any such discrimination in favor of railroads would
be purely arbitrary. Otterbeck recognized that absent some showing of special circumstances,
a passenger need not keep a lookout, but may properly read, daydream, or even sleep if he
chooses. Surely the majority do not seriously suggest that while a passenger may sleep, he
must do so with ears cocked and eyes open for trains.
so with ears cocked and eyes open for trains. Such a rule would, of course, be a legal
curiosity. Furthermore, cases cited with approval in Otterbeck involved collisions with trains
at railroad crossings. Pobor v. Western Pacific Railroad Company, 359 P.2d 474 (Cal. 1961);
Wein v. Southern Pacific Company, 21 Cal.Rptr. 233 (Cal.App. 1962). In the latter case, the
court noted: The passenger has a right to suppose that the driver, on approaching a railway
crossing with which he is familiar, will exercise due care for the protection and safety of his
passengers, and that, even when so near the crossing as to be in apparent danger of collision
with an oncoming train, he will or may take some action which will avert an accident. Id., at
237-238.
In view of the foregoing, I suggest that it cannot seriously be contended that the doctrine of
Otterbeck is limited to situations in which the defendant is not a railroad, and that it is
questionable judicial administration to suggest otherwise. After all, some busy trial judge
might take us seriously.
We should forthrightly recognize Otterbeck, forthrightly apply it, and reverse.
____________
88 Nev. 535, 535 (1972) Wentworth v. Ford Motor Co.
CHAPMAN WENTWORTH, Appellant, v. FORD
MOTOR COMPANY, Respondent.
No. 6727
October 5, 1972 501 P.2d 1218
Appeal from judgment dismissing cross-claims, Second Judicial District Court, Washoe
Consolidated wrongful death actions arising out of collision involving automobile leased
by defendant and manufactured by co-defendant. Defendant cross-claimed against
co-defendant, alleging defective brakes were sole cause of accident and seeking indemnity for
any liability that might be assessed against him. The district court granted co-defendant's
motion to dismiss cross-claims, and defendant appealed. The Supreme Court, Gunderson, J.,
held that defendant lessee's cross action against co-defendant automobile manufacturer
seeking indemnity for any liability that might be assessed against him on basis of claim that
he caused accident by driving with defective brakes was not subject to dismissal for failure to
state claim on which relief could be granted, notwithstanding manufacturer's contention
that lessee was not subject to liability for which he could claim indemnity from
manufacturer.
on which relief could be granted, notwithstanding manufacturer's contention that lessee was
not subject to liability for which he could claim indemnity from manufacturer.
Reversed.
Goldwater, Hill, Mortimer & Sourwine and C. Frederick Pinkerton, of Reno, for
Appellant.
Wait, Shamberger & Georgeson, of Reno, for Respondent.
1. Pleading.
Defendant automobile lessee's cross-claim against co-defendant automobile manufacturer, seeking
indemnity for any liability that might be assessed against him on basis of claim that he caused accident by
driving with defective brakes, was not subject to dismissal for failure to state claim on which relief could
be granted, notwithstanding manufacturer's contention that lessee was not subject to liability for which he
could claim indemnity from manufacturer. NRCP 54(b); NRS 484.593, 484.595, 484.597.
2. Automobiles.
Owner or lessee of an automobile may not delegate his duties to maintain proper brakes to others and
thereby avoid liability for injuries resulting from their lapses. NRCP 54(b); NRS 484.593, 484.595,
484.597, 484.695-484.701; Cal. Vehicle Code 24004.
3. Automobiles.
Statute relating to inspection of vehicles by police does not limit obligations imposed by other statutes
intended to protect the public. NRS 484.695-484.701; Cal. Vehicle Code 24004.
OPINION
Appellant Wentworth and respondent Ford Motor Company are co-defendants in
consolidated wrongful death actions arising from an automobile collision. In his Complaints,
the decedents' personal representative predicates claims against Wentworth in part on
allegations that Wentworth caused the accident by driving with defective brakes in violation
of Nevada statutes.
1
He predicates claims against Ford on allegations that the brakes were
defective when Ford released the car into commerce.
____________________

1
In July of 1968, when the collision in question occurred, the following statutes were in force:
NRS 484.420(1): Every motor vehicle . . . shall be equipped with brakes adequate to control the movement
of and to stop and hold such vehicle . . .
NRS 484.420(4): Every new motor vehicle . . . sold in this state after March 25, 1939 . . . shall be equipped
with service brakes upon all wheels . . .
NRS 484.430: Every motor vehicle . . . shall be capable . . . of
the car into commerce. Having leased the car shortly before the accident, Wentworth
cross-claimed against Ford, alleging the defective brakes were the sole cause of the accident,
and seeking indemnity for any liability that might be assessed against him. The district court
granted Ford's motion to dismiss Wentworth's cross-claims for failure to state claims on
which relief could be granted, directing the entry of a final judgment upon an express
determination under NRCP 54(b) that there was no just reason for delay. Wentworth has
appealed.
[Headnotes 1, 2]
Ford's argument to vindicate the dismissal of Wentworth's cross-claims is that without at
least some personal negligence on Wentworth's part, the alleged failure of Wentworth's
brakes would not render him liable to plaintiff at all; hence, Ford urges, Wentworth is not
subject to liability for which he may claim indemnity from Ford. Stated another way, Ford
contends Nevada law allows the owner or lessee of an automobile to delegate his legal duties
to maintain proper brakes to others, for whose lapses he will not be liable if injury to third
persons results.
2
We do not agree.
____________________
being stopped . . . upon application of the service (foot) brake, within the distances specified below, or shall be
capable of being decelerated at a sustained rate corresponding to these distances: [specifying].
NRS 484.440: All brakes shall be maintained in good working order and shall be so adjusted as to operate
as equally as practicable with respect to the wheels on opposite sides of the vehicle.
Compare: NRS 484.593; NRS 484.595; NRS 484.597.

2
Counsel for appellant Wentworth have devoted their Opening Brief to the contention that, assuming
Wentworth is liable for operating the allegedly defective vehicle released into commerce by Ford (an assumption
they of course make no attempt to support), then Wentworth has a right to indemnity from Ford.
In their Answering Brief, counsel for Ford have agreed, saying: Although the Respondent has no argument
with the authorities cited by the Appellant as they apply to those jurisdictions which impose a statutory
nondelegable duty upon the owner and/or operator of a vehicle to keep the equipment thereof in proper working
order, and making it unlawful to operate a vehicle which is not in proper working condition, regardless of
knowledge or notice of such defects, these authorities are inapplicable to this case because the law of the State of
Nevada does not impose such a statutory duty. Under the law of Nevada, the mere failure to inspect and discover
a defect, without notice thereof or reason to suspect such defective condition, or, stated differently, mere reliance
on the exercise of proper care by the manufacturer is not of itself sufficient to impose lible [sic] upon the
operator of the defective vehicle.
In their Reply Brief, counsel for Wentworth manifest no apparent disagreement with counsel for Ford,
saying: Respondent's answer is
It is true that, until quite recently, courts repeatedly held that although a man would be
responsible for all damages done by his wild beast, he would not be responsible for damage
inflicted by his unstoppable mechanical monster unless he personally was found to be at fault
in its maintenance. D. Jones, C. Weldon and S. Schekman, Brakeless Vehicle Victims Get a
Break, Vol. VIII, No. 2 C.T.L.J. 12 (Spring, 1969). This, however, seems neither the current
trend nor, in our opinion, the better view.
3

Under statutes similar to NRS 484.420(1) and NRS 484.440, the California Supreme
Court recently re-examined the question, holding that the motorist's duty to maintain
automobile brakes in compliance with the vehicle code is nondelegable. Maloney v. Rath,
445 P.2d 513 (Cal. 1968). Speaking for the Court, Chief Justice Traynor said:
. . . The statutory provisions regulating the maintenance and equipment of automobiles
constitute express legislative recognition of the fact that improperly maintained motor
vehicles threaten a grave risk of serious bodily harm or death.' The responsibility for
minimizing that risk or compensating for the failure to do so properly rests with the person
who owns and operates the vehicle. He is the party primarily to be benefited by its use; he
selects the contractor and is free to insist upon one who is financially responsible and to
demand indemnity from him; the cost of his liability insurance that distributes the risk is
properly attributable to his activities; and discharge of the duty to exercise reasonable care in
the maintenance of his vehicle is of the utmost importance to the public. . . . Id., at 516;
accord: Clark v. Dziabas, 445 P.2d 517 (Cal. 1968).
We have no doubt the modern view, as expressed by Chief Justice Traynor, best accords
with natural justice, and is most conducive to the search for truth in cases like the instant one.
____________________
that Appellant cannot be negligent unless he had knowledge of the bad brakes before the accident. Of course,
Appellant hopes this is true, but the lower court, when it dismissed the cross claim, did not also declare the law
of the case to require knowledge.
While some members of this court therefore have doubted that this appeal presents an actual, present
controversy, we have ultimately determined to decide the narrow question presented, in part because the district
court evidently desires our guidance before proceeding further.

3
Consider: Brakeless Vehicle Victims Get a Break, cited above; see also: O. Danker, Brake Failure as
Negligence Per Se, 16 Clev.-Mar.L. Rev. 131 (1967), and cases there cited.
[Headnote 3]
Ford cites NRS 484.500 (now NRS 484.697) to support the premise that the driver of a
vehicle with defective brakes can incur civil liability only if he has notice of the defect.
4
In
our view, Ford's reliance on that penal statute (which is similar to Cal.Veh. Code 24004) is
misplaced. When the full text of that statute is read in context with those that precede and
follow, it becomes manifest that NRS 484.490 through NRS 484.510 (NRS 484.695 through
NRS 484.701) are primarily concerned with inspection of vehicles by police, and should not
be read to limit obligations imposed by other statutes intended to protect the public.
The judgment appealed from is reversed.
____________________

4
484.500 Operation of vehicles without required equipment or in unsafe condition prohibited. No person
shall operate any vehicle or combination of vehicles after notice of such unsafe condition or that the vehicle is
not equipped as required by this chapter, except as may be necessary to return such vehicle or combination of
vehicles to the residence or place of business of the owner or driver or to a garage, until the vehicle and its
equipment has been made to conform with the requirements of this chapter.
____________
88 Nev. 539, 539 (1972) Walker v. State
JOSEPH MILES WALKER, Appellant, v. STATE OF
NEVADA, Respondent.
No. 5557
October 5, 1972 501 P.2d 651
On remand from the United States Supreme Court.
By a judgment in the Second Judicial District Court, Washoe County, the defendant was
convicted of first-degree murder and he appealed. The Supreme Court, 85 Nev. 337, 455 P.2d
34 (1969), affirmed and certiorari was granted. The United States Supreme Court, 408 U.S.
935, 92 S.Ct. 2855, 33 L.Ed. 2d 750 (1972), vacated the judgment in part and remanded case
for further proceeding. On remand, the Supreme Court held that inasmuch as decision of
United States Supreme Court regarding unconstitutionality of death penalty is fully
retroactive, any prisoner now under sentence of death, judgment as to which is final, may file
petition for writ of habeas corpus in district court from which he was sentenced inviting
that court to modify his judgment to provide for appropriate alternative punishment
specified by the State for the crime for which he was sentenced to death.
is final, may file petition for writ of habeas corpus in district court from which he was
sentenced inviting that court to modify his judgment to provide for appropriate alternative
punishment specified by the State for the crime for which he was sentenced to death.
Remanded for sentencing.
Frank Sala and Mack Fry, of Reno, for Appellant.
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for
Respondent.
Habeas Corpus.
Inasmuch as decision of United States Supreme Court regarding unconstitutionality of death penalty is
fully retroactive, any prisoner now under sentence of death, judgment as to which is final, may file petition
for writ of habeas corpus in district court from which he was sentenced, inviting that court to modify his
judgment to provide for appropriate alternative punishment specified by the State for crime for which he
was sentenced to death. NRS 200.030.
OPINION
Per Curiam:
By mandate of the United States Supreme Court the judgment of this court rendered May
28, 1969, has been vacated insofar as it leaves undisturbed the death penalty imposed.
In compliance with said mandate, it is
ORDERED that this cause be, and the same is hereby, remanded to the Second Judicial
District Court, Washoe County, to impose the correct punishment under NRS 200.030.
Walker v. Nevada, 408 U.S. 935, 92 S.Ct. 2855, 33 L.Ed.2d 750 (1972); Stewart v.
Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972); Furman v. Georgia, 408
U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
1

Previous counsel for appellant having been discharged, It is further ordered that the
Public Defender of Washoe County is appointed to represent appellant.
____________________

1
Inasmuch as the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), is
fully retroactive, any prisoner now under the sentence of death, the judgment as to which is final, may file a
petition for writ of habeas corpus in the district court from which he was sentenced, inviting that court to modify
its judgment to provide for the appropriate alternative punishment specified by statute for the crime for which he
was sentenced to death.
It is further ordered that the Public Defender of Washoe County is appointed to represent
appellant.
____________
88 Nev. 541, 541 (1972) Carson City v. Estate of Lompa
CARSON CITY, a Political Subdivision of the State of Nevada, Appellant, v. ESTATE OF
SIMONE LOMPA, Deceased, and EVA LOMPA, Respondents.
No. 6705
October 6, 1972 501 P.2d 662
Appeal from condemnation judgment; First Judicial District Court, Carson City; Joseph O.
McDaniel, Judge.
City sought to condemn parcel of real property and all water appropriated from point of
diversion located thereon. The district court entered judgment on verdict fixing value of the
water right, and city appealed. The Supreme Court held that water right was subject to
condemnation.
Affirmed.
Michael E. Fondi, District Attorney, and Ralph M. Crow, Deputy District Attorney,
Carson City, for Appellant.
Milton Manoukian, of Carson City, for Respondents.
Eminent Domain; Waters and Water Courses.
When a right to use water has become fixed either by actual diversion and application to beneficial use or
by appropriation as authorized by the state water law, it is a right which is regarded and protected as real
property, and is subject to condemnation. NRS 37.010, subd. 3.
OPINION
Per Curiam:
The City sought to condemn a parcel of real property and all water appropriated from the
point of diversion located thereon as evidenced by Certificate No. 5404 issued by the State
Engineer. The parties stipulated to the value of the parcel of real property and submitted to
the jury only the task of deciding the value of the water right. The jury fixed that value at
$33,000, which amount is not challenged. The appellant does appear to contend, however,
that a water right is not subject to condemnation.
88 Nev. 541, 542 (1972) Carson City v. Estate of Lompa
does appear to contend, however, that a water right is not subject to condemnation.
When a right to use water has become fixed either by actual diversion and application to
beneficial use or by appropriation as authorized by the state water law, it is a right which is
regarded and protected as real property. In re Application of Filippini, 66 Nev. 17, 22, 202
P.2d 535 (1949); Nenzel v. Rochester Silver Corporation, 50 Nev. 352, 357, 259 P. 632
(1927); Adams-McGill Co. v. Hendrix, 22 Fed.Supp. 789, 791 (D. Nev. 1938); Dalton v.
Bowker, 8 Nev. 190, 201 (1873). Indeed, NRS 37.010(3) specifically allows for a city to
exercise its right of eminent domain to acquire water rights.
Other claimed errors have been examined and also are without merit.
Affirmed.
____________
88 Nev. 542, 542 (1972) Mengelkamp v. List
ROBERT ALLAN MENGELKAMP and GARY MENGELKAMP, Petitioners, v. ROBERT
LIST, Attorney General of the State of Nevada, JOHN KOONTZ, Secretary of State of the
State of Nevada, and H. K. BROWN, County Clerk
of Washoe County, Nevada, Respondents.
No. 6993
October 10, 1972 501 P.2d 1032
Original proceedings on petition for writ of mandamus commanding county clerk to place
19- and 18-year-old petitioners' names on ballots as candidates for State Senator and
Assemblyman. The Supreme Court held that statute requiring that State Senators and
Assemblymen be at least 21 years of age at time of their election does not violate State
Constitution, though Constitution is silent as to age qualifications for such positions. The
Court further held that clerk was not required to place names of petitioners on ballots,
notwithstanding contention that any decision as to whether petitioners should sit in legislative
bodies should be deferred to determination of body in which petitioners desired to serve.
Writ denied.
Charles E. Springer, of Reno, for Petitioners.
Robert List, Attorney General, and Margie Ann Richards, Deputy Attorney General, of
Carson City; Robert E. Rose, District Attorney, and John Frankovich, Deputy District
Attorney, Washoe County, for Respondents.
1. States.
Statute requiring that State Senators and Assemblymen be at least 21 years of age at time of their election
does not violate State Constitution, though Constitution is silent as to age qualifications for such position.
Const. art. 2, 1; art. 4, 5, 9, 10; NRS 218.010.
2. Elections.
Legislature may prescribe reasonable qualifications for an elector who desires to become candidate for
State Senator or Assemblyman if such qualifications are not in conflict with some constitutional provisions.
Const. art. 4, 5, 9, 10.
3. Elections.
County clerk was not required to place names of petitioners, who did not meet statutory age requirements
for offices of State Senator and Assemblyman, on election ballots for such offices, notwithstanding
contention that any decision as to whether such petitioners should sit in legislative bodies should be
deferred to determination of bodies in which petitioners desired to serve. NRS 218.010; Const. art. 4,
6.
4. Constitutional Law; States.
Statutory requirement that persons be 21 years of age to serve in Legislature was not unreasonable or an
abridgement of privileges and immunities of 19 and 18 year olds who sought to be candidates for State
Senator and Assemblyman. NRS 218.010.
Though there is little demonstrable difference between opposite sides of line drawn by legislature and
closest to it, unless it is demonstrated that there is clearly no rational and legitimate reason for distinction
drawn, law must be upheld.
Acts of legislature are presumptively constitutional.
7. Statutes.
Implied repeal of one law through enactment of another does not occur unless one is irreconcilably
repugnant to the other or by same other means intent to abrogate earlier law is made evident.
8. States.
Constitutional amendment granting right to vote to 18 year olds did not, by implication, repeal statute
requiring that State Senators and Assemblymen be at least 21 years of age at time of their election. NRS
218.010; Const. art. 2, 1.
OPINION
Per Curiam:
Petitioner Robert Allan Mengelkamp (age 19) has filed a declaration of candidacy with
respondent H. K. Brown, the County Clerk of Washoe County, seeking to have his name
placed on election ballots for the office of State Senator.
County Clerk of Washoe County, seeking to have his name placed on election ballots for the
office of State Senator. Petitioner Gary Mengelkamp (age 18) has filed a declaration of
candidacy for the office of Assemblyman. Petitioners ask this court for a writ of mandamus,
commanding respondent Brown to place their names on the ballots, which he refuses to do on
the advice of the respondent Attorney General.
The Nevada Constitution provides that Senators and members of the assembly shall be
duly qualified electors in the respective counties and districts which they represent (Art. 4,
5); that [n]o person holding any lucrative office under the Government of the United States
or any other power, shall be eligible to any civil office of Profit under this State (Art. 4, 9);
and that embezzlers of public funds, and certain other specified criminal offenders, are
disqualified from holding offices of profit or trust (Art. 4, 10).
While our Constitution is silent as to age qualifications for Senators and Assemblymen,
our legislature has declared they must be qualified electors, citizens resident of this state for 1
year next preceding their elections, and must have attained the age of 21 years at the time of
election. NRS 218.010. It is because petitioners do not meet the age requirements of NRS
218.010 that the respondent Clerk has refused to place their names on the ballot.
[Headnotes 1, 2]
Petitioners contend the Nevada Constitution states not merely the minimum but the
maximum qualifications for the offices thereby created; thus they urge us, on that basis, to
hold NRS 218.010 unconstitutional because they are qualified electors.
1
They urge that the
legislature may not add to or subtract from" the requirements in Article 4 of the
Constitution.
____________________

1
As last amended in 1971, Art. 2, 1, of the Nevada Constitution grants suffrage to persons who have
attained the age of 18 years, as follows:
Section 1. Right to vote; qualifications of electors; qualifications of nonelectors to vote for President, Vice
President of United States. All citizens of the United States (not laboring under the disabilities named in this
constitution) of the age of eighteen years and upwards, who shall have actually, and not constructively, resided
in the state six months, and in the district or county thirty days next preceding any election, shall be entitled to
vote for all officers that now or hereafter may be elected by the people, and upon all questions submitted to the
electors at such election; provided, that no person who has been or may be convicted of treason or felony in any
state or territory of the United States, unless restored to civil rights, and no idiot or insane person shall be
entitled to the privilege of an elector. There shall be no denial of the elective franchise at any election on account
of sex. The legislature may
from the requirements in Article 4 of the Constitution. However, this court has previously
said, and we believe correctly: The constitution defines the qualifications of an elector, but
the legislature may prescribe reasonable qualifications for an elector who may desire to
become a candidate, providing such qualifications are not in conflict with some constitutional
provisions. Riter v. Douglass, 32 Nev. 400, 435, 109 P. 444, 455-456 (1910).
[Headnote 3]
Petitioners also contend that whether they be legally qualified or not, still the respondent
Clerk should be required to place their names on the ballots, and defer any decision of
whether they should sit to the determination of the legislative body they desire to serve. The
only support offered for this contention is Article 4, Section 6, of our Constitution which
provides: Each House shall judge the qualifications, elections and returns of its own
members. In other words, it seemingly is petitioners' position that although a would-be
candidate is admittedly disqualified to serve for one or a dozen reasons, election officials
must place his name on the ballot; that he may seek the preference of the voters over qualified
candidates; and that if he attracts sufficient votes, then the House in which he seeks to serve
may seat him, if it chooses. We reject this contention.
[Headnotes 4-6]
Petitioners contend that it is unreasonable, and an abridgment of their privileges and
immunities, to require that persons be 21 years of age to serve in our legislature, when they
possess the right to vote at 18. Whenever the legislature draws a line, there often is little
demonstrable difference between cases on opposite sides of the line and closest to it. Still,
unless it be demonstrated that there is clearly no rational and legitimate reason for the
distinction drawn, we must uphold the law. Acts of our legislature are presumptively
constitutional. State of Nevada v. Irwin, 5 Nev. 111 (1869).
[Headnotes 7, 8]
Petitioners suggest that NRS 218.010 was repealed by implication when the people voted
in 1971 to amend our Constitution to grant 18-year-olds the right to vote. Implied repeal of
one law through enactment of another does not occur, save when one is irreconcilably
repugnant to the other, or by some other means intent to abrogate the earlier law is made
evident.
____________________
provide by law the conditions under which a citizen of the United States who does not have the status of an
elector in another state and who does not meet the residence requirements of this section may vote in this state
for President and Vice President of the United States.
one law through enactment of another does not occur, save when one is irreconcilably
repugnant to the other, or by some other means intent to abrogate the earlier law is made
evident. Thorpe v. Schooling, 7 Nev. 15 (1871). We cannot say that members of the public
who cast their ballots to allow 18-year-olds to vote thereby manifested intent to abolish age
requirements theretofore imposed on candidates for state office.
Accordingly, the writ must be denied.
____________
88 Nev. 546, 546 (1972) Diaz v. Valu-Mart, Inc.
FRANCES CLEO DIAZ, Appellant, v. VALU-MART,
INC., Respondent.
No. 6818
October 11, 1972 501 P.2d 650
Appeal from order setting aside default judgment; Second Judicial District Court, Washoe
County; John E. Gabrielli, Judge.
The Supreme Court held that record failed to disclose that district court abused its
discretion.
Affirmed.
A. D. Demetras, of Reno, for Appellant.
Erickson & Thorpe, of Reno, for Respondent.
Judgment.
Record failed to disclose that district court abused its discretion in setting aside default judgment.
OPINION
Per Curiam:
The record on appeal fails to disclose that the district court abused its discretion in setting
aside the default judgment entered in this action. Accordingly, we affirm.
____________
88 Nev. 547, 547 (1972) Wood v. Sheriff
ROBERT EARL WOOD, Appellant, v. SHERIFF,
CARSON CITY, NEVADA, Respondent.
No. 6947
October 13, 1972 501 P.2d 1034
Appeal from an order denying pretrial petition for a writ of habeas corpus; First Judicial
District Court, Carson City; Richard L. Waters, Jr., Judge.
The Supreme Court, Thompson, J., held that defendant was entitled to be discharged from
custody because of denial of his right to speedy trial where defendant, then incarcerated in
Colorado, requested speedy trial as soon as he knew of pending Nevada charge, where 16
months passed between defendant's request and time he was returned to Nevada to stand trial
upon release from prison in Colorado, where prosecutor, who had simply ignored defendant's
request, assigned no reason to justify delay, and where, though record did not reflect that
defendant's ability to defend had been impaired, he had lost possibility of receiving a sentence
at least partially concurrent with the one he was serving in Colorado.
Reversed.
Gary A. Sheerin, State Public Defender, for Appellant.
Michael E. Fondi, District Attorney, and Ronald T. Banta, Deputy District Attorney,
Carson City, for Respondent.
1. Criminal Law.
Right to speedy trial is to be respected even though accused is serving a prison sentence imposed by
another jurisdiction. U.S.C.A.Const. Amends. 6, 14.
2. Criminal Law.
Defendant was entitled to be discharged from custody because of denial of his right to speedy trial where
defendant, then incarcerated in Colorado, requested speedy trial as soon as he knew of pending Nevada
charge, where 16 months passed between defendant's request and time he was returned to Nevada to stand
trial upon release from prison in Colorado, where prosecutor, who had simply ignored defendant's request,
assigned no reason to justify delay, and where, though record did not reflect that defendant's ability to
defend had been impaired, he had lost possibility of receiving a sentence at least partially concurrent with
the one he was serving in Colorado. U.S.C.A.Const. Amends. 6, 14.
OPINION
The sole issue is whether the appellant has been denied his Sixth Amendment right to a
speedy trial. In May 1969 he was charged in Nevada with embezzlement.
was charged in Nevada with embezzlement. Fourteen months later, while incarcerated in
Colorado, he learned of the pending Nevada charge and immediately wrote the Nevada
district attorney requesting a disposition of this charge. The district attorney did not
respond. Three months later he wrote the justice of the peace seeking relief. Again, no
response. Later still, a California attorney, acting on his behalf, asked that action be taken by
the prosecutor, but to no avail. Meanwhile, Nebraska had charged the appellant with the
commission of a crime in that state. He asked Nebraska to honor his right to a speedy trial
and Nebraska did so. He was there brought to trial, found guilty, sentenced to prison and
allowed to serve his Nebraska sentence concurrently with the prior Colorado sentence. When
released from prison the appellant was returned to Nevada to stand trial. Sixteen months had
passed since his letter to the Nevada prosecutor requesting disposition of the Nevada charge.
[Headnote 1]
Klopfer v. North Carolina, 386 U.S. 213 (1967), held that, by virtue of the Fourteenth
Amendment, the Sixth Amendment right to a speedy trial is enforceable against the states as
one of the most basic rights preserved by our Constitution. Id. at 226. Moreover, that right
is to be respected even though the accused is serving a prison sentence imposed by another
jurisdiction. Smith v. Hooey, 393 U.S. 374 (1969). Not until this year, however, did the High
Court specify the criteria by which the speedy trial right is to be judged. In Barker v. Wingo,
407 U.S. 514 (1972), it did so. The Court there approved a balancing approach in which the
conduct of both the prosecution and the defendant are weighed, and identified four factors
which should be assessed in deciding whether a defendant has been deprived of his right.
1
Those factors are the length of delay, the reason for the delay, the defendant's assertion of his
right, and prejudice to the defendant.
[Headnote 2]
In the matter at hand, sixteen months passed between the defendant's request for
disposition of the charge against him and his return to this state to stand trial.
____________________

1
The Court also rejected the demand-waiver doctrine as the only criteria, e.g., that a defendant waives any
consideration of his right to a speedy trial for any period prior to which he has not demanded a trial. Prior
decisions of this court appear to have utilized that doctrine. See: Stone v. State, 85 Nev. 60, 450 P.2d 136
(1969); Barr v. Sheriff, 85 Nev. 555, 459 P.2d 218 (1969); State v. Erenyi, 85 Nev. 285, 454 P.2d 101 (1969);
State v. Titherington, 86 Nev. 843, 477 P.2d 589 (1970).
and his return to this state to stand trial. His request was made as soon as he knew of the
pending Nevada charge. The prosecutor has assigned no reason to justify the delay. He simply
ignored the defendant's request. Although the record does not reflect that the defendant's
ability to defend against the charge has been impaired, it does not follow from this alone that
he has not suffered prejudice. In discussing prejudice, the Court in Smith v. Hooey, supra,
noted, among other things, the possibility that the defendant already in prison might receive
a sentence at least partially concurrent with the one he is serving may be forever lost if trial of
the pending charge is postponed. Id. at 378. That possibility was erased by the prosecutor's
failure to try the Nevada case upon demand. Consequently, the defendant must prevail.
Accordingly, we reverse the order denying habeas relief and direct that Robert Earl Wood be
discharged from custody on the instant embezzlement charge. The remittitur shall issue
forthwith.
____________
88 Nev. 549, 549 (1972) Wallace v. State
ROBERT WILLIAM WALLACE, Appellant, v.
No. 6804
October 16, 1972 501 P.2d 1036
Appeal from a decision denying relief following a post-conviction evidentiary hearing;
Second Judicial District Court, Washoe County; Grant L. Bowen, Judge.
The Supreme Court, Thompson, J., held that suppression of psychiatrist's report
concerning accused's mental illness was a denial of due process which was not cured by the
introduction of the evidence four years later in a hearing before the court.
Reversed.
H. Dale Murphy, Public Defender, and Michael R. Specchio, Deputy Public Defender,
Robert List, Attorney General, Robert Rose, District Attorney, and Kathleen M. Wall,
1. Criminal Law.
At post-conviction evidentiary hearing on voluntariness of confession on remand from federal appellate
court, the court's refusal to decide issue of prosecutor's suppression of psychiatrist's report of accused's
mental illness was error where the issue was tendered as soon as defense became aware of it.
It is a violation of due process for prosecutor to withhold exculpatory evidence, regardless of motive.
3. Criminal Law.
The prosecutor represents sovereignty whose interest in a criminal prosecution is to see justice done.
4. Criminal Law.
Where psychiatrist's report concerning accused's mental illness related to reliability of confession and
degree of guilt, suppression of the report resulted in denial of fair trial which was not cured by introduction
of the evidence four years later in evidentiary hearing before the court.
OPINION
By a split decision, the Court of Appeals for the Ninth Circuit remanded this case to the
state district court for an evidentiary hearing on the voluntariness of a confession given by
Wallace to the police, or in lieu thereof, a new trial. Wallace v. Hocker, 441 F.2d 219 (9 Cir.
1971). The federal appellate court believed that the trial record did not show with
unmistakable clarity, Sims v. Georgia, 385 U.S. 538 (1967), that the trial judge first had
determined that the confession was freely and voluntarily given before allowing the jury to
hear it, Jackson v. Denno, 378 U.S. 368 (1964). Accordingly, the state district court held an
evidentiary hearing and determined that the confession was voluntarily given. This appeal is
from that decision.
The record shows substantial evidence to support the ruling below. Normally, we would
affirm without hesitation.
1
In this case, however, evidence favorable to the defendant
became known to him and to his counsel for the first time at the evidentiary hearing. That
evidence was the written report of Dr. Toller, a psychiatrist, who, at the request of the district
attorney, had examined the defendant within 48 hours after the alleged crime had taken
place.
____________________

1
On direct appeal we affirmed the district court on that issue. Wallace v. State, 84 Nev. 603, 447 P.2d 30
(1968). Moreover, we believed that the intendment of Jackson v. Denno, supra, had been met, although that
point was not squarely presented and we, therefore, did not discuss it.
alleged crime had taken place. The doctor concluded that Wallace was mentally ill at this
time with a depressive reaction. The cause appears to be financial and marital problems. I
would like to see him again, after he is over the acute physical trauma.
That report was delivered to the district attorney and was never disclosed to defense
counsel notwithstanding a pre-trial court order admonishing the prosecutor to submit to
defense counsel all evidence favorable to the defendant.
2
Neither was that report submitted
to the trial court for in camera inspection. The mental condition of the defendant became an
issue during the trial when a psychiatrist, testifying on his behalf, stated that at the time of the
homicide, the defendant was suffering from a gross stress reaction that would impair his
ability of judgment. The prosecutor did not call Dr. Toller as a rebuttal witness. Rebuttal
testimony was given through another psychiatrist who had not examined the defendant and
who offered his opinion about the accused's mental condition on the basis of a hypothetical
question asked by the prosecutor. In short, the Toller medical report was suppressed, and Dr.
Toller did not testify at the trial.
[Headnote 1]
Dr. Toller finally did testifyalmost four years later at the post-conviction hearing we are
now reviewing. He explained his report and testified, in substance, that the mental illness
from which Wallace was suffering shortly after the homicide was an emotional reaction that
did not impair his intellect. This testimony together with other evidence impelled the district
court to conclude that Wallace voluntarily gave his confession. Post-conviction relief,
therefore, was denied. That court did not decide the suppression issue which arose during the
hearing since it was beyond the scope of the remand from the federal appellate court. This,
we think, was error. The issue was tendered as soon as defense counsel became aware of it.
[Headnotes 2, 3]
The prosecutor cannot be allowed to suppress evidence which is relevant to the charge and
prima facie favorable to the accused. It is a violation of due process for the prosecutor to
withhold exculpatory evidence, and his motive for doing so is immaterial.
____________________

2
Present counsel for the State did not handle either the trial or the direct appeal from the judgment of
conviction. Both occurred before the last general election following which a new district attorney took office.
is immaterial. Brady v. Maryland, 373 U.S. 83 (1963); cf. O'Brien v. State, 88 Nev. 488, 500
P.2d 693 (1972). He is the representative of a sovereignty whose obligation is to govern
impartially and whose interest in a criminal prosecution is to see that justice is done. Berger
v. United States, 295 U.S. 78, 88 (1935). Such unfairness has been condemned whenever it
has come to the court's attention. For example, in Ashley v. Texas, 319 F.2d 80 (5 Cir. 1963),
the prosecutor withheld psychiatric reports that the defendant was not competent to stand
trial. In United States ex rel. Thompson v. Dye, 221 F.2d 763 (3 Cir. 1955), the defendant
tried to establish that because he was intoxicated at the time of the killing, he lacked either
the capacity required for first degree murder or, at least, the culpability to deserve the death
penalty. The prosecutor did not disclose to the defendant that the officer who had arrested
him within four hours of the crime had told the prosecutor that the defendant then appeared to
be under the influence of liquor. In Alcorta v. Texas, 355 U.S. 28 (1957), the defendant
claimed that he killed his wife when he caught her kissing one Castelleja in a parked car late
at night. The prosecutor did not disclose to the defendant that Castelleja had told the
prosecutor that he and the defendant's wife had engaged in sexual intercourse five or six
times. During trial, Castelleja testified that he and the defendant's wife were not in love and
had not had any dates. Notwithstanding this testimony, the prosecutor withheld the
conversation he had had with Castelleja. See also: People v. Murdock, 237 N.E.2d 442 (Ill.
1968); Hamric v. Bailey, 386 F.2d 390 (4 Cir. 1967); McMullen v. Maxwell, 209 N.E.2d 449
(Ohio 1965); State v. Vigliano, 232 A.2d 129 (N.J. 1967); In re Kapatos, 208 F.Supp. 883
(S.D.N.Y. 1962). In each of the cited cases the conviction was set aside.
[Headnote 4]
The relevancy of the Toller report cannot seriously be questioned. It bore directly upon the
mental condition of the accused, the reliability of his confession, and the degree of his guilt.
The testimony of Dr. Toller given four years later at an evidentiary hearing before the court
cannot possibly cure the infirmity of the original trial where the jury ultimately had to decide
the mental condition of Wallace as it related to the reliability of his confession and the degree
of his guilt. The jury was precluded from giving careful consideration to all relevant evidence
by reason of the prosecutor's suppression of the Toller report. The inevitable consequence of
the prosecutor's misconduct is a clear denial of a fair trial, and the need for another trial, at
public expense, to correct fundamental error, all of which would have been avoided by a
prosecutor mindful of his true responsibility to the defendant and to the public.
for another trial, at public expense, to correct fundamental error, all of which would have
been avoided by a prosecutor mindful of his true responsibility to the defendant and to the
public.
The conviction is set aside and this case is remanded to the district court for a new trial.
Zenoff, C. J., and Batjer and Gunderson, JJ., concur.
Respectfully, I dissent from the majority's ruling reversing the order of the district court
which held that Wallace's confession had been voluntarily made.
I agree with the views of the majority regarding the prosecutor's conduct in this case. He
had a duty to disclose to the defendant before trial Doctor Toller's report, and it was improper
for him not to do so. In this case, however, Doctor Toller did testify at the subsequent
evidentiary hearing before Judge Bowen that the mental illness of Wallace referred to in his
report was an emotional reaction that did not impair Wallace's intellect. Consequently, I fail
to see where Doctor Toller's testimony would have had any bearing on the issues presented at
trial. Therefore I would affirm the order of the district court holding that Wallace's confession
was given voluntarily, and I would uphold his conviction.
____________
88 Nev. 553, 553 (1972) Parkus v. State
EDWARD HERBERT PARKUS, Appellant, v.
No. 6823
October 18, 1972 501 P.2d 1039
Appeal from conviction and sentence for the crime of drawing and passing checks with no
funds on deposit and no account on the drawee bank; Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
The Supreme Court held that statute under which defendant was convicted was not
unconstitutionally vague.
Affirmed.
Robert G. Legakes, Public Defender, and Michael A. Cherry, Deputy Public Defender,
88 Nev. 553, 554 (1972) Parkus v. State
Criminal Law.
Statute providing that one who passes checks with no account or insufficient funds shall be guilty of a
misdemeanor unless such instrument, or a series of such instruments passed in the state during a period of
90 days, is in the amount of $100 or more, in which case such person shall be guilty of a felony, would be
read by men of ordinary intelligence as imposing felony liability either if one check is over $100 or if
multiple checks total over $100, and thus is not unconstitutionally vague. NRS 205.130, subd. 1.
OPINION
Per Curiam:
This appeal is without merit. Appellant claims that the wording of NRS 205.130(1), which
states that one who passes checks with no account or insufficient funds shall be guilty of a
misdemeanor, unless such instrument, or a series of such instruments passed in the state
during a period of 90 days, is in the amount of $100 or more, in which case such person shall
be guilty of a felony. . . ., is unconstitutionally vague.
It is appellant's position that the statute fails to clearly indicate whether felony liability is
imposed if one check is over $100 or when multiple checks totaled together exceed $100.
We find that men of ordinary intelligence would read this statute as imposing felony
liability in either case. We therefore hold that NRS 205.130(1) is not vague and
unconstitutional.
Affirmed.
____________
88 Nev. 554, 554 (1972) Bass v. State
DON PAUL BASS, Appellant, v. THE STATE
No. 6834
October 18, 1972 501 P.2d 650
Appeal from conviction and sentence for burglary; Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Affirmed.
88 Nev. 554, 555 (1972) Bass v. State
Robert G. Legakes, Public Defender, and Joseph T. Bonaventure, Deputy Public Defender
OPINION
Per Curiam:
This appeal challenges the sufficiency of the evidence to support appellant's conviction of
the crime of burglary. The challenge does not possess merit.
Affirmed.
____________
88 Nev. 555, 555 (1972) Chalmers v. Sheriff
DONALD R. CHALMERS, Appellant, v.
SHERIFF CLARK COUNTY, NEVADA, Respondent.
Nos. 6943 and 6957
October 18, 1972 501 P.2d 1217
Consolidated appeal from orders denying pre-trial petitions for writs of habeas corpus;
Eighth Judicial District Court, Clark County; Howard W. Babcock, Judge.
The Supreme Court held that orders of denial entered in cases wherein petitioner asserted a
violation of his constitutional rights by reason of a pre-arrest delay and by reason of a delay
between arrest and arraignment would be affirmed on authority of decisions of United States
Supreme Court.
Affirmed.
L. Earl Hawley, of Las Vegas, for Appellant.
Habeas Corpus.
Orders denying pre-trial petitions for writs of habeas corpus in cases wherein petitioner asserted a
violation of his constitutional rights by reasons of a pre-arrest delay and by reason of a delay between
arrest and arraignment would be affirmed on authority of decisions of United States
Supreme Court.
88 Nev. 555, 556 (1972) Chalmers v. Sheriff
delay between arrest and arraignment would be affirmed on authority of decisions of United States
Supreme Court.
OPINION
Per Curiam:
The ruling of the district court in Case No. 6957 in which the appellant asserted a violation
of his constitutional rights by reason of a pre-arrest delay, is affirmed on the authority of
United States v. Marion, 404 U.S. 307 (1971), and DuFrane v. Sheriff, 88 Nev. 52, 495 P.2d
611 (1972).
The ruling below in Case No. 6943 in which the appellant asserted a violation of his
constitutional rights by reason of a delay between arrest and arraignment is affirmed on the
authority of Barker v. Wingo, 407 U.S. 514 (1972), and Tellis v. Sheriff, 85 Nev. 557, 459
P.2d 364 (1969).
Affirmed.
____________
88 Nev. 556, 556 (1972) Clark County School Dist. v. Jones et al.
CLARK COUNTY SCHOOL DISTRICT and the BOARD OF SCHOOL TRUSTEES of
Said District, Consisting of GLEN C. TAYLOR, HELEN G. CANNON, JOHN F.
ANDERSON, CLARE W. WOODBURY, C. DONALD BROWN, JAMES C. ANDRUS,
DAVID CANTER; and KENNY C. GUINN, Superintendent, Appellants, v. GARLAND L.
JONES, BETTY ROBERTS, VERNON FAULSTICH, MADELINE DAYTON, KENNETH
GOODMAN and CONNIE WILLIAMS, Respondents.
No. 7056
October 24, 1972 502 P.2d 110
Appeal from judgment denying motion to dissolve temporary injunction; Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
The district court entered temporary injunction which enjoined board of school trustees
from effectuating a judgment of the United States District Court for the District of Nevada
which directed implementation of school desegregation plan. A motion to dissolve the
temporary injunction was denied and the board of school trustees appealed. The Supreme
Court held that the state district court was without jurisdiction in the matter.
Reversed.
88 Nev. 556, 557 (1972) Clark County School Dist. v. Jones et al.
Robert L. Petroni, of Las Vegas, for Appellants.
Tad Porter, of Las Vegas, for Respondents.
Courts.
State court did not have jurisdiction to enjoin board of school trustees from effectuating judgment of
United States District Court for District of Nevada which directed implementation of school desegregation
plan. Const. art. 1, 2; U.S.C.A. Const. art. 6, cl. 2.
OPINION
Per Curiam:
The state district court enjoined the Board of School Trustees of Clark County School
District from effectuating a judgment of the United States District Court for the District of
Nevada directing implementation of the Sixth Grade Center Plan to desegregate the
schools.
1
The state court injunction was entered without jurisdiction [Roy v. Brittain, 297
S.W.2d 72 (Tenn. 1956); Brewer v. Hoxie School District No. 46, 238 F.2d 91 (8 Cir. 1956);
U.S. Const. art. VI, cl. 2; Nev. Const. art 1, 2], and is peremptorily set aside. The motion to
dissolve it should have been granted.
Reversed.
____________________

1
A history of the federal court litigation is set forth in Kelly v. Guinn, 456 F.2d 100 (9 Cir. 1972).
____________
88 Nev. 557, 557 (1972) Kings Castle v. Washoe Co. Bd. Comm'rs
KINGS CASTLE LIMITED PARTNERSHIP, LAKE ENTERPRISES, INC., a Nevada
Corporation, General Partner, Appellants, v. WASHOE COUNTY BOARD OF COUNTY
COMMISSIONERS and J. B. CUNNINGHAM, LEO SAUER, JOE COPPA,
J. C. McKENZIE, and HOWARD McKISSICK, SR., the Duly Elected and Qualified
Members of the BOARD OF COUNTY COMMISSIONERS, THE REGIONAL PLANNING
COMMISSION OF RENO, SPARKS, AND WASHOE COUNTY, and
D. N. WHITMORE, Senior City Planner Thereof, Respondents.
No. 6501
October 30, 1972 502 P.2d 103
Appeal from summary judgment of the Second Judicial District Court, Washoe County,
denying petition for writ of mandamus; John E. Gabrielli, Judge.
Action for review of zoning application. The district court entered a summary judgment
denying petition for writ of mandamus and an appeal was taken. The Supreme Court,
Gunderson, J., held that where at time of application for permit to construct high-rise
condominium apartment buildings such buildings did conform to an ordinance which had not
been formally abrogated but there was in existence statute empowering regional planning
commission to control development of area, planning commission had authority to
disapprove plan and provide that as one of the conditions under which approval would have
been given would be full compliance with the pending and shortly thereafter adopted regional
planning agency plan particularly concerning density and height limitations, and property
owners had no vested right to the application of the superseded zoning regulations.
Affirmed.
Frank R. Petersen, of Reno, and Simon, Sheridan, Murphy, Thornton & Medvene, of Los
Angeles, for Appellants.
Robert E. Rose, District Attorney, and Larry D. Struve, Deputy District Attorney, Washoe
County, for Respondents.
Zoning.
Where at time of application for permit to construct high-rise condominium apartment buildings such
buildings did conform to an ordinance which had not been formally abrogated but there was in existence
statute empowering regional planning commission to control development of area, planning commission
had authority to disapprove plan and provide that as one of the conditions under which approval would
have been given would be full compliance with the pending and shortly thereafter adopted regional
planning agency plan particularly concerning density and height limitations, and property owners had no
vested right to the application of the superseded zoning regulations. NRS 278.330, subds. 4, 5, 278.702
et seq.; Stats.Nev. 1965, ch. 263; Stats.Cal. 1965, ch. 1231, p. 3083; NRCP 56(c).
OPINION
Appealing a summary judgment entered August 7, 1970, appellants contend the district
court should have ordered respondents to approve appellants' plans for two high-rise
condominium apartment buildings, which did not conform to ordinances in effect when the
court ruled, but which did conform to an ordinance not as yet formally abrogated when
respondents declined to approve appellants' plans.
respondents declined to approve appellants' plans. We affirm the judgment.
Knowing the Nevada Tahoe Regional Planning Agency would soon adopt minimum
construction standards for the Lake Tahoe Basin pursuant to legislative mandate (Stat. of
Nev. 1969, ch. 52; NRS 278.702 et seq.), the respondent Planning Commission disapproved
appellants' plans on February 3, 1970. As required by NRS 278.330(4), the Commission
stated the conditions under which approval would have been given, one of which was: Full
compliance with the pending Nevada Tahoe Regional Planning Agency plan, particularly
where it concerns densities and height limitations in residential areas.
Formally adopted March 6, 1970, and effective May 5, NTRPA Ordinance No. 3 limited
density to not more than 15 units per acre and height to 2 1/2 stories. Effective April 3, 1970,
an amendment to Washoe County Ordinance No. 57 imposed a height limitation of 2 stories.
That amendment was read for the first time on March 5, 1970, the same day the Washoe
Board of County Commissioners denied the appeal appellants had taken pursuant to NRS
278.330(5). The aforesaid ordinances culminated planning to control development in the
Lake Tahoe Basin for the benefit of all property owners, begun under legislative mandate
long before appellants' property interests were acquired about February 1, 1969. (See: Stat. of
Cal. 1965, ch. 1231; Stat. of Nev. 1965, ch. 263.) Appellants tender no claim that either is
invalid. They urge, simply, that we should adopt the minority rule, holding their property is
governed by the ordinance in effect when they applied for approval of their plans.
In our view, the rationale of authorities cited by appellants should not be followed in the
instant case, which involves standards established by virtue of legislative mandate, directed
toward solution of social and ecological problems our legislature had formally recognized
before the acts appellants claim to have performed in reliance on Washoe County Ordinance
No. 57 in its original form. In the facts of this case, we believe the district court correctly held
that appellants had no vested right to application of superseded zoning regulations, and that
the ordinances in effect when the court ruled were controlling. Spindler Realty Corporation v.
Monning, 53 Cal.Rptr. 7 (Cal. App. 1966); Paliotto v. Dickerson, 256 N.Y.S.2d 55 (App.
Div. 1964); Shender v. Zoning Board of Adjustment, 131 A.2d 90 (Pa. 1957); Caputo v.
Board of Appeals of Somerville, 111 N.E.2d 674 (Mass. 1953); Socony-Vacuum Oil Co. v.
Mount Holly Tp., 51 A.2d 19 (N.J. 1947).
The change in restrictions clearly was not a device to justify prior arbitrary and
discriminatory disapproval of appellants' plans. Cf. Henderson v. Henderson Auto, 77 Nev.
118, 359 P.2d 743 (1961). The pleadings and affidavits on file show no genuine factual issue
in regard to appellants' claim of estoppel. NRCP 56(c).
Hence, the judgment appealed from is affirmed.
____________
88 Nev. 560, 560 (1972) State of Nevada v. Davis
STATE OF NEVADA, Appellant, v.
LEONARD DAVIS, Respondent.
No. 6877
October 30, 1972 501 P.2d 1217
Appeal from court dismissal of criminal indictment on its own motion; Second Judicial
Reversed.
Robert E. Rose, District Attorney, and Warren W. Goedert, Deputy District Attorney,
H. Dale Murphy, Public Defender, and William N. Dunseath, Deputy Public Defender,
OPINION
Per Curiam:
The parties agree that the court dismissal of the criminal indictment must be set aside on
the authority of State v. District Court, 85 Nev. 381, 455 P.2d 923 (1969).
Reversed.
____________
88 Nev. 560, 560 (1972) State v. Parker
SHARYNE LEE PARKER, as Guardian ad Litem for Tonya Lynn Parker and
Bryant Shane Parker, Minors, Appellant, v. CHRYSLER MOTORS CORPORATION and
RENO DODGE, INC., Respondents.
No. 6833
October 30, 1972 502 P.2d 111
Appeal from a judgment of dismissal in a wrongful death action; Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
The Supreme Court, Thompson, J., held that claims of minor children were not barred by
two-year limitation statute, though claim of adult heir would be, in light of statute providing
that period of disability of a minor shall not be part of time limited for commencement of an
action.
Reversed.
Stewart, Horton & McKissick, of Reno, for Appellant.
Richard P. Wait, Ltd., of Reno, for Respondent Chrysler Motors Corporation.
Hibbs & Bullis, Ltd., and Stan L. Lyon, of Reno, for Respondent Reno Dodge, Inc.
1. Death.
As a general proposition, an action to recover damages for wrongful death must be commenced within
two years or it is subject to bar of limitations. NRS 11.190, subd. 4(e).
2. Death.
Each heir has a separate relational interest in life of deceased and damages in wrongful death action are
determined according to those separate interests and mere fact that the judgment, if one is recovered,
should be in a lump sum does not destroy separability since either the heirs or the court upon proper
application may apportion the award, and a defense good against claim of one heir is not fatal to the others
any more than settlement by one could bar the rights of all. NRS 12.090.
3. Death.
Claims of minor children in action to recover damages for wrongful death were not barred by two-year
limitation statute, though claim of adult heir would be, in light of statute providing that period of disability
of a minor shall not be part of time limited for commencement of an action. NRS 11.190, subd. 4(e),
11.250. subds. 1, 3, 12.090.
OPINION
[Headnote 1]
As a general proposition, an action to recover damages for wrongful death must be
commenced within two years, otherwise it is subject to the bar of limitations specified in
NRS 11.190(4)(e). The issue presented by this appeal is whether the bar of that statute applies
to an action commenced by the decedent's widow and heir, but acting solely as the guardian
ad litem for the minor heirs of the decedent, in view of the statutes governing wrongful
death actions and in view of NRS 11.250 {1){3) which provides that the period of
disability of a minor shall not be part of the time limited for the commencement of an
action.
governing wrongful death actions and in view of NRS 11.250 (1)(3) which provides that the
period of disability of a minor shall not be part of the time limited for the commencement of
an action. The district court ruled that the two year limitation statute was a bar and, therefore,
dismissed this action. This appeal followed.
This action was not commenced within two years of the death of Mont L. Parker. His
surviving heirs are his widow, Sharyne, and two minor children, Tonya and Bryant. The
widow has not asserted a claim because of the bar of limitations. The lower court apparently
believed that the claims of the minor children likewise are barred since, in its view, a cause of
action for wrongful death is granted to heirs as members of a class, and is joint and
indivisible in nature. Consequently, if the claim of an adult heir is barred, the claims of minor
heirs also must fail. Moreover, that Barney v. County of Clark, 80 Nev. 104, 389 P.2d 392
(1964), is authority for the proposition that a minor heir must timely present his claim.
1. This action was commenced pursuant to NRS 12.090 which provides that The action
may be brought by the heirs of the deceased or by his personal representative or guardian for
the benefit of his heirs. The term heirs means any person entitled to inherit the estate of a
decedent. Bower v. Landa, 78 Nev. 246, 253, 371 P.2d 657 (1962); Weaks v. Mounter, 88
Nev. 118, 493 P.2d 1307 (1972). The statute does not create a joint cause of action. Its thrust
is to have all heirs join in one action.
[Headnote 2]
Each heir has a separate relational interest in the life of the deceased, and damages are
determined according to those separate interests. The mere fact that the judgment, if one is
recovered, should be in a lump sum, Wells, Inc. v. Shoemake, 64 Nev. 57, 73, 177 P.2d 451
(1947), does not destroy separability since either the heirs, or the court upon proper
application, may apportion the award. It follows, therefore, that a defense, good against the
claim of one heir, is not fatal to the others, any more than a settlement by one could bar the
rights of all. It is equally clear that the running of the statute of limitations is suspended
during the period of their minority. NRS 11.250(1)(3).
[Headnote 3]
The California Supreme Court in Cross v. Pac. G. & E. Co., 388 P.2d 353 (1964), ruled on
the very points here presented and contrary to the view taken by our district court.
and contrary to the view taken by our district court. We choose to adopt the reasoning of the
Cross decision.
2. Barney v. County of Clark, 80 Nev. 104, 389 P.2d 392 (1964), is inapposite since the
court was not concerned with the affirmative defense of the statute of limitations, but rather,
with the requirement that a filing of a claim with the proper authority was a condition
precedent to the very existence of a cause of action. The court explicitly pointed to that fact.
Reversed.
____________
88 Nev. 563, 563 (1972) Lisser v. Kelly
ALAN C. LISSER and GORDON T. LISSER, Appellants,
v. WILLIAM CODY KELLY, Respondent.
No. 6841
October 30, 1972 502 P.2d 108
Appeal from judgment entered upon motion for involuntary dismissal pursuant to NRCP
41(b); First Judicial District Court, Douglas County; Frank B. Gregory, Judge.
Landowners brought action against adjacent property owner for damage sustained when
storms caused remnants of adjacent property owner's boathouse, which had been deposited on
landowners' property by previous storm, to smash into landowners' pier and boathouse. The
district court granted property owner's motion for dismissal of complaint and the landowners
appealed. The Supreme Court, Zenoff, C. J., held that property owner had no duty to retrieve
remnants of his boathouse which had been rendered debris and carried away by act of God
from his premises and, therefore, was not liable for damage sustained to landowners'
boathouse and pier when subsequent storm caused debris to smash into the pier and
boathouse.
Affirmed.
Lohse and Lohse, Chartered, of Reno, for Appellants.
Vargas, Bartlett & Dixon, Ltd., and Walther & Key, of Reno, for Respondent.
1. Torts.
The law imposes no duty upon one to retrieve his property which has been rendered debris and carried
away by act of God.
2. Torts.
Where there is no negligence in first instance, sufferer must get rid of instrument of injury as he may.
Owner of debris which has been carried away by act of God may abandon the debris and plaintiff on
whose property debris has been deposited then has remedy to prevent debris from causing damage in his
own hands.
Lakeshore property owner had no duty to retrieve his boathouse which had been rendered debris by storm
and deposited on land of adjacent landowners; thus, property owner was not liable for damage sustained to
boathouse and pier of adjacent landowners when subsequent storm caused debris to smash into adjacent
landowners' boathouse and pier even though adjacent landowners had requested property owner prior to
subsequent storm to remove the debris. NRCP 41(b).
Issue of promissory estoppel which was not properly raised would not be considered on appeal.
Alleged error of trial court in refusing to admit certain proffered testimony would not be considered on
appeal where record did not contain offer of proof reflecting what the proffered testimony would have
been.
OPINION
The Lissers and Kelly owned adjoining palatial beach front property and dwellings on
Lake Tahoe, in Glenbrook, Douglas County, Nevada. Each parcel had a pier and boathouse
extending into the lake. During the fall of 1967 Kelly's pier and boathouse were destroyed by
a sudden, extraordinary and unexpected storm. The debris floated away from the Kelly
property and lodged along the shore and pier owned by the Lissers. It remained there for
months. The Lissers requested Kelly to remove the rubble and Kelly responded that he would
turn the matter over to his insurance carrier. In correspondence from Kelly to Lisser it appears
that Kelly felt a moral obligation to remove the remnants of his pier and boathouse from the
Lisser property, but nowhere does it appear that he recognized a legal liability to do so.
The mere lodging of the debris on Lissers' property caused no damage of which the Lissers
complain. The damage which is complained of occurred in the spring of 1968 when storms
caused the remnants of Kelly's boathouse to smash into the Lissers' pier and boathouse.
Lissers' pier and boathouse. Those spring storms were customary and usual for that time of
year and were foreseeable by both parties.
The trial court granted Kelly's NRCP 41(b) motion for dismissal of the complaint.
1
The
Lissers appeal from this order.
The parties agree that the destruction of Kelly's boathouse and pier and the floating of the
debris onto the Lisser property was caused solely by an act of God and not by any negligence
on the part of Kelly. The Lissers, however, claim that after the occurrence of the act of God,
Kelly had a duty to remove the debris from the Lisser property and that Kelly is liable for the
damage done in the spring of 1968 by reason of their negligent failure to do so before the
spring storms battered the Lisser property with the debris.
[Headnotes 1-4]
1. We do not agree with their contention. The law imposes no duty upon one to retrieve
his property which has been rendered debris and carried away by an act of God. Kelly was not
negligent. Instead, the Lissers' damages were caused by their own failure to exercise care for
the preservation of their own property. The destruction of the Kelly boathouse and pier and
the lodging thereof upon the Lisser property was caused solely by an act of God. Where, as
here, there is no negligence in the first instance, the sufferer must get rid of the instrument of
the injury as he may. Forster v. Juniata Bridge Co., 4 Har. 393, cited in Livezey v.
Philadelphia, 64 Pa. 106, 3 Am.Rep. 578 (1870). The owner may abandon the debris, as did
Kelly, and the plaintiff then has his remedy in his own hands by removing it himself. In re
Marine Leasing Services, Inc., 328 F.Supp. 589 (E.D. La. 1971); Orrell v. Wilmington Iron
Works, 89 F.Supp. 418 (E.D.N.C.), aff'd in part, rev'd in part on other grounds, 185 F.2d 181
(4th Cir. 1950); Sheldon v. Sherman, 42 Barb. 368 (1864), aff'd 42 N.Y. 484 (1870); cf.
Boutwell v. Champlain Realty Co., 89 Vt. 80, 94 A. 108 {1915); Carter v. Thurston, 5S N.H.
104, 42 Am.Rep.
____________________

1
(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to comply with these rules or any
order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff
has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the
event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the
plaintiff has failed to prove a sufficient case for the court or jury. Unless the court in its order for dismissal
otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than
a dismissal for lack of jurisdiction, or for failure to join a party under Rule 19, operates as an adjudication upon
the merits.
(1915); Carter v. Thurston, 58 N.H. 104, 42 Am.Rep. 584 (1877).
In this case, both parties are innocent of any negligence and both suffered from the same
act of God. Kelly lost his boathouse and pier and the Lissers had their property littered with
debris from the storm. Each party must bear the burden of his own misfortune. Accordingly,
Kelly owed no duty to remove the debris from the Lisser property. Any damage to the Lissers'
property subsequently occurring as a result of failure to remove the debris was caused by the
Lissers' failure to act to protect their own property.
[Headnote 5]
2. Appellants seek to promote the issue of promissory estoppel, i.e., that the Lissers relied
to their detriment on Kelly's promise to have the debris removed. We, however, have
searched the record and find only a promise by Kelly to turn the claim over to his insurance
carrier. Nevertheless, the issue was not properly raised and will not be considered.
[Headnote 6]
Similarly, we will not now consider the alleged error of the trial court's refusal to admit
certain proffered testimony. The record does not contain an offer of proof reflecting what the
testimony would have been.
A consideration of these two points would not affect the outcome of this appeal in any
event. The order of the trial court dismissing the complaint is therefore affirmed.
____________
88 Nev. 566, 566 (1972) Heard v. Fisher's & Cobb Sales
EDWARD C. HEARD, Appellant, v. FISHER'S AND COBB SALES AND
DISTRIBUTORS, INC., Doing Business as IDAHO SAFETY SALES, Respondent.
No. 6828
October 30, 1972 502 P.2d 104
Appeal from an order denying NRCP 60(b) for relief from judgment.
In action for breach of contract and misrepresentation, the district court denied defendant's
motion for relief from judgment, and defendant appealed. The Supreme Court, Zenoff, C. J.,
held that where, at the conclusion of the testimony in a court trial, court indicated
inclination to find in favor of plaintiff and it was agreed that parties would attempt to
reach settlement with a view toward avoiding entry of judgment, parties unsuccessfully
pursued settlement for over 10 months after trial, and during such time defendant was
put on notice a number of times that plaintiff was still pursuing judgment as an alternate
method of relief should a satisfactory settlement agreement not be reached, defendant
was not entitled to relief, on ground of surprise, from judgment which was entered after
the ten months of negotiations.
C. J., held that where, at the conclusion of the testimony in a court trial, court indicated
inclination to find in favor of plaintiff and it was agreed that parties would attempt to reach
settlement with a view toward avoiding entry of judgment, parties unsuccessfully pursued
settlement for over 10 months after trial, and during such time defendant was put on notice a
number of times that plaintiff was still pursuing judgment as an alternate method of relief
should a satisfactory settlement agreement not be reached, defendant was not entitled to
relief, on ground of surprise, from judgment which was entered after the ten months of
negotiations.
Affirmed.
Lohse and Lohse, Chartered, of Reno, for Appellant.
Peter Chase Neumann, of Reno, and Vargas, Bartlett & Dixon, of Reno, for Respondent.
1. Appeal and Error; Judgment.
Motions under rule permitting relief from judgment on ground of surprise are addressed to the sound
discretion of the trial court, and exercise of such discretion is not to be disturbed on appeal absent abuse.
NRCP 60(b).
2. Judgment.
Where, at the conclusion of the testimony in a court trial, court indicated inclination to find in favor of
plaintiff and it was agreed that parties would attempt to reach settlement with a view toward avoiding entry
of judgment, parties unsuccessfully pursued settlement for over ten months after trial, and during such time
defendant was put on notice a number of times that plaintiff was still pursuing judgment as an alternate
method of relief should a satisfactory settlement agreement not be reached, defendant was not entitled to
relief, on ground of surprise, from judgment which was entered after the 10 months of negotiations.
NRCP 60(b).
3. Judgment.
Rule which permits relief from judgment on ground of surprise should be liberally construed. NRCP
60(b).
OPINION
Respondent, plaintiff below, commenced this action on March 27, 1968 alleging breach of
contract and misrepresentation. Appellant filed his answer on May 2, 1968 and on August 4,
1969 the case proceeded to trial and was heard by the court sitting without a jury.
At the conclusion of the testimony, on August 5, 1969, both counsel were called into
chambers.
counsel were called into chambers. The court indicted [indicated] its inclination to find in
favor of respondent and it was agreed that the parties would attempt to reach a settlement of
the case with a view toward avoiding the entry of judgment by the court. Thereupon, court
was reconvened, both counsel formally waived oral argument, and the court took the case
under submission.
The parties pursued settlement for over 10 months after the trial. Such negotiations,
however, were not successful and judgment for respondent was finally entered on June 11,
1970.
Two months later, on August 11, 1970, appellant moved the trial court pursuant to NRCP
60(b) to enter its order granting relief from judgment on the ground of surprise. It is from the
trial court's denial of that motion that this appeal is taken.
[Headnote 1]
Motions under Rule 60(b) are addressed to the sound discretion of the trial court and the
exercise of discretion by the trial court in granting or denying such motions is not to be
disturbed on appeal absent an abuse of discretion. Ogle v. Miller, 87 Nev. 573, 491 P.2d 40
(1971); Minton v. Roliff, 86 Nev. 478, 471 P.2d 209 (1970); Lentz v. Boles, 84 Nev. 197,
438 P.2d 254 (1968); Hotel Last Frontier Corp. v. Frontier Properties, Inc., 79 Nev. 150, 380
P.2d 293 (1963); Blakeney v. Fremont Hotel Inc., 77 Nev. 191, 360 P.2d 1039 (1961); Bryant
v. Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952).
[Headnote 2]
We find no abuse of discretion. There was no agreement to withhold entry of
judgmentonly an agreement to negotiate in an attempt to reach a settlement. During the 10
months between the trial and the entry of judgment, appellant was put on notice a number of
times that respondent was still pursuing judgment as an alternate method of relief should a
satisfactory settlement agreement not be reached. Appellant was not prevented from
presenting his defense and having a full trial on the merits, as was appellant in Voorhees v.
Geiser-Hendryx Inv. Co., 52 Ore. 602, 98 P. 324 (1908), on which appellant relies. He was
not the target of tactical surprise at trial. He was not deprived of the opportunity to make his
closing oral argument, but instead voluntarily waived that right.
[Headnote 3]
In summary, while it is true that NRCP 60(b) is a remedial statute which should be
liberally construed, Wagner v. Anderson, 63 Nev. 453, 456, 174 P.2d 612, 614 (1946), we
find no injustice here which needs to be remedied by liberal interpretation.
injustice here which needs to be remedied by liberal interpretation. The facts of this case do
not constitute that surprise which must be remedied by relief from judgment. Accordingly,
the denial by the trial court of appellant's motion for relief from judgment is affirmed.
Batjer, Mowbray, Thompson, and Gunderson, JJ. concur.
____________
88 Nev. 569, 569 (1972) Pacific Intermountain v. Leonard E. Conrad
PACIFIC INTERMOUNTAIN EXPRESS COMPANY, a Nevada Corporation, Appellant
and Cross-Respondent, v. LEONARD E. CONRAD, INC., a Nevada Corporation, d.b.a. Ole's
Plumbing & Heating Company, Respondent and Cross-Appellant.
No. 6839
October 30, 1972 502 P.2d 106
Appeal from judgment awarding damages and cross-appeal from denial of attorney's fees
to successful party; Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Action against carrier for damage to interstate shipment. From a judgment of the district
court awarding damages, the carrier appealed, and the consignee cross-appealed from denial
of attorney's fees. The Supreme Court, Thompson, J., held that unrebutted testimony of the
consignee's shipping supervisor about the normal crating process together with a clean bill
of lading was sufficient to establish a prima facie case against the carrier. The court also held
that where the record showed the trial judge erroneously believed that he did not enjoy
discretion to allow attorney's fees, the case would be remanded to permit him opportunity to
exercise such discretion.
Appeal affirmed. Cross-Appeal reversed and remanded.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, of Reno, for Appellant and
Cross-Respondent.
Gray and Brooke, of Reno, for Respondent and Cross-Appellant.
1. Commerce.
Federal law controls liability for interstate shipments. Interstate Commerce Act, 20(11), 49 U.S.C.A.
20(11).
2. Carriers.
Prima facie case against carrier for damage to interstate shipment is established by showing delivery of
shipment to carrier in good condition, its arrival in a damaged condition, and amount of damages. Interstate
Commerce Act, 20(11), 49 U.S.C.A. 20 (11).
3. Carriers.
When, in action against carrier for damage to interstate shipment, plaintiff has shown delivery of
shipment to carrier in good condition, its arrival in damaged condition, and amount of damages, burden
shifts to carrier to show freedom from negligence and that damage was due to one of excepted causes
relieving carrier from liability, but if prima facie case is not shown, carrier's burden never arises and it need
not come forward with evidence. Interstate Commerce Act, 20(11), 49 U.S.C.A. 20(11).
4. Carriers.
In action against carrier for damage to interstate shipment, unrebutted testimony of consignee's shipping
supervisor about normal crating process together with clean bill of lading was sufficient to establish
prima facie case against carrier. Interstate Commerce Act, 20(11), 49 U.S.C.A. 20(11).
5. Commerce.
Although Carmack Amendment controls carrier's liability for damage to interstate shipment, state law
remains operative with respect to award of attorney's fees. Interstate Commerce Act, 20(11), 49 U.S.C.A.
20(11).
Where record showed that trial judge erroneously believed that he did not enjoy discretion to allow
attorney's fees in action against carrier for damage to interstate shipment, case was remanded to permit him
opportunity to exercise such discretion. Interstate Commerce Act, 20(11), 49 U.S.C.A. 20(11); NRS
18.010, subd. 3.
OPINION
This appeal challenges only the sufficiency of the evidence to show that a piece of
equipment was delivered to the carrier in good condition for shipment.
Leonard E. Conrad, Inc., a plumbing and heating contractor, commenced this action
against Pacific Intermountain Express Company to recover $6,536.72 for damage to a
demineralizer which is used to make high purity water. Conrad alleged that the damage
occurred while the unit was transported in interstate commerce by P.I.E. The district court
awarded Conrad, Inc., the full amount of its claim plus interest and costs. Attorney's fees were
denied.
The demineralizer was manufactured by Hytek International Corporation of Cleveland,
Ohio, and was delivered by that company to P.I.E. for shipment to Conrad at Sparks,
Nevada.
company to P.I.E. for shipment to Conrad at Sparks, Nevada. The unit was in a damaged
condition upon arrival at Sparks. No witness was able to testify how or when the damage
occurred. Circumstantial evidence was presented. When the unit was delivered to the jobsite
there was an L shape cut along one side of the cardboard exterior which one witness
surmised had been intentionally made to allow for an inspection. By lifting the flap created by
the cut one could see damage to the unit inside the crate. The supervisor in charge of
production for Hytek described the manner in which demineralizers were crated for shipment
1
and stated that if the particular unit had been dropped in the plant after crating it would
have been opened and inspected thoroughly. The bill of lading for the unit did not have a
notation of damage.
[Headnotes 1-3]
1. Federal law controls liability for interstate shipments. The Carmack Amendment to the
Interstate Commerce Act, 49 U.S.C. 20(11), makes the carrier liable for the full actual loss,
damage, or injury it causes to the property. A prima facie case is established by showing
delivery of the shipment to the carrier in good condition, its arrival in a damaged condition,
and the amount of damages. The Missouri P. R. Co. v. Elmore & Stahl, 377 U.S. 134 (1964);
Schnell v. The Vallescura, 293 U.S. 296, 305 (1934); C. & 0. Ry. Co. v. Thompson Mfg. Co.,
270 U.S. 416 (1926). When these elements are shown, the burden shifts to the carrier to show
freedom from negligence and that the damage was due to one of the excepted causes relieving
the carrier from liability. Missouri P. R. Co. v. Elmore & Stahl, supra. If a prima facie case is
not shown, the carrier's burden never arises and it need not come forward with evidence.
Glasstite Industries v. Spector Freight Systems, 230 A.2d 254, 258, 259 (R.I. 1967).
[Headnote 4]
It was permissible for the trial court to find that the consignee-plaintiff had established a
prima facie case. The supervisor's testimony about the normal crating process together
with the "clean" bill of lading would allow the reasonable inference that the unit was
delivered to the carrier in good condition.
____________________

1
This unit stands on a metal skid, and a wooden framework is built to fit to the metal skid and to the back of
the plastic column. This framework is attached to the columns by way of metal banding, and bolts through the
metal skid. After the skid is affixed, after the framework is affixed to the unit, the unit is then laid back onto this
framework. This framework is made, by the way, out of two by fours. Then an additional slat-type crate frame is
made around the unit, out of two by fours, and one by sixes. Then affixed to this framework is heavy corrugated
cardboard, and we attach this cardboard with small nails into the wooden framework.
supervisor's testimony about the normal crating process together with the clean bill of
lading would allow the reasonable inference that the unit was delivered to the carrier in good
condition. A clean bill of lading, of course, does not prove the good condition of the
contents of a sealed carton. Hoover Motor Express Company v. United States, 262 F.2d 832
(6th Cir. 1959). In this instance, however, we think that it was prima facie evidence that the
carton itself was in good condition upon delivery to the carrier and that the L shape cut into
the carton and damage to the contents thereof occurred at some later time.
The appellant relies heavily upon Hoover, supra. Although it is true that the evidence
offered by the plaintiff in Hoover is similar in character to that offered by the consignee in
this case, there is one major difference to set the two cases apart. In Hoover, there was strong
evidence offered by the defendant to show that the goods were not properly packaged for
shipment. Such rebuttal evidence is entirely absent in the case at hand. Because of this
distinction, we do not find Hoover persuasive authority for reversal.
[Headnotes 5, 6]
2. Although the Carmack Amendment controls the carrier's liability, state law remains
operative with respect to an award of attorney's fees. Missouri, Kansas, & Texas Ry. Co. v.
Harris, 234 U.S. 412 (1914). In this state the trial court has discretion to allow such fees to
the prevailing plaintiff when the recovery is not more than $10,000. NRS 18.010 (3). The
record shows that the trial judge did not believe that he enjoyed such discretion in this type of
a case. He should be permitted the opportunity to exercise that discretion.
The appeal is affirmed. The cross-appeal is reversed and the case is remanded to allow the
district court to exercise its discretion on plaintiff's application for attorney's fees.
____________
88 Nev. 573, 573 (1972) Trent v. Clark Co. Juv. Ct. Services
WILLIAM LLOYD TRENT, Appellant, v. CLARK
COUNTY JUVENILE COURT SERVICES, Respondent.
No. 6761
November 7, 1972 502 P.2d 385
Appeal from an order of approval of findings of fact and recommendation and from order
of commitment by Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Juvenile delinquency proceeding. The district court approved juvenile court referee's
finding and recommendation that juvenile be adjudged delinquent and appeal was taken. The
Supreme Court, 87 Nev. 216, 484 P.2d 1097 (1971), remanded. On remand, the district court
adjudicated juvenile to be delinquent and he appealed. The Supreme Court, Mowbray, J., held
that under statute and rule, juvenile was not entitled to complete new hearing before district
judge upon filing of request for same within 5 days after referee filed and served findings of
fact and recommendation that juvenile be adjudged delinquent, and that evidence that, at time
juvenile's automobile struck and killed pedestrian, juvenile had been driving at speed in
excess of posted speed limit with blood alcohol content in excess of .10 percent and with
knowledge that his vehicle had tendency to veer to right upon application of brakes sustained
finding of referee that juvenile had killed pedestrian without intending to do so but while in
commission of an unlawful act.
Affirmed.
Gunderson, J., dissented.
1. Infants.
Under rule and statute, juvenile was not entitled to complete new hearing before district judge upon filing
of request for same within 5 days after referee had filed findings of fact and recommendation that juvenile
be adjudged delinquent. NRS 62.090, subd. 4; Eighth Judicial District Court Rules, rule 27, subd. 4.
2. Infants.
If request or application for rehearing with respect to referee's findings of fact and recommendation that a
juvenile be adjudicated delinquent is made within 5-day time limit, district judge must review transcript of
proceedings before referee and may hear oral argument, require briefing and thereafter approve and
confirm findings of fact and recommendations or may remand case to referee for further evidentiary
hearing; district judge may conduct complete new hearing in district court but is not required to do so.
NRS 62.090, subd. 4; Eighth Judicial District Court Rules, rule 27, subd. 4.
3. Infants.
Evidence that, at time juvenile struck and killed pedestrian while operating automobile, juvenile had been
driving at speed in excess of posted speed limit with blood alcohol content in excess of .10 percent and
with knowledge that vehicle had tendency to veer to right upon application of brakes supported referee's
finding that juvenile had killed pedestrian without intending to do so but while in the commission of an
unlawful act and recommendation that juvenile be adjudicated delinquent. NRS 201.090, 484.381.
4. Homicide.
Contributory negligence of pedestrian who was struck and killed by juvenile driver, if any, would not
have exculpated driver for death of pedestrian where the alleged contributory negligence of pedestrian
could not have been deemed sole cause of death.
OPINION
This is the second time this case has come before us on appeal.
1
William Lloyd Trent has
been adjudicated a delinquent child
2
and committed to the juvenile detention facility in
Clark County. Trent's adjudication as a delinquent child was predicated on a charge of
involuntary manslaughter.
3
1.

____________________

1
See Trent v. Eighth Judicial Dist. Court Juvenile Dep't, 87 Nev. 216, 484 P.2d 1097 (1971), where we
remanded the case to the lower court, so that Trent could file his objections to the referee's findings of fact and
recommendation, as provided by NRS 62.090 and Supplemental Rule XXVII of the Eighth Judicial District
Court of the State of Nevada, in and for the County of Clark.

2
NRS 201.090, in pertinent part:
As used in NRS 201.090 to 201.110, inclusive, unless the context otherwise requires, a dependent child' or
delinquent child' means any person less than 18 years of age:
. . .
14. Who violates any law of this state or any ordinance of any town, city or county of this state defining
crime.

3
The petition charging Trent alleged:
That the subject minor, WILLIAM LLOYD TRENT, is a minor whose behavior is injurious to his health
and welfare; in that, on February 28, 1970, at and within the County of Clark, State of Nevada, the
1. Just after midnight on the night of February 27-28, 1970, Trent and two young male
companions were returning in their separate cars from a beer-drinking party to downtown Las
Vegas. They were following one another, with Trent taking up the rear. As they proceeded in
a westerly direction on East Charleston Boulevard, the three vehicles passed another car
traveling in the same direction. The car they passed was driven by Robert Jarrard, who was
later a witness for the State. As the three vehicles pulled back into the righthand lane of traffic
after passing Jarrard, the driver of the first car noticed two young people walking with the
traffic on the shoulder of the boulevard. He applied his brakes and slowed down to see if the
pedestrians were girls. The second driver likewise slowed down, as did Trent. Trent's car,
however, had the unhappy characteristic of pulling to the right when its brakes were applied.
It did so on this occasion, striking and killing Lonnie Anthony Reo, one of the pedestrians.
Trent was taken into custody, and two blood alcohol tests were taken, one of which
indicated a blood alcohol percentage of .115 and the other, a percentage of .107.
4

Jarrard testified at the juvenile court hearing that he was traveling between 40 and 45 miles
per hour when Trent and his two companions passed him.
5
Jarrard estimated the speed of the
passing vehicles at between 60 and 70 miles per hour. Trent's companions testified that they
were driving at between 40 and 50 miles per hour. Trent could not recall his speed, but denied
that he was traveling as fast as 60 to 70 miles per hour.
2. H. Leon Simon, acting as Referee of the Juvenile Department of the Eighth Judicial
District Court, found at the conclusion of the juvenile court hearing on May 22, 1970, that
Trent did kill Reo without intent to do so, but while in the commission of an unlawful act,
namely, driving in excess of the lawful speed limit.
____________________
subject minor did then and there unlawfully kill LONNIE ANTHONY REO, a human being, without malice or
deliberation in the commission of an unlawful act, to-wit: by operating a 1958 4-door Chevrolet Sedan
automobile, bearing 1971 Nevada License No. CK1960, towards and against LONNIE ANTHONY REO, a
person who was a pedestrian legally walking west on East Charleston Blvd., in the vicinity of Lamb Blvd., Las
Vegas, Clark County, Nevada, in a careless, reckless and imprudent manner and in such a manner as to endanger
the life, limb and property of persons upon said public road and not having a drivers license so to do.

4
Today, a blood alcohol percentage of .10 raises a presumption of intoxication. See NRS 484.381. At the
time of the accident, however, a reading of .15 was necessary to raise the presumption. A reading of .05 to .15
could be considered, however, with other competent evidence in determining whether a person accused of
driving while intoxicated was guilty of a violation. See ch. 675, 95, subsection 1 [1969] Stats. Nev. 1486.

5
The posted speed limit for the area was 35 miles per hour.
Trent did kill Reo without intent to do so, but while in the commission of an unlawful act,
namely, driving in excess of the lawful speed limit. The referee recommended to the district
judge that Trent be adjudged a delinquent child.
After this court remanded the first appeal to the lower court, Trent filed his objections to
the referee's findings of fact and recommendation. The district judge, after a hearing on the
objections, overruled them and adopted the referee's findings of fact and recommendation that
Trent be adjudged a delinquent child. At a later dispositional hearing, the district judge
ordered Trent committed to the Clark County Juvenile Detention Facility.
[Headnotes 1, 2]
3. Trent's principal assignment of error is that there is a conflict between NRS 62.090,
subsection 4, and Supplemental Rule XXVII, Section 4, of the Eighth Judicial District Court,
in that under the statute, according to Trent's interpretation, he is given, upon filing a request
within 5 days after the referee filed and served his findings of fact and recommendation, the
right to a complete new hearing before the district judge.
6
We do not so interpret the statute.
Nor do we find the statute and the rule to be in conflict.
7
The rule actually supplements the
statute in carrying out the latter's purpose and intent, i.e., to provide a more expeditious
manner of hearing and disposing of juvenile court cases.
____________________

6
4. Notice in writing of the master's findings and recommendations, together with the notice of right of
appeal as provided herein, shall be given by the master, or someone designated by him[,] to the parent, guardian
or custodian, if any, of the child, or to any other person concerned. A hearing by the court shall be allowed upon
the filing with the court by such person of a request for such hearing, provided that the request is filed within 5
days after the giving of the notice. In case no hearing by the court is requested, the findings and
recommendations of the master, when confirmed or modified by an order of the court, become a decree of the
court.

7
Section 4 of Supplemental Rule XXVII of the Eighth Judicial District Court of the State of Nevada, in and
for the County of Clark, dated January 9, 1970, and effective March 9, 1970:
4. At any time prior to the expiration of 5 days after the service of a written copy of the findings and
recommendations of a referee, a minor or his parent or guardian may apply to the juvenile court for a rehearing.
Such application may be directed to all or any specified part of the findings or recommendation. The judge of
the juvenile court may, after reading the transcript of such proceedings, grant or deny such application. If an
application for rehearing is not granted within 20 days following the date of its receipt, it shall be deemed
denied. In case no hearing by the court is requested, the findings and recommendation of the referee, when
confirmed or modified by an order of the court, become a decree of the court. A judge of the juvenile court may,
on his own motion, order a rehearing of any matter heard before a referee.
intent, i.e., to provide a more expeditious manner of hearing and disposing of juvenile court
cases. If we were to hold, as Trent argues, that upon request a hearing de novo must be
granted, the statute would be meaningless. The referee (or the master, as he is called in the
statute) has the duty to conduct the evidentiary juvenile court hearing and thereafter to make
his appropriate findings of fact and recommendations to the district judge. If no request or
application is made for a rehearing within 5 days after the referee or master files and serves
his report, then his findings and recommendations, when confirmed or modified by an order
of the court, become the decree of the court. If a request or an application for a rehearing is
made within the 5-day time limit, the district judge must review the transcript of the
proceedings before the referee or master. The district judge may hear oral argument, require
briefing (as was done in this case), and thereafter either approve and confirm the findings of
fact and recommendations, in whole or in part, or may remand the case to the referee for a
further evidentiary hearing. The district judge may, if he wishes, but he is not required to do
so, conduct a new hearing in the district court.
[Headnote 3]
In Trent's case, the district judge read the transcript of the juvenile court proceedings and
heard oral argument of counsel; the issues were briefed; and thereafter the district judge ruled
that the record supported the referee's findings and recommendation, which he approved and
confirmed. We, too, have reviewed that record, and we agree with the result reached by the
district judge.
[Headnote 4]
4. Trent complains that the referee did not consider the contributory negligence of the
decedent in making his decision. The rule has been stated in R. Anderson, Wharton's
Criminal Law and Procedure 986 (1957) as follows:
. . . The fact that the deceased was guilty of negligence directly contributing to his death
does not exonerate the accused, unless deceased's negligence was the sole cause of death. In
the latter case, the defendant is exculpated not because of the contributory negligence of the
victim but because the defendant was not the proximate cause of the homicide. . . .
(Footnotes omitted.)
The contributory negligence of the deceased, if any, could not be deemed the sole cause of
death in the circumstances disclosed by this record.
5. Trent finally urges that a charge of manslaughter may not be predicated on a violation
of a traffic law. The record in this case, as the district judge pointed out, shows not only that
Trent was guilty of the traffic law violation of driving at a speed in excess of the posted speed
limit, but also that he was driving with a blood alcohol content in excess of .10 percent and
with knowledge that his vehicle had a tendency to veer to the right upon application of the
brakes.
The evidence adduced at the juvenile court hearing supports the findings of fact and
recommendation of the referee. The district judge ruled correctly in approving and confirming
those findings and the recommendation.
Affirmed.
Zenoff, C. J., and Batjer and Thompson, JJ. concur.
Gunderson J. dissenting:
Gone are the days when courts might lawfully deny minors due process for their own
good.
1
In 1967, the United States Supreme Court held that the due process clause of the
Fourteenth Amendment requires adjudicatory hearings for juveniles to respect the essentials
of due process and fair treatment.
2
True, the Supreme Court has since held that due process
does not require that factual issues be decided by a jury in juvenile proceedings.
3
Still the
essentials of due process and fair treatment indubitably are denied when the trier of facts
does not weigh the evidence in the light of applicable law. That is the core of cogent
arguments the Public Defender has tendered on appellant's behalf, in thoughtful and well
researched briefs.
Instead of meeting the Public Defender's strongest arguments, the majority style the Public
Defender's first and weakest legal point as his principal assignment of errorwhich it does
not seem to be at all, although orderly presentation of appellant's position was attained by
stating it first.
4
However, by labeling it the principal assignment, and satisfactorily
disposing of it, the majority subtly stigmatize the Public Defender's subsequent points,
making summary treatment of them seem acceptable and inevitable.
____________________

1
Nonetheless, many still believe justice is served by denying minors due process, whenever possible. See: L.
Forer, No One Will Lissen (1970).

2
In re Gault, 387 U.S. 1, 30 (1967).

3
McKeiver v. Pennsylvania, 403 U.S.528 (1971).

4
As stated by the Public Defender, the issues tendered for our consideration are:
1. Because NRS 62.090(4) contained mandatory language, must a rehearing de novo of a juvenile matter be
granted automatically upon application?
2. If a hearing de novo of a juvenile matter is not automatic upon application, was it nevertheless error to
deny a rehearing where the
disposing of it, the majority subtly stigmatize the Public Defender's subsequent points,
making summary treatment of them seem acceptable and inevitable. I believe those other
points are significant, that the authorities proffered to support them are substantial, and that
they must either be met in some more satisfactory manner than the majority has met them, or
we must remand for a new adjudicatory hearing.
For example, the Public Defender notes that the referee apparently believed appellant was
per se guilty of manslaughter solely because appellant had exceeded the posted speed limit.
Hence, the Public Defender contends the referee decided appellant's guilt on an incorrect
legal standard, rather than considering whether, in view of all facts, appellant had been
proved guilty of criminal negligence, NRS 193.190, beyond a reasonable doubt, In re
Winship, 397 U.S. 358 (1970). In substance, the majority's answer is that the evidence was
sufficient to justify a finding of criminal negligence, if one had been made; but that,
obviously, is no answer at all, particularly since the majority allude to evidence the referee
expressly stated he would not consider.
Again, the Public Defender argues that the referee was not merely unaware of the ultimate
issues (whether appellant was guilty of criminal negligence, and whether such criminal
negligence was a proximate cause of the ensuing death), but also refused to consider the
deceased's conduct as it related to these issues. The majority's response is that contributory
negligence of the deceased is not a defense to a criminal action, which of course is beside the
point. The Public Defender's point is that the deceased's conduct bore on whether appellant's
fault was so gross as to constitute criminal negligence, and whether certain aspects of
appellant's conduct had any causal nexus with the death at all.
5

As the Public Defender points out, it does not appear that either the referee or judge
weighed the relevant evidence in the light of applicable law.
____________________
referee as trier of fact applied erroneous legal standards to the evidence before him?
3. Must the contributory negligence of the decedent be considered in determining whether an operator of an
automobile is guilty of involuntary manslaughter?
4. May an adjudication of delinquency based upon the commission of involuntary manslaughter be upheld
where there has been no finding of criminal negligence?

5
The Public Defender's Opening Brief states the issue as follows:
It has been established beyond question that in this case Lonnie Anthony Reo, the decedent, was negligent.
First, he and his companion were wearing long, dark coats (f. 009). Indeed, Lonnie Anthony Reo was wearing a
coat of length and color familiar to anyone who has ever served in the United States Army (f. 009). This apparel
was worn
either the referee or judge weighed the relevant evidence in the light of applicable law. Purely
from an administrative standpoint, I feel as I am sure my brethren do. We have been
constrained to remand this case before; it would be fortunate were we not constrained to do
so again. However, an adult charged with manslaughter is entitled to a jury properly
instructed on the law, and a minor clearly must be afforded equivalent protection. Thus, this
matter should be remanded for a rehearing, at which the court would be instructed to
determine whether criminal negligence on appellant's part proximately caused the death in
question, giving due consideration to the actions of the deceased.
____________________
in spite of the fact that it was dangerous to be so attired in close proximity to a highway after dark. See Smith v.
State, 65 So.2d 303 (Fla. 1953). Second, he was walking with the flow of traffic along East Charleston
Boulevard in an area without sidewalks. This latter action was a violation of both NRS 484.181(2) now NRS
484.331(2) and Clark County Code Sect. 14.36.060. His actions were both a misdemeanor (Clark County Code
Sec. 14.64.080 and NRS 484.735 (now NRS 484.251) as well as negligence per se (Ryan v. Manhattan Big
Four Mining Co., 38 Nev. 92, 145 P. 907 (1914).
This contributory negligence of the decedent, although not a complete defense to a charge of involuntary
manslaughter occurring through the operation of an automobile, is entitled to serious consideration in resolving
the questions whether a defendant's negligence is the proximate cause of death and indeed whether defendant's
conduct can be called negligence at all. State v. Sisneros, supra, State v. Bowser, 124 Kan. 556, 261 P. 846
(1927); Driggs v. State, 40 Ohio App. 130, 178 N.E. 15 (1931) (Petition in error dismissed 1230 his St. 686,
177 N.E. 633); State v. Oakley, 176 N. Car. 755, 97 S.E. 616 (1918); State v. Phelps, 242 N. Car. 540, 89
S.E.2d 132 (1955); People v. Campbell, 237 Mich. 424, 212 N.W. 97 (1927); Prezzi v. U.S., 62 at 2d 196 (D.C.
1948).
____________
BARNELL BISHOP, Appellant, v. SHERIFF, CLARK
No. 6840
November 10, 1972 502 P.2d 1098
Appeal from an order discharging pretrial petition for a writ of habeas corpus; Eighth
Judicial District Court, Clark County; Howard W. Babcock, District Judge.
The Supreme Court held that evidence was sufficient to establish probable cause to believe
that charged offenses had been committed and that petitioner committed them.
Affirmed.
Morgan D. Harris, Public Defender, and Jeffrey D. Sobel, Chief Deputy Public Defender,
Charles L. Garner, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Evidence, at preliminary hearing in connection with four murder counts and robbery and second-degree
arson counts, was sufficient to establish probable cause to believe that charged offenses had been
committed and that defendant had committed them. NRS 171.206, 200.010, 200.380, 205.015.
2. Habeas Corpus.
Magistrate's declining of request that preliminary hearing be closed was not ground for reversal of order
denying pretrial petition for habeas corpus, where petitioner was ordered to stand trial after holding of a
second preliminary hearing which was closed. NRS 171.204.
OPINION
Per Curiam:
Appellant, charged with four counts of murder (NRS 200.010), with robbery (NRS
200.380), and with second-degree arson (NRS 205.015), contends the trial court erred in
failing to grant habeas, because (1) there was insufficient evidence adduced at the preliminary
hearing to establish probable cause and (2) the magistrate failed to conduct a closed hearing.
We reject both contentions.
[Headnote 1]
1. We believe the district court correctly determined, contrary to appellant's contentions,
that there was probable cause to believe that . . . offense[s] [murder, robbery and
second-degree arson] ha[d] been committed and that the defendant ha[d] committed [them], .
. . NRS 171.206.
A preliminary examination is not a trial. [Citation omitted.] At the preliminary
examination, where the state is charged only with the burden of showing that a crime has
been committed and that the accused probably committed it, the quantum of proof is not so
great as at the trial, where the state's burden is to prove guilt beyond a reasonable doubt.
[Citations omitted.] Moreover, we have held that to commit a defendant for trial the state is
not required to negate all inferences but need only present enough proof to support a
reasonable inference that the accused committed the offense. [Citation omitted.]"
omitted.] Whittley v. Sheriff, 87 Nev. 614, 616, 491 P.2d 1282, 1283 (1971).
A factual recitation from the 625-page record before us would serve no useful purpose.
Suffice it to say, there is sufficient evidence to establish probable cause.
[Headnote 2]
2. Appellant was afforded two preliminary hearings in this case. At the first hearing, the
magistrate declined appellant's request for a closed hearing, apparently believing that the
1969 legislative amendment to NRS 171.204 granted the magistrate discretion in the matter.
1
We need not decide this question, because appellant was ordered to stand trial after a second
preliminary hearing, which was a closed hearing.
Since neither of appellant's contentions has merit, the judgment of the trial court is
affirmed.
____________________

1
Prior to the 1969 amendment of NRS 171.204, a closed hearing was mandatory when requested by
defendant. See Azbill v. Fisher, 84 Nev. 414, 442 P.2d 916 (1968).
____________
88 Nev. 582, 582 (1972) State ex rel Brennan v. Bowman
THE STATE OF NEVADA, on the Relation of JAMES BRENNAN, MYRON LEAVITT,
JAMES A. RYAN, ROBERT BROADBENT and TOM WIESNER, Constituting THE
BOARD OF COUNTY COMMISSIONERS of CLARK COUNTY, STATE OF NEVADA,
Petitioners, v. LORETTA BOWMAN, County Clerk of Clark County, State
of Nevada, and Ex Officio Clerk of the Board of County Commissioners of
Clark County, State of Nevada, Respondent.
No. 6912
November 14, 1972 503 P.2d 454
Original proceeding in mandamus, instituted by State on relation of board of county
commissioners, to determine constitutionality of certain statutes. The Supreme Court,
Thompson, J., held that statutes which authorize creation of express trust in real or personal
property, or both, provide funds to further a public function and which allow a governmental
subdivision to be a beneficiary thereof are not violative of constitutional provisions against
local and special laws, loans of state credit, and special acts relating to corporate powers, nor
do they violate constitutional limitation of state public debt, nor do they constitute an
unlawful delegation of legislative authority, nor are they violative of constitutional
provision precluding perpetuities "except for eleemosynary purposes."
do they constitute an unlawful delegation of legislative authority, nor are they violative of
constitutional provision precluding perpetuities except for eleemosynary purposes.
Peremptory writ issued.
[Rehearing denied December 29, 1972]
David Goldwater, of Las Vegas, and Richard W. Blakey, of Reno, for Petitioners.
Roy A. Woofter, District Attorney, and George P. Ogilvie, Jr., Chief Civil Deputy District
Attorney, Clark County, for Respondent.
1. Mandamus.
Original proceeding in mandamus, which was instituted by State on relation of board of county
commissioners to determine constitutionality of statutes authorizing creation of an express trust in real or
personal property to provide funds to further a public function and allowing a governmental subdivision to
be a beneficiary thereof, was an appropriate remedy. Const. art. 4, 20; art. 8, 1, 9; art. 9, 3;
NRS 242B.010-242B.040, 242B.100.
2. Statutes.
The legislature is presumed to know construction placed upon an adoptive statute by highest court of
state from which it was taken, and such construction is an aid in ascertaining legislative intent.
3. Charities.
Presumed purpose of statutes which authorize creation of an express trust in real or personal property, or
both, to provide funds to further a public function and which allow a governmental subdivision to be a
beneficiary thereof is to permit creation of a charitable public trust to further a public function of
governmental body designated as beneficiary thereof. NRS 242B.010-242B.040, 242B.100.
4. Statutes.
Statutes which authorize creation of an express trust in real or personal property, or both, to provide
funds to further a public function and which allow a governmental subdivision to be a beneficiary thereof
are not violative of constitutional provision against local and special laws. Const. art. 4, 20; NRS
242B.010-242B.040, 242B.100.
5. States.
are not unconstitutional as providing for a loan of state credit. Const. art. 8, 9; NRS
242B.010-242B.040, 242B.100.
6. Statutes.
funds to further a public function and which allow a governmental subdivision to be a
beneficiary thereof are not violative of constitutional provisions against special acts
relating to corporate powers.
function and which allow a governmental subdivision to be a beneficiary thereof are not violative of
constitutional provisions against special acts relating to corporate powers. Const. art. 8, 1; NRS
242B.010-242B.040, 242B.100.
7. States.
do not violate constitutional limitation on state public debt. Const. art. 9, 3; NRS
242B.010-242B.040, 242B.100.
8. Charities; Constitutional Law.
do not constitute an unlawful delegation of legislative authority. Const. art. 3, 1; NRS
242B.010-242B.040, 242B.100.
9. Perpetuities.
are not violative of constitutional provision precluding perpetuities except for eleemosynary purposes.
Const. art. 15, 4; NRS 242B.010-242B.040, 242B.100.
10. Perpetuities.
Constitutional provision precluding perpetuities except for eleemosynary purposes refers to private
rather than public or charitable trusts, eleemosynary being synonymous with charitable. Const. art.
15, 4.
11. Mandamus.
Where board of county commissioners drew a trust indenture, purpose of which was to finance, construct
and operate an elevated rapid transit system connecting an international airport with certain points in
county, and, on same date, approved indenture, accepted same as beneficiary, and directed its chairman and
clerk to attest acceptance clause, but clerk refused to so attest, basing refusal on legal advice that statutes
authorizing indenture were unconstitutional, Supreme Court, on determining if statutes were constitutional,
would issue appropriate writ of mandamus directing clerk to attest acceptance clause of trust indenture.
Const. art. 4, 20; art. 8, 1, 9; art. 9, 3; NRS 242B.010-242B.040, 242B.100.
OPINION
[Headnote 1]
The purpose of this original proceeding in mandamus, instituted by the State on relation of
the Board of County Commissioners of Clark County, is to determine the constitutionality of
Stats. Nev. 1971, ch. 502 [NRS 242B] approved April 24 1971.
April 24 1971. The remedy is appropriate. State v. Brown, 88 Nev. 339, 497 P.2d 1364
(1972).
The challenged law authorizes the creation of an express trust in real or personal property,
or both, to provide funds to further a public function, and allows a governmental subdivision
to be the beneficiary thereof. A trust indenture drawn pursuant to that authority was, on April
25, 1972, signed by James Brennan, Myron Leavitt, James Ryan, Robert Broadbent and Tom
Wiesner (The Board of County Commissioners of Clark County), Trustors, Jerry Herbst,
Mark Gammett and Harry Lahr, Trustees, for the benefit of Clark County, Beneficiary. The
name of the trust is The Clark County, Nevada, Transit Authority, and its primary purpose
is to finance, construct and operate an elevated rapid transit system connecting McCarran
International Airport with other points in Clark County. On the same day the Board of County
Commissioners approved the trust indenture, accepted the same as beneficiary, and directed
its Chairman and Clerk to attest the acceptance clause, and provided that such acceptance
would not be effective until such attestation. The Clerk of the Board has refused to so attest.
This proceeding was commenced to compel her to do so. Her refusal rests upon legal advice
that ch. 502 is unconstitutional.
[Headnote 2]
1. The significant provisions of NRS 242B.010; 242B.020; 242B.030; 242B.040;
242B.100, were borrowed from Title 60, sections 176 to 180, inclusive, Oklahoma Statutes of
1951. The legislature is presumed to know the construction placed upon an adopted statute by
the highest court of the state from which it was taken, and such construction is an aid in
ascertaining the legislative intent. McLane v. Abrams, 2 Nev. 199, 202 (1866); Gossage v.
Crow Point M. Co., 14 Nev. 153, 157 (1879); O'Brien v. Commissioners, 41 Nev. 90, 102,
167 P. 1007 (1917); Harris v. Harris, 65 Nev. 342, 346, 196 P.2d 402 (1948).
[Headnote 3]
In Board of County Commissioners v. Warram, 285 P.2d 1034 (Okla. 1955), the Oklahoma
Supreme Court approved the statutory scheme of that state as one which permitted the
creation of a charitable public trust to further a proper function of the governmental body
designated as the beneficiary thereof. We, therefore, presume that the Nevada Legislature
intended to accomplish the same objective by enacting NRS 242B. [Headnotes 4, 5]
[Headnotes 4, 5]
2. Many constitutional challenges are tendered. None has merit. The statute is neither a
local nor a special law contrary to art. 4, 20, of our Constitution, since it is statewide in
application and applies to the state, and every subdivision or agency thereof. NRS
242B.010(1).
1
Neither does the enactment purport to regulate county business. Cauble v.
Beemer, 64 Nev. 77, 177 P.2d 677 (1947). The act does not provide for the loan of state
credit in violation of art. 8, 9, of the Constitution. Rather, it specifically provides that the
beneficiary of the trust shall not be charged with any liability whatsoever by reason of any
act or omission committed or suffered in the performance of such trust or in the operation of
the trust property. NRS 242B.040(3). As noted in Board of County Commissioners v.
Warram, 285 P.2d 1034 (Okla. 1955), the funds donated to the trust and the trust estate do not
have their origin in public funds nor in the proceeds of taxation or the operations of the
governmental beneficiary. Id. at 1041. General governmental funds are not to be expended.
Cf. State ex rel. Nev. Bldg. Auth. v. Hancock, 86 Nev. 310, 468 P.2d 333 (1970); Gibson v.
Mason, 5 Nev. 229 [5 Nev. 283] (1869).
[Headnotes 6, 7]
Art. 8, 1, of our Constitution which provides that The Legislature shall pass no special
act in any manner relating to corporate powers. . . . does not bear upon the statute under
consideration. The act does not relate to corporate powers, but instead, concerns itself with
charitable public trusts. Neither does the act violate the constitutional limitation on the state
public debt limit, art. 9, 3, since a state debt is not and cannot be involved.
[Headnotes 8-10]
NRS 242B.070 provides that the State Board of Finance shall first approve the method of
finance proposed by any trust created under the act. This is not an unlawful delegation of
legislative authority in violation of art.
____________________

1
NRS 242B.010(1): Express trusts may be created in real or personal property, or either or both, or in any
estate or interest in either or both, with the state, or any county, municipality, political or governmental
subdivision, or governmental agency of the state as the beneficiary thereof, and the purpose thereof may be the
furtherance, or the providing of funds for the furtherance, of any authorized or proper function of the
beneficiary; but no funds of the beneficiary derived from sources other than the trust property, or the operation
thereof, shall be charged with or expended for the execution of the trust, except by express action of the
legislative authority of the beneficiary first had.
legislative authority in violation of art. 3, 1, of our Constitution. City of North Las Vegas v.
Public Service Comm'n, 83 Nev. 278, 429 P.2d 66 (1967). It is equally clear that art. 15, 4,
which precludes perpetuities except for eleemosynary purposes does not touch this case,
since the trusts authorized are charitable and eleemosynary in character, Nixon v. Brown, 46
Nev. 439, 214 P. 524 (1923), and are public as distinguished from private trusts.
For the reasons expressed, the constitutional attacks upon ch. 502 are without substance.
[Headnote 11]
A peremptory writ of mandamus shall issue directing the respondent to attest the
acceptance clause of the trust indenture.
____________
88 Nev. 587, 587 (1972) Toussau v. Cummings
DONALD A. TOUSSAU, Appellant, v. PHIL CUMMINGS and CHARLES R. LaFRANCE,
as Co-Administrators of the Estate of ANTHONY GILBERT VIRANT, Deceased,
Respondents.
No. 6767
November 16, 1972 502 P.2d 986
Appeal from judgment of involuntary dismissal pursuant to NRCP 41(b), Eighth Judicial
District Court, Clark County; Carl J. Christensen, Judge.
Affirmed.
L. Earl Hawley, of Las Vegas, for Appellant.
Ralph L. Denton, of Las Vegas, for Respondents.
OPINION
Per Curiam:
This is an appeal from a judgment entered pursuant to NRCP 41(b), granting involuntary
dismissal of plaintiff-appellant's case after a trial to the court. Even in the most favorable
light, we deem the evidence insufficient to warrant recovery under any theory tendered by
plaintiff-appellant, and the judgment is therefore affirmed.
88 Nev. 587, 588 (1972) Toussau v. Cummings
recovery under any theory tendered by plaintiff-appellant, and the judgment is therefore
affirmed.
____________
88 Nev. 588, 588 (1972) Osborne v. Emp. Sec. Dept.
VIRLEE OSBORNE, Appellant, v. EMPLOYMENT
SECURITY DEPT. OF THE STATE OF NEVADA, Respondent.
No. 6837
November 16, 1972 502 P.2d 986
Appeal from judgment dismissing the petition for judicial review, Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
Affirmed.
B. Mahlon Brown, III, of Las Vegas, for Appellant.
Peter I. Breen, of Reno, for Respondent.
OPINION
Per Curiam:
Appellant's sole contention on appeal is that the record does not support a decision of the
Board of Review, Employment Security Department, the effect of which was to deny him
unemployment benefits in the sum of $599. In our view, said decision is supported by
substantial evidence, which warranted a determination that twice within a two week period, in
order to obtain unreduced benefits, appellant falsely stated he had been totally unemployed.
Affirmed.
____________
88 Nev. 588, 588 (1972) Heinle v. Lyann
RICHARD E. HEINLE, Appellant, v. LYANN
AILEEN HEINLE, Respondent.
No. 6861
November 16, 1972 502 P.2d 986
Appeal from property disposition and child support provisions of divorce decree, Second
Judicial District Court, Washoe County; James J. Guinan, Judge.
Affirmed.
88 Nev. 588A, 589 (1972) Heinle v. Lyann
Fry and Fry, of Reno, for Appellant.
Samuel B. Francovich, of Reno, for Respondent.
OPINION
Per Curiam:
In the circumstances disclosed by the record, we believe the trial court erred neither in its
disposition of the parties' community property, NRS 125.150(1), nor in ordering appellant to
pay respondent $75 per month for the support of the parties' minor daughter, NRS
125.140(2). Recounting those circumstances, which in combination are unique, would create
no useful precedent.
Affirmed.
____________
88 Nev. 589, 589 (1972) Andrason v. Sheriff
MICHAEL J. ANDRASON, Appellant, v. SHERIFF,
No. 7003
November 16, 1972 503 P.2d 15
Appeal from an order denying pretrial petition for a writ of habeas corpus; Second Judicial
District Court, Washoe County; James J. Guinan, Judge.
The Supreme Court, Thompson, J., held that evidence that victim was kicked in groin and
lost consciousness from pain, that area turned black and blue, was swollen, and developed
lump, and that her legs continued to bother her and that she was treated by doctors was
sufficient to establish serious physical injury for purpose of binding defendant over for trial
on charge of battery resulting in serious physical injury.
Affirmed.
LeRoy Arrascada, of Reno, for Appellant.
Assistant Chief Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Evidence that victim was kicked in groin and lost consciousness from pain, that area turned black and
blue, was swollen, and developed lump, and that her legs continued to bother her and that she was
treated by doctors was sufficient to establish "serious physical injury" for purpose of
binding defendant over for trial on charge of battery resulting in serious physical
injury.
that she was treated by doctors was sufficient to establish serious physical injury for purpose of binding
defendant over for trial on charge of battery resulting in serious physical injury. NRS 200.481.
2. Criminal Law.
Term serious physical injury in battery statute is not unconstitutionally vague. NRS 200.481.
OPINION
The appellant, Andrason, was charged with having committed the crime of battery with
resulting serious physical injury to the victim, a gross misdemeanor.
1
Following a
preliminary examination he was held to answer in the district court. In that court he filed a
pretrial petition for a writ of habeas corpus in which he challenged the sufficiency of the
evidence to bind over and the constitutionality of the statute under which he was charged.
This appeal is from the order of the district court denying habeas relief. He contends that the
evidence produced at the preliminary examination fails to show that the battery he committed
resulted in serious physical injury to his victim. Moreover, he argues that the phrase
serious physical injury is unconstitutionally vague. Neither contention has merit.
[Headnote 1]
1. The victim, a middle-aged female, was kicked in the groin and lost consciousness as
the result of the pain therefrom. The area turned black and blue, was swollen, and a lump
developed. Four months after the incident her legs still bothered her after standing any length
of time. She was treated by two doctors for her injury. This evidence supports a reasonable
inference that the victim sustained a serious physical injury, and satisfies the quantum of
proof necessary to allow the magistrate to order that the accused be held for trial in the
district court.
____________________

1
NRS 200.481: 1. As used in this section, battery means any willful and unlawful use of force or violence
upon the person of another.
2. Any person convicted of a battery shall be punished:
(a) If the battery is not committed with a deadly weapon, and no physical injury to the victim results, for a
misdemeanor.
(b) It the battery is not committed with a deadly weapon, and serious physical injury to the victim does result,
for a gross misdemeanor.
(c) It the battery is committed with the use of a deadly weapon, by imprisonment in the state prison for not
less than 2 years nor more than 10 years.
district court. Graves v. Sheriff, 88 Nev. 436, 498 P.2d 1324 (1972); Kinsey v. Sheriff, 87
Nev. 361, 487 P.2d 340 (1971).
[Headnote 2]
2. The words serious physical injury are words of ordinary significance and readily
understood by men of ordinary intelligence. State v. McKeehan, 430 P.2d 886 (Idaho 1967);
State v. Perry, 426 P.2d 415 (Ariz.App. 1967); Thomas v. State, 116 S.W. 600 (Tex.Cr.App.
1909). Accordingly, the statutory language accommodates constitutional commands. Parkus
v. State, 88 Nev. 553, 501 P.2d 1039 (1972).
Affirmed.
____________
88 Nev. 591, 591 (1972) City of Reno v. Belkind
THE CITY OF RENO, Appellant, v. ALLEN J. BELKIND and FRANCINE J. BELKIND,
Husband and Wife, Respondents.
No. 6852
November 16, 1972 503 P.2d 21
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Appeal from a judgment determining that recording of plat of cemetery did not dedicate to
city the streets indicated on plat. The Supreme Court held that, inasmuch as circumstances
under which plat was recorded evidenced neither actual nor implied dedication of streets
within cemetery for public highway purposes, neither city nor any other person had any legal
or equitable right, title or interest in one such street.
Affirmed.
Robert L. Van Wagoner, City Attorney, and Larry D. Lessly, Assistant City Attorney, of
Reno, for Appellant.
Thornton & Stephens and Phyllis Atkins, of Reno, for Respondents.
Cemeteries.
Inasmuch as circumstances under which plat was recorded evidenced neither actual nor implied
dedication of streets within cemetery for public highway purposes, neither city nor any other person had
any legal or equitable right, title or interest in one such street.
88 Nev. 591, 592 (1972) City of Reno v. Belkind
person had any legal or equitable right, title or interest in one such street. NRS 116.060.
OPINION
Per Curiam:
This appeal is from a judgment which determined that recording a plat of Hillside
Cemetery with the Washoe County Recorder, in 1882, did not dedicate to the City of Reno
the streets indicated on said plat, and which declared that neither the defendant City of Reno,
nor any other person, has any legal or equitable right, title or interest in a portion of the
cemetery known as Evergreen Avenue.
We need not consider whether recordation of a cemetery plat would now be within the
purview of NRS 116.060, enacted in 1905. Nor need we consider whether other persons not
parties may have rights of ingress and egress to lots sold pursuant to the plat in question. In
this case, we discern no error in the court's determination of rights, as between the parties
themselves, because the circumstances under which such plat was recorded evidence neither
actual nor implied dedication of the streets within the cemetery for public highway purposes.
Affirmed.
____________
88 Nev. 592, 592 (1972) Maheu v. Hughes Tool Co.
ROBERT A. MAHEU, Individually and Doing Business as ROBERT A. MAHEU
ASSOCIATES, Appellant, v. HUGHES TOOL COMPANY, a Delaware Corporation,
Respondent.
No. 6597
ROBERT A. MAHEU, Appellant, v. CHESTER C. DAVIS, FRANK WILLIAM GAY, and
C. J. COLLIER, Jr., Respondents.
No. 6598
November 16, 1972 503 P.2d 4
Consolidated appeals from order granting a preliminary injunction and from order denying
motion for preliminary injunction and dissolving temporary restraining order. Eighth Judicial
The district court entered order granting preliminary injunction which included mandatory
turnover provision requiring that specified person return or cause the return of specified
materials to corporation and entered another order denying such person's motion for
temporary injunction and dissolving temporary restraining order which had prohibited
persons related to the corporation from acquiring or exercising control over corporation's
properties, and the enjoined person brought consolidated appeals from both adverse rulings.
The Supreme Court, Zenoff, C. J., held that where such turnover provision required that the
enjoined person, who for long period of time had been associated with business operations of
corporation in question which owned and operated numerous businesses, return or cause the
return of all books, documents, records and communications of the corporation or
pertaining directly or indirectly to the business operations or affairs of the corporation and
thereby placed such person in constant jeopardy if he guessed wrong as to which documents
or records related directly or indirectly to corporation's business, compelled him to return
property of one company to a stranger and allowed him no safeguard of what might have been
rightfully his, such mandatory turnover provision was impermissibly vague and therefore
void.
Affirmed in part; reversed in part.
Batjer and Mowbray, JJ., concurred in part, dissented in part.
Morton R. Galane, of Las Vegas, for Appellant.
Davis & Cox, of New York City, and Morse, Foley and Wadsworth, of Las Vegas, for
Respondents.
Injunction.
Where mandatory turnover provision of preliminary injunction required that enjoined person, who for
long period of time had been associated with business operations of corporation which owned and operated
numerous businesses, return or cause the return to the corporation of all books, documents, records and
communications of the corporation or pertaining directly or indirectly to the business operations or
affairs of the corporation and thereby placed such person in constant jeopardy if he guessed wrong as to
which documents or records related directly or indirectly to corporation's business, compelled him to return
property of one company to a stranger and allowed him no safeguard of what might have been
rightfully his, such turnover provision was impermissibly vague and therefore void.
of what might have been rightfully his, such turnover provision was impermissibly vague and therefore
void. NRCP 65(d).
OPINION
The basic issue of this appeal is an alleged offensive portion of a preliminary injunction
directed against Robert A. Maheu who for a long period of time was chief executive of
Howard R. Hughes' extensive business operations. The provision with which we are most
vitally concerned recites:
communications of plaintiff or pertaining directly or indirectly to the business operations or
affairs of plaintiff, including all copies or other reproductions of same, and all other property
belonging to plaintiff, as may be in the possession, custody or control of defendants directly
or indirectly. (Emphasis added.)
The plaintiff is Hughes Tool Company, a Delaware corporation. The preliminary
injunction is against Robert A. Maheu, individually, and doing business as Robert A. Maheu
Associates.
A series of events took place on December 4 and 5, 1970, which were such as to cause
Maheu immediate and deep apprehension in connection with his position and his duties. On
December 4, 1970, apparently without prior notice or knowledge, Maheu was notified that the
board of directors of Hughes Tool Company had relieved him of all responsibility and
authority in connection with its properties. This was confirmed by a letter dated December 5,
1970 from Hughes Tool Company directing Maheu to turn over to its duly authorized
representatives the books, records and other property which theretofore had been in the
possession, custody or control of Maheu.
Without producing documents or authorization of their authority from Howard R. Hughes,
Chester C. Davis, general counsel of Hughes Tool Company, and others, peremptorily took
steps to seize the control theretofore exercised by Maheu. Forces unknown to Maheu or the
subordinate employees of the various hotels and casinos invaded and took over the casinos of
the Hughes empire and the cashier cages thereof, seized cash and markers, and created
understandable concern in Maheu as to his own position and for the gaming licenses
under his charge.
casinos of the Hughes empire and the cashier cages thereof, seized cash and markers, and
created understandable concern in Maheu as to his own position and for the gaming licenses
under his charge.
Maheu did not accept the termination notice as authentic and proceeded to take defensive
action. On December 5, 1970 he commenced an action against Chester C. Davis, general
counsel of Hughes Tool Company, Calvin J. Collier, Jr., and Frank William Gay, Vice
Presidents and Directors of Hughes Tool Company (Maheu v. Davis, No. 84241 below, No.
6598 on appeal). The gravamen of Maheu's suit against these individuals was that they were
wrongfully attempting to wrest from him the properties of Hughes Tool Company, including
control over his books and records. On the same day Maheu obtained a temporary restraining
order prohibiting further efforts by Davis, Gay and Collier to acquire or exercise control over
Hughes Tool Company's properties, including its books and records. He also sought a
preliminary injunction to the same effect.
On December 7, 1970 Maheu caused removal from the Hughes Nevada Operations offices
of various files maintained there. On the same day Hughes Tool Company commenced their
action (Hughes Tool Co. v. Maheu, No. 84259 below, No. 6597 on appeal) against Maheu
and Robert A. Maheu Associates, seeking to enjoin Maheu from exercising, asserting or
claiming authority over Hughes Tool Company's properties. A temporary restraining order
was issued in this action in the afternoon of December 7, 1970, which was after the removal
of the records by Maheu. The two motions for injunctive relief were consolidated for the
purpose of evidentiary hearings which were held December 8 through December 18, 1970.
During the course of the hearing for the preliminary injunction testimony brought out the
extensive holdings and operations in differing individual and corporate forms of Howard R.
Hughes and his accumulations. They pointed up Maheu Associates as being that of an
independent consultant, not directly as an employee. During the hearing when the extent of
the records and documents that he had removed became subject to contention he tendered for
inspection what he represented to be all records he had caused to be removed, but the
respondents refused to examine them, or even conduct an inventory of them.
1

From the hearing it was developed that in the State of Nevada the Hughes Tool Company
owned or operated The Sands Hotel and Casino, The Desert Inn, Frontier Hotel, Castaways
Casino, Landmark Hotel and Casino, The Silver Slipper Gambling Hall and Saloon, Spring
Mountain Ranch, North Las Vegas Airport, fixed based operations at McCarran Field and
North Las Vegas Airport, numerous mining claims in 11 counties, rental properties and
unimproved real properties in Clark County, KLAS-TV and various bank accounts in five
banks in southern Nevada.
____________________

1
No satisfactory explanation was given for the refusal.
Sands Hotel and Casino, The Desert Inn, Frontier Hotel, Castaways Casino, Landmark Hotel
and Casino, The Silver Slipper Gambling Hall and Saloon, Spring Mountain Ranch, North
Las Vegas Airport, fixed based operations at McCarran Field and North Las Vegas Airport,
numerous mining claims in 11 counties, rental properties and unimproved real properties in
Clark County, KLAS-TV and various bank accounts in five banks in southern Nevada.
Separately, yet still part of the holdings under Maheu's direction, there were also Harold's
Club of Reno, Sands, Incorporated, and other subsidiaries which own or operate some of the
above-listed enterprises within the Howard Hughes umbrella. Howard R. Hughes, the
individual, operates the Silver Slipper Gambling Hall and Casino. He also owns all of the
outstanding capital stock of Sands, Incorporated.
During the hearing Davis, Gay and Holliday produced a proxy and power of attorney,
ostensibly executed by Hughes empowering those three to take over management and control,
but which they refused to display to Maheu before the litigation and take-over proceedings
were commenced. The lower court granted Hughes Tool Company a preliminary injunction
containing the provision heretofore recited and also restraining Maheu from exercising or
claiming any authority with respect to Hughes Tool Company property, or to deprive Hughes
Tool Company of complete use of its business offices, and other matters.
2

By separate order the court dissolved the temporary restraining order obtained by Maheu.
Maheu appeals from both adverse rulings.
____________________

2
The text of the commanding portion of the injunction reads:
IT IS ORDERED that the defendants, their respective agents, servants, employees and attorneys, and all
persons in active concert and participation with any of them, be and they hereby are restrained and enjoined,
pending the determination of this action from each and every one of the acts or other conduct specified
hereinbelow:
A. Exercising or claiming any authority or control with respect to the operations of any of the plaintiff's
properties or businesses.
B. Entering or occupying any business office, business establishment or other premises (excepting, until
further appropriate notice, personal residences presently occupied by any of the defendants) of the plaintiff.
C. Depriving plaintiff of the complete possession, use and enjoyment of any and all business offices,
business establishments or other premises (excepting, until further appropriate notice, personal residences
occupied by defendants or any of them) of the plaintiff.
D. Removing from the business offices, business establishments or other premises of the plaintiff in the
State of Nevada or elsewhere any books, documents, records or other property of plaintiff in any form.
E. Making copies of any such books, documents or records, or
adverse rulings. We consider the recited provision of the injunction the only issue of
consequence.
1. We find that the mandatory turnover provision of the preliminary injunction is
impermissibly vague and therefore void.
NRCP 65(d) requires in pertinent part that:
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. . . .
(Emphasis added.)
This court said in Webster v. Steinberg, 84 Nev. 426, 442 P.2d 894 (1968), that a
preliminary injunction issued by a trial court of this state is void, not merely voidable, if it
fails to describe in reasonable detail the act or acts sought to be restrained. The provision
which we now consider lacks definiteness, is vague and ambiguous, because it places the
recipient of the order, Maheu, in constant jeopardy if he guesses wrong as to which
documents or records relate directly or indirectly to the business of Hughes Tool
Company, compels him to return property of one company to a stranger and allows him no
safeguard of keeping what may be rightfully his. Not only may there be books and records of
all of the Hughes enterprises, but also communications between Hughes and Maheu relating
to personal matters and there are records of Maheu's own business efforts of his company
known as Maheu Associates that may be unrelated to any of the Hughes operations.
____________________
any part thereof, of plaintiff or other communications concerning plaintiff or its sole stockholder and obtained in
the course of their employment in behalf of plaintiff.
F. Making any further disclosure or other use of any books, documents or records of plaintiff or of other
information concerning plaintiff or its sole stockholder and obtained in the course of their employment in behalf
of plaintiff.
IT IS FURTHER ORDERED that defendants, their respective agents, servants, employees and attorneys,
and all persons in active concert and participation with any of them, shall forthwith return or cause the return to
plaintiff of all books, documents, records and communications of plaintiff or pertaining directly or indirectly to
the business operations or affairs of plaintiff, including all copies or other reproductions of same, and all other
property belonging to plaintiff, as may be in the possession, custody or control of defendants directly or
indirectly.
IT IS FURTHER ORDERED that defendants and each of them forthwith notify their respective agents,
servants, employees, attorneys and all persons in active concert and participation with them, including all
persons to whom any original or copy of any of the said books, records, documents and communications of
plaintiff described hereinabove has been or may have been given or disclosed, of this Order and its provisions.
Maheu's own business efforts of his company known as Maheu Associates that may be
unrelated to any of the Hughes operations.
It is not enough to say that Maheu had been with Hughes so long that he knew what was
meant by the order. It required return to plaintiff all books, etc. of plaintiff but the books,
documents and records taken may well have been owned in some considerable extent by
others than Hughes Tool Company. Thus, under the terms of the injunction, the documents
belonging to Sands, Incorporated, or its subsidiaries, do not qualify for a return to Hughes
Tool Company and the same must be said of Desert Inn Improvement Company and Hughes
Sports Network, Inc. Yet, if they are withheld they nevertheless may relate indirectly to
Hughes Tool Company placing Maheu in the position of damned if he doesn't and subject to
lawsuits for giving up property not belonging to the plaintiff if he does.
The injunction lacks the specificity that distinguishes the direct from the indirect.
Hughes Tool Company's refusal to make any effort to inventory Maheu's proffered return of
the books, records and documents supports the conclusion that Maheu should not be
subjected to the potential harassment that could come from an uncertain court order.
An injunctive order is an extraordinary writ subject to contempt for failure to comply and
thus must be set out in specific terms. Brumby Metal, Inc. v. Bargen, 275 F.2d 46, 50 (7th
Cir. 1960). The turnover provision of this injunction is so uncertain and indefinite as to be
impossible of compliance and is therefore void. Webster v. Steinberg, supra; Kress v. Corey,
65 Nev. 1, 20, 189 P.2d 352 (1948); Smith v. District Court, 63 Nev. 249, 257, 167 P.2d 648
(1946).
2. Other issues raised are inconsequential at this stage. Further, we have reviewed the
assignments of error in connection with Appeal No. 6598 and find them to be without merit.
Reversed as to the void turnover provision of the injunction. The remainder of the
preliminary injunction will remain in full force and effect.
Thompson and Gunderson, JJ., concur.
Batjer, J., with whom Mowbray, J., joins, concurring in part and dissenting in part:
I agree that the assignments of error in connection with Appeal No. 6598 are without merit
and I concur with that part of the majority opinion. I also agree that a portion of the turnover
position of the injunction is too uncertain and indefinite for compliance but I cannot agree
that the entire injunction is rendered void thereby.
turnover position of the injunction is too uncertain and indefinite for compliance but I cannot
agree that the entire injunction is rendered void thereby.
I would modify the commanding portion of the injunction in the following manner and
affirm the injunction as modified:
IT IS ORDERED that the defendants, their respective agents, servants, employees and
attorneys, and all persons in active concert and participation with any of them, be and they
hereby are restrained and enjoined, pending the determination of this action from each and
every one of the acts or other conduct specified hereinbelow:
A. Exercising or claiming any authority or control with respect to the operations of any
of the plaintiff's properties or businesses.
B. Entering or occupying any business office, business establishment or other premises
(excepting, until further appropriate notice, personal residences presently occupied by any of
the defendants) of the plaintiff.
C. Depriving plaintiff of the complete possession, use and enjoyment of any and all
business offices, business establishments or other premises (excepting, until further
appropriate notice, personal residences occupied by defendants or any of them) of the
plaintiff.
D. Removing from the business offices, business establishments or other premises of the
plaintiff in the State of Nevada or elsewhere any books, documents, records or other property
of plaintiff in any form.
E. Making copies of any such books, documents or records, or any part thereof, of
plaintiff.
F. Making any further disclosure or other use of any books, documents or records of
plaintiff.
communications of plaintiff including all copies or other reproductions of same, and all other
property belonging to plaintiff, as may be in the possession, custody or control of defendants.
IT IS FURTHER ORDERED that defendants and each of them forthwith notify their
respective agents, servants, employees, attorneys and all persons in active concert and
participation with them, including all persons to whom any original or copy of any of the said
books, records, documents and communications of plaintiff described hereinabove has
been or may have been given or disclosed, of this Order and its provisions."
and communications of plaintiff described hereinabove has been or may have been given or
disclosed, of this Order and its provisions. See NRS 2.110; Hansen v. Edwards, 83 Nev.
189, 426 P.2d 792 (1967).
____________
88 Nev. 600, 600 (1972) Cook v. McCorkle
PAULETTE COOK OWSLEY and JOAN M. COOK, Next Friend for RICHARD
W. COOK, Jr., a Minor, Appellants, v. KAREN D. McCORKLE CRANDALL and
JACK E. McCORKLE, Respondents.
No. 6855
November 17, 1972 503 P.2d 21
Appeal from judgment of the Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Action involving automobile collision. The district court entered judgment for defendants,
and plaintiffs appealed. The Supreme Court held that refusal to give offered instructions
which were not accurate statement of law applicable to case was not improper.
Affirmed.
Michael Roth, of Reno, for Appellants.
Wait, Shamberger & Georgeson, of Reno, for Respondents.
Where record on appeal, as originally set up, did not reflect any errors, objections or offers of proof,
Supreme Court could not consider any of claims of error presented.
2. Trial.
Refusal to give offered instructions which were not accurate statement of law applicable to case was not
improper.
OPINION
Per Curiam:
[Headnote 1]
This appeal is from a judgment for defendants in a suit involving an automobile collision.
Appellants present four assignments of error. The record on appeal, as originally sent up, did
not reflect any errors, objections thereto or offers of proof made, and for that reason the
record was wholly insufficient to allow us to consider any of the claims of error presented.
88 Nev. 600, 601 (1972) Cook v. McCorkle
proof made, and for that reason the record was wholly insufficient to allow us to consider any
of the claims of error presented.
[Headnote 2]
Subsequently, by permission of the court, the record on appeal was supplemented by
appellants in an attempt to show error of the trial court in refusing to give certain jury
instructions which had been offered. Even as supplemented, however, the record fails to
demonstrate any error of the trial court. The instructions offered were not an accurate
statement of the law applicable to the case. An accurate statement of applicable law was set
forth by the instructions given. The jury was fully and properly charged.
Having reviewed the briefs and the record as supplemented we find that the assignments of
error are without merit. Accordingly, the judgment of the trial court is hereby affirmed.
____________
88 Nev. 601, 601 (1972) Nevada Credit Rating Bur. v. Williams
NEVADA CREDIT RATING BUREAU, INC., a Corporation, and
JOHN ADEN, Appellants, v. ISAAC N. WILLIAMS, Respondent.
No. 6703
November 17, 1972 503 P.2d 9
Appeal from a judgment of the Fifth Judicial District Court, Mineral County; Kenneth L.
Mann, Judge.
Action by attachee to recover from parties allegedly responsible for wrongful attachment
and/or malicious prosecution. The district court entered judgment awarding compensatory
and punitive damages against such defendants for abuse of process, and defendants appealed.
The Supreme Court, Batjer, J., held that fact that the attachment was far in excess of that
required and was made with intent of pressuring payment of alleged debt and fact that
defendants knew that attachment of all attachee's equipment would have devastating effect
upon his business provided requisite malice in fact warranting grant of punitive damages to
attachee.
Affirmed.
Wait & Shamberger, of Reno, for Appellant, Nevada Credit Rating Bureau, Inc.
George W. Abbott, of Minden, for Appellant, John Aden.
Daniel R. Walsh, of Carson City, for Respondent.
1. Process.
Even if deputy sheriff permitted attached property to remain in attachee's possession by leaving such
property, which was bulky machinery and some of which was inoperable, in attachee's equipment yard after
he had recorded all of serial and identification numbers, placed sheriff's seals on most of machinery and
told attachee he was not to use or move any of the attached machinery, attachment lien continued in force,
for purpose of attachee's action resulting in abuse of process judgment, between attachee and parties who
had sought the attachment. NRS 31.060, subd. 2.
2. Process.
Although malice and want of probable cause are necessary elements for recovery in an action for
wrongful attachment and malicious prosecution, they are not essential to recovery for abuse of process.
3. Process.
Two fundamental elements which constitute basis of the tort of abuse of process are (1) an ulterior
purpose and (2) a willful act in use of process not proper in regular conduct of proceeding.
4. Malicious Prosecution; Process.
An action for abuse of process hinges on misuse of regularly issued process, in contrast to malicious
prosecution which rests upon wrongful issuance of process.
Appellants had burden to show that findings and judgment of trial court were not based upon substantial
evidence or were clearly erroneous.
6. Process.
Where property valued at over $30,000 was placed under attachment to secure alleged debt of less than
$5,000 and was attached in its entirety even though it was divisible, and where efforts to release parts of the
property were summarily rejected even though parties who had sought the attachment possessed full
knowledge of devastating effect of the attachment upon attachee's mining business in which he used the
attached machinery, such parties' actions constituted adequate grounds for conclusions that the attachment
had purpose of pressuring payment rather than securing a debt and constituted a misapplication of process
causing compensable damage.
7. Process.
Computation of damage award with respect to loss, due to abuse of process based on misapplication of
attachment process, of use of equipment by attachee in his mining business was not subject to objection
that the damage was too speculative and uncertain, where demand existed for such equipment, recent
publication of rental values were used to arrive at fair evaluation of loss of rental income from which was
deducted 50 percent representing estimated time the equipment would be idle due to weather and lack of
demand, another 5 percent for breakdown of equipment and 25 percent representing
repairs made unnecessary due to fact the equipment was idle.
and lack of demand, another 5 percent for breakdown of equipment and 25 percent representing repairs
made unnecessary due to fact the equipment was idle.
8. Process.
Parties who were liable for abuse of process due to misapplication of attachment process with respect to
attaching of equipment which had been used in attachee's mining business were properly held liable for
damage consisting of actual cost of tires, batteries and repairs to the equipment made necessary by
exposure to the elements and vandalism during the 11-month attachment, even though such parties offered
to pay cost of removing the equipment to a safe and secure place and it was deputy sheriff who made
decision to leave equipment on attachee's lot where it was exposed to elements. NRS 31.040.
9. Sheriffs and Constables.
Deputy sheriff derived his power to hold and seize attached property from statutes and not from parties
seeking attachment or attachee; he was not servant or agent of either party. NRS 31.040.
10. Attachment; Malicious prosecution; Process.
Although statute relating to grounds for discharge of attachment provides avenue for relief from an
excessive levy, it is not an exclusive remedy, and action pursuant to such statute is merely condition
precedent to an action for malicious prosecution, wrongful attachment or abuse of process. NRS 31.200.
11. Damages.
Malice in fact must be established by the evidence if it is ground relied upon to support an award to
punitive damages.
12. Process.
Fact that attachment, which was subject of attachee's action which resulted in abuse of process judgment
against parties who had sought the attachment, was far in excess of that required and was made with intent
of pressuring payment of alleged debt and fact that such parties knew that attachment of all attachee's
equipment would have devastating effect upon his business provided requisite malice in fact warranting
grant of punitive damages to attachee. NRS 42.010.
13. Damages.
Malice in fact, sufficient to support an award of damages within scope of statute relating to punitive
damages, may be established by showing that wrongful conduct in question was willful, intentional and
done in reckless disregard of its possible results. NRS 42.010.
OPINION
This is an appeal from a judgment awarding respondent $32,002 compensatory damages
jointly and severally against appellants, Nevada Credit Rating Bureau, Inc., (hereinafter
Nevada Credit) and John Aden, and punitive damages of $1,500 against Nevada Credit and
$250 against Aden for abuse of process.
$1,500 against Nevada Credit and $250 against Aden for abuse of process.
In 1961 respondent Williams lived in the Mina-Luning area in Mineral County. He had
engaged in the mining business in this state since 1923, and had gained possession of the
necessary equipment to enable him to excavate, move and strip earth. Williams performed
these operations around the Lovelock area until 1958 when he encountered financial
difficulties. He became indebted to Nevada Bank of Commerce on some conditional sales
contracts, and when he defaulted on several of the payments Graid Construction Company of
Reno paid the bank on his behalf. In return Graid received title to some of Williams'
equipment. However, at all times, Williams retained possession of and the right to use all of
the equipment.
He moved to the Mina area in 1961. There he met appellant Aden who was employed by a
mining corporation doing business in that area. In the spring of 1962 Aden requested
Williams to do some excavating work for him, but Williams was unable to accept because the
rails on his bulldozer were worn out. Several times Aden offered to purchase the rails and let
Williams repay him by doing the proposed excavation work. Williams finally accepted this
offer, and became indebted to Aden in the amount of $4,287.03 for the rails as well as for
miscellaneous advances for operating expenses and repairs to other equipment.
Aden had work available after Williams' bulldozer became operational, but he offered no
work to Williams. Instead, he contracted the work out to other individuals even though
Williams was at all times ready to perform. At about this same time Aden contacted Robert
Records, general manager of a mining company in the area, in an effort to have Records
attempt to purchase Williams' equipment. Records told Aden that he would not act as a
middleman and that he was sure Aden could purchase the equipment directly from Williams.
Records testified that Aden said he would get it anyway.
Aden next contacted appellant Nevada Credit about collecting the amount owed him by
Williams and they accepted the alleged debt on assignment for purposes of bringing suit. No
request or demand for payment was ever made by Nevada Credit, and on November 20, 1962,
they filed an action in Washoe County against Williams seeking recovery of $4,395.07, plus
interest, costs and attorney's fees. On this same date, Nevada Credit authorized an attachment
of Williams' equipment and appointed Aden as its agent to accompany the deputy sheriff to
Williams' property to execute the writ. Aden instructed the deputy sheriff to attach all of
Williams' equipment, including his housetrailer.
instructed the deputy sheriff to attach all of Williams' equipment, including his housetrailer.
The deputy served Williams with a copy of the writ, inventoried the equipment and placed
sheriff's seals on most major pieces. The machinery was not placed in storage but was left on
property near Williams' residence. The deputy sheriff instructed Williams that he was not to
move or touch any of his equipment. All of Williams' equipment which the trial court found
to have a reasonable value of over $30,000 was attached to secure the alleged debt amounting
to less than $5,000.
In the next several months various efforts were made to have some of the equipment
released but the requests were summarily rejected by Nevada Credit. Graid Equipment
Company and other parties having legal title to some of the equipment sought a release of
individual pieces of machinery but their claims were not recognized by appellants.
The case on the alleged debt was tried in district court on August 5, 1963, and the court
found for Williams, holding that there was no account stated, but merely an agreement
whereby Williams was to repay Aden by performing work for him. On appeal, we affirmed
the lower court's decision, and held that the contract was executory, and that Williams had not
breached it. Nevada Cr. Rating Bureau v. Williams, 80 Nev. 343, 393 P.2d 618 (1964).
In February of 1966 Williams brought an action for wrongful attachment and/or malicious
prosecution. Aden and Nevada Credit denied the facts alleged by Williams and asserted as
defenses that no actual attachment of the property was ever perfected by the sheriff, that they
both acted upon the basis of probable cause and without malice, and that in any event
Williams incurred no damages entitling him to compensation from them.
The trial court did not find the appellants guilty of wrongful attachment or malicious
prosecution but instead found that they had committed the tort of abuse of process. Although
abuse of process was not raised by the pleadings the evidence supported this issue. NRCP
15(b); Jaksich v. Guisti, 36 Nev. 104, 134 P. 452 (1913). The trial court found that as a direct
and proximate result of the wrongful acts of Aden and Nevada Credit, Williams was deprived
of the use of his property for 11 months (one machine for only 9 months) and that the
reasonable rental value for that period, with adjustments for depreciation and demand for
hiring the equipment was $32,002. In addition to these compensatory damages the court
assessed punitive damages. No damages were awarded for suffering, humiliation, or loss of
credit.
[Headnote 1]
The appellants contend that the judgment of the trial court must be reversed because no
valid attachment ever occurred upon which an action for wrongful attachment, malicious
prosecution or abuse of process could be based. In this regard they rely upon NRS 31.060(2)
which requires that personal property capable of manual delivery shall be attached by taking
it into custody. All of Williams' machinery was bulky, and some was inoperable, but it would
have been possible for the sheriff to have taken it into his physical possession. Nevertheless,
the sheriff left the property in the equipment yard. He did examine all of the machinery,
recorded all of the serial and identification numbers, and placed sheriff's seals on most of it.
At the time the writ was served on Williams, the sheriff told him unequivocally that he was
not to use or move any of his attached property. Williams obeyed this command for the
duration of the attachment. Even if it could be said that the deputy sheriff permitted the
attached property to remain in Williams' possession, the attachment lien continued in force
between the appellants and Williams [Mickelson v. Williams, 312 P.2d 656 (Wash. 1957);
Annot., 86 A.L.R. 1412; 6 Am. Jur.2d, Attachment and Garnishment, 505]; see also 7
C.J.S. Attachment 233d.
[Headnotes 2-4]
Here the trial court awarded damages for abuse of process based primarily upon the facts
that the attachment was far in excess of that necessary to secure the debt, and was used in an
attempt to pressure respondent into paying the claim. The appellants assert that the damages
were improperly awarded because there was no adequate showing of the necessary elements
of malice and want of probable cause. Although malice and want of probable cause are
necessary elements for recovery in an action for wrongful attachment and malicious
prosecution [McIntosh v. Knox, 40 Nev. 403, 165 P. 337 (1917)] they are not essential to
recovery for abuse of process. The two fundamental elements that constitute the basis of the
tort of abuse of process are (1) an ulterior purpose and (2) a willful act in the use of the
process not proper in the regular conduct of the proceeding. Barquis v. Merchants Collection
Ass'n of Oakland, 496 P.2d 817 (Cal. 1972); Tempelton Feed and Grain v. Ralston Purina
Co., 446 P.2d 152 (Cal. 1968). The action for abuse of process hinges on the misuse of
regularly issued process, in contrast to malicious prosecution which rests upon the wrongful
issuance of process. Clikos v. Long, 165 So. 394 (Ala. 1936). Here the trial judge found that
attempting to force payment of the claim rather than obtaining security for the debt was
the ulterior purpose and that attaching all of the respondent's equipment and refusing to
release any of it was the willful act not proper in the regular conduct of the proceeding.
that attempting to force payment of the claim rather than obtaining security for the debt was
the ulterior purpose and that attaching all of the respondent's equipment and refusing to
release any of it was the willful act not proper in the regular conduct of the proceeding. White
Lightning Company v. Wolfson, 438 P.2d 345 (Cal. 1968); Tempelton Feed and Grain v.
Ralston Purina Co., supra; Spellens v. Spellens, 317 P.2d 613 (Cal. 1957); Pimentel v. Houk,
226 P.2d 739 (Cal.App. 1951); Prosser on Torts, 856 (4th ed. 1971).
[Headnotes 5, 6]
It is appellants' burden to show that the findings and judgment of the trial court were not
based upon substantial evidence or were clearly erroneous. Brandon v. Travitsky, 86 Nev.
613, 472 P.2d 353 (1970); Utley v. Airoso, 86 Nev. 116, 464 P.2d 778 (1970). Our review of
the record in this case discloses substantial evidence which supports the court's finding of
abuse of process. Although the property was divisible, it was attached in its entirety. Property
valued at over $30,000 was placed under attachment to secure an alleged debt of less than
$5,000. Efforts to release parts of the property were summarily rejected while appellants
possessed full knowledge of the devastating effect of the attachment upon respondent's
business. These actions of the appellants in willful disregard of the right of respondent to use
his property (subject only to a reasonable attachment) gave the trial court adequate grounds
for concluding that the purpose of the attachment was to pressure payment rather than to
secure a debt; that the attachment, in an amount so much greater than the alleged debt was a
misapplication of process; and that the inability of respondent to continue to use his
equipment caused damages for which he should be compensated. White Lightning Company
v. Wolfson, supra; see Italian Star Line v. United States Shipping Board E. F. Corp., 53 F.2d
359, 361 (2d Cir. 1931).
[Headnote 7]
Appellants further argue that the evidence does not support the trial court's award of
damages. The trial court found that there was a demand in the Mina area for rental of the
heavy equipment owned by Williams. Introduced into evidence were publications indicating
reasonable rental value for this type of equipment. The court determined that Williams should
be awarded damages based upon the loss of rental income he would have received had he not
been dispossessed of his property during the 11-month attachment. After the total loss of
rental value was determined, 50 percent was deducted therefrom representing the estimated
time the equipment would be idle due to weather and lack of demand.
idle due to weather and lack of demand. Another 5 percent was deducted for breakdown of
equipment, and 25 percent was deducted which represented repairs made unnecessary due to
the fact that the equipment was idle. Appellants rely upon Knier v. Azores Constr. Co., 78
Nev. 20, 368 P.2d 673 (1962) to support their argument that the damages in the case at bar
were too speculative and uncertain. In Knier, this court denied loss of anticipated profits from
motel rooms not timely finished by a contractor, because the business operation had just
moved to a new location and no evidence was introduced to show it had or would operate at a
profit. In the instant case Williams' business in Mina was not established, but there was
substantial evidence in the record indicating that there was a demand for his equipment. The
trial judge used the most recent publications on rental rates to arrive at a fair valuation. His
computation of damages was not erroneous.
[Headnotes 8, 9]
Damages were also allowed for actual costs of tires, batteries and repairs to the equipment
made necessary due to exposure to the elements and vandalism during the 11-month
attachment. The appellants offered to pay the cost of removing the equipment to a safe and
secure place. However, the deputy sheriff made the decision to leave the equipment on
Williams' lot where it was exposed to the elements. Neither Williams nor the appellants had
any right or authority to either move the equipment to a more protected place or take steps to
protect it where it was sequestered. In Fireman's Fund Insurance Company v. Shawcross, 84
Nev. 446, 442 P.2d 907 (1968), we announced that a sheriff is supposed to follow the
directives given by the attaching plaintiff when the writ and accompanying instructions are in
regular form. There is nothing in this case to suggest that either the writ or instructions were
irregular in form. NRS 31.040 requires that the sheriff keep safely all of the property which
he attaches. Here the attorney for the plaintiff instructed Aden to provide service to take the
attached equipment to a storage place designated by the sheriff.
1
The deputy sheriff derived
his power to seize and hold the attached property from the statutes and not from the
appellants or respondent. He was not the servant or agent of either party. NRS 31.040;
Sorrells v. Irion, 216 S.W.2d 1021 (Tex.Civ. App. 1948); 7 C.J.S. Attachment, 281.
However, the sheriff's failure to protect the attached property does not benefit the
appellants and insulate them from the consequences of their initial tort.
____________________

1
The instructions directed to the deputy sheriff of Mineral County to attach personal property read in
pertinent part: . . . He (Mr. Aden) will provide tow service for all said equipment. All will be towed to place of
storage which you designate.
failure to protect the attached property does not benefit the appellants and insulate them from
the consequences of their initial tort. In an earlier case, Peterson v. Wiesner, 62 Nev. 184, 146
P.2d 789 (1944), this court in holding consequential damages flowing from a wrongful
attachment said: Granting, however, that the attachment proceedings were void, this does
not avail appellant. Though void, they were in fact instituted by appellant who, through them,
caused the Wiesners to be dispossessed of their property. . . . See also: NRS 31.030,
McIntosh v. Knox, supra.
[Headnote 10]
The appellants also contend that the respondent failed to take advantage of NRS 31.200
and related statutory provisions in his effort to have all or part of his property released from
attachment, and as a consequence he should have been precluded from recovering damages
for abuse of process. Although NRS 31.200 provides an avenue for relief from an excessive
levy, it is not an exclusive remedy and action pursuant to that statute is not a condition
precedent to an action for malicious prosecution, wrongful attachment or abuse of process.
The trial judge concluded that the acts of the appellants amounted to malice and he
assessed punitive damages against them. NRS 42.010
2
provides that punitive damages are
recoverable where the defendant has been guilty of oppression, fraud or malice expressed or
implied. That statute was first enacted in the State of Nevada in 1965 and is verbatim with
California Civil Code, Sec. 3294 which was first enacted in 1872 and has not been amended
since 1905. The cases decided in that jurisdiction have held that the malice contemplated by
that section is malice in fact and that the phrase express or implied has reference only to the
evidence by which malice is established. Davis v. Hearst, 116 P. 530, 538 (Cal. 1911);
Wolfsen v. Hathaway, 198 P.2d 1 (Cal. 1948); Sturges v. Charles L. Harney, Inc., 331 P.2d
1072 (Cal.App. 1958).
The applicable principles, as stated in 14 Cal.Jur.2d, Damages, 176 are: An award of
exemplary damages, in an action for damages for injuries inflicted by the defendant's
malicious act, can be made only if the plaintiff can show that malice in fact, as distinguished
from malice in law, existed with respect to the defendant's act. The distinction between
malice in fact and malice in law is substantial.
____________________

2
NRS 42.010: In an action for the breach of an obligation not arising from contract, where the defendant
has been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the actual
damages, may recover damages for the sake of example and by way of punishing the defendant.
in fact and malice in law is substantial. Malice in fact, or actual malice, denotes ill will on the
part of the defendant, or his desire to do harm for the mere satisfaction of doing it. Malice in
law, on the other hand, is merely a legal fiction; it is that form of malice which the law
presumes, either conclusively or disputably, to exist on the production of certain designated
evidence. Malice in fact cannot be presumed; its existence must be found as a fact by the jury,
although it may be proved either by direct evidence of declarations, or by an inference drawn
from the acts or conduct of the defendant. While the element of malice which is essential to a
recovery of exemplary, or punitive, damages is sometimes called express malice,' actual
malice,' real malice', or true malice', it is always, in the last analysis, malice of only one
kindthe malice of evil motive.
[Headnotes 11, 12]
Malice in fact must be established by the evidence if it is the ground relied upon to support
an award of punitive damages. Gombos v. Ashe, 322 P.2d 933 (Cal.App. 1958). Here it is
asserted by the appellants that the award of punitive damages was improper because no actual
malice was shown as required by NRS 42.010.
[Headnote 13]
Malice in fact, sufficient to support an award of damages within the scope of NRS 42.010,
may be established by a showing that the appellants' wrongful conduct was willful,
intentional and done in reckless disregard of its possible results. Toole v. Richardson-Merrell
Inc., 60 Cal.Rptr. 398 (Cal.App. 1967). The trial court found that the appellants' conduct was
malicious.
There is evidence that the attachment was far in excess of that required and was made with
the intent of pressuring payment of the alleged debt. Furthermore, the appellants knew that
the attachment of all of respondent's equipment would have a devastating effect upon his
business. This conduct provided the requisite malice in fact and warranted the trial court's
granting punitive damages to the respondent. Giddings v. Freedley, 128 F. 355 (Cir. 2, 1904).
Affirmed.
____________
88 Nev. 611, 611 (1972) Egan v. Sheriff
JAMIE EGAN and BONITA EGAN Appellants, v. SHERIFF,
No. 6970
November 17, 1972 503 P.2d 16
The Supreme Court, Zenoff, C. J., held that although state obtained a continuance at a
scheduled preliminary hearing in justice court because of absence of their expert witness, a
chemist, and although expert testimony was not essential to establishment of probable cause
in respect to sale of marijuana, there was no basis for concluding that affidavit in support of
motion to continue was false nor that state became obligated to produce expert testimony
before grand jury to establish probable cause once it used absence of expert to gain
continuance in justice court, and probable cause for bringing of indictment was established,
where testimony of undercover agent before grand jury was sufficient to establish that
petitioner had either directly, or by necessary implication, represented that substance he was
selling was marijuana; however, mere physical presence of other petitioner during time
undercover agent made arrangements to purchase marijuana and statement of other petitioner
as to price a baggie of marijuana would be may well have subjected her to criminal charges
but was insufficient to establish probable cause that she had made a sale of marijuana and
indictment brought against her charging sale should have been dismissed.
Affirmed as to Jamie Egan.
Reversed as to Bonita Egan.
Peter L. Flangas, of Las Vegas, for Appellants.
Robert List, Attorney General, Carson City, Roy A. Woofter, District Attorney, and
Non-expert testimony may be sufficient to establish probable cause for return of an indictment in grand
jury proceedings.
Standard of probable cause is satisfied if person against whom an indictment charging sale of marijuana
is sought either directly or by necessary implication, represents that substance he is selling is marijuana.
NRS 453.030, 453.210, subd. 2.
3. Criminal Law; Indictment and Information.
Although state may use an expert to establish probable cause at a preliminary hearing or before grand
jury, it is not mandatory that it do so if other testimony meets required standard.
Although state obtained a continuance at a scheduled preliminary hearing in justice court because of
absence of their expert witness, a chemist, and although expert testimony was not essential to establishment
of probable cause in respect to sale of marijuana, there was no basis for concluding that affidavit in support
of motion to continue was false nor that state became obligated to produce expert testimony before grand
jury to establish probable cause once it used absence of expert to gain continuance in justice court, and
probable cause for bringing of indictment was established, where testimony of undercover agent before
grand jury was sufficient to establish that petitioner had either directly, or by necessary implication,
represented that substance he was selling was marijuana. NRS 453.030, 453.210, subd. 2.
Mere physical presence of petitioner's wife during time undercover agent made arrangements with
defendant to purchase marijuana and her statement as to price a baggie of marijuana would be may well
have subjected her to criminal charges but was insufficient to establish probable cause that she had made a
sale of marijuana and indictment brought against her charging sale should have been dismissed. NRS
453.030, 453.210, subd. 2.
The legislature has full and exclusive authority in all matters of legislation so long as it does not
transgress the bounds of some constitutional limitation.
7. Criminal Law.
The power to define crimes and penalties lies exclusively in the legislature.
8. Constitutional Law; Drugs and Narcotics.
Provision of former statute classifying marijuana as a narcotic was neither arbitrary nor violative of equal
protection. NRS 453.011 et seq., 453.020, subd. 2, 453.321; U.S.C.A.Const. Amend. 14.
9. Criminal Law.
Although statutes under which petitioner was charged with sale of marijuana were only effective until
January 1, 1972, grand jury indictment was not invalid by reason of fact that it was not returned until
February 17, 1972, where statute enacted to replace former statutes specifically provided that prosecution
for any violation of law occurring prior to effective date of newly enacted statute was not affected or
abated. NRS 453.030, 453.210, subd. 2.
OPINION
An indictment was returned by the Clark County Grand Jury charging appellants with
selling marijuana in violation of NRS 453.030 and 453.210{2).
of NRS 453.030 and 453.210(2). In this appeal from the denial of a pre-trial writ of habeas
corpus they challenge (1) the sufficiency of the evidence to establish probable cause, (2) the
constitutionality of the statute and (3) contend the statute under which they are charged was
repealed by Stats. of Nev. 1971, ch. 667. [NRS 453.011 et seq.]
The grand jury heard the testimony of only one witness, John Adamo, an undercover agent
for the Clark County Sheriff's office. He testified that on September 22, 1971, he met with
appellants and arrangements were made with Jamie Egan to purchase marijuana. While
Adamo and Jamie Egan were haggling over the price Bonita Egan stated the price would be
$20.00. A rendezvous was scheduled in the parking area of a shopping center. After a brief
period the Egans arrived at the parking lot. Bonita went into the grocery store and Jamie
entered the Adamo car where he exchanged what he represented to be a baggie of marijuana
for $20.00.
[Headnotes 1, 2]
1. We have previously held similar non-expert testimony sufficient to establish probable
cause in grand jury proceedings. The standard of probable cause is satisfied if the person
against whom an indictment is sought either directly, or by necessary implication, represents
that the substance he is selling is marijuana. Glosen v. Sheriff, 85 Nev. 145, 148, 451 P.2d
841, 842 (1969). [Emphasis added.] We have restated this rule in DuFrane v. Sheriff, 88 Nev.
52, 495 P.2d 611 (1972) and Zampanti v. Sheriff, 86 Nev. 651, 473 P.2d 386 (1970).
[Headnotes 3, 4]
Appellants concede Glosen is the law in this state but contend that it should not apply to
them because of the following circumstances. Prior to the indictment appellants had been
charged with the same offense in the justice court.
1
At a scheduled preliminary hearing the
state obtained a continuance because of the absence of their expert witness, a chemist.
Appellants suggest that since expert testimony was not essential that the affidavit in support
of the motion to continue was false and since the state used the absence of the expert to gain
the continuance in justice court they became obligated to produce expert testimony before the
grand jury, to establish probable cause. This is simply not the law. Although the state may use
an expert to establish probable cause at a preliminary hearing or before the grand jury, it is
not mandatory that it does so if other testimony meets the standard we required in Glosen.
____________________

1
The justice court proceedings were subsequently dismissed.
does so if other testimony meets the standard we required in Glosen. Adamo's testimony met
that test as to Jamie Egan.
[Headnote 5]
The mere physical presence of Bonita Egan during the negotiations and her statement of
the price of a baggie may well subject her to criminal charges; however, such participation is
insufficient to establish probable cause that she made a sale. The charge against her should
have been dismissed in the writ proceedings below. Cf. Tigner v. State, 88 Nev. 280, 496
P.2d 159 (1972).
[Headnotes 6-8]
2. The Uniform Narcotic Drug Act, Stats. of Nev. 1937, ch. 23, (NRS 453.020(2))
classified marijuana as a narcotic.
2
Appellants argue that recent scientific knowledge proves
that marijuana is not a narcotic and complain that such classification, with its attendant
punishment and sentencing provisions is arbitrary and deprives them of equal protection in
violation of their Fourteenth Amendment rights. We reject this contention.
3
The legislature
has full and exclusive authority in all matters of legislation so long as it does not transgress
the bounds of some constitutional limitation. McCormick v. District Court, 67 Nev. 318, 218
P.2d 939 (1950). The power to define crimes and penalties lies exclusively in the
legislature. Lapinski v. State, 84 Nev. 611, 613, 446 P.2d 645, 646 (1968). The inclusion of
marijuana in the statutory definition of narcotic' in a class with heroin and other physically
addicting drugs is not an unreasonable and arbitrary classification violative of due process
and equal protection of the law. Reyna v. State, 434 S.W.2d 362, 366, (Tex.Crim. App.
1968) quoted with approval in Hunter v. State, 481 S.W.2d 806 (Tex.Crim.App. 1972).
[Headnote 9]
3. Appellants' final contention is that since the grand jury indictment was not returned
until February 17, 1972, and NRS 453.030 and 453.210{2) were only effective until
January 1, 1972, that the statute was repealed and they cannot be charged under the old
law.
____________________

2
The Uniform Controlled Substances Act, Stats. of Nev. 1971, ch. 667, p. 1999 et seq., supplanted the
Uniform Narcotic Drug Act, effective January 1, 1972. Under the new act (NRS 453.011 et seq.) marijuana is no
longer classified as a narcotic but marijuana offenses continue to be felonies. NRS 453.321.

3
We are aware of recent contrary decisions in People v. Sinclair, 194 N.W.2d 878 (Mich. 1972) and People
v. McCabe, 275 N.E.2d 407 (Ill. 1971) which held the particular statutory scheme of those two states
unconstitutional. Before enunciating the effect of such authorities, and the validity of such arguments, we prefer
to wait until we are favored with briefs marshaling them in relation to the facts of a given case. Carson v.
Sheriff, 87 Nev. 357, 360, 487 P.2d 334, 336 (1971).
453.030 and 453.210(2) were only effective until January 1, 1972, that the statute was
repealed and they cannot be charged under the old law. The argument is without merit. Stats.
of Nev. 1971, ch. 667, 66 specifically provided that [p]rosecution for any violation of law
occurring prior to the effective date of this act is not affected or abated by this chapter. NRS
453.030 and 453.210(2) were fully viable and applicable to the offense charged.
Affirmed as to Jamie Egan.
Reversed as to Bonita Egan.
____________
88 Nev. 615, 615 (1972) Trelease v. State ex. rel. Bullock
ARTHUR R. TRELEASE, City Manager of the City of Las Vegas, Nevada;
N. D. PETE WITCHER, Chief of Police of the City of Las Vegas, Nevada;
J. R. McPHERSON, Personnel Director of the City of Las Vegas, Nevada;
DON ASHWORTH, JOHN MONTGOMERY, ROBERT ROBINSON, AMOS
KNIGHTEN and MELVIN WOLZINGER, Members of the Civil Service Board of
the City of
Las Vegas, Nevada, Appellants, v. THE STATE OF NEVADA ex rel.
RUSSELL F. BULLOCK, Respondent.
No. 6748
November 17, 1972 503 P.2d 1
Appeal from judgment of the Eighth Judicial District Court, Clark County, granting relief
sought by petition for writ of mandamus; Joseph S. Pavlikowski, Judge.
Petition for writ of mandamus contending that investigation and subsequent discharge of
police officer were wrongful pursuant to city ordinances. The district court granted the writ of
mandamus, and appeal was taken. The Supreme Court, Mowbray, J., held that emergency
ordinance providing limited procedure for taking disciplinary action against city employee
when a victim has filed a complaint in accordance with procedures prescribed therein was not
exclusive procedure to be followed in investigation of all citizens' complaints and was not
available to complaining citizens or city police department in case where neither victim minor
nor his parents made complaint or filed report concerning the alleged incident and city civil
service rules dealing with separate matter of internal investigation, control and discipline
of city employees remained in effect.
civil service rules dealing with separate matter of internal investigation, control and discipline
of city employees remained in effect.
Reversed.
[Rehearing denied January 11, 1973]
Earl P. Gripentrog, City Attorney, and R. Ian Ross, Deputy City Attorney, Las Vegas, for
Appellants.
Harry E. Claiborne, James J. Brown and Annette Quintana, of Las Vegas, for Respondent.
Emergency ordinance providing limited procedure for taking disciplinary action against city employee
when a victim has filed a complaint in accordance with procedures prescribed therein was not exclusive
procedure to be followed in investigation of all citizens' complaints and was not available to complaining
citizens or city police department in case where neither victim minor nor his parents made complaint or
filed report concerning the alleged incident and city civil service rules dealing with separate matter of
internal investigation, control and discipline of city employees remained in effect.
2. Mandamus; Municipal Corporations.
Determination terminating police officer made pursuant to civil service rules was appealable to Civil
Service Board and officer's appeal thereto constituted a plain, speedy and adequate remedy at law which he
should have pursued and only in absence of such a remedy would issuance of writ of mandamus be
permissible. NRS 34.160.
OPINION
On November 7, 1970, Respondent Russell F. Bullock, a Las Vegas police officer, in the
company of a fellow officer, stopped and arrested two minors on a motorcycle. During the
arrest, Bullock made an allegedly unprovoked attack on one of the youths. This action was
witnessed by concerned citizens, who thereafter informally notified the Las Vegas Police
Department. An investigation based on the information received from these citizens was
initiated and conducted by the department pursuant to Sections 510.2(h) and (i)
1
and 970
2
of the Civil Service Rules and Regulations of the City of Las Vegas.
____________________

1
Section 510.2, in relevant part, of Civil Service Rules, City of Las Vegas, Nevada:
510.2 The following shall be grounds for disciplinary action as indicated in rules 520 and 530:
. . .
(h) Cause' is defined as follows: Some good reason which is personal to the individual and which the law
and sound public opinion
Service Rules and Regulations of the City of Las Vegas. As a result of this investigation, and
by request of the Chief of Police, the City Manager of Las Vegas terminated Bullock's
employment. No complaint was made nor report filed by either the victim or his parents.
After receiving notice of his termination, Bullock filed a timely appeal with the Civil
Service Board. Prior to the date set for his hearing, Bullock petitioned the district court for a
writ of mandamus, contending the investigation and subsequent discharge were wrongful
pursuant to the city ordinances. The district court granted the writ of mandamus on the
ground that the investigation procedure had not complied with Emergency Ordinance No.
1448.
3
The present appeal is from that ruling.
The issue before this court is whether Emergency Ordinance No. 1448 establishes the
exclusive procedure for investigating citizens' complaints against city employees.
____________________
will recognize as a good reason for disciplinary action. The following grounds are cause within the meaning of
these rules:
Incompetency,
Inefficiency,
Neglect of duties,
Unexplained absence from duty,
Malfeasance, misfeasance or misconduct in office,
Conduct unbecoming an employee,
Insubordination, and
Acts evidencing moral turpitude.
(i) The term misconduct' shall mean not only any improper action by an employee in his official capacity,
but also any conduct by an employee unconnected with his official duties, tending to bring the City into public
discredit or which tends to affect the employee's ability to perform his duties efficiently, or any improper use or
attempt to make use of his position as an official for his personal advantage. (See rule 970 also)

2
Section 970, Civil Service rules, City of Las Vegas, Nevada
970MISCONDUCT.
An employee's appointment may be terminated by dismissal for cause' or misconduct' in accordance
with rules 510.2, 510.3 or 510.4 of these rules. Termination under this rule shall not require the giving of
any notice.

3
EMERGENCY ORDINANCE NO. 1448, CITY OF LAS VEGAS, NEVADA, in relevant part:
NOW, THEREFORE, THE BOARD OF COMMISSIONERS OF THE CITY OF LAS VEGAS DOES
ORDAIN AS FOLLOWS:
SECTION 1. Title 1 of the Municipal Code of the City of Las Vegas, Nevada, 1960 Edition, is
hereby amended by adding thereto a new chapter, designated Chapter 20, to read as follows:
1-20-1: Any citizen who believes himself to have been the victim of any violation of his rights or of any
violation of duty by any member of any department of the City may make a
We need not proceed further than the ordinance in question to find the answer. Prior to the
enactment of this emergency ordinance, City Ordinances Nos. 1017, 1142, and 1239 provided
the means by which citizens' complaints were processed. These ordinances were expressly
repealed and superseded by the enactment of Emergency Ordinance No. 1448 on February 20,
1970. With the adoption of the emergency ordinance, the City Commissioners of Las Vegas
created an additional method by which certain citizens could seek a more direct investigation
and effective resolution of their complaints against city employees. The ordinance clearly
indicates that it was not the Commission's intention to expressly or impliedly establish
Emergency Ordinance No. 1448 as the exclusive procedure to be following in the
investigation of all citizens' complaints. The statute is plain and unambiguous and needs no
construction or interpretation.
Neither the victim minor nor his parents made a complaint or filed a report concerning the
alleged incident. Emergency Ordinance No. 1448 provides in part that:
Any citizen who believes himself to have been the victim of any violation of his rights
or of any violation of duty by any member of any department of the City may make a
complaint, in writing and under oath, to the City Attorney within one month.
(Emphasis added.)
[Headnote 1]
This procedure was put into effect to insure the victim of an employee's misconduct an
effective vehicle for the issuance of complaints. Contrary to Bullock's contentions, this
procedure was not available to the complaining citizens or to the Las Vegas Police
Department in the present case. Emergency Ordinance No. 1448 is a limited procedure for
taking disciplinary action against a city employee when a victim has filed a complaint in
accordance with the procedures prescribed therein.
____________________
complaint, in writing and under oath, to the City Attorney within one month.
1-20-2: If the complaining witness is a minor or mentally incompetent, such complaint shall not be
accepted unless filed on his behalf and under the oath of the father, mother or legal guardian of the
complainant.
1-20-3: Upon the filing of a complaint, signed and verified in accordance with Section 1 or Section 2 of
this Chapter, the City Attorney may make such investigation of the complaint as he sees fit, issue
subpoenas, and may require the complainant to appear in person at any investigation conducted by
him. Within thirty (30) days after the filing of the complaint the City Attorney shall make his
recommendations to the Board of Commissioners concerning the same.
a complaint in accordance with the procedures prescribed therein.
Bullock's employment was terminated pursuant to City of Las Vegas Civil Service Rules
510.2(h), 510.2(i), and 970, supra. These Rules were operative at all times before, during,
and after the enactment of Emergency Ordinance No. 1448. There is no reason to believe that
an implied or constructive repeal of these sections was intended by the Emergency Ordinance,
since the Rules deal with the separate matter of internal investigation, control, and discipline
of city employees. See State v. Scott, 52 Nev. 232, 286 P. 119 (1930). Although Section 4 of
the Emergency Ordinance repeals [a]ll ordinances or parts of ordinances, sections,
subsections, phrases, clauses or paragraphs. . . in conflict herewith . . ., the aforementioned
Rules are not in conflict and accordingly remain in effect. To rule otherwise would permit an
employee of the City to go undisciplined for wrongful conduct unless a victim of such acts,
providing there be a victim, files a formal complaint, under oath, with the City Attorney. If
the City Manager or a department head has evidence sufficient to institute an investigation, he
may not be precluded from doing so because of the absence of an official complaint. The
procedures for dismissing a city employee under Civil Service Rules 510.2(h), 510.2(i), and
970 were properly available in the present case, and therefore the district court erred in ruling
that the City was precluded from acting pursuant to them.
[Headnote 2]
Since the Civil Service Rules are applicable to the present proceedings, a determination
made pursuant to these rules is appealable to the Civil Service Board. Although Bullock filed
a proper appeal, he abandoned the appeal and instituted these proceedings. Bullock's right to
appeal to the Civil Service Board constituted a plain, speedy, and adequate remedy at law
which he should have pursued. Only in the absence of such a remedy is the issuance of a writ
of mandamus permissible. See NRS 34.160; County of Washoe v. City of Reno, 77 Nev. 152,
360 P.2d 602 (1961).
The order granting the writ of mandamus is reversed, and the case is remanded to the
district court with instructions to dismiss the petition. Respondent Bullock may pursue the
proper administrative remedies.
____________
88 Nev. 620, 620 (1972) Bartholomew v. Sheriff
JOHN BARTHOLOMEW, Appellant, v. SHERIFF,
No. 6953
November 17, 1972 503 P.2d 20
The Supreme Court held that, although defendant had been arrested on May 7, where that
arrest had been for pandering and arrest on September 24 for narcotics offense was made on
same date that complaint therefor was issued, there was no pre-arrest delay on narcotics
charge such as would infringe constitutional rights.
Affirmed.
James L. Buchanan II, of Las Vegas, for Appellant.
Criminal Law.
Although defendant had been arrested on May 7, where that arrest had been for pandering and arrest on
September 24 for narcotics offense was made on same date that complaint therefor was issued, there was
no pre-arrest delay on narcotics charge such as would infringe defendant's constitutional rights. NRS
453.030; U.S.C.A.Const. Amend. 6.
OPINION
Per Curiam:
A criminal complaint, issued September 24, 1971, charged appellant with selling narcotics
on April 24, 1971, in violation of NRS 453.030. Ordered to stand trial after a preliminary
hearing he sought habeas relief in the district court, contending his Sixth Amendment rights
were violated by the state's failure, without good cause, to file the charges within a reasonable
time.
Appealing from a denial of the relief his brief asserts that since he was arrested May 7,
1971, the four and one-half month delay in bringing the narcotic charge constitutes inherent
prejudice of constitutional magnitude. The contention is without merit and is not supported
by the record.
88 Nev. 620, 621 (1972) Bartholomew v. Sheriff
The May 7, 1971, arrest was for pandering. The arrest for the narcotic offense was made
on the same date the complaint was issued, September 24, 1971. The pre-arrest delay on the
instant charge does not infringe appellant's constitutional rights. United States v. Marion, 404
U.S. 307 (1971), DuFrane v. Sheriff, 88 Nev. 52, 495 P.2d 611 (1972).
Affirmed.
____________
88 Nev. 621, 621 (1972) Street v. State
RAYMOND STREET, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 6683
November 29, 1972 503 P.2d 19
Appeal from judgment of conviction and sentence of the First Judicial District Court,
Churchill County; Richard L. Waters, Jr., Judge.
Affirmed.
Jack Christensen, of Carson City, for Appellant.
Robert List, Attorney General, Carson City; and Dennis E. Evans, District Attorney,
Churchill County, for Respondent.
OPINION
Per Curiam:
Convicted of burglary, appellant assigns as error occurrences during his trial, to which his
counsel made no objection. Counsel's silence was quite consistent with legitimate trial
strategy; hence, we cannot hold that appellant was denied competent counsel; nor can we hold
that the lower court should have intervened sua sponte, cf. Garner v. State, 78 Nev. 366, 374
P.2d 525 (1962).
Affirmed.
____________
88 Nev. 622, 622 (1972) Davenport v. Warden
JAMES LEE DAVENPORT, Jr., Appellant, v. WARDEN,
No. 6674
November 29, 1972 503 P.2d 841
Appeal from denial of post-conviction relief, Eighth Judicial District Court, Clark County;
William P. Compton, Judge.
The district court denied relief, and petitioner appealed. The Supreme Court held that
examination by trial judge of petitioner, who pleaded guilty, in September, 1968, to assault
with a deadly weapon with intent to do bodily harm, sufficiently established that the plea was
voluntarily and understandingly entered.
Affirmed.
Criminal Law.
Examination by trial judge of petitioner, who pleaded guilty, in September, 1968, to assault with a deadly
weapon with intent to do bodily harm, sufficiently established that the plea was voluntarily and
understandingly entered. NRS 174.035, subd. 1, 200.400.
OPINION
Per Curiam:
Appellant entered a plea of guilty to assault with a deadly weapon with intent to do bodily
harm in violation of NRS 200.400 on September 30, 1968, and on November 4, 1968, was
sentenced to serve six (6) years in the state penitentiary. Having been denied post-conviction
relief his sole contention on this appeal is that the trial court erred in accepting his guilty plea
without making the inquiry into the voluntariness of the plea required by NRS 174.035(1).
While recognizing the constitutional doctrine enunciated in Boykin v. Alabama, 395 U.S.
238 (1969) does not apply to him because his was a pre-Boykin sentence and that we have
declined to make Boykin retroactive, Mathis v. Warden, 86 Nev. 439, 471 P.2d 233 (1970),
he nevertheless urges that NRS 174.035{1) should be construed to impose similar
obligations on Nevada courts as Fed.R.Crim.P.
88 Nev. 622, 623 (1972) Davenport v. Warden
NRS 174.035(1) should be construed to impose similar obligations on Nevada courts as
Fed.R.Crim.P. 11 was construed to do so in McCarthy v. United States, 394 U.S. 459 (1969).
We rejected a similar argument in Stocks v. Warden, 86 Nev. 758, 476 P.2d 469 (1970),
where we decided we are free to place our own construction upon the meaning to be given
our statute. 86 Nev. at 762, 476 P.2d at 471. Appellant also contends that he is entitled to
relief under Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970). Higby involved a
post-Boykin guilty plea and is not in point.
Since none of the authorities relied on by appellant are applicable we need only consider if
the requirement of NRS 174.035(1) was satisfied when the trial judge accepted the guilty
plea. In our view, the examination of appellant by the trial judge sufficiently established the
plea was voluntarily and understandingly entered. Cf. Schoultz v. Warden, 88 Nev. 135, 494
P.2d 274 (1972).
____________
88 Nev. 623, 623 (1972) State v. Bunkowski
STATE OF NEVADA, Appellant, v. JULIUS BUNKOWSKI, DAVID LANTRY and
BRUNSWICK DEVELOPMENT CORPORATION, a Nevada Corporation,
Respondents, TROUT UNLIMITED, Amicus Curiae, CARSON WATER
SUBCONSERVANCY DISTRICT, Amicus Curiae.
No. 6799
November 29, 1972 503 P.2d 1231
Appeal from judgment and decree based upon findings of fact, conclusions of law and
decisions of Special Master. First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Declaratory judgment action by property owners to remove alleged cloud on title. The
district court entered judgment and decree for plaintiffs, based on findings of fact,
conclusions of law, and decisions of special master. The State appealed. The Supreme Court,
Zenoff, C. J., held that Carson River which had been used to float logs and which was ideally
located geographically for such use was navigable under federal standard for determining
title to river bed.
Reversed.
Robert List, Attorney General, Michael L. Melner, Deputy Attorney General, and Arthur J.
Bayer, Jr., Deputy Attorney General, Carson City, for Appellant.
Laxalt, Berry & Allison and Stokes & Eck, Ltd., of Carson City, for Respondents.
Breen, Young, Whitehead & Hoy, of Reno, and Reno and Judd, of Denver, Colorado, for
Amicus Curiae Trout Unlimited.
Guild, Hagen & Clark, of Reno, for Amicus Curiae Carson Water.
1. Navigable Waters.
In determining title ownership of lands underlying waters within State, courts must apply uniform federal
test of navigability.
Title to bed of Carson River passed to State when State was admitted into Union, if river was navigable,
and if river bed had not already been disposed of by United States.
Carson River which had been used to float logs and which was ideally located geographically for such
use was navigable under federal standard for determining title to river bed.
State courts have jurisdiction to apply federal navigability test in determining title to river bed.
Federal patents to lands traversed by navigable river, granted before Nevada became State, did not
convey title to river bed, even though there was no express reservation of title thereto; title to such lands
passed to State upon admission to statehood.
Federal patents granted after Nevada was admitted to statehood did not convey bed of navigable river;
after statehood federal governments did not have control over river bed.
State patents to lands traversed by navigable river did not convey title to river bed, although patents were
without reservation.
Fact that Carson River was not included in statutory list of navigable waters was not determinative of
whether river was navigable. NRS 537.010 et seq.
9. Estoppel.
Failure of State to assert its claim of ownership of river bed at earlier time did not estop State from
asserting claim.
OPINION
This is a land title action brought to remove the State's claim of ownership from certain
described property owned by respondents.
Julius Bunkowski and David Lantry are the owners of 946 acres of land in Carson City and
Lyon County, of which, in 40 acre parcels, 840 acres are traversed by the Carson River. Seven
hundred seventy-seven acres were sold to the Brunswick Development Corporation for
development and retrieval of mineralization existing in and about the river bed. The land
owned by respondents devolve from ten federal and state patents. Three federal patents were
issued prior to Nevada's statehood, the remaining five federal and two state patents were
issued subsequent to statehood.
The Carson River is a natural water course having two branches or forks through which
water flows every month of the year. The East Fork of the Carson and the tributaries thereof
rise from rains, melting snows and springs in the Sierra Nevada Mountains near the town of
Markleeville, Alpine County, California, whence they flow in a generally northerly direction
into Douglas County, Nevada, through Carson Valley to a point in Carson Valley near
Walley's Hot Springs where they join with the waters of the West Fork of the Carson River
forming the main stream known as the Carson River. The West Fork and its tributaries
similarly originate in Alpine County, California, in the vicinity of Hope Valley, whence the
flow in a general northerly direction through Woodfords, California, into Douglas County and
join with the East Fork of the Carson River. From Walley's Hot Springs the Carson flows in a
general northeasterly direction through Douglas, Carson City, Storey and Churchill Counties,
Nevada, in which latter county in the natural state the waters of the Carson flow into the
Carson Sink and disappear. The entire water course exceeds 100 miles in length.
The lands in question owned by the respondents and traversed by the Carson lie within the
Brunswick Canyon area northeast of Carson City and are adjacent to a three to four mile
stretch of the river.
northeast of Carson City and are adjacent to a three to four mile stretch of the river.
The Attorney General of Nevada, on January 6, 1970, and the Nevada Legislative Counsel,
on January 13, 1970, issued opinions that the Carson River is a navigable stream and that the
State owns the river bottom thereof. Shortly therafter the respondents commenced this
declaratory relief action in the lower court seeking to clear the alleged cloud from their title.
After that the parties stipulated, That as an historical fact, the Carson River was at one time
used for the floating of logs and timber, and, That the said Carson River is not now nor has
it ever been used by cargo or passenger carrying vessels.
All the evidence was heard before a Special Master. Pertinent to the issue before us the
evidence showed that the patents from which respondents' title originates made no exception,
reservation or exclusion for the portion of the channel lying within the bed of the Carson
River. The lands in question have been carried on the tax rolls of Carson City
1
and Lyon
County without exclusion of the river bed and taxes have been paid on the total land within
the patent calls.
As to the physical condition of the river and its uses the evidence in the main was confined
to the early history of the Carson near the time when Nevada became a state (October 31,
1864). Although considerable impediments to commercial use of the river existed, such as
willows, sand bars and lack of water, the early history revealed that the river was used by
loggers to float logs and timber from the headwaters of the Carson in Alpine County,
California, to saw mills near Virginia City. The first log drive occurred in the spring of 1861
and was in the nature of an experiment. Thereafter a group of men procured a franchise from
the Legislature of the Territory of Nevada to improve the channel of the Carson River and to
float logs down the river. Laws of Nevada Territory 100-01 (1861). Subsequently great
quantities of saw logs and cordwood were brought down the Carson to fuel and supply the
well-known mining operation and bonanza at Virginia City, Nevada. As described by one
witness, the log drives were accomplished in the following manner: They had to go up into
the mountains [in Alpine County] and cut the logs and either drag them or float them on the
small streams until they reached the main stream. Then they were floated down the [Carson]
river to the entrance of the Carson Valley at Young's Crossing and there they had a [chain]
boom and they held the logs in great numbers at that point until. . . conditions would be
right in the river so that they could float them down."
____________________

1
Carson City now comprises what was once Ormsby County.
logs in great numbers at that point until. . . conditions would be right in the river so that they
could float them down.
The log drives continued from the early 1860's for thirty-five years when the loggers found
it too expensive to bring the large saw logs from the mountain slopes to the streams forcing
them to move to other areas. The floating down of cordwood continued on for a number of
years.
Except for the log drives and some dredging for gravel and various aggregates the
evidence showed that there has been no other type of commercial activity in the sense of
water trade on the Carson River.
The Master, after reviewing the evidence, proceeded to make his finding, viz: That said
Carson River is not in fact or in law now a navigable stream, nor was it in fact or in law a
navigable stream on the 31st day of October, 1864, such as to vest title to the stream bed or
any portion thereof in the State of Nevada. The lower court adopted the conclusion of the
Master and entered its judgment and decree, from which judgment this appeal has been taken.
The principal question in this appeal is whether the State has a valid claim to the bed of
the Carson River as it flows across respondents' land. Other subsidiary issues must also be
discussed, but first we will set out the appropriate test to resolve the primary issue.
[Headnote 1]
1. In determining the title ownership of lands underlying waters within a state the courts
must apply the uniform federal test of navigability, although various state tests of
navigability, to be discussed below, exist. The United States Supreme Court stated in United
States v. Holt Bank, 270 U.S. 49, 54-55 (1926):
It is settled law in this country that lands underlying navigable waters within a State
belong to the State in its sovereign capacity and may be used and disposed of as it may elect,
subject to the paramount power of Congress to control such waters for the purposes of
navigation in commerce among the States and with foreign nations, and subject to the
qualification that where the United States, after acquiring the territory and before the creation
of the State, has granted rights in such lands by way of performing international obligations,
or effecting the use or improvement of the lands for the purposes of commerce among the
States and with foreign nations, or carrying out other public purposes appropriate to the
objects for which the territory was held, such rights are not cut off by the subsequent creation
of the State, but remain unimpaired, and the rights which otherwise would pass to the
State in virtue of its admission into the Union are restricted or qualified accordingly.
creation of the State, but remain unimpaired, and the rights which otherwise would pass to the
State in virtue of its admission into the Union are restricted or qualified accordingly.
[Citations.] But, as was pointed out in Shively v. Bowlby, [152 U.S. 1,] 49, 57-58, the United
States early adopted and constantly has adhered to the policy of regarding lands under
navigable waters in acquired territory, while under its sole dominion, as held for the ultimate
benefit of future States, and so has refrained from making any disposal thereof, save in
exceptional instances when impelled to particular disposals by some international duty or
public exigency. It follows from this that disposals by the United States during the territorial
period are not lightly to be inferred, and should not be regarded as intended unless the
intention was definitely declared or otherwise made very plain. See Brewer-Elliott Oil &
Gas Co. v. United States, 260 U.S. 77 (1922); United States v. Utah, 283 U.S. 64 (1931);
United States v. Oregon, 295 U.S. 1 (1935); State Engineer v. Cowles Bros., Inc., 86 Nev.
872, 478 P.2d 159 (1970); Utah v. United States, 403 U.S. 9 (1971).
[Headnote 2]
The State of Nevada was admitted into the Union on October 31, 1864 (13 Stat. 30,
approved March 21, 1864), and under the constitutional principle of equality among the
several states, the title to the bed of the Carson River then passed to the State, if the river was
navigable, and if the bed had not already been disposed of by the United States. United States
v. Holt Bank, supra, at 55.
Most importantly and basic to the issue of title to the Carson River bed, the following
statement of the court in United States v. Holt Bank, supra, at 55-56, must be fully
appreciated:
Navigability, when asserted as the basis of a right arising under the Constitution of the
United States, is necessarily a question of federal law to be determined according to the
general rule recognized and applied in the federal courts. Brewer-Elliott Oil & Gas Co. v.
United States, supra, p. 87. To treat the question as turning on the varying local rules would
give the Constitution a diversified operation where uniformity was intended.
To restate it, so that all states when admitted to the Union have equal standing a uniform
federal test to title of watercourse beds must be maintained. True it is that many states have
adopted varying and less stringent tests than the federal test in order to establish the right of
public use in certain watercourses. For example, in California it has been held in People v.
Mack, 97 Cal.Rptr. 448, 454 (Cal.App. 1971), that, The streams of California are a vital
recreational resource of the state.
streams of California are a vital recreational resource of the state. The modern determinations
of the California courts, as well as those of several of the states, as to the test of navigability
can well be restated as follows: Members of the public have the right to navigate and to
exercise the incidents of navigation in a lawful manner at any point below high water mark on
waters of this state which are capable of being navigated by oar or motor propelled small
craft. See also State v. Bollenbach, 63 N.W.2d 278, 287 (Minn. 1954). Reference to People
v. Mack, supra, which reviews a substantial number of state navigability cases, illustrates
most forcefully that the state courts have not striven for uniformity. For this reason, those
state cases are not authority for the determination of state ownership of navigable watercourse
beds. Said determination must be made by reference to the uniform federal navigability for
title test.
That test is stated by the court in United States v. Holt Bank, supra, at 56:
The rule long since approved by this Court in applying the Constitution and laws of the
United States is that streams or lakes which are navigable in fact must be regarded as
navigable in law; that they are navigable in fact when they are used, or are susceptible of
being used, in their natural and ordinary condition, as highways for commerce, over which
trade and travel are or may be conducted in the customary modes of trade and travel on water;
and further that navigability does not depend on the particular mode in which such use is or
may be hadwhether by steamboats, sailing vessels or flatboatsnor on an absence of
occasional difficulties in navigation, but on the fact, if it be a fact, that the stream in its
natural and ordinary condition affords a channel for useful commerce. The Montello, 20
Wall. 430, 439; United States v. Cress, 243 U.S. 316, 323; Economy Light & Power Co. v.
United States, 256 U.S. 113, 121; Oklahoma v. Texas, 258 U.S. 574, 586; Brewer-Elliott Oil
& Gas Co. v. United States, supra, p. 86.
Considering briefly the evidence adduced before the Master, it appears that the log drivers
encountered difficulty in conducting their drives because of the irregular flow and
unchannelized nature of the river in the Carson Valley. Respondents contend that these
impediments to commercial use preclude a holding of navigability. As will be shown, that is
not the case.
In the United States Supreme Court cases which discuss navigability, a distinction must be
made, as suggested in R. Johnson & R. Austin, Jr., Recreation Rights and Titles to Beds on
Western Lakes and Streams, 7 Nat. Res. J. 1, 15 (1967), between "navigability" for land title
and "navigability" for Federal Commerce Power.
between navigability for land title and navigability for Federal Commerce Power.
A. For the Commerce Test, the court held that impediments to commercial use, such as
those noted above, do not destroy navigability. For example, in Economy Light & Power Co.
v. United States, supra, at 122, where the issue concerned a dam to be built on the Desplaines
River in Illinois the court stated: Navigability, in the sense of the law, is not destroyed
because the watercourse is interrupted by occasional natural obstructions or portages; nor
need the navigation be open at all seasons of the year, or at all stages of the water. . .
In The Montello, 20 Wall. [87 U.S.] 430, 441-42 (1874), it was said:
The true test of the navigability of a stream does not depend on the mode by which
commerce is, or may be, conducted, nor the difficulties attending navigation. If this were so,
the public would be deprived of the use of many of the large rivers of the country over which
rafts of lumber of great value are constantly taken to market.
It would be a narrow rule to hold that in this country, unless a river was capable of being
navigated by steam or sail vessel, it could not be treated as a public highway. The capacity of
use by the public for purposes of transportation and commerce affords the true criterion of the
navigability of a river, rather than the extent and manner of that use. If it be capable in its
natural state of being used for purposes of commerce, no matter in what mode the commerce
may be conducted, it is navigable in fact, and becomes in law a public river or highway.
(Emphasis added.)
In another Federal Commerce case, United States v. Appalachian Power Co., 311 U.S. 377
(1940), the court stated in the course of its opinion (at 405-10):
It is obvious that the uses to which the streams may be put vary from the carriage of
ocean liners to the floating out of logs;
2
that the density of traffic varies equally widely from
the busy harbors of the seacoast to the sparsely settled regions of the Western mountains. The
test as to navigability must take these variations into consideration.
. . .
To appraise the evidence of navigability or the natural condition only of the waterway is
erroneous. Its availability for
____________________

2
This court recognized the floating of logs and timber as commerce in Shoemaker v. Hatch, 13 Nev. 261, 267
(1878). See also Nekoosa Edwards Paper Co. v. Railroad Commission, 228 N.W. 144 (Wis. 1929).
navigation must also be considered. Natural and ordinary conditions' refers to volume of
water, the gradient and the regularity of the flow. A waterway, otherwise suitable for
navigation, is not barred from that classification merely because artificial aids must make the
highway suitable for use before commercial navigation may be undertaken.
. . .
In determining the navigable character of the New River it is proper to consider the
feasibility of interstate use after reasonable improvements might be made.
Nor is it necessary for navigability that the use should be continuous. The character of the
region, its products and the difficulties or dangers of the navigation influence the regularity
and extent of the use. Small traffic compared to the available commerce of the region is
sufficient. Even absence of use over long periods of years, because of changed conditions, the
coming of the railroad or improved highways does not affect the navigability of rivers in the
constitutional sense. (Emphasis added.)
Applying the above rules to the facts stated above, it would appear that neither the
impediments to navigation existing in the Carson nor the improvements in aid of navigation
would preclude a finding of navigability under federal commerce power.
B. The Title Test. In addition to the commerce test a further condition to title navigability
was made in United States v. Oregon, supra, at 23, that the watercourse must be
geographically situated so that it may be useful for commerce. See also State v. Bollenbach,
supra, at 289. This condition is met here.
3

[Headnote 3]
Although no Supreme Court case has expressly based its decision of title navigability on
the capacity of a stream to float out logs, the emphasized portions of the quotation from The
Montello and Appalachian Power leads us to believe that in the setting of this case
navigability for title has been established.
____________________

3
In one title case, United States v. Utah, 283 U.S. 64, 84 (1931), the court quieted title in Utah to certain
portions of the beds of the Green, Colorado and San Juan Rivers within the State of Utah, despite assertions that
impediments to commercial use such as logs and debris, ice, floods, rapids, and riffles in certain parts, rapid
velocities with sudden changes in the water level, sand and sediment which combined with the tortuous course of
the rivers, produce a succession of shifting sand bars, shallow depths, and instability of channel, would
preclude a finding of title navigability.
Log driving was the first and apparently only important commercial use of the Carson.
2
The
river was fortuitously and ideally located geographically for this use. The Carson River was
and is navigable.
5

[Headnote 4]
2. Do the state courts have jurisdiction to apply the federal navigability test?
No case has been found which holds that there is exclusive federal jurisdiction to
determine title navigability. The federal question appearing in the cases refers to the
uniform federal test which is not used in the jurisdictional sense, State of South Carolina v.
South Carolina E. & Gas Co., 41 F.Supp. 111 (E.D.S.C. 1941), but, on the contrary, has been
applied by both state and federal courts to determine title to submerged lands. One of the best
state cases applying the federal title test is Sate v. Bollenbach, 63 N.W.2d 278 (Minn. 1954).
For a compilation of state court decisions applying the federal test see Appendix to R.
Johnson & R. Austin, Jr., supra, 7 Nat. Res. J. 1, 52 (1967). Although the Carson is an
interstate watercourse, this action only relates to a portion of it lying solely within this court's
jurisdiction.
3. Next we must consider the effect of the federal and state patents. Respondents claim
title through ten patents; of these, two are state patents issued after statehood, eight are
federal patents of which three were issued prior to statehood.
[Headnote 5]
As to the prestatehood federal patents, it is to be noted that there is no express reservation
of title to the river bed, all described land is granted without reservation. In Wear v. Kansas,
245 U.S. 154 (1917), the patent of the United States under which Wear derived title was a
grant, made before statehood, of land bordering on the Kansas River without restriction,
reservation or expansion. The state supreme court took judicial notice of the navigability of
the river, refused to hear evidence thereon and held that the patent to land on a navigable
stream did not convey the bed of the river.
____________________

4
Reference is made to a booklet entitled, ALONG COMSTOCK TRAILS FEATURING THE CARSON
RIVER MILLS AND THE VIRGINIA & TRUCKEE RAILROAD, by Dave Basso, found in the Carson City
Library, N, F847, C6, B3, c.2. This publication features a series of early Nevada pictures of several quartz mills
along the Carson River built in the 1860's and 1870's. Very evident in the picture is the ample supply of water in
the Carson River.

5
Technically the evidence presented to the Master established that the northern terminus of the log drives was
the Russell Mill at Empire which is upstream from the property in question. We will assume for the purposes of
this decision that the logs would have continued to float downstream if they were not restrained at the mill.
judicial notice of the navigability of the river, refused to hear evidence thereon and held that
the patent to land on a navigable stream did not convey the bed of the river. The United States
by its unrestricted patent was properly taken to have assented to its construction according to
the local law. Further, in Hardin v. Jordan, 140 U.S. 371, 384 (1891), the court stated the
applicable rule as to unrestricted patents in the following manner:
We do not think it necessary to discuss this point further. In our judgment the grants of
the government for lands bounded on streams and other waters, without any reservation or
restriction of terms, are to be construed as to their effect according to the law of the State in
which the lands lie.
Therefore, by application of this rule we are free to construe the unrestricted federal and
state patents by the same criterion. Considering the prestatehood federal patents, the
following statement in United States v. Oregon, supra, at 14, seems appropriate:
Dominion over navigable waters and property in the soil under them are so identified
with the sovereign power of government that a presumption against their separation from
sovereignty must be indulged, in construing either grants by the sovereign of the lands to be
held in private ownership or transfer of sovereignty itself. See Massachusetts v. New York,
271 U.S. 65, 89. For that reason, upon the admission of a State to the Union, the title of the
United States to lands underlying navigable waters within the States passes to it, as incident
to the transfer to the State of local sovereignty, and is subject only to the paramount power of
the United States to control such waters for purposes of navigation in interstate and foreign
commerce.
There is nothing in the record or to our knowledge which would rebut the presumption that
the federal government held the subject lands in trust for the State of Nevada.
[Headnote 6]
After statehood, the river being navigable and the bed thereof owned by the State, the
federal government did not have control over the bed, and it would appear obvious that the
federal patents conveyed none of the submerged lands.
[Headnote 7]
As to the state patents, again, without reservation, it is clear that the State owned the land
to do with as it might. It is settled law in this country that lands underlying navigable waters
within a State belong to the State in its sovereign capacity and may be used and disposed of
as it may elect. . . ."
capacity and may be used and disposed of as it may elect. . . . United States v. Holt Bank,
supra, at 54.
It has been held, in what appears to be a majority of cases, that the states hold title to the
beds of navigable watercourses in trust for the people of their respective states. Hillebrand v.
Knapp, 274 N.W. 821, 822-23, 112 A.L.R. 1104 (S.D. 1937); Annot. Title to beds of natural
lakes and ponds, 112 A.L.R. 1108 (1938); Menzer v. Village of Elkhart Lake, 186 N.W.2d
290 (Wis. 1971); City of Long Beach v. Mansell, 476 P.2d 423 (Cal. 1970); J. Sax, The
Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68
Mich.L.Rev. 473 (1970). Titles to navigable water beds are normally inalienable. Miami
Corporation v. State, 173 S. 315 (La. 1936). In Alameda Conservation Association v. City of
Alameda, 70 Cal.Rptr. 264 (Cal.App. 1968), it was held that while the state owns land under
bays, such lands can be transferred by the state free of trust upon proper legislative
determination, citing People v. California Fish Co., 138 P. 79 (Cal. 1913). See Marks v.
Whitney, 491 P.2d 374 (Cal. 1971). No such express legislative determination has been
revealed here, consequently, the State, as sovereign, did not grant away the public land of the
river bed.
[Headnote 8]
4. Respondents assert in their answering brief that the list of legislative declared navigable
waters in NRS Chapter 537 is exclusive and that since the Carson does not there appear, it is
not navigable. First, as to the question of navigability, this court held in State Engineer v.
Cowles Bros., Inc., 86 Nev. 872, 876 (1970), that the issue of navigability is a judicial
question, the statement in the statutes therefore served no purpose. Accord, People v.
Mack, 97 Cal.Rptr. 448, 453 (Cal. App. 1971). Second, Chapter 537 is not a complete list as
it omits Lake Tahoe which was held navigable in Davis v. United States, 185 F.2d 938,
942-43 (9th Cir. 1950).
[Headnote 9]
5. For not asserting its ownership of the Carson River bed earlier respondents contend that
the State is now estopped to claim title thereto.
The doctrine of estoppel should not be lightly invoked against the state. It will not be
applied against it in its. . . sovereign capacity. Annot., Applicability of doctrine of estoppel
against government and its governmental agencies, 114 A.L.R.2d 344 (1948). In State v.
Hutchins, 105 A. 519, 523 (N.H. 1919), the court held that the public rights in public waters
cannot be alienated or made subject to easements except by legislative action; neither
can the state's right in public waters be prescribed against nor can these rights be
impaired by an estoppel growing out of a mere failure to object to encroachment.
waters cannot be alienated or made subject to easements except by legislative action; neither
can the state's right in public waters be prescribed against nor can these rights be impaired by
an estoppel growing out of a mere failure to object to encroachment. See State v. George
Staffords & Sons, 105 A.2d 569, 573 (N.H. 1954).
The State holds the subject lands in trust for public use. Judgment reversed.
____________
88 Nev. 635, 635 (1972) Welfare Div. v. Washoe Co. Welfare Dep't
WELFARE DIVISION OF THE NEVADA STATE DEPARTMENT OF HEALTH,
WELFARE AND REHABILITATION, Appellant, v. WASHOE COUNTY WELFARE
DEPARTMENT, Respondent.
No. 6806
November 29, 1972 503 P.2d 457
Appeal from a judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
From a judgment of the district court transferring custody of a handicapped minor from the
county welfare department to the Welfare Division of the State Department of Health,
Welfare and Rehabilitation, the Welfare Division appealed. The Supreme Court held that
under a statute authorizing the Welfare Division to provide maintenance and special services
to, inter alia, handicapped children receiving special care, training or education and children
who are placed in custody of the Welfare Division and are placed in foster homes, etc., a
handicapped child who was over eighteen but had not graduated from high school and was
attending a vocational program for the handicapped at a junior college was entitled to
assistance, and the court was thus authorized to transfer his custody from the county welfare
department to the Welfare Division.
Affirmed.
Robert List, Attorney General, and Margie Ann Richards, Deputy Attorney General,
Carson City, for Appellant.
Robert E. Rose, District Attorney, and William L. Hadley, Deputy District Attorney,
Statute authorizing Welfare Division of State Department of Health, Welfare and Rehabilitation to
provide maintenance and special services to, inter alia, handicapped children receiving special care,
training or education is remedial in nature and should be afforded liberal construction to accomplish its
beneficial intent. NRS 432.010 et seq., 432.010, subd. 1.
2. Statutes.
Meaning of words used in statute may be sought by examining context and by considering reason or spirit
of law or the causes which induced legislature to enact it, and entire subject matter and policy of law may
also be involved to aid in its interpretation, and it should always be construed so as to avoid absurd results.
NRS 432.010 et seq.
Under statute authorizing Welfare Division of State Department of Health, welfare and Rehabilitation to
provide maintenance and special services to, inter alia, handicapped children receiving special care,
training or education and children who are placed in custody of the Welfare Division and are placed in
foster homes, etc., handicapped child who was over eighteen but had not graduated from high school and
was attending vocational program for handicapped at junior college was entitled to assistance, and court
was thus authorized to transfer his custody from the county welfare department to the Welfare Division.
NRS 432.010 et seq., 432.010, subd. 1.
OPINION
Per Curiam:
John Daniel King, born August 18, 1953, is handicapped with a congenital birth defect.
After the divorce of his natural parents, he moved to Nevada with his mother and stepfather
from Calaveras County, California. Discord arose between John and his stepfather, and in
November of 1969, his invalid mother gave him permission to return to Calaveras County to
live with relatives.
After living with various relatives he left the home of a paternal uncle in June or July of
1970. On July 27, 1970, he was brought within the protection of the Calaveras Probation
Department because of his lack of a residence, food and adult supervision. Inasmuch as Reno,
Nevada was the residence of his mother, who was his legal guardian, his case was transferred
to the juvenile court of Washoe County, Nevada.
Custody was assumed by the Washoe County Welfare Department and foster care was
arranged for in Calaveras County, California. A custody petition was filed in Washoe County
on September 8, 1970, and an order granting temporary custody was entered and filed on
September 16, 1970.
John attended school in Calaveras County during the school year of 1970-71.
year of 1970-71. At the time of the hearing in the district court on September 18, 1971, he
was pursuing an education plan of the Calaveras County Juvenile Probation Department and
attending a vocational program for the handicapped at Columbia Junior College, Calaveras
County. The schooling costs were paid by an agency of the State of California.
At issue here is the foster care cost of $85.00 per month incurred while John was attending
school. The parties to this appeal could not resolve the custody problem so the respondent
petitioned the district court to transfer custody to the appellant. On September 28, 1971, the
district court obliged and this appeal followed.
1. The appellant acknowledges that the district court had acquired jurisdiction over John
prior to his eighteenth birthday, but contends that the lower court erred in transferring custody
to the State because such transfer was not warranted under either NRS Chapter 432 or under
NRS Chapter 425. We hold that the lower court properly found that John Daniel King
qualified under NRS Chapter 432. Qualification under NRS Chapter 425 need not be
determined.
[Headnote 1]
In delineating the qualifications for receiving aid under NRS Chapter 432, the legislature
amended NRS 432.010(1) to read:
1
Child' means a person less than 18 years of age, or if in
school until graduation from high school. Such legislation is remedial in nature and should
be afforded liberal construction to accomplish its beneficial intent. See, Ex parte Douglas, 53
Nev. 188, 191, 295 P.447 (1931); Ryan v. Manhattan Big Four Mining Co., 38 Nev. 92, 98,
145 P. 907 (1914); Ferro v. Bargo Mining and Milling Co., 37 Nev. 139, 142, 140 P. 527
(1914); Sutherland, Statutory Construction 7201 (3rd ed. 1943); 82 C.J.S. Statutes 388.
[Headnote 2]
The leading rule for the construction of statutes is to ascertain the intention of the
legislature in enacting the statute, and the intent, when ascertained will prevail over the literal
sense. State ex rel. O'Meara v. Ross, 20 Nev. 61, 63, 14 P. 827, 828 (1887); State ex rel.
Huckley v. District Court, 53 Nev. 343, 352, 1 P.2d 105, 106 (1931); Western Pacific R.R. v.
State, 69 Nev. 66, 69, 241 P.2d 846 (1952). The meaning of words used in a statute may be
sought by examining the context and by considering the reason or spirit of the law or the
causes which induced the legislature to enact it.
____________________

1
1966 Stats. of Nev. 1366.
causes which induced the legislature to enact it. The entire subject matter and the policy of
the law may also be involved to aid in its interpretation, and it should always be construed so
as to avoid absurd results. Ex parte Siebenhauer, 14 Nev. 365, 368 (1879); Western Pacific
R.R. v. State, supra at 69.
[Headnote 3]
Although John was over eighteen, he was in school but not yet graduated from high
school. He is entitled to assistance under NRS Chapter 432.
____________
88 Nev. 638, 638 (1972) Ryan v. District Court
JAMES RYAN, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, In and for the County of Clark, Respondent.
No. 7033
November 30, 1972 503 P.2d 842
Original proceeding for writs of prohibition and habeas corpus seeking to stop further
action upon information and to secure petitioner's discharge from restraint. The Supreme
Court, Thompson, J., held that statute allowing district attorney, by leave of court, to file an
information following a preliminary examination in which the accused has been discharged
did not invest attorney general with authority to file information charging bribery, where
district attorney through board of county commissioners did not request attorney general's
assistance and where there was no pending prosecution, and proceedings on information were
void for want of jurisdiction.
Writs granted.
Harry E. Claiborne and Annette R. Quintana, of Las Vegas, for Petitioner.
Robert List, Attorney General, and Herbert F. Ahlswede, Chief Deputy Attorney General,
for Respondent.
Statute allowing district attorney, by leave of court, to file an information following a preliminary
examination in which the accused has been discharged did not invest attorney general with authority to file
information charging bribery, where district attorney through board of county commissioners did not
request attorney general's assistance and where there was no pending prosecution,
and proceedings on information were void for want of jurisdiction.
attorney general's assistance and where there was no pending prosecution, and proceedings on information
were void for want of jurisdiction. NRS 173.035, subds. 1, 2, 173.045, subd. 1, 173.055, subd. 2,
173.065, 197.040; Const. art. 1, 8; art. 5, 19, 20, 22.
2. Attorney General.
Statute granting attorney general the power to supervise a district attorney did not grant attorney general
the power to usurp the function of the district attorney. NRS 228.120, subd. 2.
Statute allowing attorney general to commence or defend suit embraced only civil matters. NRS
228.120, subd. 3, 228.130, 228.170.
The powers and duties of the attorney general are to be found only in legislative enactment. Const. art.
5, 19, 20, 22.
The constitutional provision regarding trial by information filed by a district attorney or attorney general
is not self-executing but is simply a limitation on legislative power within which legislation is to be
enacted. Const. art. 1, 8; NRS 172.010 et seq., 173.010 et seq., 228.010 et seq., 252.010 et seq.
Even though common law may have granted attorney general the power to file information charging
bribery following preliminary examination in which accused was discharged, where statute limited this
authority to the district attorney, attorney general could not look to common law to justify filing of
information. NRS 1.030, 173.035, subd. 2.
OPINION
This original proceeding for writs of prohibition and habeas corpus seeks to stop further
action in the Eighth Judicial District Court upon an information filed independently by the
Attorney General of Nevada with leave of that court, and to secure the petitioner's discharge
from restraint occasioned thereby. The information purportedly was filed pursuant to the
provisions of NRS 173.035(2) which allows the district attorney, by leave of court, to file
such an information following a preliminary examination in which the accused has been
discharged.
1
It is the contention of the petitioner, James Ryan, that the mentioned statute
does not invest the attorney general with authority to file such an information, that the
district court could not grant him permission to do so, and that such action and any
further proceeding thereon is and would be void for want of jurisdiction.
____________________

1
NRS 173.035. 1. An information may be filed against any person for any offense when the person:
(a) . . . .
(b) . . . .
2. It, however, upon the preliminary examination the accused has been discharged, or the affidavit or
complaint upon which the examination has been held has not been delivered to the clerk of the proper
that the mentioned statute does not invest the attorney general with authority to file such an
information, that the district court could not grant him permission to do so, and that such
action and any further proceeding thereon is and would be void for want of jurisdiction.
The information charges James Ryan, as a public officer, with receiving a bribe in
violation of NRS 197.040. Originally, the attorney general commenced the prosecution of
Ryan by filing a criminal complaint. Action thereon was held in abeyance while the attorney
general presented his case to the grand jury of Clark County, which body declined to indict.
Thereafter, a preliminary examination was held upon the criminal complaint and the charge
was dismissed by the magistrate for want of probable cause. Following these adversities, the
attorney general sought to initiate prosecution through the auspices of NRS 173.035(2). He
did so independently and without requesting the district attorney of Clark County to act.
Whether the attorney general may proceed in that manner is the only issue we need consider.
[Headnote 1]
1. NRS 173.035(2) does not expressly grant such authority to the attorney general. Only
the district attorney is given the right to file an information with leave of court following a
preliminary examination in which the accused has been discharged. The statute is designed to
provide a safety valve against an arbitrary or mistaken decision of the magistrate, Maes v.
Sheriff, 86 Nev. 317, 468 P.2d 332 (1970); Martin v. Sheriff, 88 Nev. 303, 496 P.2d 754
(1972), in a prosecution initiated by the district attorney and erroneously dismissed. Indeed,
our statutory scheme invests control of the information process in the district attorney to the
exclusion of others. The legislature wisely has forbidden dual control. For example, NRS
173.045(1) provides that all informations shall be filed by the district attorney. He may elect
not to file an information after a preliminary examination has occurred and the accused has
been held to answer, but must give his reasons in writing for not doing so.
____________________
court, the district attorney may, upon affidavit of any person who has knowledge of the commission of an
offense, and who is a competent witness to testify in the case, setting forth the offense and the name of the
person or persons charged with the commission thereof, upon being furnished with the names of the witnesses
for the prosecution, by leave of the court first had, file an information, and process shall forthwith issue thereon.
The affidavit mentioned herein need not be filed in cases where the defendant has waived a preliminary
examination, or upon such preliminary examination has been bound over to appear at the court having
jurisdiction.
has been held to answer, but must give his reasons in writing for not doing so. NRS
173.055(2). On the other hand, he may file an information with leave of court,
notwithstanding a preliminary examination in which the accused has been discharged. NRS
173.035(2). These provisions declare the legislative purpose to grant the district attorney of
the proper county control over the information process. The attorney general is not
mentioned, and the conclusion is inevitable that he simply is not empowered to initiate a
prosecution by information independent of the district attorney. Woodahl v. District Court,
495 P.2d 182 (Mont. 1972).
Of course, the attorney general may be invited to take over or assist in the prosecution of a
criminal case. The judge of a proper court may, in extreme cases, require that all available
evidence be delivered to the attorney general if the district attorney refuses to prosecute. NRS
173.065. The district attorney through the board of county commissioners may request the
assistance of the attorney general to prosecute. NRS 228.130. Moreover, the attorney general
may appear in and take exclusive charge of a prosecution when, in his opinion, it is necessary,
or when requested to do so by the governor. NRS 228.120(3). This provision, however,
contemplates a pending prosecution, since a prosecution does not exist until a charge has
been filed, and if filed, has not been dismissed.
In the matter at hand, the preconditions to attorney general intervention do not exist. He
was not invited to act by the judge. He was not requested to act by the district attorney
through the board of county commissioners. Neither was there a pending prosecution. It had
been dismissed following preliminary examination, and the accused was discharged.
[Headnote 2]
The power to supervise a district attorney which is granted to the attorney general by
NRS 228.120(2), means supervision and cannot sensibly be read as a grant of power to usurp
the function of the district attorney.
[Headnote 3]
Finally, NRS 228.170 which allows the attorney general to commence or defend a suit,
does not bear upon this case. By using the word suit in contrast to the word prosecution
used in NRS 228.120(3), and the words criminal cases used in NRS 228.130, the legislature
made clear its intention that the authority of NRS 228.170 embraces only civil matters.
Indeed, that section has only been utilized in the civil area.
State v. Moore, 46 Nev. 65, P.75 (1922); State v. Cal. M. Co.,13 Nev. 203 (1878). State v. C.
P. R. R. Co. 10 Nev. 47 (1875).
[Headnote 4]
2. The attorney general is a constitutional officer in the executive branch of our
government. Art. 5; Sec. 19. He, along with the secretary of state, state treasurer, state
controller and superintendent of public instruction shall perform such other duties as may be
prescribed by law. Art. 5; Sec. 22. The phrase such other duties is used because art. 5, sec.
20 does, to some extent, specify the duties of the secretary of state. However, duties and
powers are not specified for the other mentioned state officers. Such duties and powers were
to be legislatively defined. The powers and duties of the attorney general, therefore, are to be
found only in legislative enactment. They are not found anywhere in the Constitution of our
State.
[Headnote 5]
In declaring the rights of an accused, art. 1, sec. 8 of our Constitution provides, among
other things, that one may not be tried for a capital or other infamous crime except upon
presentment or indictment of the grand jury, or upon information duly filed by a district
attorney or attorney general of the State. . . . The right to be tried by information was given
by constitutional amendment which became effective in 1912, the purpose of which was to
offer an alternative method for criminal prosecution.
The quoted provision is not self-executing. It is simply a limitation on legislative power
within which legislation is to be enacted. Wren v. Dixon, 40 Nev. 170, 167 P. 324 (1916).
The legislature has responded by defining the duties of the grand jury, NRS ch. 172, the
presentment, indictment and information process, NRS chs. 172, 173, the qualifications and
duties of the district attorney, NRS ch. 252, and attorney general, NRS ch. 228. Consequently,
the power of the attorney general to utilize the information process mentioned in art. 1, sec. 8,
of our Constitution is to be found in legislative enactment and not otherwise. We have
already shown that his power does not encompass the procedure here sought to be utilized.
[Headnote 6]
3. The common law of England, so far as it is not repugnant to or in conflict with the
Constitution and laws of the United States, or the Constitution and laws of this state, shall be
the rule of decision in all courts of this state. NRS 1.030. Assuming, without deciding, that
the common law may have granted the attorney general the power he here seeks to
exercise, cf.
granted the attorney general the power he here seeks to exercise, cf. State v. Moore, 46 Nev.
65, 207 P. 75 (1922), such an exercise of power would be repugnant to the statutory law of
this state, as we have already explained. Woodahl v. District Court, 495 P.2d 182 (Mont.
1972). The attorney general may not look to the common law to justify his action.
The requested writs are granted. James Ryan is discharged from restraint.
Zenoff, C. J., and Gunderson, JJ., and McDaniel, D. J., concur.
Respectfully I dissent from the majority opinion granting the petition for habeas and
prohibition and discharging the petitioner.
The majority has ruled that, absent a request by a district attorney or a request by a district
judge or pending litigation already underway, the attorney general is powerless to file a
criminal information. I am constrained to disagree with the majority, because in my opinion
there is constitutional and statutory authority for the attorney general to proceed as he did in
this case.
First, the attorney general is a constitutional officer in the executive branch of our state
government. Nev. Const. art. 5, 19.
1
Traditionally, the office of attorney general had its
origin in the early English system of jurisprudence. The attorney general was the chief law
enforcement officer of the Crown and its legal representative in the courts.
Article 1, section 8, of the Nevada Constitution provides that [n]o person shall be tried
for a capital or other infamous crime . . . except on presentment or indictment of the grand
jury, or upon information duly filed by a district attorney, or attorney-general of the state. . .
2
An information is a statement by a district attorney or the attorney general to the court
that on a certain day a named person committed an offense against the peace and dignity
of the State of Nevada.
____________________

1
Nev. Const., art. 5, 19:
A secretary of state, a treasurer, a controller, and an attorney general, shall be elected at the same time and
places, and in the same manner as the governor. The term of office of each shall be the same as is prescribed for
the governor. Any elector shall be eligible to either of said offices.

2
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, . . .
by a district attorney or the attorney general to the court that on a certain day a named person
committed an offense against the peace and dignity of the State of Nevada.
Article 5, section 22, of the State Constitution provides that the attorney general in
addition to his constitutional duties shall perform such other duties as may be prescribed by
law.
3
The attorney general has numerous statutory duties and powers. For instance, he may
appear before any grand jury when, in his opinion, it is necessary, and present evidence of the
commission of a crime. He is expressly given supervisory powers over all the district
attorneys of the State in all matters pertaining to the duties of their offices. When, in his
opinion it is necessary to do so, he may appear in and take exclusive charge and conduct any
prosecution in any court in the State for a violation of any law of the State. NRS 228.120.
4
The trial judge having jurisdiction of a crime may require that all available evidence relating
to the crime be turned over to the attorney general if the district attorney refuses to prosecute
the person charged for such a crime. NRS 173.065.
5

NRS 173.035, subsection 2, provides that, upon appropriate affidavit of a competent
witness, an information may be filed by the district attorney, with leave of the court,
following a preliminary examination where the defendant has been discharged.6 It is true
that the statute names only the district attorney therein and does not mention the
attorney general.
____________________

3
The . . . attorney general . . . shall perform such other duties as may be prescribed by law.

4
NRS 228.120, in relevant part:
The attorney general shall have the power:
1. To appear before any grand jury, when in his opinion it is necessary, and present evidence of the
commission of a crime or violation of any law of this state; to examine witnesses before the grand jury, and to
draw indictments or presentments for such grand jury.
2. To exercise supervisory powers over all district attorneys of the state in all matters pertaining to the
duties of their offices, and from time to time require of them reports as to the condition of public business
entrusted to their charge.
3. To appear in and to take exclusive charge of and to conduct any prosecution in any court of this state for
a violation of any law of this state, when in his opinion it is necessary, or when requested to do so by the
governor.

5
NRS 173.065:
The judge of the court having jurisdiction may in extreme cases, upon affidavit filed with him of the
commission of a crime, require all available evidence to be delivered to the attorney general for prosecution, if
the district attorney refuses to prosecute any person for such crime.
discharged.
6
It is true that the statute names only the district attorney therein and does not
mention the attorney general. Neither does NRS 173.045, subsection 1, which provides that
all informations shall be filed in the court having jurisdiction of the offense named, by the
district attorney of the proper county as informant.
7
I do not interpret the failure to expressly
name the attorney general as well as the district attorney in the two statutes cited above as an
attempt by the Legislature to bar the attorney general from signing and filing criminal
informations, and if such were the legislative intendment, it was in my opinion
constitutionally impermissible. The Nevada Constitution states that one may be tried only
upon presentment or indictment of the grand jury or upon information duly filed by a district
attorney or the attorney general. Nev. Const., art. 1, 8, supra.
Under NRS 228.120, subsection 3, supra, the attorney general is given the express
authority to appear in and to take exclusive charge of and to conduct any prosecution in any
court of this state, when in his opinion it is necessary . . . (Emphasis added.) In my opinion,
the natural interpretation of the words, appear in and take exclusive charge of, is that the
attorney general may initiate criminal proceedings against a defendant by signing and filing
an information. Indeed, in NRS 228.120, subsection 1, supra, he is given the power to
proceed by way of indictment.
In view of the broad powers the attorney general is given to intervene in criminal
prosecutions and to supervise district attorneys, as well as to appear before grand juries
and to draw and present indictments, he should not, in my opinion, be precluded from
signing and filing a criminal information.
____________________

6
NRS 173.035 in relevant part:
2. If, however, upon the preliminary examination the accused has been discharged, or the affidavit or
complaint upon which the examination has been held has not been delivered to the clerk of the proper court, the
district attorney may, upon affidavit of any person who has knowledge of the commission of an offense, and who
is a competent witness to testify in the case, setting forth the offense and the name of the person or persons
charged with the commission thereof, upon being furnished with the names of the witnesses for the prosecution,
by leave of the court first had, file an information, and process shall forthwith issue thereon. The affidavit
mentioned herein need not be filed in cases where the defendant has waived a preliminary examination, or upon
such preliminary examination has been bound over to appear at the court having jurisdiction.

7
1. All information[s] shall be filed in the court having jurisdiction of the offenses specified therein, by the
district attorney of the proper county as informant, and his name shall be subscribed thereto by himself or by his
deputy.
attorneys, as well as to appear before grand juries and to draw and present indictments, he
should not, in my opinion, be precluded from signing and filing a criminal information.
The majority has relied upon the case of State ex rel. Woodahl v. District Court, 495 P.2d
182 (Mont. 1972). That case is distinguishable from this case because the court in Woodahl
noted, at 185, that in Montana, unlike Nevada, there is a complete absence of any
constitutional or statutory power vested in the attorney general to file an information or
initiate a prosecution independent of the county attorney. (Emphasis added.)
For these reasons, I would deny the writs and affirm the order of the district judge that the
petitioner be held to answer the charge.
____________
88 Nev. 646, 646 (1972) Lyon v. Walker Boudwin Constr. Co.
J. PAUL LYON, C. NEWELL FREEMAN, and WILFORD P. GENTRY,
dba RUBY DRUG, Appellants, and Cross-Respondents, v. WALKER BOUDWIN
CONSTRUCTION CO. and FIRST NATIONAL BANK OF NEVADA, a Corporation,
Respondents and Cross-Appellants.
No. 6737
December 6, 1972 503 P.2d 1219
Appeal from judgment of the Fourth Judicial District Court, Elko County; Joseph O.
McDaniel, Judge.
Action for damages arising from rotation of sidewall of plaintiffs' building as result of
allegedly negligent excavation work performed on adjacent lot. The district court entered
judgment awarding damages and plaintiffs appealed and contractor and adjoining landowner
appealed. The Supreme Court, Mowbray, J., held that award of $800 damages was supported
by sufficient evidence, notwithstanding plaintiffs' claim for $9,961.06. The Court also held
that unexplained failure to award plaintiff attorney fees was error.
Affirmed, but remanded with instructions (1) that appellants be allowed their costs;
and (2) that their reasonable attorney's fees be allowed, or, in the alternative, that the
district judge state his reason for refusing to allow appellants their attorney's fees.
Wilson and Wilson, of Elko, for Appellants and Cross-Respondents.
Richard P. Wait and George W. Swainston, of Reno, for Respondents and
Cross-Appellants.
1. Adjoining Landowners.
In case of negligence, excavator will be liable for injury to building on adjoining real estate.
Evidence that officer of excavator had inspected plaintiffs' building on adjoining land and had noticed
that walls of plaintiffs' building where not secured to the floor, and evidence that operation of backhoe
caused heavy vibration throughout plaintiffs' building and that rotation of wall of plaintiffs' building was
due to the removal of lateral support supported finding that excavator was negligent.
Finding supported by substantial evidence may not be disturbed on appeal.
Where record before trial judge contains sufficient evidence to support award of damages, it will not be
disturbed on appeal.
Award of $800 for damage to plaintiffs' building caused by rotation of wall when excavator removed
lateral support was supported by sufficient evidence, notwithstanding plaintiffs' claim for damages in
amount of $9,961.06.
6. Costs.
Denial of costs and, without explanation, attorney fees, to plaintiffs who recovered $800 for damage to
their building caused by excavation on adjoining land, was error. NRS 18.010, 18.020.
7. Appeal and Error; Costs.
Allowance of attorney fees where the amount recovered does not exceed $10,000 is discretionary with
the judge and an award so made will not be disturbed on appeal unless there is a showing of abuse of
discretion. NRS 18.010.
OPINION
The appellants, J. Paul Lyon, C. Newell Freeman, and Wilford P. Gentry, doing business
as Ruby Drug, commenced this action against the respondents, Walker Boudwin Construction
Co., and First National Bank of Nevada, to recover damages arising from the rotation of a
sidewall of the Ruby Drug building, which rotation allegedly resulted from negligent
excavation work performed by the Construction Co. on adjacent lot owned by the Bank. The
district judge before whom the case was tried agreed with the appellants and awarded them
$800 in damages. The appellants have appealed, claiming that the damage award was
grossly inadequate.
the damage award was grossly inadequate. The respondents have cross-appealed, asserting
that the judge erred in finding negligence. We have reviewed the record, and we find that it
supports both the ruling that the excavation work was done in a negligent manner and the
award of $800 for damages.
1. The Facts.
On June 26, 1969, appellants contracted to purchase a building in Elko, Nevada, for the
operation of a pharmacy, which they named Ruby Drug. The building was old, the main part
having been constructed in 1915 of masonry and brick. It was abutted on the west side by
another edifice, known as the Anacabe Building. When appellants agreed to buy their
building, they were aware that the Bank had purchased the Anacabe property with the
intention of demolishing the Anacabe Building and constructing in its place a new bank
building. On August 25, 1969, the Bank engaged the respondent Construction Co. for that
purpose.
To give vertical support to the Ruby Drug Building, underpinning of its entire west wall,
which wall abutted the Anacabe Building, was necessary.
1
The underpinning was completed
without difficulty.
A backhoe and other motorized equipment were used during excavation of the Bank lot,
during which time the appellants noticed considerable vibration in the drugstore. Soon
thereafter they found that their basement door would not close. Further inspection disclosed
one crack in the basement floor and another in the wall of the basement, continuing up the
wall on the first floor. Later inspection revealed that the west wall of the pharmacy had
rotated, i.e., moved out and away from the building, and had separated at the roof line. As a
result of this damage, appellants closed their store for four days and now claim they suffered
damages as follows:
1. Cost of restoration of building $4,565.00
2. Permanent depreciation 3,000.00
3. Four days' loss of business 400.00
4. Permanent business loss 1,097.03
5. Repair of display window 169.03
6. Replacement of roof 650.00
7. Cost of advertising opening and closing 80.00

________

$9,961.06
____________________

1
When the excavation required for the installation of a new structure extends below the level of support
provided for an adjacent structure, underpinning is necessary to give vertical support to the older building.
2. The Proof of Negligence.
[Headnote 1]
The degree of negligence of an excavator for which he may be held liable has been set
forth in 2 G. Thompson, Real Property 416, at 660 (1961 replacement) as follows:
In case of negligence on the part of the excavator, he will be liable for injury to the
building caused thereby, although the land would not have fallen had there been no buildings
thereon. The degree of care to be exercised, in order that the excavator may be immune from
a claim for damages by the owner of adjoining real estate not in its natural condition, must be
commensurate with the apparent or actual danger. The care required in each particular case
depends largely upon the particular facts and circumstances and the physical conditions
existing in each case. This rule does not make the excavator an insurer of the building on
adjoining property. It goes no further than to require him to exercise a reasonable degree of
skill and care to avoid injuring such building.
[Headnotes 2, 3]
In the instant case, the Construction Co. knew the condition of the Ruby Drug Building.
Mr. Wayne Thomas Donnels, an officer of the Construction Co., testified at the trial that he
had inspected the Ruby Drug Building prior to the commencement of construction work for
the Bank and that he had then noticed and was aware that the building had no lateral ties,
i.e., that the walls were not secured to the floor. Such ties are needed to prevent or reduce the
likelihood of rotation of the walls if the structure is weakened. Due to the precarious
condition of the west wall, excavation by hand, rather than by backhoe, was originally
planned for the project. Operation of the backhoe caused heavy vibration throughout the Ruby
Drug Building. Mr. H. V. Lamberti, the structural engineer who designed the Bank's new
building, testified at trial that he attributed the rotation of the west wall of the drugstore to the
removal of lateral support, which occurred when the construction crew separated the Anacabe
Building from the basement wall of the drug store. From these facts, the trial judge found
negligence on the part of the excavator. Since there is substantial evidence to support the
court's finding, it may not be disturbed on appeal. Western Land Co. v. Truskolaski, 88 Nev.
200, 495 P.2d 624 (1972).
3. The Damages.
The appellants sued for damages in the amount of $9,961.06 plus costs and a reasonable
attorney's fee.
plus costs and a reasonable attorney's fee. The trial judge limited appellants' recovery to the
following:
Repairs to side wall of building $120.00
Four days' loss of business 400.00
Damage to roof 200.00
Cost of advertising the opening and closing of the business 80.00

_______

Total award $800.00
The trial judge also denied appellants their costs and any attorney's fee.
[Headnotes 4, 5]
It is the rule that where the record before the trial judge contains sufficient evidence to
support an award of damages, it will not be disturbed on appeal. Richfield Oil Corp. v.
Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462 (1969); Fox v. First Western Sav. & Loan, 86
Nev. 469, 470 P.2d 424 (1970). The appellants in the instant case argue that the trial judge
erred in not allowing them the amount of damages prayed for in their complaint. Admittedly,
the $800 damage award is minimal, but the testimony concerning damages was conflicting.
The trier of facts was at liberty to accept that testimony which he found most acceptable. It
would serve no purpose to summarize the evidence in this opinion. Suffice it to say that we
have reviewed the record and find therein sufficient facts upon which the trial judge could
and did predicate his award of damages.
4. The Allowance of Costs and Attorney's Fees.
[Headnote 6]
The trial judge denied appellants their costs and, without explanation, failed to award them
attorney's fees. This was error.
[Headnote 7]
NRS 18.020 provides that costs shall be allowed to the plaintiffs when the recovery is
$300 or greater.
2
NRS 18.010 provides that the trial judge may allow attorney's fees where
the amount recovered does not exceed $10,000.3 This is discretionary with the judge, and
an award so made will not be disturbed on appeal unless there is a showing of an abuse
of discretion by the judge.
____________________

2
Costs shall be allowed of course to the plaintiff upon a judgment in his favor, from any defendant against
whom judgment is rendered, in the following cases:
. . .
3. In an action for the recovery of money or damages, where plaintiff recovers $300 or over.
the amount recovered does not exceed $10,000.
3
This is discretionary with the judge, and an
award so made will not be disturbed on appeal unless there is a showing of an abuse of
discretion by the judge.
In the instant case, there was no award for attorney's fees. We do not know the reason for
the refusal to make such an award. In Jones v. Jones, 86 Nev. 879, 885, 478 P.2d 148, 152
(1970), this court ruled that a trial judge, in refusing to grant the prevailing party attorney's
fees, must state his reason for so doing, so that it is subject to review on appeal, and that
failure to state a reason constituted an abuse of discretion.
We therefore affirm the judgment below, except that we remand the case to the court
below with instructions 1) the appellants be allowed their costs; and 2) that their reasonable
attorney's fees be allowed, or, in the alternative, that the district judge state his reason for
refusing to allow appellants their attorney's fees.
____________________

3
NRS 18.010, in pertinent part:
3. The court may make an allowance of attorney's fees to:
(a) The plaintiff as prevailing party when the plaintiff has not recovered more than $10,000; . . .
____________
88 Nev. 651, 651 (1972) Jensen v. Brooks
MINNIE JENSEN, Appellant, v. JAMES A. BROOKS
and LOIS BROOKS, Respondents.
No. 6798
December 6, 1972 503 P.2d 1224
Appeal from judgment of First Judicial District Court, Douglas County; Frank B. Gregory,
Judge.
Action to establish easement for road. After remand, 87 Nev. 174, 483 P.2d 650 (1971),
the district court rendered judgment for the plaintiffs and defendant appealed. The Supreme
Court, Mowbray, J., held that evidence was sufficient to support trial court's finding that
easement which covered roadway 23 feet wide that ran parallel and adjacent to parcel of
realty owned by defendant had not been abandoned.
Affirmed.
[Rehearing denied January, 18, 1973] Jack Christensen, of Carson City, for Appellant.
Jack Christensen, of Carson City, for Appellant.
Breen, Young, Whitehead and Hoy, Chartered, of Reno, for Respondents.
If record contains evidence to support finding of trial court, judgment may not be disturbed on appeal.
2. Easements.
Loss of easement by abandonment turns upon intent of the owner of the dominant tenement, which
intention is manifested by the circumstances of particular case.
3. Easements.
Nonuse of easement is evidence of intention to abandon it.
4. Easements.
Evidence was sufficient to support trial court's finding that easement which covered roadway 23 feet wide
that ran parallel and adjacent to parcel of realty owned by defendant had not been abandoned.
5. Easements.
An easement once established is presumed to continue unless there is manifest showing of intent to
abandon it.
OPINION
This is the second time this case has come before us on appeal. The first appeal was from
an order of the district judge granting Minnie Jensen's Rule 41(b) motion to dismiss the
Brookses' complaint because they had failed to prove their case. We reversed and remanded
the case for trial. Brooks v. Jensen, 87 Nev. 174, 483 P.2d 650 (1971). At the second trial the
lower court found in favor of the Brookses, from which judgment Minnie Jensen has now
appealed.
The Brookses filed this action against Minnie Jensen to establish their right to an
easement. The easement covered a roadway 23 feet wide that ran parallel and adjacent to a
parcel of realty owned by Minnie Jensen. The Brookses predicated their claim upon recorded
documents that established their easement as appurtenant to their property, which became a
charge upon the parcel owned by Minnie Jensen. Minnie Jensen answered the Brookses'
complaint by alleging that the easement had been abandoned, and she counterclaimed against
the Brookses, claiming she had acquired fee title to the easement by adverse possession. The
chronological history of the recorded documents establishing the easement has been set forth
in our first opinion and need not be restated herein.
forth in our first opinion and need not be restated herein. Suffice it to say that we held in that
opinion that the recorded documents did establish the 23-foot roadway easement as
appurtenant to the Brookses' parcel.
[Headnote 1]
The issue on retrial became limited to whether the easement had been lost by
abandonment. The district judge found that it had not and ruled in favor of the Brookses. Our
inquiry on this issue is limited to whether there is evidence in the record to support the
finding of the trial court. If the record contains such evidence, the judgment may not be
disturbed on appeal. Perry v. Law Enforcement Electronics, 88 Nev. 180, 495 P.2d 355
(1972).
[Headnotes 2, 3]
The loss of an easement by abandonment turns upon the intent of the owner of the
dominant tenement, which intention is manifested by the circumstances of the particular case.
Nonuse of the easement is evidence of an intention to abandon it. This court, in Mallett v.
Uncle Sam Mining Co., 1 Nev. 188 (1865), stated at 204:
In determining whether one has abandoned his property or rights, the intention is the first
and paramount object of inquiry; for there can be no strict abandonment of property without
the intention to do so; . . .
[Headnotes 4, 5]
The testimony of the witnesses appearing at the trial supports the trial judge's conclusion
that the easement had not been abandoned. Although the record shows that there may have
been intervening periods when the roadway had little if any use, the record does demonstrate
that the roadway has been used since 1931. From 1931 to 1941, Lena Jensen and A. Jensen,
Sr., Minnie's in-laws, used the roadway to take care of chickens they had on the Brookses'
present home site. Later the road was used to feed livestock, and from 1961 to date the
Brookses have used the road for ingress to and egress from their home, except for two brief
periods when Minnie Jensen attempted to close the road. Thus the record clearly shows that
the easement has been used irregularly but continuously since its inception. An easement
once established, as in the instant case, is presumed to continue unless there is a manifest
showing of an intent to abandon it. Goldfield Con. v. O. S. A. Co., 38 Nev. 426, 150 P. 313
(1915); Cornell v. Gobin, 49 Nev. 101, 238 P. 344 (1925).
Since the evidence in the record supports the conclusions of the trial judge, the judgment
below is affirmed.
Zenoff C. J., and Batjer, Thompson, and Gunderson, JJ., concur.
____________
88 Nev. 654, 654 (1972) Simpson v. District Court
ANN T. SIMPSON, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, In and for the County of Clark, Department VI, and THE HONORABLE
HOWARD W. BABCOCK, Judge Thereof, Respondents.
No. 6875
December 6, 1972 503 P.2d 1225
Petition for writ of prohibition to the Eighth Judicial District Court, Clark County; Howard
W. Babcock, Judge.
The Supreme Court, Gunderson, J., held that murder indictment which merely alleged that
accused wilfully, unlawfully, feloniously and with malice aforethought killed victim enabled
prosecutor to change theories at will, afforded no notice of what accused would be required to
meet, and denied accused's fundamental rights.
Prohibition granted, without prejudice to a new accusation.
[Rehearing denied January 24, 1973]
Heaton & Spizzirri, of Las Vegas, for Petitioner.
Charles L. Garner, Chief Deputy for Appeals, Clark County, for Respondents.
1. Constitutional Law; Indictment and Information.
Accusation, whether it common law or under statute, must include characterization of crime and such
description of particular act alleged to have been committed by accused as will enable accused to defend
against accusation, and description of offense must be sufficiently full and complete to accord accused his
constitutional right to due process of law. NRS 34.320, 34.330, 173.075; U.S.C.A.Const. Amend. 6.
Fact that accused had access to transcript of proceedings before grand jury did not eliminate necessity
that indictment be definite. NRS 34.320, 34.330, 173.075; U.S.C.A.Const. Amend. 6.
Murder indictment which merely alleged that accused wilfully, unlawfully, feloniously and with malice
aforethought killed victim enabled prosecutor to change theories at will, afforded no
notice of what accused would be required to meet, and denied accused's fundamental
rights.
victim enabled prosecutor to change theories at will, afforded no notice of what accused would be required
to meet, and denied accused's fundamental rights. NRS 34.320, 34.330, 173.075; U.S.C.A.Const.
Amend. 6.
OPINION
The respondent court denied petitioner Simpson's motion to dismiss a murder indictment
returned by the Clark County Grand Jury. Therefore, she has petitioned this court to prohibit
further proceedings under that indictment, which recites:
The Defendant above named, ANN SIMPSON, is accused by the Clark County Grand
Jury of the crime of MURDER (Felony200.010) committed at and within the County of
Clark, State of Nevada, on or about the 27th day of May, 1970, as follows: did wilfully,
unlawfully, feloniously and with malice aforethought kill AMBER SIMPSON, a human
being.
Apparently desiring guidelines for pleading like cases, the Clark County District Attorney
has requested us to entertain Mrs. Simpson's petition. The District Attorney tenders no
suggestion that her petition is untimely, that the deficiency it asserts has been waived, that the
deficiency is nonjurisdictional (NRS 34.320), or that petitioner has another plain, speedy and
adequate remedy in the ordinary course of the law (NRS 34.330). For purposes of this case,
the District Attorney in effect has agreed that a writ of prohibition should issue, if the
indictment in question is insufficient. Hence, in this test case, we meet only the issue the
parties present, i.e. whether under Nevada law a murder indictment is sufficient, when it
alleges nothing whatever concerning the means by which the crime was committed. In our
view, it is not.
The facts of this case illustrate graphically the threats to due process that indefinite
indictments necessarily pose. During oral argument to this court, the prosecutor virtually
acknowledged that the State cannot prove murder, and hence cannot plead that crime with
certainty. Evidently, the State at most hopes to establish involuntary manslaughter, on a
theory of criminal negligence.
1
This being so, to prove murder, the State apparently must
locate critical evidence not now known, and proceed on some theory of essential facts not
yet conceived.
____________________

1
During oral argument of this matter, the following colloquy occurred:
Prosecutor:
. . . We do not know whether the baby died where it was found in the trunk, whether it died in the passenger
[sic], whether it died from other things. There's absolutely nothing on the body showing any
apparently must locate critical evidence not now known, and proceed on some theory of
essential facts not yet conceived.
1. Obviously, petitioner is entitled to be informed of the nature and cause of the
accusation against her. U.S. Const. amend. VI. No principle of procedural due process is
more clearly established than that notice of the specific charge, and a chance to be heard in a
trial of the issues raised by that charge, if desired, are among the constitutional rights of every
accused in a criminal proceeding in all courts, state or federal. Cole v. Arkansas, 333 U.S.
196, 201 (1948). The common law secured these fundamental rights by requiring that an
indictment set forth, inter alia, the manner or means by which the offense allegedly was
committed. Vol. III Bishop's New Criminal Procedure, 502, 514 (2nd Ed. 1913); Wharton
on Homicide, 563 (3rd Ed. 1907). Of course, our legislature might have implemented such
rights in some other appropriate way, e.g. by authorizing a totally vague indictment but
providing procedures through which particulars might be obtained. Cf. Neusbaum v. State,
143 A. 872, 876 (Ct.App.Md. 1928). However, by NRS 173.075, the legislature has adopted
portions of Federal Rule of Criminal Procedure 7(c),
2
and in NRS 179.370 it has set forth
an approved form of murder indictment.3
____________________
external injuries. The tissues showed that it had died of heat prostration. Now we could assume that she had gone
into this bar; we could assume that she left the baby in the car; but strictly, if she came up with some other story,
the standard instructions under which these jury trials have been tried for a number of years the question is
whether or not the information is true.
Justice Gunderson:
Mr. Garner, it sounds to me like you're telling us you don't just have a problem of pleading; you have a
problem of proof. Now, what is your theory of the case, what acts do you claim Ann Simpson did that resulted in
the death of this child?
Prosecutor:
I'd say it was neglect by allowing her to be in a place, a year-and-a-half-old baby, where heat prostration
occurred. I would say that would be negligent homicide; we charge open murder even though it is probably a
voluntary manslaughter caseinvoluntary.
Justice Gunderson:
Then your problem really is that you have a theory that you think you can substantiate, at least to some
degree, and you could allege those facts couldn't you?
Prosecutor:
It would be a negative inference; the only thing we could plead would be neglect, yes, that she had left the
baby somewhere where it died of heat prostration.

2
173.075 Nature and contents generally.
1. The indictment or the information shall be a plain, concise and definite written statement of the essential
facts constituting the offense charged. It shall be signed by the district attorney. It need not contain
NRS 179.370 it has set forth an approved form of murder indictment.
3

NRS 173.075(1) expressly provides that the indictment or the information shall be a
plain, concise and definite written statement of the essential facts constituting the offense
charged.
____________________
a formal commencement, a formal conclusion or any other matter not necessary to such statement.
2. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a
single count that the means by which the defendant committed the offense are unknown or that he committed it
by one or more specified means.
3. The indictment or information shall state for each count the official or customary citation of the statute,
rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the
citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a
conviction if the error or omission did not mislead the defendant to his prejudice.
The plain and concise words of Rule 7(c) [NRS 173.075] implement vital guaranties of the Fifth and Sixth
Amendments. The Rule makes it unnecessary, of course, to treat as a constitutional issue every dispute about
whether an indictment is sufficiently clear and unambiguous. But the pertinent criteria derive none the less from
our fundamental law . . . Our concern is not with matters of pleading etiquette or esthetics, but with substantial
rights of the most essential kind. United States v. Agone, 302 F.Supp. 1258, 1259 (S.D.N.Y. 1969).

3
179.370 Indictment. An indictment may be substantially in the following form:
INDICTMENT
STATE OF NEVADA,
COUNTY OF...................................................... }
ss.

The State of Nevada, plaintiff, against A.B., defendant (or John Doe, whose real name is unknown).
Defendant A.B., above named, is accused by the grand jury of the county of.............., of a felony (or of the crime
of murder or other name of crime), committed as follows: The said A.B., on the........ day of........., A.D. 19...., or
thereabouts, at the county of................,State of Nevada, without authority of law and with malice aforethought,
killed Richard Roe, by shooting with a pistol (or with a gun or other weapon, according to the facts).
........................................................................
District Attorney
or District Attorney, by deputy.
In deciding the sufficiency of a murder indictment under this statutory form, this court said in State v.
Millain, 3 Nev. 409 (1867): There are, indeed, but two questions for us to consider in connection with this
indictment. First, does it conform substantially to our statutory form; and second, had the Legislature power to
dispense with the formality of the common law indictment? Id., at 436. The court upheld the legislature's power
to prescribe such a form, and upheld the indictment in question, specifically noting: The time and place are also
stated, and the instrument or means used to produce death. Id., at
NRS 173.075(2) indicates this should either include the means by which the offense was
accomplished or show means are unknown.
4
NRS 179.370 likewise recognizes that a proper
murder indictment should, among other things, contain some reference to means. This
skeleton form shows conclusively that the legislature, by their enactment that an indictment
should contain the facts constituting the offence charged, intended it should contain those
showing the mode and manner of its perpetration. Shepherd v. The State, 54 Ind. 25, 27
(1876).
Three Idaho cases illustrate that such statutes may not lightly be swept aside. Early in its
history, interpreting statutes much like our own, the Idaho Supreme Court held insufficient a
manslaughter information that did not allege means. State v. Smith, 138 P.1107 (Ida. 1914).
Thereafter, the court overruled itself, and upheld a murder information like the indictment
before us. State v. Lundhigh, 164 P. 690 (Ida. 1917). Ultimately, however, the court was
constrained to overrule itself again, when confronted with a situation concretely evincing the
dangers inherent in indefinite indictments. State v. McMahan, 65 P.2d 156 (Ida. 1937).
In McMahan, a physician was arrested for manslaughter, and held to answer after a
preliminary hearing that indicated he had committed a criminal abortion resulting in a death.
The prosecutor thereupon filed an information charging that on or about February 4, 1936, at
Nez Perce County, Idaho, defendant committed the crime of manslaughter as follows: then
and there did wilfully, unlawfully and feloniously kill one Stella Fleischman, a human being,
contrary to the form of the statute in such case made and provided. The trial court overruled
the defendant's demurrer and what followed suggests what might occur in any case,
under such vague charges.
____________________
438. The court apparently considered this important to the issue of substantial compliance with the statute. To
us, this seems correct; for the statute's words, may be substantially in the following form, cannot be regarded
as dispensing with fundamental pleading requirements of the common law, except to the extent intended by the
statute, which contemplates means will still be pleaded.

4
Thus, in accord with practice elsewhere, NRS 173.075(2) eliminates any prospect that requiring means to be
alleged will work injustice to the State. When matters or things which are ordinarily proper or necessary to be
alleged are in fact unknown to the grand jury or the prosecuting attorney, it is proper to allege in the indictment
or information that they are unknown. This rule finds its most frequent application in allegations as to persons or
the names of persons unknown and the ownership of property involved in the offense, but it is also sometimes
applied in allegations as to the exact manner or means of committing the offense, or some element thereof, and
as to amounts involved. 4 R. Anderson, Wharton's Criminal Law and Procedure, 1763 (1957).
the defendant's demurrer and what followed suggests what might occur in any case, under
such vague charges. As the Idaho Supreme Court said:
At the trial in the district court the prosecution offered evidence tending to show an
abortion had been performed which resulted in the death of the deceased, but it was entirely
insufficient to sustain a conviction based on that theory, if one had been secured. Testimony,
by and on behalf of appellant, showed he treated the woman for general peritonitis from
which disease she died. On rebuttal the prosecution produced evidence showing negligence
and lack of skill in the treatment prescribed and administered by appellant, and the trial
resulted in a verdict that he was guilty of involuntary manslaughter on the ground that he
committed an act that might produce death and did so without due caution and
circumspection.'. . .
It was not until during the trial that appellant or his counsel were in any manner informed
that he was brought before the bar of justice to answer for a homicide committed through
negligence and carelessness. He was entitled to know, before being required to plead to the
information, the nature of the charge against him, and it would have told him that had it been
drawn in conformity to the plain mandates of the statute. Had it so informed him, he would
have been in position to prepare his defense. Without knowledge as to the nature of the
charge upon which he was to be tried, he could not do so.
To put a man on trial without giving him, in the information, a statement of the acts
constituting the offense in ordinary and concise language, and in such manner as to enable a
person of common understanding to know what is intended', and to let him know these facts,
for the first time when his trial is in progress, is to deprive him of the protection the statute
was designed to give him and deny him due process of law in violation of . . . the
Constitution. Id., at 159-160; emphasis in original.
5

Considering the language of Fed.R.Crim.P. 7(c), from which NRS 173.075 is derived, the
United States Supreme Court has also held an indictment is deficient unless it "sufficiently
apprises the defendant of what he must be prepared to meet."
____________________

5
The instant case does not require us to consider how particular an allegation of means must be; however, in
other states, courts have interpreted their statutes to require some particularity. See, for example: State v.
Warner, 237 A.2d 150 (Me. 1967); Cozart v. State, 171 So.2d 77 (Ct.App.Ala. 1964); Northern v. State, 203
S.W.2d 206 (Tex.Crim. App. 1947); Langham v. State, 11 So.2d 131 (Ala. 1942); Wilson v. State, 8 So.2d 422
(Ala. 1942); People v. Quimby, 99 N.Y.S. 330 (App.Div. 1906). Such courts would unquestionably hold
deficient an indictment containing no allegation of means whatever.
Court has also held an indictment is deficient unless it sufficiently apprises the defendant of
what he must be prepared to meet. Russell v. United States, 369 U.S. 749, 763 (1962).
Furthermore, the Supreme Court noted an indefinite indictment not only deprives a defendant
of such notice, but in effect allows a prosecutor or court to usurp the function of the Grand
Jury:
To allow the prosecutor, or the court, to make a subsequent guess as to what was in the
minds of the grand jury at the time they returned the indictment would deprive the defendant
of a basic protection which the guaranty of the intervention of a grand jury was designed to
secure. For a defendant could then be convicted on the basis of facts not found by, and
perhaps not even presented to, the grand jury which indicted him. Id. at 770.
6

[Headnote 1]
Accordingly, we believe the following formulation of the law, by one of the leading
authorities, correctly states the principle that must govern our decision:
Whether at common law or under statute, the accusation must include a characterization
of the crime and such description of the particular act alleged to have been committed by the
accused as will enable him properly to defend against the accusation, and the description of
the offense must be sufficiently full and complete to accord to the accused his constitutional
right to due process of law. 4 R. Anderson, Wharton's Criminal Law and Procedure, 1760,
at 553 (1957).
[Headnote 2]
2. Although the State has referred us to no pertinent contrary authority, it suggests a
definite indictment is unnecessary in this case, because petitioner has access to the transcript
of proceedings before the Grand Jury. This argument is untenable, for several reasons.
First, as the authorities just discussed show, a fundamental vice of indefinite charges is
that they permit prosecutors to try cases on theories totally different from those propounded
earlier, in proceedings before the Grand Jury or magistrate. Second, since NRS 173.075(1)
entitles an accused to a definite written statement of the essential facts, that statute in
particular repels the idea that we may countenance an indefinite indictment whenever we
feel a defendant might glean the prosecutor's theory of means from whatever evidence he
presented to show probable cause.
____________________

6
Although we have discovered no federal cases specifically treating the matter, approved federal forms for
murder indictments indicate means should be alleged. Forms 1 and 2, Appendix of Forms, 18 U.S.C.A.
indictment whenever we feel a defendant might glean the prosecutor's theory of means from
whatever evidence he presented to show probable cause. Moreover, some theory or theories
of means will almost always be suggested by such evidence; therefore, if that justifies
noncompliance with NRS 173.075 and 179.370, those statutes have no real force at all.
Furthermore, we have heretofore said: The challenge to the sufficiency of the indictment,
where not made until after conviction and without a showing of prejudice, will be tested by a
reduced standard, including reference to the Grand Jury transcript. Vincze v. State, 86 Nev.
546, 549, 472 P.2d 936, 938 (1970); Logan v. Warden, 86 Nev. 511, 471 P.2d 249 (1970).
Thus, we have recognized the existence of a normal standard, that does not envision reference
to such transcript.
An element of waiver is involved, when an accused proceeds to trial without challenging
the indictment. Thereafter, he should not be heard to complain if the indictment, with the
Grand Jury transcript, gave notice of what later transpired at trial; and to determine this, we
can examine the trial transcript also. However, when challenge is timely, no basis exists for
measuring the accused's rights by any standard other than that our legislature has established;
nor can we know how helpful the Grand Jury transcript will be in augmenting an indefinite
indictment; the trial transcript, of course, is not yet available. Therefore, when a timely
challenge is tendered prior to trial, every justification for applying what we have recognized
to be a reduced standard is absent; and we are loath to spare prosecutors their statutory
obligation to draft coherent indictments, by assigning defense counsel and the courts the
burden of divining absent allegations from other sources.
[Headnote 3]
The indictment under consideration would allow the prosecutor absolute freedom to
change theories at will; it affords no notice at all of what petitioner may ultimately be
required to meet; thus, it denies fundamental rights our legislature intended a definite
indictment to secure. Furthermore, in this case, the indefinite indictment obscures the reality
that the prosecution may be unable to frame a proper indictment for murder, consistently with
facts now known. The alternative writ of prohibition heretofore issued is made permanent,
without prejudice to a new and sufficient accusation.
____________
88 Nev. 662, 662 (1972) Ricci v. Sheriff
JOSEPH DONALD RICCI, Appellant, v. SHERIFF,
No. 7054
December 12, 1972 503 P.2d 1222
Appeal from an order denying pre-trial petition for a writ of habeas corpus; Second
Judicial District Court, Washoe County; Thomas O. Craven, Judge.
Following extraordinary proceeding in which district court was directed to rule upon
pretrial petition for habeas corpus, 88 Nev. 220, 495 P.2d 614 (1972), the district court denied
petition, and defendant appealed. The Supreme Court, Zenoff, C. J., held that argument of
prosecutor at preliminary hearing that credibility of witnesses was not the concern of the
magistrate was not sufficiently prejudicial to imbed illegality on the proceedings in which the
statement did not provoke objection at time it was made, where there was no indication that
the magistrate was influenced by the statement in finding probable cause to hold the
defendant for trial.
Affirmed.
Sanford, Sanford & Fahrenkopf, of Reno, for Appellant.
Robert List, Attorney General, of Carson City, Robert E. Rose, District Attorney, and
Larry R. Hicks, Chief Criminal Deputy, Washoe County, for Respondent.
1. Criminal Law.
In case in which defendant conceded that evidence adduced at preliminary hearing established probable
cause that he fired shot that resulted in homicide but contended that his testimony showed offense lacked
magnitude of murder, conflicting testimony, presented sufficient competent evidence to make it appear that
the crime of murder had been committed and to provide probable cause to believe that defendant
committed it. NRS 200.010.
2. Criminal Law.
Argument of prosecutor at preliminary hearing that credibility of witnesses was not the concern of the
magistrate was not sufficiently prejudicial to imbed illegality on the proceedings, in which the statement
did not provoke objection at time it was made, where there was no indication that the magistrate was
influenced by the statement in finding probable cause to hold the defendant for trial.
OPINION
Appellant, charged with murder, in violation of NRS 200.010, contends the trial court
erred in failing to grant habeas because {1) there was insufficient evidence adduced at the
preliminary hearing to establish probable cause, and {2) of prosecutorial misconduct.
habeas because (1) there was insufficient evidence adduced at the preliminary hearing to
establish probable cause, and (2) of prosecutorial misconduct. We reject both contentions.
This case has been before us previously. See State v. Ricci, 88 Nev. 220, 495 P.2d 614
(1972), an extraordinary proceeding in which we directed the district court to rule upon the
petitions
1
for habeas corpus tendered to that court by Ricci. . . , to decide whether the record
of the preliminary examination contains sufficient evidence to sustain the magistrate's finding
of probable cause to hold [him] for trial. 88 Nev. at 223, 495 P.2d at 615.
After our issuance of the writs in State v. Ricci, supra, an amended petition for habeas
corpus was filed in the district court, alleging, in addition to insufficiency of the evidence to
establish probable cause, the question of prosecutorial misconduct. From a denial of the
amended petition for habeas relief, this appeal.
[Headnote 1]
1. Appellant concedes the evidence adduced at the preliminary hearing established
probable cause that he fired the shot that resulted in the homicide but vigorously contends
that his testimony showed the offense lacked the magnitude of murder, for which he was
charged.
[E]ven on a murder charge the quantum of proof necessary in order to hold an accused to
answer in the district court is only that it appear to the magistrate, from substantial and
competent evidence, that an offense has been committed and that the defendant committed it.
When the evidence is in conflict at the preliminary examination it is the function of the
magistrate to determine the weight to be accorded the testimony of the witnesses, and so long
as an inference of criminal agency can be drawn from the evidence it is proper for the
magistrate to draw it, thereby leaving to the jury at the trial the ultimate determination of
which of the witnesses are more credible. Miner v. Lamb, 86 Nev. 54, 464 P.2d 451 (1970).
Hanley v. State, 85 Nev. 157, 451 P.2d 852 (1969).
Upon the trial of this cause the evidence that the appellant presents in his defense may be
sufficiently persuasive to result in a conviction on a lesser charge, or even acquittal. However,
the accused's explanation for the homicide, being in the nature of a defense, whether true or
false, reasonable or unreasonable, is for the trier of fact to consider at the trial, and neither the
preliminary examination nor the hearing on the habeas petition is designed as a
substitute for that function.
____________________

1
Ellington, a co-defendant, has subsequently died and all proceedings against him have been dismissed.
preliminary examination nor the hearing on the habeas petition is designed as a substitute for
that function. State v. Fuchs, 78 Nev. 63, 368 P.2d 869 (1962).
On the record of the preliminary examination there is sufficient competent evidence to
make it appear that the crime of murder had been committed and there is probable cause to
believe that the appellant committed it. In re Ervin, 76 Nev. 297, 352 P.2d 718 (1960).
Bryant v. Sheriff, 86 Nev. 622, 624-625, 472 P.2d 345, 346 (1970). Bishop v. Sheriff, 88
Nev. 580, 502 P.2d 1098 (1972).
[Headnote 2]
2. The charge of misconduct is directed to the prosecutor's argument that the credibility of
witnesses was not the concern of the magistrate. Appellant contends that even if there was
sufficient evidence to establish probable cause to hold him for trial that the statement was
sufficiently prejudicial to imbed illegality on the proceedings. Such contention is erroneous
for two reasons. First, the statement was not considered serious enough to provoke an
objection by defense counsel at the time it was made and it will not now be considered.
Bonnenfant v. State, 86 Nev. 393, 469 P.2d 401 (1970); Mears v. State, 83 Nev. 3, 422 P.2d
230 (1967); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964). Second, the record of the
preliminary examination does not contain the slightest hint that the Justice of the Peace was
influenced by the prosecutor's argument in finding probable cause to hold the respondents for
trial. State v. Ricci, 88 Nev. at 222, 495 P.2d at 615.
Since neither of appellant's contentions possess merit, the judgment of the trial court is
affirmed.
____________
88 Nev. 664, 664 (1972) Waid v. Sheriff
JOHNNIE D. WAID, Appellant, v. SHERIFF,
No. 7026
December 14, 1972 504 P.2d 9
Appeal from Order denying Pretrial Petition for Writ of Habeas Corpus, Eighth Judicial
The Supreme Court held that grand jury may indict in a narcotics case even when the only
evidence as to the nature of the substance involved is the testimony of an experienced, though
nonexpert, police officer that the substance appeared to be and was represented to be narcotic.
Affirmed.
Don Aimar, of Las Vegas, for Appellant.
Expert testimony in narcotics case as to the nature of the substance involved, though necessary for a
conviction, is not required before a grand jury.
Grand jury may indict in a narcotics case even when the only evidence as to the nature of the substance
involved is the testimony of an experienced, though nonexpert police officer that the substance appeared to
be and was represented to be narcotic.
Admissions made by defendant during attempted sale of narcotics could be considered by the grand jury
to corroborate or strengthen proof established by officer's reasonable belief that substance was cocaine.
Admissions may not be the only means of establishing the corpus delicti before grand jury, but they may
be used to corroborate or strengthen the proof of the corpus deliciti.
OPINION
Per Curiam:
The primary issue in this appeal is whether a grand jury may indict in a narcotics case
when the only evidence as to the nature of the substance involved is the testimony of an
experienced, though nonexpert police officer that the substance appeared to be and was
represented to be narcotic. Appellant contends that the testimony of a nonexpert witness is
insufficient to establish the corpus delicti.
[Headnotes 1, 2]
1. Expert testimony, though necessary for a conviction, is not required before a grand jury.
Glosen v. Sheriff, 85 Nev. 145, 148, 451 P.2d 841 (1969); cf. Maskaly v. State, 85 Nev.
111, 114, 450 P.2d 790 (1969). An experienced police officer's testimony that the substance
appeared to him to be narcotic and that the accused represented it, directly or implicitly, to be
a narcotic, establishes probable cause before the grand jury to return an indictment charging a
sale of narcotics. Glosen v. Sheriff, supra; Zampanti v. Sheriff, 86 Nev. 651, 473 P.2d 386
(1970); DuFrane v. Sheriff, 88 Nev. 52, 495 P.2d 611 (1972).
[Headnote 3]
2. Appellant also contends that the admissions during the attempted sale may not be
considered by the grand jury until the narcotic nature of the substance is established.
[Headnote 4]
We held in Azbill v. State, 84 Nev. 345, 440 P.2d 1014 (1968), that although admissions
may not be the only means of establishing the corpus delicti, they may be used to corroborate
or strengthen the proof of the corpus delicti. Here the admissions merely strengthen the proof
established by the experienced officer's reasonable belief that the substance was cocaine.
Affirmed.
____________
88 Nev. 666, 666 (1972) In re Martin
In Re the Application of AL MARTIN for a
Writ of Habeas Corpus.
No. 6533
December 14, 1972 504 P.2d 14
Original proceeding for a writ of habeas corpus to challenge the validity of arrest and
restraint under city ordinances.
The Supreme Court, Thompson, J., held that city ordinances prohibiting delivery of
gasoline, within limited areas of city, into underground storage tanks of service stations and
garages from a truck or truckwagon vehicle having a capacity in excess of 2000 gallons plus
ten percent tolerance were unconstitutional as denying due process and equal protection of the
laws.
Writ granted.
Vargas, Bartlett & Dixon, of Reno, for Petitioner.
88 Nev. 666, 667 (1972) In re Martin
Robert List, Attorney General, and Robert O. Vaughan, of Elko, City Attorney, for
Respondent, The City of Wells.
1. Habeas Corpus.
Habeas corpus was proper remedy to determine constitutionality of ordinances for violations of which
petitioner was arrested. U.S.C.A.Const. Amend. 14; Const. art. 1, 8.
City ordinances prohibiting delivery of gasoline, within limited areas of city, into underground storage
tanks of service stations and garages from a truck or truckwagon vehicle having a capacity in excess of
2000 gallons plus ten percent tolerance did not bear a reasonable relationship to declared objective of
public safety and hence denied due process in view of showing that it was safer to deliver a given amount
of gasoline with one load and dump than with several, and take delivery of gasoline by gravity flow to
underground tanks was safer than delivery by pumping to overhead or surface storage tanks. U.S.C.A
Const. Amend. 14; Const. art. 1, 8.
City ordinances prohibiting delivery of gasoline, within limited areas of city, into underground storage
tanks of service stations and garages from a truck or truckwagon vehicle having a capacity in excess of
2000 gallons plus ten percent tolerance are unconstitutional as denying equal protection of the laws since
they are invidiously discriminatory in application since they do not apply to aboveground storage tanks, nor
to all underground storage tanks within the city. U.S.C.A.Const. Amend. 14; Const. art. 1, 8.
OPINION
[Headnote 1]
Emergency Ordinances Nos. 62 and 81 of the City of Wells prohibit the delivery of
gasoline, within limited areas of the city, into underground storage tanks of service stations
and garages from a truck or truckwagon vehicle having a capacity in excess of 2000 gallons
plus ten percent tolerance. The ordinances do not apply to aboveground bulk storage tanks.
Purportedly, they were enacted to decrease the danger of fire and thus promote public safety.
The petitioner was arrested for violating the ordinances and, by this original proceeding for a
writ of habeas corpus, seeks to be discharged from restraint. It is his contention that the
prohibitions of the ordinances deny due process of law and equal protection of the laws in
violation of the Fourteenth Amendment of the United States Constitution, and of the
corresponding due process clause of our State Constitution, art.
88 Nev. 666, 668 (1972) In re Martin
Constitution, art. 1, 8. The selected remedy is appropriate. In re Laiolo, 83 Nev. 186, 426
P.2d 726 (1967); In re Philipie, 82 Nev. 215, 414 P.2d 949 (1966); NRS 34.500(4).
1
Evidence was presented to a district court and the entire record has been certified to this court
for decision.
1. The petitioner was arrested because he delivered 9300 gallons of gas from a tanker
trailer having a capacity of 9500 gallons, to an underground storage tank of a service station
in the City of Wells. This single delivery at the station was accomplished in about forty
minutes by the petitioner alone. To deliver equal gallonage in compliance with the ordinances
would require multiple deliveries from a smaller truck, greater time, more personnel, and
increased cost.
The following conclusions are solidly established by the record. First, the greatest danger
of spillage and possible fire is presented when the gasoline is being transferred from the tank
truck to the storage tank. Second, the danger of spillage from unloading a truck having a
capacity in excess of 2200 gallons is no greater than the danger encountered in unloading
gasoline from a truck having a capacity of less than 2200 gallons. Third, the danger of
spillage and possible fire from unloading gasoline increases in direct proportion to the
number of times the gasoline is handled at the transfer point, that is, from the truck to the
storage tank. In short, it is safer to deliver a given amount of gasoline with one load and dump
than with several. Once the gasoline is deposited underground, a significant hazard no longer
exists. The safety objective is to decrease the number of occasions needed to refill
underground tanks. Fourth, the delivery of gasoline by gravity flow to underground tanks is
safer than delivery by pumping to overhead or surface storage tanks. These conclusions are
not substantially denied by any evidence offered by the City.
The City does urge, however, that the ordinances are constitutional. The City points to the
fact that the aboveground storage tanks and the non-affected underground tanks are not
located within the populated area of the city, and that their exclusion from the ordinances is,
therefore, reasonable and not discriminatory. With regard to public safety, the City contends
that large tank trucks moving along the main street where most of the service stations
are located pose a greater traffic hazard than do the more maneuverable smaller trucks.
____________________

1
The petitioner has not directly put in issue the propriety of the city council's action in enacting the
ordinances as emergency measures. Cf. Ames v. City of North Las Vegas, 83 Nev. 510, 435 P.2d 202 (1967);
Penrose v. Whitacre, 61 Nev. 440, 132 P.2d 609 (1942); Carville v. McBride, 45 Nev. 305, 202 P. 802 (1922);
Chartz v. Carson City, 39 Nev. 285, 156 P. 925 (1916).
88 Nev. 666, 669 (1972) In re Martin
that large tank trucks moving along the main street where most of the service stations are
located pose a greater traffic hazard than do the more maneuverable smaller trucks.
Moreover, the City emphasizes the limited capability of its volunteer fire department to cope
with the possibility of a large conflagration should total spillage of 9500 gallons occur from a
large tank truck during the unloading process.
The City's argument has surface appeal, but that is all. Once it is shown that a single
delivery of a given amount of gas from a large tank truck is safer than multiple deliveries
from a truck of lesser capacity, the populated area of the city is best protected by requiring
single deliveries and refills, rather than by prohibiting them. The ordinances may not be
justified as traffic safety measures since they were not enacted for that purpose. In any event,
it is questionable whether their enforcement would lessen the risk of accident since multiple
deliveries increase the volume of traffic. Finally, the City's effort, through an expert witness,
to hypothetically create the specter of a large conflagration from the possibility of a total
spillage of 9500 gallons occurring from a large tank truck during delivery to a storage tank
must be ignored since the record contains no information that such a total spillage has ever
happened in Wells or elsewhere. Cf. Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965).
2. Although the case of Leathers v. City of Burns, 444 P.2d 1010 (Ore. 1968), may be
read to support the City's position, the great majority of cases condemn similar prohibitory
ordinances.
[Headnote 2]
In this case, as in State v. Redman Petroleum Corp., 77 Nev. 163, 360 P.2d 842 (1961), we
find no good reason to depart from the majority view. Those cases declare that the
prohibitions of the ordinances similar to those enacted by the City of Wells do not, in fact,
bear a reasonable relationship to the declared objective of public safety and, therefore, deny
due process. Humble Oil and Refining Co. v. City of Georgetown, 428 S.W.2d 405
(Civ.App.Tex. 1968); City of Colorado Springs v. Grueskin, 422 P.2d 384 (Colo. 1967);
Standard Oil Company v. City of Gadsden, 263 F.Supp. 502 (U.S.D.Ct.Ala. 1967); Clark Oil
& Refining Corp. v. City of Tomah, 141 N.W.2d 299 (Wis. 1966); McCoy v. Town of York,
8 S.E.2d 905 (S.C. 1940). The record before us compels the same conclusion.
88 Nev. 666, 670 (1972) In re Martin
[Headnote 3]
Moreover, the Emergency Ordinances are invidiously discriminatory in application since
they do not apply to aboveground storage tanks, nor to all underground storage tanks within
the City, thereby violating the command of equal protection of the laws. Humble Oil and
Refining Co. v. City of Georgetown, supra; Ex Parte Rodgers, 371 S.W.2d 570
(Ct.Cr.App.Tex. 1963); Standard Oil Co. v. City of Charlottesville, 42 F.2d 88 (4 Cir. 1930).
We hold that Emergency Ordinances 62 and 81 of the City of Wells are unconstitutional.
The petition of Al Martin for a writ of habeas corpus is granted and he is ordered released
from restraint forthwith.
____________
88 Nev. 670, 670 (1972) Hardison v. Carmany
LEON HARDISON, Appellant, v. JAMES P. CARMANY, WILLIAM H. BRIARE, JAMES
A. BRENNAN, ROBERT N. BROADBENT, DARWIN W. LAMB, JAMES C. RYAN,
DAVID B. HENRY and GEORGE E. FRANKLIN, Jr., Respondents.
No. 6731
December 15, 1972 504 P.2d 1
Appeal from judgment of the Eighth Judicial District Court, Clark County, denying relief
sought by petition for writ of mandamus; Howard W. Babcock, Judge.
Petition for writ of mandamus ordering reinstatement of petitioner, an employee of Clark
County Juvenile Services, with pay accruing since his discharge. The district court denied
relief, and petitioner appealed. The Supreme Court, Gunderson, J., held that evidence was
sufficient to show that juvenile service officer was not removed because of some proven
dereliction of a substantial nature directly affecting the rights and interests of the public, but
that he was discharged simply on the mere will of his superior, so that officer was entitled to
be reinstated.
Reversed, with instructions.
Mowbray, J., dissented in part.
Robert List, Attorney General, of Carson City; Roy A. Woofter, District Attorney, Richard
E. Vogel, Deputy District Attorney and Thomas R.
Attorney and Thomas R. Severns, Deputy District Attorney, Clark County, for Respondents.
1. Counties.
Evidence was sufficient to show that juvenile service officer was not removed because of some proven
dereliction of a substantial nature directly affecting the rights and interests of the public, but that he was
discharged simply on the mere will of his superior, so that officer was entitled to be reinstated. NRS
62.110, subd. 1.
2. Counties.
Where no legal cause was shown for discharge, county officer was entitled to be reinstated with all
accrued back pay and rights, except rights to vacation time off he would have accumulated if he had been
allowed to work rather than involuntarily idled. NRS 62.110. subd. 1.
3. Counties; Mandamus.
Officer who was improperly discharged without sufficient cause was entitled not only to reinstatement but
to interest on monies due him, to his costs in the proceedings below, and to his costs on appeal. NRS
18.020, subd, 4, 18.060, 18.060, subd. 2, 62.110, subd. 1, 99.040, subd. 5.
OPINION
Appealing a judgment denying relief he sought by petition for writ of mandamus, appellant
contends the district court erred in not ordering him reinstated as an employee of Clark
County Juvenile Services, with pay accruing since his discharge. While appellant proffers
several substantial arguments, we need only consider whether his discharge was for cause,
as required by NRS 62.115(1).
1
We hold it was not; we reverse the judgment appealed from;
we direct the district court to settle any cost bill appellant may file within 5 days after
issuance of our Remittitur, for costs incurred in proceedings below; and we order the district
court to issue a peremptory writ of mandamus commanding:
(1) that such costs forthwith be paid to appellant;
(2) that appellant forthwith be fully reinstated to his employment with Clark County
Juvenile Services, with all rights accruing since his wrongful discharge;
(3) that except for such monies as may be withheld for income taxes, contributions to the
retirement fund, and other proper purposes, all wages accruing since appellant's wrongful
discharge be forthwith paid to him, together with 7 percent interest from when payments
thereof were due;
____________________

1
NRS 62.115(1) then provided in material part:
. . . Probation officers and employees may be removed, discharged or reduced in position only for cause
after having been given the reasons therefor in writing and being afforded an opportunity to be heard before the
director of juvenile services in answer thereto.
income taxes, contributions to the retirement fund, and other proper purposes, all wages
accruing since appellant's wrongful discharge be forthwith paid to him, together with 7
percent interest from when payments thereof were due;
(4) that appellant be restored as nearly as may be to the situation he would now enjoy had
his wrongful discharge not occurred; and
(5) that the Director of Juvenile Services make his return to the district court, within 15
days, setting forth fully what has been done in compliance with said writ.
Thereupon, on notice to all parties, the district court shall expeditiously determine whether
said writ has in all respects been obeyed. We further order that in accord with NRS 18.060,
appellant will be allowed his costs of this appeal, upon timely filing of a proper cost bill with
the clerk of this court, those costs to be paid to appellant at the same time remittance is made
for costs incurred in the lower court.
Because appellant Hardison has been exposed to public odium, we will state at length the
facts on which this decision rests.
The Facts
Hardison served some eight years in the juvenile service, ultimately becoming a senior
supervisor in the detention facility. While the record on appeal contains no copies of his
performance ratings, it indicates they all were favorable.
A few months before appellant's discharge, William C. Power was named an Associate
Director of Juvenile Services, thus becoming Hardison's superior. For years, personnel on
evening duty at the juvenile detention facility passed spare time playing basketball, ping
pong, pool, and cards, all with the administration's knowledge and acquiescence. (Indeed,
Clark County Juvenile Services owned the cards thus used.) At the hearing conducted to
determine if there was cause for Hardison's discharge, cross-examination established Power
knew this, but had never notified employees of any policy change.
2

Following supper on October 20, 1969, detention personnel confined 26 detainees in their
rooms to await the evening recreational period; they allowed seven, considered minimum
security risks, to remain out of their rooms on work detail within the facility.
____________________

2
Power testified:
Q All right, you had never issued any bulletin or memorandum or notice on the bulletin board or directive
instructing the staff not to play cards?
A No.
Q All right, had you known any one to be issued by Mr. Carmany [the Director of Juvenile Services]?
A No.
security risks, to remain out of their rooms on work detail within the facility. Three male
supervisors (one off duty) began a card game at a desk in the middle of the facility's central
rotunda, from which corridors fan out like spokes of a wheel. One Dallmeier, with whom
Power had discussed Hardison earlier in the day, was moving about the facility, making
periodic visits to see the Booking officer who was waiting to alert Power when Hardison
returned from work in another building and entered the game. When Hardison commenced
playing, Power was notified; he arrived about 6:45 p.m., ordered Hardison to his office, and
relieved him of duty.
3

The first to testify at the cause hearing subsequently held, Power claimed not to know
who called him.
____________________

3
This is Power's version of how he entered and relieved Hardison and other supervisors of duty:
On October 20th, I entered the detention area here at Zenoff Hall and noticed the four mentioned
supervisors, mentioned in my memo, Leon Hardison, Sam Jermson, Jerry Carpenter, and Mike Akers, sitting at a
desk in the rotunda area engaged in a game of cards.
Also, in the rotunda area itself, there were several subject minors, detainees. I don't remember the exact
number, but there was seven or eight, also another supervisor was also present who was dressing down a
detainee for recent admittance. He was not involved in the card playing. I approached the group and as I did I
noticed cards displayed on the table in front of each person. I asked the group, as a whole, what was going on
and they responded that they were playing cards, so at that time I asked Mr. Hardison to leave the rotunda area
so that I could talk to him, he being the senior supervisor on duty in charge of the shift. So we went off the floor
and I engaged in a discussion, a brief discussion, maybe 15 minutes worth. And at that point I relieved him of his
duties and asked him to come back the next afternoon.
We went back on the floor and asked the other three supervisors, Akers, Carpenter and Jermson to come
into my office after which I explained to them the same thing, that they were relieved and I sent them home and
asked them to come back the next day at 3:00. I told all four of them that evening that I would think the matter
over and have a written recommendation at that time for Mr. Carmany for some disciplinary action and it would
be ready by the next afternoon.
After they left, after they had punched out and left, I went back on the floor to help the remaining
supervisors, help control the groups. They called two supervisors that were off and asked them to come in and
when I went back on the floor, one of the detainees [name not material] came up to me and told me that two or
three kids had escaped out the back door through the kitchen and we immediately had a head count and we were
missing three kids.
I then went back to the Booking Office to tell the Booking personnel to call the police and the other people
that were supposed to be called during an escape and at that time Mr. Hardison and Jermson had apprehended
one of the kids that had escaped, they found him sitting on the roof as they were leaving the parking area and
they left the kid in the Booking Office and we took him back in and they went on.
The other two off supervisors that were called in came in and then I went home, shortly after that.
Power claimed not to know who called him. However, Dallmeier, who testified later,
admitted on cross-examination that the Booking officer told me that they wanted to inform
Power that the game was going on, but refused to do so because Hardison was not there. He
was over at Child Haven. Dallmeier said the Booking officer, Geneva Moore, told him she
had spoken to Power and that Power needed some specific incident to take action on that.
After Power arrived, Geneva Moore told Dallmeier she had called Power. These and other
facts establish that Power was proceeding under a preconceived plan to obtain cause for
Hardison's discharge, and that Power attempted to conceal this in his testimony.
According to Power, shortly after he first relieved Hardison, and then the other
card-playing supervisors, one of the detainees told him three members of the work detail had
escaped. (See footnote 3, supra.) It appears the administration (not Hardison) had previously
employed an ex-convict as a maintenance man, without ascertaining his extensive criminal
background. Believing this man had supplied detainees with keys used in prior escapes, the
administration had therefore ordered all locks changed.
4
The evening in question, the
locksmith had arrived, let himself into the facility's kitchen, removed cylinders from the lock
on the kitchen's outside door, and had taken them to his truck to change the pins. The three
detainees had grasped this opportunity to escape. Thus, although Power attempted to relate
Hardison's termination to this escape, the truth is Power had formulated his plan before the
escape, for which Hardison cannot be blamed in any event.
If the record fixes responsibility for the escape on anyone, that person is Power. Hardison
testified seven detainees were on work detail, and all were present when he was ordered to
Power's office.
5
Regarding the number of inmates on work detail when he arrived, Power
said: I don't remember the exact number, but there was seven or eight; he admitted he then
saw the detainees who later escaped.
____________________

4
Power testified that it was speculated . . . that Sam Cooper had stolen or been given a set of keys, and that
Power therefore talked to the Director of Juvenile Services who wanted to change all the locks, so it was done.
The locks on all of the buildings were changed.

5
Hardison testified:
Q And do you have a distinct recollection of having seen them also at the time when Power came in and
instructed you to break up the game and come to his office?
A Yes, I did.
Q So that is your belief and your testimony, that they were still there at that time?
A Yes.
then saw the detainees who later escaped. There is no dispute whatever about this fact.
6
Thus, assuming as Power suggested that he could charge Hardison with ultimate
responsibility for everything that might occur when Hardison was on duty, vicarious
responsibility cannot plausibly be imputed for an escape occurring after Power ordered
Hardison away from his duties.
7

The following day, Power succeeded in obtaining a letter of resignation from Hardison.
Hardison shortly thereafter learned he could not be compelled to resign without a hearing,
requested the letter's return, demanded a hearing and, this being refused, filed his first petition
for a writ of mandamus. Thereupon, the district court ordered the Director of Juvenile
Services to conduct the hearing NRS 62.115(1) required.
By then, Power had developed several justifications for Hardison's termination, in addition
to the fact he had been playing cards.
8
Although none had substance, the Director of
Juvenile Services upheld his discharge.
____________________

6
Toward the conclusion of the cause hearing, we find the following colloquy between Hardison's counsel
and Mr. Carmany, the Director of Juvenile Services, who acted as hearing officer:
Mr. Kellar: Okay. It certainly has also been the testimony that both by Powers and Hardison and Jermson
that the seven boys were up in the rotunda area when Powers came in.
They weren't in the kitchen or in the bathroom or in theshut up in their rooms. They were in the rotunda
area where this card game was going on.
Mr. Carmany: Yes, this is their testimony.

7
Apparently unconcerned about the work detail, Power first relieved Hardison, then ordered three other
supervisors to his office and relieved them also. Of course, the staff thus decimated, the work detail was
unsupervised unless Dallmeier was present, a fact unclear in the record. Apparently to negate the possibility he
thus caused the escape himself, Power testified the detainee who reported it said it happened approximately a
half hour or 45 minutes before the time he told me, which was about a quarter after 7:00, so it [the escape] would
be 6:30 or a quarter to 7:00. If one credits this calculation based on hearsay, fixing the escape when only
Hardison was relieved of duty, perhaps one cannot blame Power directly for the escape. Still, judging Power as
he would have Hardison judged, one might say that after Power took control of Hardison's shift, he had the
ultimate responsibility.
In any event, Power made no real effort to determine when or why the escape occurred; he simply later
proclaimed it another justification for seeking Hardison's discharge.

8
The following are Power's principal afterthoughts, by which he sought to justify Hardison's dismissal:
Power advocated that Hardison should be held responsible for the escape. This cannot be done; Hardison had
been ordered to Power's office before the escape, which may well have been precipitated by Power's acts, rather
than by any prior act of Hardison.
Power testified that about August 27, 1969, he had reprimanded
Juvenile Services upheld his discharge. Hardison again petitioned the district court for a writ
of mandamus, seeking reinstatement with back pay. The district court denied relief, except to
order back pay from Hardison's original ouster to July 6, 1970, when the Director had
ultimately confirmed his discharge after the aforementioned hearing. Hence, this appeal.
9

The Applicable Law
Under NRS 62.115(1), Hardison could properly be discharged only for cause.
Interpreting Reno's City Charter, which authorized the chief of police to suspend a police
officer for cause, this court heretofore endorsed this definition:
Cause' or sufficient cause' means legal cause, and not any cause which the officer
authorized to make such removal may deem sufficient. It is implied that an officer cannot be
removed at the mere will of the official vested with the power of removal, or without any
cause. The cause must be one which specifically relates to and affects the administration of
the office, and must be restricted to something of a substantial nature directly affecting the
rights and interests of the public. The cause must be one touching the qualifications of the
officer or his performance of his duties, showing that he is not a fit or proper person to hold
the office. An attempt to remove an officer for any cause not affecting his competency or
fitness would be an excess of power and equivalent to an arbitrary removal."
____________________
all senior supervisors, including Hardison, because inmate clothing forms had been incorrectly filled out by
personnel unknown. However, Power admitted on cross-examination that he did so because the Director of
Juvenile Services had reprimanded Power; he acknowledged he did not know if any of the mistakes had even
occurred on Hardison's shift; and when Power was asked to produce a copy of the reprimand, he said his file was
missing.
Power testified that on September 29, he had reprimanded Hardison because of a prior escape. However,
cross-examination established he had no personal knowledge of the incident, and had no information that
Hardison had been specifically in charge of the detainee when the escape occurred. Apparently, Power had
reprimanded Hardison because he had been on shift.
Power testified that about September 29, he reprimanded Hardison for allowing a detainee to deface the
facility. Again, Power had no knowledge of how the incident occurred. Again, Power's copy of the reprimand
was missing.

9
Respondents filed neither notice of appeal nor supersedeas bond; they do not question that Hardison is at
least entitled to the back pay the district court ordered; however, they apparently have failed to tender even that
amount to him. It is for this reason that we are explicitly directing the district court to ascertain that the writ
issued pursuant to our decision is in all respects obeyed.
would be an excess of power and equivalent to an arbitrary removal. Ex rel. Whalen v.
Welliver, 60 Nev. 154, 158, 104 P.2d 188, 190-191 (1940).
In the Whalen case, we granted mandamus relief, commanding reinstatement of
wrongfully discharged police officers. In the instant case, we must do the same.
[Headnote 1]
The record establishes that, either without reason or for reasons that do not appear of
record, Power laid plans to generate a reason for Hardison's discharge. That Power was then
without legal cause to justify his desire to end Hardison's employment seems apparent from
his evident need to proceed in this way, and from the fact that later attempts to bolster that
pretext proved insubstantial.
Power's attempt to generate cause is unjustifiable. Such a ploy is meaningless to show an
employee is not a fit or proper person to hold the office. 60 Nev. at 158. Clearly, Hardison
was not removed because of some proven dereliction of a substantial nature directly
affecting the rights and interests of the public, but simply on Power's mere will. 60 Nev. at
158.
[Headnotes 2, 3]
As no legal cause was shown for his discharge, Hardison must be reinstated with all
accrued back pay and rights, except rights to vacation time off he would have accumulated if
he had been allowed to work rather than involuntarily idled. Such time off, of course, he has
received. Hardison is also entitled to interest on monies due him, NRS 99.040(5), his costs in
proceedings below, NRS 18.020(4), and his costs on appeal, NRS 18.060(2).
This cause is reversed, with the instructions earlier set forth.
10

Zenoff, C. J., and Thompson. J., concur.
____________________

10
Justice Batjer's concurring opinion mentions that, in the hearing before Carmany, exhibits were admitted,
which the district court may later have viewed, but which are not part of the record on appeal. For several
reasons, such exhibits do not appear critical to fair disposition of the issues, as presented by the parties.
Respondents' counsel has not attempted to vindicate the district court's action by reference to such exhibits, and
has not suggested that any thing material is missing from the record on appeal. Moreover, the record before us
reflects that the district court ordered its clerk to transmit the original record to us and, in the absence of any
suggestion that something material is missing, we
Batjer, J., concurring in the result but for a different reason:
Certain exhibits filed in the hearing before James Carmany, director of juvenile services in
Clark County, Nevada, have not been filed with this court. The record does not reveal
whether or not those exhibits were before the district court. Whether those exhibits would
have been sufficiently persuasive to justify this court in reaching a different result is
speculative.
I agree that upon the record before us there is insufficient evidence to support the district
court's finding that cause existed for the appellant's termination.
Nevertheless, I would reverse the order of the district court because the appellant was
denied a hearing before a disinterested and impartial hearing officer as guaranteed by the Due
Process Clause of the Fourteenth Amendment of the United States Constitution and Article I,
Section 8, of the Constitution of the State of Nevada.
It was Carmany, as director of juvenile services, who discharged the appellant, and was
then called upon, pursuant to NRS 62.115(1)
1
and an order of the district court, to conduct a
hearing and sit in judgment of his original order. This procedure was not only unfair to the
appellant but it was also unfair to any director of juvenile services.
In reaching this decision I am aware of Hampton v. Wartman, 85 Nev. 408, 455 P.2d 921
(1969), where the juvenile judge of the district court approved a recommendation of the
probation committee that Hampton be demoted. Hampton inappropriately sought a hearing
before county officials, then he requested a hearing before a district court judge other than the
juvenile judge. The juvenile judge refused to disqualify himself and Hampton sought a writ of
certiorari or in the alternative a writ of prohibition in this court. There the juvenile judge
afforded Hampton an opportunity for a hearing before him and Hampton did not avail himself
of that opportunity. That case is distinguished from this one because the juvenile judge
approved the recommendation of the probation committee but here Carmany personally
discharged the appellant before the hearing.
____________________
presume the clerk transmitted to us the entire record on which the district court acted. Furthermore, from review
of the record before us, we feel able to discern the tenor of the aforementioned exhibits, and we are satisfied they
could not have justified the district court's action, if indeed that court viewed them.

1
NRS 62.115(1) (In pertinent part): . . . Probation officers and employees may be removed only for cause
after having been given the reasons therefor in writing and being afforded an opportunity to be heard before the
director of juvenile services in answer thereto.
before the hearing. Furthermore, the hearing in this case was demanded and held.
After we decided Hampton v. Wartman, supra, the United States Supreme Court decided
the cases of Coolidge v. New Hampshire, 403 U.S. 443 (1970), and Ward v. Village of
Monroeville, 409 U.S. 57, 93 S.Ct. 80 (1972), which cast a shadow upon the validity of our
pronouncement in Hampton v. Wartman that, Petitioner's [Hampton's] January 17, 1969
request that the juvenile judge disqualify himself was improper.
In Coolidge v. New Hampshire, supra, a fourteen year old girl was found murdered and
Coolidge was apprehended, tried and convicted of her murder. In that case arrest and search
warrants were issued by the state attorney general acting as justice of the peace. Prior to
issuing the warrants the attorney general had personally taken charge of all police activity
relating to the murder and he later served as chief prosecutor at Coolidge's trial. In reversing
and remanding the case the High Court found that the warrant authorizing the search of the
automobile was invalid on the ground that it was not issued by a neutral and detached
magistrate and that seizure and subsequent search of the Coolidge automobile did not
constitutionally rest upon such a warrant. In Ward v. Monroeville, supra, the High Court held
that Ward had been denied a trial before a disinterested and impartial judicial officer as
guaranteed by the Due Process Clause of the Fourteenth Amendment where he was
compelled to stand trial for traffic offenses before the mayor who was responsible for village
finances and whose court through fines, forfeitures, costs and fees provided a substantial
portion of village funds.
Although those cases decided by the High Court dealt with criminal proceedings, I believe
the same standard for a disinterested and impartial hearing officer is required in a hearing in a
civil case where an attempt is being made to discharge an employee with tenure.
2
Mowbray,
J., concurring in part with Batjer, J.,

____________________

2
In 1971 the legislature apparently recognized the inherent inequities and repealed the provision for a hearing
before the director of juvenile services and added NRS 62.117.
NRS 62.117: In each judicial district which includes a county having a population of 200,000 or more, as
determined by the last preceding national census of the Bureau of the Census of the United States Department of
Commerce, any probation officer or employee of the probation department, any detention home or other
commitment facility administered or financed by the county, appointed under the provisions of NRS 62.115,
who has been employed in such capacity for 12 months or more and is dismissed from such employment may:
1. Within 15 days of his dismissal, request a written statement
Mowbray, J., concurring in part with Batjer, J., and dissenting in part:
I agree with Mr. Justice Batjer's position that the appellant Hardison was entitled to a
hearing before a disinterested person under the Due Process Clause of the Fourteenth
Amendment of the United States Constitution and Article I, Section 8, of the Constitution of
the State of Nevada. The Legislature has now provided for such a hearing. NRS 62.117.
1
I
would therefore remand the case to the lower court with instructions that the appellant be
granted a hearing before the Clark County Probation committee, in accordance with the
procedural provisions of the statute.
____________________
from the director of juvenile services specifically setting forth the reasons for such dismissal; and within 15 days
of the date of such request he shall be furnished such a written statement.
2. Within 30 days after receipt of such written statement, request, in writing, a public hearing before the
probation committee. The probation committee shall adopt rules for the conduct of such hearing.
3. Appeal the decision of the probation committee to the board or boards of county commissioners.

1
NRS 62.117: In each judicial district which includes a county having a population of 200,000 or more, as
determined by the last preceding national census of the Bureau of the Census of the United States Department of
Commerce, any probation officer or employee of the probation department, any detention home or other
commitment facility administered or financed by the county, appointed under the provisions of NRS 62.115,
who has been employed in such capacity for 12 months or more and is dismissed from such employment may:
1. Within 15 days of his dismissal, request a written statement from the director of juvenile services
specifically setting forth the reasons for such dismissal; and within 15 days of the date of such request he shall be
furnished such a written statement.
2. Within 30 days after receipt of such written statement request, in writing, a public hearing before the
probation committee. The probation committee shall adopt rules for the conduct of such hearing.
3. Appeal the decision of the probation committee to the board or boards of county commissioners.
____________
88 Nev. 680, 680 (1972) Sparkman v. State
ALPHONZO SPARKMAN, Jr., Appellant, v. THE
No. 6751
December 15, 1972 504 P.2d 8
Appeal from a judgment of conviction and sentence of the Eighth Judicial District Court,
Clark County; Clarence Sundean, Judge.
The district court found defendant guilty of selling narcotics and he appealed. The
Supreme Court held that in factual context of case, trial court's statement that defense
counsel's argument was not proper, in response to prosecutor's statement that argument was
not proper, even if erroneous, was harmless.
Affirmed.
Morgan D. Harris, Public Defender, and Jerrold J. Courtney, Deputy Public Defender,
Robert List, Attorney General, of Carson City, Roy A. Woofter, District Attorney, and
Criminal Law.
In factual context of case, trial court's statement that defense counsel's argument was not proper, in
response to prosecutor's statement that argument was not proper, even if erroneous, was harmless. NRS
178.598.
OPINION
Per Curiam:
Appellant was convicted of selling narcotics in violation of NRS 453.030 and NRS
453.210(2) and sentenced to a six year term in the state penitentiary.
In this appeal from the conviction and sentence his single assignment of error is that the
trial judge improperly limited defense counsel in his argument to the jury. The argument
related to the state's burden of proof and the alleged error is based on the following colloquy.
Prosecutor: Your Honor, I don't believe that is proper argument.
Court: No, it's not.
Defense Counsel: I'm just trying to explain the law, your Honor.
Court: The law has been explained to the jury.
The record fails to show that counsel for appellant made any objection or attempt to pursue
the argument further. He does not contest the propriety or sufficiency of the law as given in
the instructions. He cites no authority.
There is substantial evidence in support of the conviction, including appellant's testimony
that he participated in the transaction. Even if we considered the statement of the trial judge
erroneous, it was harmless, in the factual context presented. NRS 178.598, Schneble v.
Florida, 405 U.S. 427 {1972). Cf. Shepp v. State, S7 Nev. 179
(1972). Cf. Shepp v. State, 87 Nev. 179, 484 P.2d 563 (1971).
____________
88 Nev. 682, 682 (1972) Scott v. State
GREGORY SCOTT, Appellant, v. THE
No. 6568
December 15, 1972 504 P.2d 10
Appeal from judgment and sentence of Second Judicial District Court, Washoe County.
John E. Gabrielli, Judge.
On remand, 86 Nev. 145, 465 P.2d 620 (1970), the district court found defendant guilty of
robbery and he appealed. The Supreme Court held that evidence failed to establish that
defendant who was brought into court handcuffed and attired in prison garb was deprived of a
fair trial.
Affirmed.
Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, and
Kathleen M. Wall, Assistant Chief Deputy, Washoe County, for Respondent.
1. Criminal Law.
Defendant's claims relating to denial of speedy trial did not rise to such proportions as to show denial of
constitutional rights.
2. Criminal Law.
Defendant cannot wear prison clothes without making known his objection, and, when unsuccessful in
trial, claim that trying him while clothed in prison attire was error.
3. Criminal Law.
Evidence failed to establish that defendant who was brought into court handcuffed and attired in prison
garb was deprived of a fair trial.
OPINION
Per Curiam:
Having obtained reversal of his conviction of robbing the Zanzibar Motel in Reno, Scott v.
State, 86 Nev. 145, 465 P.2d 620 (1970), appellant was again tried and convicted of the
offense.
88 Nev. 682, 683 (1972) Scott v. State
[Headnote 1]
He appeals from the second conviction on several grounds, his principal argument being
that the 18-month delay between his arrest and his first trial amounts to a denial of his
constitutional right to a speedy trial. Appellant concedes we rejected that contention when his
first conviction was reversed on other grounds, 86 Nev. at 150, 465 P.2d at 623. He also
concedes that much of the delay was occasioned by his interim appeal from a denial of habeas
relief. In view of the recent pronouncements of the High Court in Barker v. Wingo, 407 U.S.
514 (1972), his speedy trial contentions are totally devoid of merit. They do not rise to such
proportions as to show a denial of constitutional rights. Scott v. Hocker, 460 F.2d 303 (9th
Cir. 1972).
[Headnote 2]
As a second alleged error he contends he was deprived of a fair trial because he was
brought into court handcuffed and attired in prison garb. The handcuffs were removed in the
courtroom. He was so attired only during the opening day of the trial; half of that day was
taken up with voir dire proceedings. No objection was made until after the voir dire was
completed, at which time the trial judge offered to allow appellant to camouflage the prison
uniform. The offer was rejected by appellant's counsel. No attempt was made to adduce proof
that appellant had requested the right to wear his own clothes. He failed to secure in the
record of the voir dire examination any evidence of whether in fact the jury saw or realized
the manner in which he was brought before the court. Conceding that appellant had the right
to be dressed in civilian garb . . . there was a failure to make timely protest of the denial of
such right. People v. Shaw, 164 N.W.2d 7, 10 (Mich. 1969). The mode of dress may well
have been a matter of trial strategy, and if so, appellant cannot deliberately create a condition
for an advantage and, failing that, urge it as error.
[Headnote 3]
Several recent cases have held that the nature of the clothing worn by a defendant at trial is
not inherently prejudicial of his right to a fair and impartial trial. Seabourn v. State, 493 P.2d
459 (Okla.Crim.App. 1972); Xanthull v. Beto, 307 F.Supp. 903 (S.D. Tex. 1970); Thomas v.
State, 451 S.W.2d 907 (Tex.Crim.App. 1970); McFalls v. Peyton, 270 F.Supp. 577 (W.D. Va.
1967), aff'd, 401 F.2d 890 (4th Cir. 1968). Cf. Watt v. Page, 452 F.2d 1174 (10th Cir. 1972),
Under the circumstances shown and the noted authorities, appellant was not deprived of a
fair trial.
88 Nev. 682, 684 (1972) Scott v. State
circumstances shown and the noted authorities, appellant was not deprived of a fair trial.
Appellant, serving another sentence, was transported from the state prison to the district
court for trial. For the trip he was shackled and handcuffed. The shackles were removed
before he was taken into court. We have previously upheld the right of an officer to use
restraint on one charged with a felonious crime when he is being taken to or from the court.
State v. McKay, 63 Nev. 118, 165 P.2d 389 (1946). There is no showing that the restraint
used affected the fairness of the trial. Gregory v. United States, 365 F.2d 203 (8th Cir. 1966).
We have examined all other claims of error and find them to be without merit.
____________
88 Nev. 684, 684 (1972) Crane v. State
MORTON HARRY CRANE and GARY WILLIAM
SHAON, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 6850
December 15, 1972 504 P.2d 12
Appeal from judgments of conviction of the Fifth Judicial District Court, Nye County;
Kenneth L. Mann, Judge.
Defendants were convicted in the district court of burglary and they appealed. The
Supreme Court, Mowbray, J., held that whether defendants unlawfully entered the justice of
the peace court in unlocked building without consent and with specific intent to commit
larceny was for jury.
Affirmed.
Gary A. Sheerin, State Public Defender, for Appellants.
Robert List, Attorney General, William P. Beko, District Attorney, and Peter L. Knight,
Deputy District Attorney, Nye County, for Respondent.
1. Burglary.
In prosecution for burglary, whether defendants unlawfully entered the justice of the peace court in
unlocked building without consent and with specific intent to commit larceny was for jury. NRS
193.200, 205.060, 205.065.
88 Nev. 684, 685 (1972) Crane v. State
2. Criminal Law.
Where direct and circumstantial evidence was introduced, instructions which described direct and
circumstantial evidence and instruction which required jury, with respect to evidence capable of pointing to
guilt or innocence, to adopt interpretation admitting of innocence where all that was necessary; thus trial
court did not commit reversible error in failing, sua sponte, to instruct jury that it was required to acquit
unless it could find that circumstantial evidence as to specific intent was irreconcilable with any conclusion
but guilt. NRS 193.200.
3. Criminal Law.
In prosecution for burglary of building that housed justice of peace court, testimony that items found in
defendants' residence were identical or very similar in appearance to articles missing from court was
sufficient identification to permit the articles to be introduced into evidence.
OPINION
Morton Harry Crane and Gary William Shaon were tried to a jury and convicted of
burglary. NRS 205.060.
1

They have appealed from their judgments of conviction, asserting several assignments of
error, which we reject as meritless and, therefore, affirm the jury's verdict.
1. At about the hour of 1:00 a.m. on July 22, 1971, two eyewitnesses saw Crane and
Shaon dash into the building that housed the Justice of the Peace Court of Nye County
located in Tonopah, Nevada. Approximately two minutes later the same eyewitnesses saw
Crane and Shaon march out of the court, each man carrying a flag mounted on its standard.
Upon investigation, it was learned that the United States flag and the Nevada flag, with
standards, and a bag containing several gold eagles were missing from the Justice Court.
____________________

1
NRS 205.060:
1. Every person who, either by day or night, enters any house, room apartment, tenement, shop, warehouse,
store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or
housetrailer, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary.
2. Any person convicted of burglary shall be punished by imprisonment in the state prison for not less than 1
year nor more than 10 years.
88 Nev. 684, 686 (1972) Crane v. State
the Nevada flag, with standards, and a bag containing several gold eagles were missing from
the Justice Court. A search warrant was obtained, and the quarters where the appellants slept
were searched. An American flag and a Nevada flag were found nailed to the walls of the
shack where the appellants lived. Later, in an adjoining building to which the appellants had
access, two additional flags, an American flag and a Nevada flag, were found with two
standards, one of which bore the Nye County metal decal inventory stamp. While the other
flagpole was similar, neither it nor the two flags located near the Nye County Pole could be
positively identified as the flags taken from the Justice Court, because they had no such
positive markings, although they were identified as very similar in appearance to the flags
removed from the courtroom, and they were received in evidence with the standards.
[Headnote 1]
2. The appellants challenge the jury's verdict, first, on the ground that there is no direct
evidence in the record to show that they entered the justice court with specific intent to
commit larceny, which is the necessary element upon which the charge of burglary is
predicated. Appellants argue that there was no breaking into the building because the building
has not been locked in over 40 years. NRS 205.065 provides in part: Every person who shall
unlawfully break and enter or unlawfully enter any . . . building . . . shall be deemed to have .
. . entered the same with intent to commit grand or petit larceny . . . unless such . . . unlawful
entry shall be explained by testimony satisfactory to the jury to have been made without
criminal intent. (Emphasis added.) McNeeley v. State, 81 Nev. 663, 409 P.2d 135 (1965).
Both defendants took the stand, and they each denied entering the building and removing the
articles, although they admitted walking by the courtroom at the time they were seen by the
witnesses. Apparently their testimony was rejected by the jury as an unsatisfactory
explanation of their conduct, and understandably so, in light of the direct testimony of the
eyewitnesses who observed the crime. Intention is manifested by circumstances connected
with the perpetration of the offense. NRS 193.200.
2
The evidence in the instant case
provides adequate circumstances upon which the jury could have reasonably inferred that
Crane and Shaon, having unlawfully entered the justice court without consent, did so with
the specific intent to commit larceny.
____________________

2
NRS 193.200:
Intention is manifested by the circumstances connected with the perpetration of the offense, and the sound
mind and discretion of the person accused.
88 Nev. 684, 687 (1972) Crane v. State
having unlawfully entered the justice court without consent, did so with the specific intent to
commit larceny.
[Headnote 2]
3. The appellants next claim the trial judge committed reversible error in failing sua
sponte to instruct the jury that unless the jury could find from the evidence received that the
circumstantial evidence relating to the element of specific intent was wholly irreconcilable
with any conclusion but that of guilt, the jury must find that such specific intent did not exist
and acquit the defendants. The trial judge did give Instruction 13
3
and Instruction 14,
4
which was all that was necessary in this case, because direct evidence, as well as
circumstantial evidence, was introduced during the trial. State v. Alsup, 69 Nev. 121, 243
P.2d 256 (1952).
[Headnote 3]
4. The two flags with standards and a bag containing the gold eagles all found in buildings
occupied by the appellants were received in evidence. This, the appellants claim, was error,
because the items, except one of the standards, were not positively identified as the ones
taken from the justice court.
____________________

3
Instruction 13:
There are two classes of evidence recognized and admitted in Courts of Justice, upon either of which juries
may lawfully find the accused guilty of crime. One is direct or positive testimony of any eye witness to the
commission of the crime, and the other is proof by testimony of a chain of circumstances pointing sufficiently
strong to the commission of the crime by the defendants, and which is known as circumstantial evidence.
Such evidence may consist of any acts, declarations or circumstances admitted in evidence tending to prove
the commission of the crime.
If you are satisfied of defendants' guilt beyond a reasonable doubt, it matters not whether your judgment of
their guilt is based upon direct and positive evidence or on indirect and circumstantial evidence, or upon both.

4
Instruction 14:
If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to
you to be reasonable, and one of which points to the guilt of the defendants, and the other to their innocence, it is
your duty, under the law, to adopt that interpretation which will admit of the defendants' innocence, and reject
that which points to their guilt.
You will notice that this rule applies only when both of the two possible opposing conclusions appear to you
to be reasonable. If, on the other hand, one of the possible conclusions should appear to you to be reasonable
and the other to be unreasonable, it would be your duty to adhere to the reasonable deduction and to reject the
unreasonable, bearing in mind, however, that even if the reasonable deduction points to defendants' guilt, the
entire proof must carry the convincing force required by law to support a verdict of guilt.
88 Nev. 684, 688 (1972) Crane v. State
error, because the items, except one of the standards, were not positively identified as the
ones taken from the justice court. As we mentioned earlier, the only item bearing a positive
identification mark was one of the standards that had the Nye County metal decal inventory
number on it. The witnesses did testify as to the other items that they were identical or very
similar in appearance to the missing articles. This was sufficient identification to permit the
exhibits into evidence. O'Brien v. State, 88 Nev. 488, 500 P.2d 693 (1972).
The remaining assignments of error concern matters to which objection was not made at
trial, and the other claims of error, if error at all, cannot reasonably be deemed to have
affected substantial rights. NRS 178.596 and NRS 178.598.
Appellants' judgments of conviction are affirmed.
____________
88 Nev. 688, 688 (1972) Whitmore v. Sheriff
JOSEPH WHITMORE, Appellant, v. SHERIFF, CLARK
No. 7019
December 18, 1972 504 P.2d 703
Appeal from an order discharging pre-trial petition for a writ of habeas corpus; Eighth
Prosecution for sale of marijuana. The Supreme Court held that evidence established
probable cause for prosecuting defendant for the sale of a controlled substance on theory that
defendant's involvement in marijuana sale was in furtherance of sale and defendant was not
merely an agent of purchaser.
Affirmed.
1. Criminal Law.
The sale of marijuana which is a controlled substance is a felony. NRS 453.161, subd. 4(j), 453.321,
453.321, subd. 2(a)(1).
88 Nev. 688, 689 (1972) Whitmore v. Sheriff
2. Criminal Law.
Evidence established probable cause to prosecute defendant for the sale of a controlled substance on
theory that defendant's involvement in marijuana sale was in furtherance of sale and defendant was not
merely an agent of the purchaser. NRS 453.161, subd. 4(j), 453.321, subd. 2(a)(1).
OPINION
Per Curiam:
Appellant was charged, by grand jury indictment, with the sale of a controlled substance
marijuana in violation of NRS 453.161(4)(j) and NRS 453.321 (2)(a)(1).
In this appeal from a denial of pre-trial habeas relief in the district court his basic
contention is that he was, at most, only the agent of the purchaser and thus immune from
prosecution under our decision in Roy v. State, 87 Nev. 517, 489 P.2d 1158 (1971). At this
juncture, his reliance on Roy is misplaced.
[Headnote 1]
Roy involved the right of an accused to have a purchasing agent instruction given to the
jury, [w]here the evidence does not foreclose it, . . .
1
87 Nev. at 518, 489 P.2d at 1158.
Roy also said that, [i]n the Glosen
2
cases, habeas corpus matters concerned merely with
probable cause to hold for trial, this court held one who traffics in narcotics
3
by assisting a
seller may by found guilty of a sale' although he takes no profit from the transaction. 87
Nev. at 519, 489 P.2d at 1159.
[Headnote 2]
The record before us contains sufficient evidence to establish probable cause that
appellant's involvement in the transaction was in furtherance of the sale, which is not
questioned.
The judgment of the trial court is affirmed.
____________________

1
Appellant might well be entitled to a Roy instruction when his case is submitted to the jury.

2
Glosen v. Sheriff, 85 Nev. 145, 451 P.2d 841 (1969), and Glosen v. Sheriff, 85 Nev. 166, 451 P.2d 843
(1969).

3
Under our statutes marijuana was classified as a narcotic prior to January 1, 1972. Since that date it is
classified as a controlled substance, NRS 453.161(4)(j). Its sale is still a felony. NRS 453.321. See Stats. of Nev.
1971, ch. 667, p. 1999 et seq.
____________
88 Nev. 690, 690 (1972) State v. Webster
STATE OF NEVADA, Appellant, v. WILMA WEBSTER, Individually and
as Guardian Ad Litem for ROBERT D. WEBSTER, SUSAN L. WEBSTER, and
LEVI J. WEBSTER, Infants, Respondents.
No. 6557
December 26, 1972 504 P.2d 1316
Appeal from a judgment of the Second Judicial District Court, Washoe County; Thomas
O. Craven, Judge.
Action for wrongful death and personal injuries arising out of automobile accident brought
against the State. The district court entered a judgment in favor of the plaintiffs and the State
appealed. The Supreme Court, Batjer, J., held that the State was liable for its negligence in
failing to install cattle guard at entrance to controlled-access freeway at place where
motorist's automobile crashed into horse which was wandering on the highway at night, and
the wife bringing an action for both her own injuries and for the wrongful death of her
husband was not limited to recovery of $25,000 for both actions.
Affirmed in part, reversed in part and remanded.
Robert List, Attorney General, and Richard G. Edwards and Margo Piscevich, Deputy
Attorneys General, of Carson City, for Appellant.
Breen, Young, Whitehead & Hoy, Chartered, of Reno, for Respondents.
1. Highways.
Once State made decision to construct controlled access to freeway in area in which accident occurred
State was obligated to use due care to make certain that the freeway met standard of reasonable safety for
traveling public, and this operation function of government was not exempt from liability if due care had
not been exercised and injury resulted. NRS 41.031, 41.032, subd. 2.
2. Highways.
Where cattle guard is reasonably necessary for security of traveling public on a controlled-access freeway
the failure to install same renders State amenable to suit. NRS 41.031, 41.032, subd. 2.
3. Automobiles; States.
State was liable in action for wrongful death of motorist whose automobile crashed into horse wandering
at night on controlled-access freeway because of negligence in failing to install cattle guard at freeway
entrance, and it was not exempt from immunity on ground that the installation of cattle guard was an act of
discretion. NRS 41.031, 41.032, subd. 2.
4. States.
By its terms statute relating to limitation of recovery in tort actions against the State limits any claimant's
recovery to $25,000 and statute does not limit claimant's recovery to $25,000 regardless of how many
actions he or she may have. NRS 41.035.
5. States.
Although joined in one complaint an action for wrongful death and action for personal injuries suffered
by plaintiff in same accident are separate, distinct and independent and may be separately maintained and
the identity of each of widow's actions for wrongful death of her husband driver and for her own injuries
sustained in automobile accident were not lost because she commenced both actions simultaneously by
joining them in one complaint, and widow's recovery on both actions was not limited to a total of $25,000
under statute limiting award for damages in actions sounding in tort against State. NRCP 18(a); NRS
41.035.
6. States.
Limitations on State's waiver of sovereign immunity should be strictly construed and in a close case the
court favors a waiver of immunity. NRS 41.031, 41.032, subd. 2.
7. States.
Term action under statute limiting award for damages in action sounding in tort against State to
$25,000 for the benefit of any claimant refers to the wrong done and not the measure of compensation or
the character of relief sought and the term is not synonymous either with actions or with accident.
NRS 41.035.
OPINION
On the evening of December 14, 1967, seven dark-colored horses belonging to Dr. Richard
Miller escaped from a pasture located near an unguarded entrance to U.S. Highway 395,
wandered onto a frontage road and then onto the newly constructed controlled-access
freeway. This controlled-access freeway began at the foot of Lakeview Hill north of Carson
City, Nevada, and continued north to a point approximately four miles from said city.
A motorist driving toward Carson City hit one of those horses at a point about three and
one-half miles north of that city. Another person came along shortly thereafter, but was able
to avoid a collision with the animals by swerving sharply off the road. This second motorist
drove on to Carson City and notified the highway patrol. A Nevada highway patrolman was
dispatched to the scene, and soon after he arrived, at around 11 o'clock on that dark, moonless
night, Billy Webster was approaching the horses. He was returning from Reno with his wife,
Wilma Webster, and three friends.
his wife, Wilma Webster, and three friends. When the Webster vehicle came within some 200
feet of the horses, the highway patrolman shone his red spotlight at the Webster car to warn
of the danger. Webster was unable to stop and he hit one of the horses. His automobile was
wrecked, and he died that same evening as a result of injuries received in the collision.
Respondent at trial charged that the State had failed to provide and maintain adequate
fencing to prevent livestock from entering this highway and that this negligence was the
proximate cause of Billy Webster's death.
The district court, sitting without a jury, found that the State was negligent in failing to
install a cattle guard at the freeway entrance and that such negligence was the sole proximate
cause of the accident. The court found no contributory negligence on the part of the deceased,
Billy Webster, and entered judgment against the State.
1
From the evidence in the record, we
cannot say that the findings are erroneous.
The State contends (1) that the Legislature has not so unalterably waived its sovereign
immunity as to make it amenable to suit in this case; (2) that as a matter of law the trial court
was required to find Billy Webster guilty of contributory negligence; and (3) that NRS 41.035
precludes any one individual from recovering more than a total of $25,000 even if recovery is
based on separate claims.
The parties agree that NRS 41.035(1) is constitutionally sound and that it is within the
legislative power to limit recovery to $25,000 per claimant. State v. Silva, 86 Nev. 911, 478
P.2d 591 (1970). That being the case, only two matters require our consideration on this
appeal. The first is the State's contention that its alleged negligence in failing to install a cattle
guard that would have prevented the errant horses from entering the controlled-access
freeway was not actionable under NRS 41.032(2), which reads in pertinent part: No action
may be brought under NRS 41.031 or against the employee which is . . . [b]ased upon the
exercise or performance or the failure to exercise or perform a discretionary function or
duty on the part of the state or any of its agencies or political subdivisions or of any
employee of any of these, whether or not the discretion involved is abused."
____________________

1
Judgment against the State was entered as follows:
First Cause of Action
Wilma E. Webster........................................................................................................ $35,000.00
Robert D. Webster...................................................................................................... 66,667.00
Susan L. Webster........................................................................................................ 71,667.00
Levi J. Webster............................................................................................................ 76,667.00
Second Cause of Action
Wilma E. Webster........................................................................................................ $17,725.84
the failure to exercise or perform a discretionary function or duty on the part of the state or
any of its agencies or political subdivisions or of any employee of any of these, whether or
not the discretion involved is abused.
The other matter we must consider is the State's contention that respondent Wilma
Webster is entitled to recover, if at all, only $25,000 for all damages she may have suffered as
a result of the accident.
[Headnote 1]
1. The State claims total immunity from suit, on the ground that the failure to install a
cattle guard at the point where U.S. Highway 395 joined the controlled-access freeway was an
act of discretion for which the State was exempted from liability. The citizens of the State of
Nevada, acting through the Legislature, have conditionally waived sovereign immunity. NRS
41.031.
2
Such immunity, however, was not waived if the act complained of was a
discretionary function of government. See NRS 41.032(2). Here, the governmental function
to be considered was the construction of a controlled-access freeway. It was not mandatory
upon the State to construct the freeway. It could have continued to maintain the two-lane
highway between Reno and Carson City. Whether or not, for the convenience of the traveling
public, the State would construct a controlled-access freeway between the two cities or
construct a portion of the route was an exercise of discretion based upon policy. Its decision
to do so was a discretionary act. Once the decision was made to construct a controlled-access
freeway in the area where this accident happened, the State was obligated to use due care to
make certain that the freeway met the standard of reasonable safety for the traveling public.
____________________

2
NRS 41.031: The State of Nevada hereby waives its immunity from liability and action and hereby
consents to have its liability determined in accordance with the same rules of law as are applied to civil action
against individuals and corporations, except as otherwise provided in NRS 41.032 to 41.038, inclusive, provided
the claimant complies with the limitations of NRS 41.032 to 41.036, inclusive, or the limitation of NRS 41.010.
The State of Nevada further waives the immunity from liability and action of all political subdivisions of the
state, and their liability shall be determined in the same manner, except as otherwise provided in NRS 41.032 to
41.038, inclusive, provided the claimant complies with the limitations of NRS 41.032 to 41.036, inclusive. An
action may be brought under this section against the State of Nevada, any agency of the state, or any political
subdivision of the state. In an action against the state or any agency of the state, the State of Nevada shall be
named as defendant, and the summons shall be served upon the secretary to state.
public. This is the type of operational function of government not exempt from liability if due
care has not been exercised and an injury results. State v. Silva, supra; Harrigan v. City of
Reno, 86 Nev. 678, 475 P.2d 94 (1970).
[Headnote 2]
In Pardini v. City of Reno, 50 Nev. 392, 401, 263 P. 768, 771 (1928), this court said:
[W]here a railing or barrier is reasonably necessary for the security of travelers on the street,
which from its nature would otherwise be unsafe, and the erection of which would have
prevented the injury, it is actionable negligence not to construct and maintain such railing or
barrier. The possibility of liability by the city in that case was not predicated on its failure to
construct a guardrail in accordance with a plan, but on its failure to construct one at all. The
failure of the city to construct a guardrail in both Harrigan v. City of Reno, supra, and Pardini
v. City of Reno, supra, as the failure of the State in this case to install a cattle guard at the
entrance to the controlled-access freeway, came at the operational level, after the
discretionary decision had been made. Where a cattle guard is reasonably necessary for the
security of the traveling public on a controlled-access freeway, the failure to install it renders
the State amenable to suit.
The discretionary exception provision found in NRS 41.032 is identical to that of the
Federal Tort Claims Act, 28 U.S.C. 2680(a) (1965). The purpose of that act was stated in
Indian Towing Co. v. United States, 350 U.S. 61, 68-69 (1955), to be to compensate the
victims of negligence in the conduct of governmental activities in circumstances like unto
those in which a private person would be liable and not to leave just treatment to the caprice
and legislative burden of individual private laws. In United States v. Yellow Cab Co., 340
U.S. 543, 550 (1951), the High Court stated that, in view of the clearly defined purpose of the
act as a whole, it is inconsistent to whittle it down by refinements.
[Headnote 3]
The State's position in connection with its contention is that discretion on the part of the
State, acting through its employees, is involved in the installation of a fence or cattle guard.
To accept the State's position would effectively restore sovereign immunity. In Swanson v.
United States, 229 F.Supp. 217, 219 (N.D.Cal. 1964), that court said: In a strict sense, every
action of a government employee, except perhaps a conditioned reflex action, involves the
use of some degree of discretion.
The State relies strongly on Dalehite v. United States, 346 U.S. 15 {1953).
U.S. 15 (1953). It is not apposite. Although, in that case, the Court sustained governmental
immunity, it did so because it was found that the decisions held culpable were made at a
planning, rather than operational level. Later federal court decisions have adopted the view
that acts done in accordance with operational level decisions are not protected by the
exception for discretionary functions. United States v. Hunsucker, 314 F.2d 98 (9th Cir.
1962); American Exch. Bank v. United States, 257 F.2d 938 (7th Cir. 1958); Indian Towing
Co. v. United States, supra.
[Headnote 4]
2. The State contends that, although Wilma Webster pleaded and proved both an action
for her own personal injuries and an action for Billy Webster's wrongful death, her recovery
should be limited to a total of $25,000. We do not agree. NRS 41.035 declares: No award for
damages in an action sounding in tort . . . may exceed the sum of $25,000 to or for the benefit
of any claimant . . . . By its terms, NRS 41.035 limits any claimant's recovery to $25,000 in
an action. It does not limit a claimant's recovery to $25,000, regardless of how many actions
he or she may have.
[Headnote 5]
Although joined in one complaint, an action for wrongful death and an action for personal
injuries suffered by the plaintiff in the same accident are separate, distinct and independent.
Wells Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947). They rest on different facts, and
may be separately maintained. Burns v. Brickle, 126 S.E.2d 633 (Ct.App.Ga. 1962);
Chamberlain v. Mo.-Ark. Coach Lines, 189 S.W.2d 538 (Mo. 1945). In City of Reno v.
Fields, 69 Nev. 300, 250 P.2d 140 (1952), this court quoted with approval from Friederichsen
v. Renard, 247 U.S. 207, 38 S.Ct. 450, 451, 62 L.Ed. 1075, where the High Court said: The
cause of action is the wrong done, not the measure of compensation for it, or the character of
the relief sought . . . . Therefore, the identity of each of Wilma Webster's actions was not lost
because she proceeded pursuant to NRCP 18(a),
3
and commenced both actions
simultaneously, by joining them in one complaint.
[Headnote 6]
This court has heretofore said that limitations on the State's waiver of sovereign immunity
should be strictly construed, and that "[I]n a close case we must favor a waiver of
immunity."
____________________

3
NRCP 18(a): A party asserting a claim to relief is as an original claim, counterclaim, cross-claim, or
third-party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable or
both as he has against an opposing party.
waiver of sovereign immunity should be strictly construed, and that [I]n a close case we
must favor a waiver of immunity. State v. Silva, 86 Nev. 911, 914, 478 P.2d 593 (1970). To
hold that Wilma Webster's two valid actions should be treated as one, merely because both
were joined in one pleading, or because one act of the State is an element of proof in both,
would be neither a strict nor a literal construction of NRS 41.035.
[Headnote 7]
Adhering to the established meaning that the term action is the wrong done and not the
measure of compensation or the character of the relief sought, we cannot construe such term
in NRS 41.035 to be synonymous either with actions nor with accident. Although this
Court recognized in State v. McNamara, 3 Nev. 70 (1867), that a statute's words might be
inadvertent, it applied their literal meaning saying: So on the other side, it may reasonably be
urged that the lawmakers intended precisely what their words import, (this is a primary rule
of construction). The legislature must be intended to mean what they have expressed in plain
terms. . . . Id. at 74.
3. The State's remaining assignments of error have been considered and are found to be
neither central to the main issue in the case nor directly bearing upon its disposition. NRCP
61.
The judgment of the district court is affirmed in part and reversed in part, and the case is
remanded to the district court with instructions to enter a modified judgment allowing Wilma
E. Webster, Robert D. Webster, Susan L. Webster and Levi J. Webster awards of $25,000
each on the first cause of action, and Wilma E. Webster an award of $17,725.84 on the
second cause of action.
Zenoff, C. J., and Mowbray, Thompson and Gunderson, JJ.. concur.
____________
88 Nev. 696, 696 (1972) Robertson v. Sheriff
FRED LEE ROBERTSON, Appellant, v. SHERIFF,
No. 6933
December 26, 1972 504 P.2d 698
Appeal from an order discharging pre-trial petition for writ of habeas corpus. Eighth
The Supreme Court held that accused could not challenge validity of search by pre-trial
petition for writ of habeas corpus; validity of search should have been challenged by motion
to suppress.
Affirmed.
Morgan D. Harris, Public Defender, and Jeffrey D. Sobel, Deputy Public Defender, Clark
1. Habeas Corpus.
Accused could not challenge validity of search by pre-trial petition for writ of habeas corpus. NRS
174.125, 177.015, subd. 2. 179.085, 200.010.
2. Criminal Law.
Proper procedure for challenging legality of search was by pre-trial motion to suppress. NRS 174.125,
177.015, subd. 2, 179.085.
OPINION
Per Curiam:
Ordered to stand trial for murder (NRS 200.010) after a preliminary hearing, appellant was
denied pre-trial habeas relief in the district court. The thrust of his argument on appeal is his
contention that his retained counsel failed to object to the admission in evidence, of two
illegally seized rifles, and that counsel's failure to do so is tantamount to a denial of effective
counsel as articulated in People v. Ibarra, 386 P.2d 487 (Cal. 1963), therefore denying him of
the constitutional right to counsel as enunciated in Coleman v. Alabama, 399 U.S. 1 (1971).
[Headnotes 1, 2]
While appellant's argument concludes that the rifles were acquired illegally in order to
raise the competency of counsel question, we decline to speculate on either question. The
validity of the search must be challenged by a motion to suppress. NRS 179.085.
Appellant, in this unwarranted effort to obtain our ruling on the legality of the search in a
pre-trial habeas proceeding, suggests that a challenge of the search by a pre-trial motion to
suppress could not be appealed until after he had been tried and convicted because of our
holding in Cook v. State, 85 Nev.
692, 462 P.2d 523 (1969). That portion of Cook which relegated an appeal from a ruling on a
motion to suppress until after trial is no longer viable as it was superseded by Stats. of Nev.
1971, ch. 627, 1, p. 1450. NRS 177.015(2) now permits an interlocutory appeal from an
order granting or denying a motion to suppress. Barnato v. State, 88 Nev. 508, 501 P.2d 643
(1972).
We affirm the decision of the trial court, without prejudice to appellant's right to properly
challenge the legality of the search by pre-trial motion to suppress, as authorized by NRS
174.125 and NRS 179.085.
____________
88 Nev. 698, 698 (1972) Mitchell v. State
ROBERT EUGENE MITCHELL, Appellant, v. THE
No. 5908
December 29, 1972 504 P.2d 8
Appeal from a conviction of burglary. Second Judicial District Court, Washoe County;
Emile J. Gezelin, Judge.
Affirmed.
Dennis J. Healy, Jr., of Reno, for Appellant.
Robert List, Attorney General, of Carson City, Robert E. Rose, District Attorney, and
Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for
Respondent.
OPINION
Per Curiam:
The appellant was convicted of burglary. His counsel has submitted this appeal pursuant to
the command of Anders v. California, 386 U.S. 738 (1967), referring to any points in the
record that might arguably support an appeal, Sanchez v. State, 85 Nev. 95, 450 P.2d 793
(1969).
The claim of error is that the arresting officer did not have probable cause to stop, frisk
and arrest the appellant. The record shows that the arresting officer acted within permissible
limits. Barnes v. State, 85 Nev. 69, 450 P.2d 150 (1969); Robertson v. State, 84 Nev. 559,
445 P.2d 352 (1968).
Affirmed.
____________
88 Nev. 699, 699 (1972) Bain v. Sheriff
CHARLES DAVID BAIN, Appellant, v. SHERIFF,
No. 6992
December 29, 1972 504 P.2d 695
Appeal from an order discharging pre-trial petition for a writ of habeas corpus; Eighth
Pre-trial petition for writ of habeas corpus by one who, after preliminary hearing, was
ordered to stand trial on felony charge of receiving stolen property. The district court denied
the writ, and the petitioner appealed. The Supreme Court, Zenoff, C. J., held that at
preliminary examination, proof of purchase price was sufficient to establish value of stolen
stereo amplifier, so as to require defendant to stand trial on felony charge of receiving stolen
goods, absent any showing that item for some sufficient reason was without any value or was
of minimal value by reason of being obsolete, badly damaged or materially defective.
Affirmed.
Morgan D. Harris, Public Defender, and Stewart L. Bell, Deputy Public Defender, Clark
1. Receiving Stolen Goods.
In prosecution for receiving stolen property, proof of value of property is necessary to determine grade of
offense and penalty to be inflicted. NRS 205.275.
The standard of proving value, for conviction, is the same in receiving cases as in larceny and theft
cases. NRS 205.275.
True criterion for value of property taken in prosecution for receiving stolen property is fair market value
of property at time and place it was stolen if there be such a standard market; but, where such market value
cannot reasonably be determined, other evidence of value may be received such as replacement cost or
purchase price.
Terms market value and cost or replacement value are synonymous in determining value of the
property in prosecution for receiving stolen goods when a standard market value cannot reasonably be
determined. NRS 205.275.
5. Criminal Law.
Owner's testimony at preliminary hearing that he had paid close to $500 for stereo amplifier, in kit
form, and that it was in working order when burglary occurred and that it was some 17 months old when
recovered from defendant was sufficient proof that stereo amplifier was of the value of $100 or more, so as
to require defendant to stand trial on felony charge of receiving stolen goods. NRS 171.206, 205.275.
6. Criminal Law.
The sole function of preliminary hearing is to determine probable cause that offense occurred and that
accused committed it. NRS 171.206.
7. Criminal Law.
At the preliminary examination, where state is charged only with burden of showing that a crime had
been committed and that accused probably committed it, quantum of proof is not so great as at trial, where
state's burden is to prove guilt beyond a reasonable doubt. NRS 171.206.
8. Criminal Law.
At preliminary examination, proof of purchase price was sufficient to establish value of stolen stereo
amplifier, so as to require defendant to stand trial on felony charge of receiving stolen goods, absent any
showing that item for some sufficient reason was without any value or was of minimal value by reason of
being obsolete, badly damaged or materially defective. NRS 171.206, 205.275.
OPINION
Appellant, after a preliminary hearing, was ordered to stand trial on a felony charge of
receiving stolen property. He was denied pre-trial habeas relief in the district court and
appeals.
[Headnote 1]
His only claim of error is that the state did not prove that a stolen stereo-amplifier was of a
value of $100.00 or more. In a prosecution for receiving stolen property, proof of value of the
property is necessary to determine the grade of the offense and the penalty to be inflicted.
1

The owner testified that he had paid close to five hundred dollars ($500.00) for the
stereo-amplifier, in kit form, in November, 1970, and that it was in working order when the
burglary occurred in February, 1972. It was some 17 months old when it was recovered from
appellant on April 16, 1972.
____________________

1
Under NRS 205.275, when the value of the goods is $100.00 or more, the offense is a felony, subject to a
maximum 10 year prison sentence and, or, a $5,000.00 fine. If the value is below $100.00, the offense is treated
as petit larceny, a misdemeanor.
The prosecutor apparently, thought that the value of the stereo-amplifier was obviously in
excess of $100.00 and made no attempt to introduce outside evidence of its value, or of the
value of several other items listed in the complaint.
2

[Headnotes 2-4]
Appellant correctly argues that the standard of proving value, for conviction, is the same in
receiving cases as in larceny and theft cases. He erroneously urges that the state failed
to meet that standard under our holding in Cleveland v. State, 85 Nev. 635, 461 P.2d 408
(1969), where we said [t]he true criterion for the value of property taken is the fair market
value of the property at the time and place it was stolen if there be such a standard market.
85 Nev. at 637, 461 P.2d at 409. In Cleveland we also said [w]here such market value
cannot be reasonably determined other evidence of value may be received such as
replacement cost or purchase price. 85 Nev. at 637, 461 P.2d at 409. Under the latter
situation, the terms market value and cost or replacement value have been held to be
synonymous. People v. Renfro, 58 Cal.Rptr. 832 (Cal.App. 1967).
[Headnotes 5, 6]
Appellant does not challenge the fact that he had the stolen property. The thrust of the
appeal goes only to the sufficiency of the proof of value to place the offense in the felony
bracket. Respondent urges that for the purpose of establishing probable cause, under NRS
171.206, the proof offered, in the factual context of this case, was sufficient. We agree. We
need not speculate if the proof before the magistrate is within the qualification to the general
rule. The sole function of the preliminary hearing is to determine probable cause that the
offense occurred and that the accused committed it. NRS 171.206.
[Headnotes 7, 8]
At the preliminary examination, where the state is charged only with the burden of
showing that a crime has been committed and that the accused probably committed it, the
quantum of proof is not so great as at the trial, where the state's burden is to prove guilt
beyond a reasonable doubt. Whittley v. Sheriff, 87 Nev. 614, 616, 491 P.2d 1282, 1283
(1971). At the preliminary state of proceedings, at least, we hold that proof of purchase price
is sufficient to establish the value of the stereo-amplifier absent any showing that the
item in question for some sufficient reason is without any value or is of minimal value by
reason of its being obsolete, badly damaged or materially defective.
____________________

2
A 9MM automatic pistol, stereo speakers, a clock radio and onyx chess set where also listed in the
complaint. All the items, except the gun, were before the magistrate.
proof of purchase price is sufficient to establish the value of the stereo-amplifier absent any
showing that the item in question for some sufficient reason is without any value or is of
minimal value by reason of its being obsolete, badly damaged or materially defective. People
v. Tijerina, 459 P.2d 680, 681-682 (Cal. 1969).
The order is affirmed.
____________
88 Nev. 702, 702 (1972) Cascade Drinking Waters v. Central Tel.
CASCADE DRINKING WATERS, INC., a Nevada Corporation, Appellant, v. CENTRAL
TELEPHONE COMPANY, a Delaware Corporation; AK'WA PURE CORPORATION, a
Nevada Corporation; and GENERAL TELEPHONE DIRECTORY COMPANY, a Delaware
Corporation, Respondents.
No. 6910
December 29, 1972 504 P.2d 697
Appeal from an order of the Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Appeal by plaintiff from an order of the district court which dismissed two of the three
defendants in the action. The Supreme Court held that in absence of express determination by
the trial court that there was no just reason for delay, the order was not appealable.
Appeal dismissed without prejudice.
Lee & Beasley, of Las Vegas, for Appellant.
Rose & Norwood, Ltd., of Las Vegas, for Respondents.
Judgment which dismisses fewer than all parties to an action without express determination that there is
no just reason for delay by the district court is not appealable final judgment. NRCP 54(b), 72(b)(1).
Where district court made no express determination that there was no just reason for delay, order which
granted motion to dismiss two of three defendants was not appealable.
88 Nev. 702, 703 (1972) Cascade Drinking Waters v. Central Tel.
dismiss two of three defendants was not appealable. NRCP 54(b), 72(b)(1).
OPINION
Per Curiam:
This appeal is from an order granting a motion to dismiss, to the respondents, Central
Telephone Co., and General Telephone Directory Co. Three defendants were named in the
appellant's complaint. The two respondents to this appeal were involved in only two of the
three causes of action.
It appears from the record that matters other than those appearing on the complaint were
considered and that the motion to dismiss was treated as a motion for summary judgment.
NRCP 56. Nowhere in the order of the court below is there an express determination that
there is no just reason for delay, as required by NRCP 54(b)
1
before an appeal can be taken
where multiple parties are involved.
[Headnotes 1, 2]
This court has held that a judgment dismissing fewer than all parties to an action without
an express determination that there is no just reason for delay by the district court is not a
final judgment appealable under NRCP 72(b)(1). Hill v. State ex rel. Dep't of Hwys., 86 Nev.
37, 464 P.2d 468 (1970); Donoghue v. Rosepiler, 83 Nev. 251, 427 P.2d 956 (1967); Aldabe
v. Evans, 83 Nev. 135, 425 P.2d 598 (1967); Wilmurth v. State, 79 Nev. 490, 387 P.2d 251
(1963).
Accordingly, this appeal is dismissed without prejudice to the right of the appellant to
reinstate it or to appeal any other issues it may have after final determination of the complaint
in civil action A 95819 in the court below.
It is so ordered.
____________________

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.
____________
88 Nev. 704, 704 (1972) Fisher v. Executive Fund Life Ins. Co.
DAISY A. FISHER, Appellant v. EXECUTIVE
FUND LIFE INSURANCE COMPANY, Respondent.
No. 6808
December 29, 1972 504 P.2d 700
Appeal from judgment of the Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Proceeding on complaint by alleged insured against insurer seeking recovery of amount
allegedly due under alleged home confinement benefit rider, general compensatory damages
and punitive damages predicated upon alleged fraud. The district court dismissed complaint
on ground it failed to state a claim upon which relief could be granted, and plaintiff appealed.
The Supreme Court, Mowbray, J., held that where the complaint failed to state cause of
action because sum allegedly due under the alleged rider did not place jurisdiction in the
district court and conclusory allegation of fraud failed to meet standard of specificity required
by rule, but where defendant had not filed an answer, and no discovery proceedings or trial
preparations had been made, leave would be granted to plaintiff to amend her complaint to
attempt to state a claim predicated upon the alleged fraudulent conduct.
Remanded with instructions.
Seymour H. Patt, of Reno, for Appellant.
Hawkins, Rhodes & Hawkins and Gene Barbagelata, of Reno, for Respondent.
1. Pleading.
Granting of leave to amend a complaint is discretionary with trial court, but leave to amend should be
permitted when no prejudice to defendant will result and when justice requires it.
2. Pleading.
Where complaint, in which alleged insured sued insurer to recover $214.28 allegedly due under alleged
home confinement benefit rider and $25,000 general compensatory damages and $250,000 punitive
damages predicated upon alleged fraud perpetrated by insurer, failed to state cause of action because sum
of $214.28 did not place jurisdiction in the district court and conclusory allegation of fraud failed to meet
standard of specificity required by rule, but where insurer had not filed an answer, and no discovery
proceedings or trial preparations had been made, leave would be granted to alleged insured to amend her
complaint to attempt to state a claim predicated upon the alleged fraudulent conduct.
state a claim predicated upon the alleged fraudulent conduct. Const. art. 6, 6; NRCP 9(b).
OPINION
Daisy A. Fisher has appealed from a judgment of the district court dismissing her
complaint against Respondent Executive Fund Life Insurance Company on the ground that
the complaint failed to state a claim against respondent upon which relief may be granted.
Fisher sued Executive Fund for $214.28 allegedly due her under a home confinement
benefit rider that she claimed she had purchased from Executive Fund. In the same complaint,
Fisher sought general compensatory damages in the sum of $25,000 and punitive damages,
predicated upon an alleged fraud perpetrated on her by Executive Fund, in the sum of
$250,000.
The original jurisdiction of the district court begins only when the demand (exclusive of
interest) exceeds $300.
1
In the instant case, Fisher sought payment under the home
confinement benefit rider of only $214.28, which sum does not place jurisdiction in the
district court. Additionally, Fisher's general conclusionary allegation of fraud on the part of
Executive Fund failed to meet the standard of specificity required by NRCP 9(b).
2
The
learned judge therefore dismissed Fisher's complaint for failure to state a cause of action upon
which relief could be granted. The dismissal was ordered with prejudice and without leave to
amend.
[Headnotes 1, 2]
While it is true that the granting of leave to amend a complaint is discretionary with the
trial court,
3
it is also true that leave to amend should be permitted when no prejudice to
the defendant will result and when justice requires it.4 We believe that under the posture
of the instant case, such leave to amend should have been granted to Fisher.
____________________

1
Nev. Const. art. 6, 6.
The District Courts in the several Judicial Districts of this State shall have original jurisdiction in all cases .
. . in which the demand (exclusive of interest) or the value of the property in controversy, exceeds Three
Hundred Dollars . . .

2
NRCP 9(b):
In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with
particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

3
See Nelson v. Sierra Constr. Corp., 77 Nev. 334, 364 P.2d 402 (1961).
leave to amend should be permitted when no prejudice to the defendant will result and when
justice requires it.
4
We believe that under the posture of the instant case, such leave to
amend should have been granted to Fisher. Executive Fund had not filed an answer; no
discovery proceedings or trial preparation had been made. We fail to find any cause for not
allowing Fisher an opportunity to amend her complaint to state a claim predicated upon the
fraudulent conduct she alleges, if it is possible for her to do so with the particularity required
by the rule. The case is therefore remanded to the district court for that purpose.
In most material part, appellant's Complaint alleged: that respondent induced appellant to
pay respondent $18.33, by falsely representing it would issue appellant a Home Confinement
Benefit Rider; that thereafter appellant was confined to her home, following open heart
surgery, thereby becoming entitled to $214.28 in benefits; that respondent then refused to pay
appellant, claiming she did not have coverage for home confinement benefits, because
respondent had never issued a rider to her; that such acts constituted fraud; and that appellant,
who is under doctor's care for her heart condition has been unreasonably subjected to
unnecessary strains, aggravation, frustration, financial pressures, fear, and physical stresses
due to defendants' [sic] unreasonable, unjustifiable, and fraudulent activities. In addition to
special damages in the amount of $214.28, appellant's Complaint alleged and prayed for
general compensatory damages in the sum of $25,000, and punitive damages in the sum of
$250,000, it being alleged that the latter sum was appropriate in view of respondent's alleged
net worth of $1,500,000.
Viewed as a complaint based on fraud, I am inclined to consider these allegations
sufficiently specific to satisfy NRCP 9(b). In any event, without according controlling
significance to the Complaint's mention of fraud, I suggest the other allegations state an
action for mental distress caused by bad faith refusal to pay policy proceeds. See, for
example: Crisci v. Security Insurance Co. of New Haven, Conn., 426 P.2d 173 {Cal 1967).
____________________

4
See Servatius v. United Resort Hotels, Inc., 85 Nev. 371, 455 P.2d 621 (1969) and Good v. Second Judicial
Dist. Court, 71 Nev. 38, 279 P.2d 467 (1955).
(Cal 1967). Wetherbee v. United Insurance Company of America, 71 Cal.Rptr. 764 (Cal.App.
1968); Fletcher v. Western National Life Insurance Co., 89 Cal.Rptr. 78 (Cal. App. 1970).
However, assuming arguendo that the Complaint was so inartistic that neither of these
theories of action was sufficiently alleged, both were certainly suggested. Hence, if it was not
error to dismiss appellant's Complaint, it surely was error to refuse leave to amend.
____________
88 Nev. 707, 707 (1972) Beutler v. State
ERNIE RAY BEUTLER, Appellant, v. THE STATE
No. 6646
December 29, 1972 504 P.2d 699
Appeal from judgment of conviction and sentence of the First Judicial District Court,
Douglas County; Frank B. Gregory, Judge.
Defendant was convicted in the district court of unlawful possession of narcotics and
dangerous drugs, and he appealed. The Supreme Court, Batjer, J., held that where it could not
be ascertained whether contraband identified by chemist was of a sufficient quantity to be
susceptible of use as a narcotic, conviction could not stand.
Reversed and remanded for further proceedings.
Barry Tarlow, of Los Angeles, and Fry and Fry, of Reno, for Appellant.
Robert List, Attorney General, Carson City, Howard D. McKibben, District Attorney, and
William J. Crowell, Jr., Deputy District Attorney, Douglas County, for Respondent.
Contraband used as basis for prosecution for unlawful possession of narcotics must be of such a quantity
and quality as to be susceptible of use as a narcotic. NRS 453.101 et seq.
Where it could not be ascertained whether contraband identified by chemist was of a sufficient quantity to
be susceptible of use as a narcotic, conviction for unlawful possession of narcotics could not stand.
NRS 453.010 et seq., 453.345; Stats.
not stand. NRS 453.010 et seq., 453.345; Stats. Nev. 1971, ch. 250; Stats. Nev. 1971, ch. 667, 1 et
seq.
OPINION
Convicted on four counts of unlawful possession of narcotics and dangerous drugs in
violation of NRS Ch. 453, appellant urges several reversible errors. We need only consider
his assignment contesting the sufficiency of the evidence as we are constrained to hold that it
is insufficient, as a matter of law, to establish the offenses charged.
Members of the Douglas County Sheriff's department acting under a challenged search
warrant, entered appellant's dwelling, searched the premises and occupants, [he shared the
residence with others] and seized candy, vitamin pills, debris from an ash tray, dust particles
from a coffee table, a capsule from a waste basket, a match box, brown powder from a
compact in the purse of a woman occupant, some green leafy substance from a toilet bowl,
several pipes and other items. The bounty was delivered to Budd F. Rude, who testified that
by chemical testing he determined that some of the items were not contraband but that he did
identify (a) marijuana and its residue; that it had been smoked in the pipes at an unknown
prior time; (b) LSD; (c) sodium seconal barbitol [sic] and (d) one gram of an undetermined
mixture of methyl benzoylecgonine and lactose [cut cocaine].
Testimony elicited from the expert reflects that there really was not enough marijuana to
weigh or to roll even one cigarette, and that he made no quantitative analysis of the seized
items. There is nothing in this record to indicate, either to the trial court or to us, that the
other items of identified contraband were of a sufficient quantity to be used in the customary
manner to obtain a narcotic effect. The pharmacologic potency was not established and there
are no statutory provisions to assist or guide the court in making that determination.
[Headnotes 1, 2]
Contraband used as the basis for prosecution must be of such a quantity and quality as to
be susceptible of use as a narcotic. Watson v. State, 88 Nev. 196, 495 P.2d 365 (decided
March 7, 1972).
1
We cannot ascertain whether the contraband identified by the chemist
meets this test.
____________________

1
The jury returned its verdict of guilty against Beutler on January 29, 1971. He was sentenced on February
18, 1971.
contraband identified by the chemist meets this test. In Hulse v. Sheriff, 88 Nev. 393, 399,
498 P.2d 1317, 1320 (decided June 29, 1972), we said that [c]ourts cannot take judicial
notice of the potency of [contraband]. . . .
In Watson we said: . . . [P]ossession of minute quantities of a narcotic, useless for either
sale or consumption, is an insufficient foundation upon which to sustain a conviction for
possession. . . . The charge of possession of a narcotic drug requires a union of act and intent.
The intent necessary to establish the crime of possession simply does not exist when the
amount is so minute as to be incapable of being applied to any use, even though chemical
analysis may identify a trace of narcotics. 88 Nev. at 198, 495 P.2d at 366.
2

Since the state has failed to meet its burden, as required by Watson, the conviction cannot
stand. However, some of the items seized, may, upon quantitative analysis, be shown to
contain a useable amount of contraband. The state shall be allowed 30 days from the issuance
of the remittitur in this case to take such further proceedings against appellant with respect to
the charges against him; otherwise, he shall be discharged. Cf. United States v. Tateo, 377
U.S. 463 (1964),
3
and Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971).
Reversed and remanded for further proceedings in accordance with this opinion.
____________________

2
NRS 453.345, enacted April 9, 1971, and effective until January 1, 1972, permits conviction if there is an
identifiable amount of contraband. See Stats. of Nev. 1971, ch. 250, p. 359. The entire Uniform Narcotic Drug
Act, Stats. of Nev. 1937, ch. 23, was supplanted by the Uniform Controlled Substances Act, Stats. of Nev. 1971,
ch. 667, p. 999 et seq., effective January 1, 1972.

3
. . . [T]he practice of retrial serves defendants' rights as well as society's interest. 377 U.S. at 466.
____________

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