Nevada Reports 1976 (92 Nev.) PDF

92 Nev.
1, 1 (1976)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 92
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92 Nev. 1, 1 (1976) LaPena v. State
FRANK RALPH LaPENA and ROSALIE MAXWELL,
Appellants, v. THE STATE OF NEVADA, Respondent.
No. 8063
January 2, 1976 544 P.2d 1187
Appeal from orders denying petition for writs of habeas corpus. Eighth Judicial District
Court, Clark County; Carl J. Christensen, Judge.
Accused filed petitions for writs of habeas corpus, on grounds that testimony of alleged
accomplice was insufficient to bind them over for trial. The district court denied petitions,
and accused appealed. The Supreme Court, Zenoff, J., held that independent evidence
presented at preliminary hearing was sufficient to support alleged accomplice's testimony that
he had been hired by accused to murder victim; that hearsay testimony by second accomplice
to robbery-murder, regarding statements made by murderer, was admissible; and that fact that
admitted murderer's charge was reduced to second-degree murder in exchange for his
testimony did not affect admissibility of his testimony.
murder in exchange for his testimony did not affect admissibility of his testimony.
Affirmed.
Gunderson, C. J., and Batjer, J., dissented.
Goodman and Snyder, and Douglas G. Crosby, of Las Vegas, for Appellants.
Robert List, Attorney General; George E. Holt, District Attorney, and Dan M. Seaton,
Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Although independent corroboration is necessary to support testimony of accomplice, such corroboration
need not be found in single fact or circumstance, but, rather, several circumstances in combination may be
sufficient if circumstances and evidence from sources other than testimony of accomplice tend on whole to
connect accused with crime charged. NRS 175.291, subd. 1.
2. Criminal Law.
Where, in addition to testimony by purported accomplice that accused offered to pay him to murder
victim, there was evidence that victim's husband had illicit relationship with one accused and that such
accused occasionally received money from husband, trial court was justified in finding that murderer's
testimony was corroborated by other evidence within meaning of statute requiring independent evidence
to support testimony of an accomplice. NRS 175.291, subd. 1.
3. Criminal Law.
Hearsay statements made by murderer to accomplice in murder-robbery did not constitute testimony of
accomplice within meaning of statute requiring the corroboration of accomplice's testimony by independent
evidence, and were admissible at preliminary hearing of accused charged with hiring murderer to kill
victim. NRS 175.291, subd. 1.
4. Criminal Law.
Fact that confessed murderer's charge was reduced to second-degree murder in exchange for testimony
inculpating accused as perpetrator of murder merely affected weight of such testimony, not its
admissibility.
OPINION
By the Court, Zenoff, J.:
Frank LaPena and Rosalie Maxwell were charged as principals in the robbery of Marvin
and Hilda Krause and in the murder of Hilda Krause on January 14, 1974. That the robbery
and murder occurred is not in issue. Maxwell and LaPena appeal from orders denying their
petition for habeas corpus.
appeal from orders denying their petition for habeas corpus. They contend that for lack of
sufficient corroborating evidence to the testimony of accomplice Gerald Weakland, who
admitted the commission of the crime, they should not be bound over for trial.
LaPena and Rosalie Maxwell apparently believed that Marvin Krause was a man who
possessed substantial wealth. Evidently, Rosalie and Krause had been meeting surreptitiously
for a period of time prior to the robbery and killing. Weakland testified at the preliminary
hearing that he was hired by LaPena to kill Hilda Krause so that Rosalie would be in a
position to enjoy Krause without interference from his wife. LaPena would profit because he
was Rosalie's true lover and he would stand, he hoped, as a pecuniary beneficiary to the
Krause-Maxwell relationship.
NRS 175.291(1) provides:
A conviction shall not be had on the testimony of an accomplice unless he is corroborated
by other evidence which in itself, and without the aid of the testimony of the accomplice,
tends to connect the defendant with the commission of the offense; and the corroboration
shall not be sufficient if it merely shows the commission of the offense or the circumstances
thereof.
[Headnote 1]
Since Weakland is an accomplice we must determine what evidence is present
independent of the accomplice testimony to connect LaPena and Maxwell with the crime. The
necessary corroboration need not be found in a single fact or circumstance, rather several
circumstances in combination may satisfy the statute. If circumstances and evidence from
sources other than the testimony of the accomplice tend on the whole to connect the accused
with the crime charged, it is enough. LaPena v. Sheriff, 91 Nev. 692, 541 P.2d 907 (1975);
Lamb v. Bennett, 87 Nev. 89, 482 P.2d 298 (1971).
The composite of facts and circumstances as established by the testimony of many
witnesses take the two accused beyond the status of mere casual association with Weakland.
See Eckert v. State, 91 Nev. 183, 533 P.2d 468 (1975); Austin v. State, 87 Nev. 578, 491
P.2d 724 (1971); Ex Parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960). From the
testimony of other witnesses it is established that LaPena was not merely an acquaintance of
Weakland, as we noted in LaPena v. Sheriff, supra, but one who with Maxwell had a motive
to get rid of Hilda Krause and who was therefore linked inculpably to Weakland in a criminal
scheme.
Among the witnesses were persons related to Weakland, brothers, sister-in-law and former
wife, all of whom had been brought into contact with Frank LaPena by Weakland, as well as
others. Their testimony concerned events and conversations that transpired proximately
before and after the crimes were committed.
For a short period preceding the offenses, Jerry Weakland lived in the residence of his
sister-in-law, Sandra. She testified to receiving phone calls from a Frank at her home. The
telephone number she noted was traced at the preliminary hearing to Frank LaPena. She
eventually was introduced to LaPena by Weakland and she knew of no other acquaintance of
Jerry's who bore the same first name of Frank.
Additionally, in the daylight hours after the crimes were committed Weakland brought a
portable TV set to her home. A portable TV set was part of the loot from the robbery. She
added that the TV set was quickly taken from her dwelling by Jerry's brothers and destroyed,
which as they testified was because of the surveillance of Jerry by the police after January 14.
Certain jewelry was taken from the Krauses by the culprits, principally a watch and a ring.
Jerry gave a friend and a brother a watch and a ring that answered the description of the
Krause jewelry. Gail had been taken to Rosalie Maxwell's residence prior to the commission
of the crimes by her former husband and after the crimes she was sent twice by Weakland to
pick up cash from LaPena. Weakland also showed his ex-wife, Gail, $1,000 in cash in $100
bills that came suddenly into his possession at or about the time of the robbery and murder.
She also saw him hide a watch and a ring a few hours after the time the crimes were
committed.
Weakland testified that he borrowed his former wife's 1973 Monte Carlo automobile at
3:00 a.m., January 14. Together with Thomas Boutwell they drove to a point near the Krause
residence and parked it. After gaining entrance to the house he detailed how Boutwell tied up
Marvin Krause and took him to a room away from where they met Hilda Krause. Jerry then
hit Marvin Krause over the head with a .38 caliber pistol rendering him unconscious.
Boutwell proceeded to strip Krause of his jewelry and what little cash he found on Krause's
body. At the same time Weakland took Mrs. Krause to another room, bound her arms behind
her, fashioned her with a gag and hit her on the head with his fist which was covered with a
black leather glove. He had obtained, prior to this event, a pair of black leather lead-filled
gloves from LaPena. While she was thus unconscious, he turned her face down, pulled her
head up by the hair and cut her throat.
he turned her face down, pulled her head up by the hair and cut her throat.
Boutwell was in another part of the house at the time apparently unaware of the murder.
Together they carried the TV set outside to Krause's Cadillac automobile and drove to the
Monte Carlo car. When they were moving the TV set into the rear portion of Gail Weakland's
automobile a corner of the TV set ripped the liner of the car top. Gail testified she recalled
that her car was in good shape when Jerry borrowed it but that when it was returned she noted
the tear in the roof. This occurred during the morning hours following the murder.
Gail corroborated Weakland's testimony that together they went to Lake Havasu after the
crimes (although she did not know that crimes had been committed) and that she was present
when Weakland attempted to call LaPena long distance from their motel room, to which the
motel manager also testified.
Gail testified further and variously about Weakland sending her to LaPena for money on
two occasions, that she returned the black gloves to LaPena at the Hacienda Hotel under
furtive circumstances and even that prior to January 14 he showed her a hand-drawn map of
the Krause residence which he later destroyed in her presence.
[Headnote 2]
Rosalie Maxwell admitted to a detective that she was a sexual companion to Marvin
Krause while his wife was out of the city; that Krause gave her money from time to time; and
that Krause was her live one but Frank LaPena was her true lover. The totality of the
testimony and evidence are supportive of inferences that Rosalie Maxwell and LaPena sought
to eliminate Hilda Krause so that Rosalie and LaPena would be in a position to enjoy Krause's
wealth without Hilda's interference. For this, Weakland was to be paid $10,000 by the end of
the year.
One of Weakland's brothers told of instructions from Jerry that if Jerry were ever in
circumstances where he needed money, the brother was to see Frank and he would get
some.
Additional permissible inferences can be drawn from the testimony of Bobby Webb, Mary
Bordeaux and police officer Avants. LaPena v. Sheriff, supra; Goldsmith v. Sheriff, 85 Nev.
295, 454 P.2d 86 (1969). Weakland, the accomplice and coconspirator, told Webb of the
contemplated robbery and indicated that a friend of his had supplied him with a map to the
apartment, that he had given him information on what time Krause was to leave the
apartment and that the thing was well planned.
Krause was to leave the apartment and that the thing was well planned. This was before the
crimes were perpetrated.
After the crimes were committed, Weakland told Webb that his friend's girl friend would
marry Krause and that she would pay him the money. Finally, after the crimes, Weakland told
Webb that if the police ever ask you if you know Frank, say no; and Weakland said, and
you know who I am talking about, to which Webb replied, yes. Webb then identified
Frank as the Frank LaPena in court.
It is permissible to infer that the individuals to whom Weakland was referring in his
extra-judicial statements to Webb were LaPena and Maxwell.
Although the magistrate found Webb to be an accomplice (whether this was appropriate
was not presented as an issue on appeal), Webb's testimony was corroborated by Mary
Bordeaux, by Gail Weakland and by officers Avants and Lee.
Maxwell told police officers Avants and Lee of her involvement with Krause, her
knowledge of his wealth, Krause's proposals of marriage and her true love for Frank LaPena.
The permissible inferences from her testimony tie directly to the statements made by
Weakland to Webb and support the conspiracy theory of the state.
[Headnote 3]
All of the foregoing tends to connect LaPena and Maxwell with the crimes charged. The
hearsay statements of Weakland to Webb are admissible under Goldsmith v. Sheriff, supra,
and not testimony of an accomplice within NRS 175.291.
The witnesses who testified corroborating Weakland's testimony do not appear to have
been motivated by self-serving purposes. For example, Weakland's ex-wife, Gail, had often
been beaten up by him, three times severely enough to cause her to be hospitalized. The most
recent such incident occurred at the time of the events surrounding the Krause murder and
robbery. It is doubtful that she would shade her testimony to favor him.
[Headnote 4]
Although Weakland's participation in these crimes may have warranted a more serious
charge than second-degree murder, plea bargaining is permissible. Until legislatively
forbidden, or otherwise, his testimony in exchange for a lesser accusation carries whatever
weight a magistrate or jury want to give it. For our present purposes the evidence as related is
inculpatory and corroborative.
Affirmed.
Mowbray and Thompson, JJ., concur.
Gunderson, C. J., with whom Batjer, J., agrees, dissenting:
Justice Batjer and I believe that the record before us lacks evidence which, in the legal
sense, corroborates the accomplice testimony adduced against appellants LaPena and
Maxwell. Accordingly, we would reverse the district court's order denying them habeas relief,
and order appellants discharged unless the State, believing further evidence of a legally
corroborative character to be available, should elect to re-charge them within a specified
period of time.
Prefatory Comment
To obtain evidence to charge appellants Frank LaPena and Rosalie Maxwell as principals
in the robbery of Marvin and Hilda Krause, and in the capital murder of Hilda Krause, the
prosecution has bargained for testimony from the admitted actual robber and killer, Gerald
Weakland, and from his acknowledged accomplice Robert Webb.
1

Although NRS 200.030(5) expressly declares the death penalty mandatory for capital
murder, in an extra-statutory exercise of discretion the prosecution agreed to charge
Weakland merely with second degree murder, to withhold related robbery charges, and in
addition to drop other charges arising from additional, unrelated crimes. (As hereinafter
noted, Weakland's accomplice, Robert Webb, struck an even better bargain.) Thus, it seems,
the actual killers have been induced to identify LaPena and Maxwell as persons who
instigated their own criminal acts, ostensibly so that Maxwell could marry Krause and, with
her lover LaPena, enjoy Krause's money.
I will not now address numerous questions potentially concerned in such prosecutorial
conduct.
2
At this time, I consider only the issue the majority treat, i.e., whether the testimony
of Weakland and Webb has been duly corroborated, as NRS 175.291 requires.
____________________

1
The now incumbent District Attorney was not serving in that office when the bargain referred to was
entered.

2
One must, of course, note concern regarding the propriety of the prosecution's conduct, not only because it
seems clearly to contravene our Legislature's mandate, but also because, in so doing, it may also violate the
United States Supreme Court's edict against wanton and freakish applications of the death penalty. See:
Furman v. Georgia, 408 U.S. 238, 310 (1972), Stewart, J., concurring. However, we need not reach such
considerations; nor do I here consider whether the purchase of testimony, through a bargain so disproportionate,
violates due process of law.
Weakland and Webb has been duly corroborated, as NRS 175.291 requires.
Application of NRS 175.291; In General
Enunciating the test to be utilized in applying NRS 175.291, this court has declared,
consistently with authority elsewhere:
Under statutes such as NRS 175.291 it is commonly held that corroborative evidence is
insufficient when it merely casts a grave suspicion upon the accused.' People v. Shaw, 112
P.2d 241, 255 (Cal. 1941), and cases there cited; Cooper v. Territory, 91 P. 1032 (Okla.
1907). As the California Supreme Court said in People v. Shaw, supra, citing numerous
authorities:
The difficulty comes in determining what corroboration is sufficient. First, we must
eliminate from the case the evidence of the accomplice, and then examine the evidence of the
remaining witness or witnesses with the view to ascertain if there be inculpatory
evidence,evidence tending to connect the defendant with the offense. If there is, the
accomplice is corroborated; if there is no inculpatory evidence, there is no corroboration,
though the accomplice may be corroborated in regard to any number of facts sworn to by
him.' Id., at 255; emphasis in original.
This seems the approach the courts have uniformly taken to application of statutes like
NRS 175.291; indeed, it seems the only approach available. How else may we implement the
legislative edict that there must be corroborative evidence which in itself' tends to connect
the defendant with the commission of the offense without the aid of testimony of the
accomplice'? How else may we honor the legislative mandate that corroboration shall not be
sufficient if it merely shows the commission of the offense or the circumstances thereof'?
Implicitly recognizing the propriety of the afore described approach to application of
NRS 175.291, this court held in Ex Parte Hutchinson, 76 Nev. 478, 357 P.2d 589 (1960), that
an accomplice was not sufficiently corroborated, even to show probable cause to hold for
trial, merely by showing the defendant was with the accomplice near the scene of the crime
on the night it was committed, at the time the accomplice testified they committed it in
concert. . . . Austin v. State, 87 Nev. 578, 585, 491 P.2d 724, 728-729 (1971).
Having called to mind this firmly established approach which NRS 175.291 mandates, I
now propose to eliminate from consideration testimony of the established accomplices and
then, in fidelity to the legislative command, determine whether any of the remaining
evidence alluded to in the majority opinion constitutes "corroboration" in the legal
acceptation of that term.
fidelity to the legislative command, determine whether any of the remaining evidence alluded
to in the majority opinion constitutes corroboration in the legal acceptation of that term.
Details Concerning the Crime's Commission and Circumstances
By its express terms, NRS 175.291 does not merely mandate that corroboration, to be
legally sufficient, must in itself have independent inculpatory significance without the aid of
the testimony of the accomplice. The Legislature went on to provide, most explicitly, that
corroboration shall not be sufficient if it merely shows the commission of the offense or the
circumstances thereof. It is, of course, not for this Court to question the wisdom of this
provision, which in any event has a logical basis, grounded in legal history and precedent. As
this Court noted in Austin v. State: A man who has been guilty of a crime himself will
always be able to relate the facts of the case, and if the confirmation be only on the truth of
that history, without identifying the person, that is really no corroboration at all. 87 Nev. at
584, n. 7, 491 P.2d at 728, quoting Lord Abinger, C. B., in R. v. Farler, 8 C. & P. 106 (1837).
This court also noted that ex concesso' an accomplice was concerned in the crime and
[knows] all the facts . . . Id., quoting Bushe, C. J., in R. v. Sheehan, Jebb 54, 57 (1826).
Clearly, many facts which Weakland has related, possibly quite accurately, establish no more
than this: a criminal's knowledge of his own crime.
For example, Weakland testified that among the items he and Boutwell took from the
Krause home were a TV set, a watch and a ring. The prosecution does not suggest that either
LaPena or Maxwell ever were connected to this loot in any way whatever. In fact, as the
majority opinion notices, apparently Weakland turned over to a friend and to his brothernot
to LaPena or Maxwella ring and watch answering the description of the Krause jewelry.
Arguably, the fact that Weakland's friend and brother may have received stolen property
would be independent evidence tending to connect them to the commission of the offense.
However, neither the fact that Weakland stole the jewelry, nor the fact that Weakland
delivered it to his friend and brother, tends to inculpate LaPena or Maxwell any more than it
would inculpate anyone else Weakland might agree to accuse to buy his life and freedom.
3
Purely and simply, these are merely circumstances of the crime which, in Lord Abinger's
words, do not identify the person accused at all.
____________________

3
Weakland testified that, ultimately, he retrieved the ring and gave it to LaPena, unlikely testimony for
which, in any event, there is no confirmation whatever. It also is worth noting that, apparently contradicting
Weakland, Webb testified to getting rid of evidence, by throwing the watches and ring into a garbage can.
are merely circumstances of the crime which, in Lord Abinger's words, do not identify the
person accused at all.
Returning to the TV set, it seems from the testimony of Gail Weakland that, when
Weakland borrowed her automobile on the night of the murder-robbery, the car's headliner
was intact; but upon return, it was ripped. Again, this circumstance may coincide with
Weakland's statement that he and Boutwell ripped the headliner when transferring the Krause
TV set into Gail Weakland's car; however, it obviously lacks any independent inculpatory
significance so far as LaPena and Maxwell are concerned. The prosecution does not suggest
LaPena and Maxwell have been connected either to the TV set or to the rip in the headliner,
in any way at all. Indeed, according to the majority's view of the facts, Weakland first took
the TV set to Sandra Weakland's homewhich would inculpate Sandra if anyone. Later, my
brethren say, fearing that Weakland was under police surveillance, Weakland's brothers
apparently took the TV from Sandra's home and destroyed itfacts which, if true, might tend
to inculpate the brothers, but certainly not LaPena or Maxwell.
4

Similarly, according to Weakland, he received from Rosalie Maxwell a hand-drawn map
of streets near the Krause residence, which he thereupon copied and destroyed. In other
words, Weakland says he had a map, the origin of which he and he alone attributed to LaPena
and Maxwell. While Gail Weakland testified she once saw Weakland with what appeared to
be a hand-drawn map, her testimony fails even to relate it to the Krause crime, and in no way
whatever establishes that either LaPena or Maxwell had anything to do with its origins.
Facts Related Neither To The Crime Nor To Appellants
Of even less force to inculpate LaPena or Maxwell is Gail Weakland's testimony that,
around January 2, Weakland had some $1,000 in $100 bills. Although the majority omit to
mention it, Gail further testified that Weakland had said he had won the money gambling.
Instead of suggesting that this explanation was suspect in any way, Gail confirmed that
Weakland was indeed a heavy gambler. Thus, far from relating the money to LaPena or
Maxwell, or to the Krause crime, it would be altogether speculative to assume from Gail
Weakland's testimony that the money had a relationship to a criminal endeavor by
anyone.
____________________

4
As I read the record, the TV set assertedly went first to a condominium occupied by Webb, Boutwell and
Mary Beth Bordeaux, on the morning of the crime. Then, as he became fearful of discovery, Weakland and his
brother Leo took the TV set from the condominium, and took it to Gordon and Sandra's home. I do not recall
that the record reflects destruction of the TV set; however, in any event, certainly no one contends that either of
the appellants destroyed it.
LaPena or Maxwell, or to the Krause crime, it would be altogether speculative to assume
from Gail Weakland's testimony that the money had a relationship to a criminal endeavor by
anyone.
Evidence of Friendship and Association
Even evidence of close association and friendship with an acknowledged wrongdoer will
not corroborate his accusation. Eckert v. State, 91 Nev. 183, 533 P.2d 468 (1975); Austin v.
State, 87 Nev. 578, 491 P.2d 724 (1971); Ex Parte Hutchinson, 76 Nev. 478, 357 P.2d 589
(1960).
Here, of course, it seems clear that Weakland had a friendly relationship with LaPena and
was acquainted with Maxwell. It would appear, for example, that LaPena may have
telephoned Weakland occasionally at the home of his sister-in-law, Sandra, with whom he
was residing. If so, he did not act furtively, but left messages using his true first name,
Frank. It also appears that, at a time prior to the robbery-murder, Gail Weakland waited in
the car while Weakland went briefly into Rosalie Maxwell's townhouse. What happened
insidewho was thereGail does not know. Gail also testified that on one occasion, not two
as the majority state, Weakland sent her to LaPena for money: two $20 bills and one $10 bill,
or a total of $50. At one time, Weakland told one of his brothers that if he needed money, he
could get it from Frank. Obviously, such testimony indicates no more than association or
friendship.
This is true with other aspects of the evidence. For example, it appears that, during a
weekend at Lake Havasu following the murder, Weakland made two phone calls to Las
Vegasone, he says, to his mother and the other to LaPena. Assuming such a call to LaPena
were independently proved, it would inculpate LaPena no more than it inculpates Weakland's
mother. And obviously, not even a prosecutor could think such calls inculpatory of Maxwell.
Of course, from Gail's testimony it does appear that at a time subsequent to the
murder-robbery, Weakland caused Gail to deliver a pair of weighted black leather gloves to
the Hacienda Hotel, where LaPena took them from her furtively. I do not, however, perceive
that this fact has been independently related to the crime for which these appellants will stand
trial for their lives. In the first place, for purposes of another prosecution, the State's theory is
that LaPena delivered the gloves to Weakland for use in beating the Hacienda Hotel's
manager, that Weakland so used them, then caused their return. See: LaPena v. Sheriff, 91
Nev. 692, 541 P.2d 907 (1975). Thus, the State has explained the transfer of the gloves,
relating them to another totally different crime, which Weakland also committed and later
attributed to LaPena.
totally different crime, which Weakland also committed and later attributed to LaPena. The
prosecution here desires, however, to make the gloves do double evidentiary service, which it
appears to me cannot be done; for dropping out Weakland's testimony, the record fails to
show that either Krause was beaten, with weighted gloves or otherwise. The gloves simply
are not shown, except through accomplice testimony, to have any relationship whatever to the
offense here concerned. Furthermore, not only do the gloves lack independent value to
connect LaPena with the offense in question; they have, moreover, not been related to
Maxwell in any way.
Testimony of Weakland's Accomplice, Webb
From the record, it appears that Robert Webb participated with Weakland in planning the
murder and robbery in question, although he restricted his participation to aiding and abetting
Weakland, both before and afterward. Webb assisted Weakland in procuring the participation
of Boutwell, whom Webb supplied with the gloves and jacketand, some evidence indicates,
the boots alsowhich Boutwell used in the crimes at the Krause residence. Webb knew these
items would be used in the robbery-murder, which he helped to plan. After the crimes, and
knowing of them, Webb aided and abetted Weakland by secreting evidence taken from the
Krause residence. Thus, under such circumstances, it is evident that the magistrate not only
was correct in finding Webb an accomplice, but might have been in error if he had found
anything else. See: NRS 195.020; State v. Cushing, 61 Nev. 132, 120 P.2d 208 (1941); State
v. Chapman, 6 Nev. 320 (1871).
5
Although Webb also might have been prosecuted for
capital murder, the prosecution permitted him to plead guilty to a gross misdemeanor,
with a recommendation of probation, and he is now free.
____________________

5
NRS 195.020 provides:
Who are principals. Every person concerned in the commission of a felony, gross misdemeanor or
misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in its commission,
and whether present or absent; and every person who, directly or indirectly, counsels, encourages, hires,
commands, induces or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor is a
principal, and shall be proceeded against and punished as such. . . . Emphasis added.
In State v. Cushing, cited above, this court expressly stated that, under our statutes, it is only necessary in
such case to show that a crime has been committed, and that the defendant, if present, aided and assisted, or, if
not present, advised and encouraged it. 61 Nev. at 145; 120 P.2d at 215.
The magistrate determined Webb was an accomplice, which clearly was within his province. State v. Fuchs,
78 Nev. 63, 368 P.2d 869 (1962); In Re Oxley and Mulvaney, 38 Nev. 379, 149 P. 992 (1915);
Although Webb also might have been prosecuted for capital murder, the prosecution
permitted him to plead guilty to a gross misdemeanor, with a recommendation of probation,
and he is now free. On his part, Webb has by his testimony undertaken to assist the
prosecution in convicting LaPena and Maxwell of a capital offense. Again, I refrain from
considering the Constitutional implications of this exchange, so highly favorable to Webb. I
consider only whether Webb's testimony can be viewed as corroborating Weakland's.
It is true, of course, that hearsay statements of one co-conspirator to another are
admissible, and may be considered as evidence under an exception to the hearsay rule once
the conspiracy is proved. NRS 51.035(3) (e); Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d 86
(1969). However, if the hearsay statements of one accomplice-conspirator, such as Weakland,
are only established through the testimony of a second accomplice-conspirator, such as
Webb, then it is clear such statements may not be viewed as corroborating evidence that a
third person, such as LaPena or Maxwell, is also part of the conspiracy. Goldsmith does not
suggest otherwise; instead, it explicitly declares that, before those hearsay statements can be
considered by the magistrate it is incumbent upon him to examine all the other evidence to
determine whether, aliunde, the existence of a conspiracy was established. 85 Nev. at 304;
454 P.2d at 92. As I am sure the majority know, and as Justice Traynor recognized in People
v. Clapp, 151 P.2d 237 (Cal. 1944), citing numerous authorities, the testimony of one
accomplice is not corroborated by that of another. Id. at 238; in accord, State v. Banks, 486
P.2d 584 (1971); People v. Jehl, 310 P.2d 495 (Cal.App. 1957); State v. Hilbish, 59 Nev. 469,
97 P.2d 435 (1940); VII Wigmore on Evidence, 2059 (3rd Ed. 1940). Only this fall, our
court again recognized the viability of this rule. See: LaPena v. Sheriff, 91 Nev. 692, 541
P.2d 907 (1975). Thus, since the only evidence of Weakland's supposed extra-judicial
statements is testimony from Webb, and since Webb's testimony like Weakland's must be
eliminated from consideration when deciding whether the prosecution has satisfied NRS
175.291's requirement of corroboration, it is patent that Webb's story of what Weakland
said has no more significance than his direct accusation of LaPena or Maxwell would
have.
____________________
Ex Parte Wm. Willoughby, 14 Nev. 451 (1880). I presume the majority do not question the foregoing
authorities. We most recently recognized their force only three months ago in State v. Havas, 91 Nev. 611, 540
P.2d 1060 (1975), there invoking them against a defendant, and holding that both the district courts and this
court are bound by magistrates' factual determinations.
patent that Webb's story of what Weakland said has no more significance than his direct
accusation of LaPena or Maxwell would have.
Relationship of LaPena, Maxwell, and Krause
Impermissibly, the majority opinion has drawn upon Weakland's story to establish in
LaPena and Maxwell a motive to kill Mrs. Krause. Virtually none of the facts concerning
this supposed motive find any support in the record, save through testimony of the
self-acknowledged participant, Weakland.
It does appear, of course, that the Maxwell woman was a lady of doubtful morals, who
admitted regarding Krause as her live one and LaPena as her true lover. Physically, she
accommodated Krause; monetarily, he assisted her. On its face, however, there is nothing
about their symbolic relationship, however contrary to accepted conventions, which suggests
a motive to have Krause beaten and Mrs. Krause murdered.
Only through the testimony of accomplices Weakland and Webb is a somewhat unlikely
motive attributed to LaPena and Maxwell. Supposedly, LaPena and Maxwell believed Krause
was quite wealthy, and decided killing Mrs. Krause would set in motion a house-that-Jack
built chain of events enabling them to enjoy more of Krause's money than before. According
to the story the prosecution elicited by allowing life and freedom to the two acknowledged
participants, Weakland and Webb, LaPena believed that if he had Mrs. Krause killed, Krause
would then marry Maxwell; that Maxwell could then induce Krause to supply her greater
sums of money; and that he, LaPena, would then share the increased take. Unlike the situation
revealed in LaPena v. Sheriff, supra, however, nothing tending independently to establish this
motive appears in the record.
Summary
I recognize, of course, that several items of evidence, not by themselves inculpatory, may
in combination independently establish facts constituting legal corroboration. Cf. LaPena v.
Sheriff, cited above. I also recognize that several items of evidence, by themselves only
remotely inculpatory, may in their totality rise to the dignity of legal corroboration. Cf. People
v. Trujillo, 194 P.2d 681 (Cal. 1948). I further recognize, however, that nothing plus nothing
plus nothing is nothing.
As my brother Zenoff said, speaking for a unanimous court in Eckert v. State, 91 Nev.
183, 186, 533 P.2d 468, 471 (1975): Evidence to corroborate accomplice testimony does not
suffice if it merely casts grave suspicion on the defendant."
not suffice if it merely casts grave suspicion on the defendant. And as Lord Abinger has
said: It is a practice which deserves all the reverence of the law, that judges have uniformly
told juries that they ought not to pay any respect to the testimony of an accomplice unless the
accomplice is corroborated in some material particular. . . . The danger is that when a man is
fixed, and knows that his own guilt is detected, he purchases immunity by falsely accusing
others. R. v. Farler, 8 C. & P. 106 (1837).
I suggest that Lord Abinger's observation is apposite, not just as to those who are clearly
fixed, such as Weakland and Webb, but also to persons like Gail Weakland and Mary
Bordeaux whose proximity and possible complicity in the crime is manifest, but whose guilt
is not certain. I do not, of course, suggest that these women necessarily were accomplices in
the legal sense. Since their complicity is not now definitely established, that will be a
question of fact to be determined at trial. Cf. Austin v. State, 87 Nev. 578, 591 P.2d 724
(1971).
For present purposes, I presume, despite the women's obvious involvement with Weakland
and Webb in events of the murder-robbery and ensuing efforts to escape justice, that Gail
Weakland and Mary Bordeaux did not know a murder was to be committed until after it
occurred.
6
I do, however, challenge the majority's dicta that there is no reason to question
Gail Weakland's veracity. She and the Bordeaux woman have the same reason as Weakland
and Webb have to testify as the prosecution desires. Beyond this, as a matter of logic, I
question that Weakland's frequent beating and hospitalization of Gail Weakland makes it
doubtful that she would shade her testimony to favor him. I note that, after the mentioned
beatings, Gail nonetheless let Weakland utilize her car on the night of the murder-robbery,
and left town with him afterward.
Even fully crediting those not definitely shown to be accomplices, much of the record
consists of testimony which proves only that Weakland is able to relate, with some measure
of accuracy, details of his own vicious crime. The rest of the ostensible corroboration
presented by the State, in itself, achieves no more than to prove, redundantly, that LaPena
and Weakland were friends or associates.
____________________

6
I note, however, that at least the Bordeaux womanwho was with Weakland and Webb immediately before
the murder-robbery, received some of the loot, and helped destroy evidence afterwardhas expressly been
promised total immunity to induce her testimony against LaPena and Maxwell. Apparently, tacitly or otherwise,
the prosecution also is committed not to prosecute the Weakland woman, who supplied the car used for the
murder-robbery, and left with Weakland for Lake Havasu when he became fearful of discovery.
achieves no more than to prove, redundantly, that LaPena and Weakland were friends or
associates. Ignoring Weakland's testimony, the testimony of one Fish (which the magistrate
rejected as unworthy of belief), and the testimony of witness Webb (whom the magistrate
found as a fact to be an accomplice), I therefore think the record shows only that LaPena and
Maxwell are amoral persons, who consort with their own kind, including persons like
Weakland.
LaPena, a hotel bell captain, has lived with Maxwell, who apparently has slept with
Krause and taken as much of his money as she could get. In themselves, however, these facts
suggest no reason for either of them to pay Weakland to rob Krause and murder his wife. It
does appear that, around the time of the Krause murder, certain weighted black gloves passed
between Weakland and LaPena; however, except through the testimony of Weakland and
Webb, those gloves cannot be associated with the crimes here concerned. It is, in fact, the
prosecution's theory that the gloves in question were particularly related to a different crime,
which is concerned in another case before us. In the instant case, the record does not show
that either Marvin or Hilda Krause was beaten, or that any plan ever existed that such would
be done.
Had the magistrate not found Fish's testimony incredible, had he not determined Webb
was an accomplice, and had the prosecution proved, independently of accomplice testimony,
that appellants paid Weakland a large sum of money (as the prosecution tried and failed to
do), then of course a substantially different question might be presented.
It seems clear that, upon the present record, by virtue of NRS 175.291, there is insufficient
evidence to hold appellants to answer for the crimes with which they stand charged in this
case. Thus, the order denying habeas corpus should be reversed. As to such charges,
appellants should stand discharged unless the State, believing further corroborative evidence
to be available, should elect to re-charge them within a specified period of time.
____________
92 Nev. 17, 17 (1976) Nutritional Additives v. Min-Ad, Inc.
NUTRITIONAL ADDITIVES CORPORATION, a Nevada Corporation, and W. GLENN
SEXTON, Appellants, v. MIN-AD, INC., a Colorado Corporation, Respondent.
No. 8451
January 6, 1976 544 P.2d 437
Appeal from order granting preliminary injunction, Sixth Judicial District Court,
Humboldt County; Llewellyn A. Young, Judge.
An order of the district court granted a preliminary injunction without requiring a bond.
An appeal was taken. The Supreme Court held that it was error for the court to enter the
preliminary injunction without requiring a bond as contemplated by rule.
Reversed.
Stanley H. Brown and Harold G. Albright, Reno, for Appellants.
Roland W. Belanger, Lovelock, for Respondent.
Injunction.
It was error for court to enter preliminary injunction without requiring bond as contemplated by statute,
and order granting the injunction was reversed. NRCP 65.
OPINION
Per Curiam:
The district court having on June 18, 1975, entered a preliminary injunction without
requiring a bond, as contemplated by NRCP 65; and
The respondent having conceded that the district court's action was therefore, erroneous,
cf. State ex rel. Friedman v. Dist. Ct. 81 Nev. 131, 399 P.2d 632 (1965);
It is hereby ordered that the district court order granting the preliminary injunction is
reversed.
Remittitur shall issue forthwith.
____________
92 Nev. 18, 18 (1976) Fitspatrick v. Floriano
WILLIAM A. FITZPATRICK, Chief of Driver's License Division, Department of Motor
Vehicles, Appellant, v. THOMAS S. FLORIANO, Respondent.
No. 8226
January 13, 1976 544 P.2d 895
Appeal from order granting writ of mandamus, Second Judicial District Court, Washoe
County; Grant L. Bowen, Judge.
Chief of the Driver's License Division of the Department of Motor Vehicles appealed from
order of the district court which granted writ of mandamus. The Supreme Court held that
respondent's desire not to pursue the appeal and his failure to have an adequate brief filed
with the Supreme Court amounted to a confession of error.
Reversed.
Robert List, Attorney General, and D. Geno Menchetti, Chief Deputy, Carson City, for
Appellant.
Legarza, Lee, Barengo, Doyle & McNally, Reno, for Respondent.
Appeal and Error.
Respondent's desire not to pursue appeal along with his failure to have an adequate brief filed with the
Supreme Court amounted to a confession of error.
OPINION
Per Curiam:
Instead of filing a brief respondent's counsel of record filed a response to appellant's
opening brief wherein he informed this court that respondent did not wish to retain him to
pursue the appeal. Counsel then asked us to decide the matter on the record below, as well as
the brief filed with the district court.
Respondent's desire not to pursue this appeal and his failure to have an adequate brief filed
with this court amounts to a confession of error. Toiyabe Supply Co. v. Arcade, 74 Nev. 314,
330 P.2d 121 (1958); Paso Builders, Inc. v. Hebard, 83 Nev. 165, 170, 426 P.2d 731 (1967);
Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975). See Petri v. Sheriff of
Washoe County, S7 Nev. 549, 551
92 Nev. 18, 19 (1976) Fitspatrick v. Floriano
Sheriff of Washoe County, 87 Nev. 549, 551, 491 P.2d 43 (1971).
The order of the district court, which granted the extraordinary writ of mandamus, is
reversed.
____________
92 Nev. 19, 19 (1976) Slattery v. Sheriff
BARBARA SLATTERY aka SUSAN MILLS, Appellant, v.
SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 8583
January 16, 1976 544 P.2d 894
Appeal from order denying pretrial petition for writ of habeas corpus, Eighth Judicial
District Court, Clark County; James A. Brennan, Judge.
After defendant was arraigned and pleaded not guilty to grand larceny, she filed a pretrial
petition for habeas corpus contending that evidence was insufficient to support the
indictment, and the district court denied the petition, and she appealed. The Supreme Court
held that habeas petition filed after the plea was entered was not timely filed, was not
cognizable in the district court, and thus was not reviewable.
Dismissed.
W. Randall Mainor, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and H.
Leon Simon, Deputy, Clark County, for Respondent.
1. Habeas Corpus.
Language of statute, providing that a district court shall not consider any pretrial petition for habeas
corpus if such petition is not filed and brought on for hearing before a plea to the charge is entered, is
mandatory. NRS 34.380, subd. 1(c)(1); DCR 24.
2. Habeas Corpus.
Where petition for habeas corpus was not filed and brought on for hearing before the plea to the charge
of grand larceny was entered, the habeas petition was not timely filed and was not cognizable in the district
court, so that determination thereon was not reviewable in the Supreme Court.
92 Nev. 19, 20 (1976) Slattery v. Sheriff
reviewable in the Supreme Court. NRS 34.380, subd. 1 (c) (1); DCR 24.
OPINION
Per Curiam:
On June 19, 1975, the Clark County Grand Jury returned an indictment charging appellant
with grand larceny, a felony under NRS 205.220. She was subsequently arrested, posted bail,
and, on July 3, 1975, arraigned, at which time she pleaded not guilty. Trial was scheduled for
August 25, 1975.
On August 22, 1975, appellant's unopposed motion to vacate the scheduled trial date was
granted and, on October 17, 1975, she filed a pretrial petition for habeas corpus which
contended there was insufficient evidence to support the indictment. Habeas was denied and
the same contention is reurged in this appeal.
[Headnote 1]
We do not reach the merit, if any, of appellant's contention. The arraigning judge stated
that [c]ounsel can stipulate the court will retain jurisdiction to hear the Writ [of habeas
corpus] after she enters a plea.
1
The statement was erroneous. See NRS 34.380(1)(c)(1),
which provides, in part: A district court shall not consider any pretrial petition for habeas
corpus . . . if such petition is not filed and brought on for hearing before a plea to the charge
is entered . . . [Emphasis added]. We deem the language of the statute mandatory. See
Ewing v. Fahey, 86 Nev. 604, 607, 472 P.2d 347, 349 (1970).
[Headnote 2]
The habeas petition, not being timely filed, was not cognizable in the district court.
2
A
fortiori, it is not reviewable in this court. Accordingly, we
ORDER this appeal dismissed.
____________________

1
There is nothing in this record to show that there was a stipulation. See DCR 24.

2
The judge who heard and denied the habeas petition was not the arraigning judge.
____________
92 Nev. 21, 21 (1976) Anderson v. State
LAWRENCE ANDERSON, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 8264
January 23, 1976 544 P.2d 1200
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County;
Howard W. Babcock, Judge.
Defendant was convicted in the district court of rape and the infamous crime against
nature, and he appealed. The Supreme Court held that defendant was not entitled to counsel at
a crime scene identification by the victim; that the victim's in-court identification of
defendant was properly admitted; that it was not error for the trial court to deny defendant's
motion to prohibit impeachment by the use of prior felony convictions; and that the
mandatory life sentence for committing the infamous crime against nature by the use of force
did not constitute cruel or unusual punishment in violation of Federal and State Constitutions.
Affirmed.
Morgan D. Harris, Public Defender, Clark County, for Appellant.
Robert List, Attorney General, and George E. Holt, District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Where identification of defendant by victim at scene of crime was prior to any prosecution whatsoever,
defendant was not entitled to counsel at the identification.
2. Criminal Law.
Even assuming there were improprieties offensive to due process in procedure by which defendant was
first shown to rape victim at scene of crime, where victim identified defendant after viewing four or five
other men of similar build and dress, and State demonstrated that victim's identification was based on
observations independent of crime scene identification, trial court identification was free from taint.
3. Witnesses.
Though prior felony convictions may be used to impeach a defendant who takes the stand, such
convictions should not be admitted if their probative value is substantially outweighed by danger of unfair
prejudice, confusion of issues, or misleading jury. NRS 48.035, subd. 1, 50.095.
4. Criminal Law.
Determination whether to admit or exclude evidence of defendant's prior felony convictions rests in
sound discretion of trial court and will not be disturbed unless manifestly wrong.
trial court and will not be disturbed unless manifestly wrong. NRS 48.035, subd. 1.
5. Criminal Law.
It was not an abuse of discretion for trial court, in rape prosecution, to deny defendant's motion to
suppress his prior convictions for attempted rape and aggravated battery. NRS 48.035, subd. 1, 50.095.
6. Criminal Law.
Under statute which provides in pertinent part that every person of full age who commits the infamous
crime against nature by the use of physical force or the immediate threat of such force shall be punished by
life imprisonment, mandatory life sentence imposed on defendant who was convicted of rape and the
infamous crime against nature did not constitute cruel or unusual punishment in violation of Federal and
State Constitutions. NRS 201.190; U.S.C.A.Const. Amend 8; Const. art. 1, 2.
OPINION
Per Curiam:
After a jury trial, appellant stands convicted of rape and the infamous crime against nature.
Appellant here contends: (1) the district court erred in not suppressing an identification by the
victim; (2) the district court erred in denying appellant's motion to prohibit impeachment by
using prior felony convictions; and, (3) the mandatory life sentence for committing an
infamous crime against nature constitutes cruel and/or unusual punishment violative of the
Federal and Nevada Constitutions. We disagree.
The evidence adduced at trial shows that appellant forced his way into the victim's
apartment, forcibly committed the charged offenses, and threatened to kill her if she reported
the incident. On the day of the crime, the police brought appellant back to the scene where he
was identified by the victim.
[Headnote 1]
1. Appellant alleges that he was entitled to counsel at the crime scene identification, and
that the identification was so suggestive as to violate due process standards.
The crime scene identification was prior to any prosecution whatever. Thus, the claimed
right to counsel does not exist. Brown v. State, 91 Nev. 777, 542 P.2d 1068 (1975). Cf. Kirby
v. Illinois, 406 U.S. 682 (1972).
[Headnote 2]
We also reject the contention that the identification violates due process. Cf. Stovall v.
Denno, 388 U.S. 293 (1967).
After viewing four or five other men of similar build and dress, the victim identified
appellant. The State demonstrated by clear and convincing evidence, both at the evidentiary
hearing and at trial, that the victim's identification was based on observations independent of
the crime scene identification. Thus, assuming improprieties in the process through which
appellant originally was shown to the victim, and by which due process could have been
offended, it appears the trial court identification was free from taint in the instant case. Cf.
Brown v. State, cited above; Baker v. State, 88 Nev. 369, 498 P.2d 1310 (1972).
[Headnotes 3-5]
2. During trial, the judge excused the jury to entertain appellant's motion to suppress prior
felony convictions in the event appellant decided to testify. Prior felony convictions may be
used to impeach a defendant who takes the stand. NRS 50.095; Edwards v. State, 90 Nev.
255, 524 P.2d 328 (1974). However, prior felony convictions should not be admitted if their
probative value is substantially outweighed by the danger of unfair prejudice, of confusion
of the issues or of misleading the jury. NRS 48.035(1). After argument of counsel, the court
excluded a 1963 conviction as too remote but informed appellant he would admit 1967
convictions for attempted rape and aggravated battery. The determination of whether to admit
or exclude such evidence rests in the sound discretion of the trial court and will not be
disturbed unless manifestly wrong. Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965). We
perceive no abuse of discretion.
[Headnote 6]
3. NRS 201.190 provides in pertinent part:
1. Except as provided in subsection 2, every person of full age who commits the
infamous crime against nature shall be punished:
(a) Where physical force or the immediate threat of such force is used by the defendant to
compel another person to participate in such offense, . . . by imprisonment in the state prison
for life with possibility of parole, eligibility for which begins, . . . when a minimum of 5 years
has been served. (Emphasis added.)
We reject appellant's contention that the mandatory life sentence imposed pursuant to
statute constitutes cruel and/or unusual punishment violative of the Federal and Nevada
Constitutions. Within constitutional limits, the Legislature has the power to define crimes and
determine punishments, and courts should not lightly encroach upon their domain.
courts should not lightly encroach upon their domain. Egan. v. Sheriff, 88 Nev. 611, 503 P.2d
16 (1972). We simply do not believe the sentence imposed is manifestly disproportionate to
the seriousness of this offense. Cf. Hinrichs v. District Court, 71 Nev. 168, 283 P.2d 614
(1955).
Affirmed.
____________
92 Nev. 24, 24 (1976) Nevada Wholesale Lumber v. Myers Realty
NEVADA WHOLESALE LUMBER COMPANY, a Nevada Corporation, Appellant, v.
MYERS REALTY, INC., a Nevada Corporation, Respondent.
No. 7821
January 23, 1976 544 P.2d 1204
Appeal from order granting summary judgment, Second Judicial District Court, Washoe
County; John W. Barrett, Judge.
Beneficiary under senior deed of trust to real estate appealed an order of the district court
granting summary judgment to a third party, who claimed title through foreclosure sale under
a subsequent deed of trust, in third party's action to compel the deed trustee to release and
reconvey the beneficiary's interest in the land. The Supreme Court, Batjer, J., held that where
the beneficiary had failed to exhaust its security prior to bringing an action against the debtor
on the underlying debt, it placed into operation the sanction aspect of the one-action rule and
thereby lost all security rights in the real property to the extent that the debt represented
advances made by the beneficiary subsequent to sale of the property by the debtors to the
third party's predecessor in interest.
Affirmed.
A. D. Jensen, of Reno, for Appellant.
Emerson J. Wilson, Ltd., of Reno, for Respondent.
1. Appeal and Error.
In deciding propriety of summary judgment, Supreme Court must view evidence most favorable to party
against whom summary judgment was granted and give that party benefit of all favorable inferences that
may be drawn from subsidiary facts. NRCP 56(c).
2. Mortgages.
One-action rule requires holder of secured note to first exhaust security before action on note
and ancillary attachment is permissible.
exhaust security before action on note and ancillary attachment is permissible. NRS 40.430.
3. Mortgages.
Trustor of deed of trust may waive benefits of one-action rule by failing to call court's attention to
security on note being sued upon, even though mortgagor or trustor is precluded by statute from waiving, in
any document relating to sale of real property, right secured by laws of state. NRS 40.430, 40.453.
4. Mortgages.
Where trustors did not assert one-action rule as affirmative defense to beneficiary's action on open
account, trustors waived right to force beneficiary to exhaust its security under deed of trust. NRS
40.430.
5. Mortgages.
Failure of trustor under deed of trust to assert one-action rule as affirmative defense to action by
beneficiary does not result in waiver by trustor of all protection under that statute; trustor or his successor
in interest remains free to invoke sanction aspect of one-action rule. NRS 40.430.
6. Mortgages.
Where beneficiary of senior trust deed failed to exhaust its security before bringing action on open
account against debtor, seeking to recover on note executed by debtor after debtor had sold described
property to third party, beneficiary placed into operation sanction aspect of one-action rule and thereby lost
all security rights in described property regarding debt in question. NRS 40.430.
OPINION
By the Court, Batjer, J.:
Myers Realty, Inc., plaintiff below and respondent on appeal, brought an action against
Nevada Wholesale Lumber Company (hereinafter referred to as Lumber Company),
appellant, and Title Insurance and Trust Company to compel the latter as trustee to release
and reconvey Lumber Company's interest in land upon which Lumber Company had a prior
deed of trust. Myers Realty claimed title through foreclosure sale under a deed of trust
executed by Ramart Corporation, successor in title from Paul and Lucy Lundgren who had,
prior to their sale to Ramart Corporation, executed promissory notes and deed of trust in
favor of Lumber Company.
In its complaint Myers Realty conceded Lumber Company's right to $7,767.44, plus
interest, under its prior deed of trust and deposited that amount with the clerk of the court, but
denied Lumber Company's right to $12,126.99, plus interest, for advances made subsequent
to the Lundgrens' deed of trust securing the original $7,767.44. The lower court concluded
that Lumber Company, by electing to seek a personal judgment against the Lundgrens, is
barred from seeking to realize on the underlying security and ordered the clerk of the
court to disburse to Lumber Company $7,767.44, and Title Insurance and Trust Company
to release and reconvey the property described in the deed of trust.
against the Lundgrens, is barred from seeking to realize on the underlying security and
ordered the clerk of the court to disburse to Lumber Company $7,767.44, and Title Insurance
and Trust Company to release and reconvey the property described in the deed of trust. The
court held that $7,767.44, plus interest, is full and complete satisfaction of the obligation
secured by the deed of trust executed by the Lundgrens in favor of the Lumber Company and
granted Myers Realty's motion for summary judgment.
The events culminating in Myers Realty's complaint against Lumber Company began
November 30, 1970, when the Lundgrens, owners in fee simple of the north 85 feet of Lot 8
and the east 25 feet of the north 85 feet of Lot 7, Block 32, Sparks, Nevada, executed a note
in the sum of $7,767.44 in favor of Lumber Company, secured by a trust deed with Title
Insurance and Trust Company as trustee. The Lundgrens furnished a description of the
encumbered property for the deed of trust but mistakenly omitted approximately ten feet of
the land upon which the improvements are partially located. On May 8, 1972, the Lundgrens,
without notifying Lumber Company, conveyed fee simple title to Ramart Corporation. The
property described in that deed included the land covered by the deed of trust to Lumber
Company as well as the previously omitted portion. On December 16, 1972, approximately
seven months after conveying away fee title, the Lundgrens executed their second promissory
note to Lumber Company for $12,126.99, plus interest.
1

The second note was secured by the dragnet clause in the November 30, 1970, deed of
trust to Lumber Company which secured additional sums advanced when evidenced by a
promissory note.
Subsequently, on January 16, 1973, the owner of fee title, Ramart Corporation, executed a
note and deed of trust to respondent, Myers Realty.
On February 7, 1973, Lumber Company recorded notice of default and election to sell the
property encumbered by the Lundgren deed of trust dated November 30, 1970. At that time
Lumber Company learned that the description in its deed of trust omitted approximately ten
feet of the property. On February 12, 1973, action was commenced against the Lundgrens on
an open account in the sum of $12,126.99, and the entire parcel was attached. A default
judgment was entered in that action on June 2S, 1973, and it remains unsatisfied.
____________________

1
The question has not been raised and we do not decide whether the Lundgrens could properly encumber the
real property after they had conveyed away fee title. See Atkinson v. Foote, 186 P. 831 (Cal.App. 1919). See
also, Courson v. Atkinson & Griffin, Inc., 198 S.E.2d 675 (Ga. 1973); Bullard v. Fender, 192 So. 167 (Fla.
1939).
action on June 28, 1973, and it remains unsatisfied. August 17, 1973, Myers Realty received
and recorded its trustee's deed upon foreclosure and sale under the deed of trust executed by
Ramart Corporation as trustor.
Lumber Company asserts that the lower court committed error in granting Myers Realty's
motion for summary judgment for the reason that there were remaining material decisive
issues of fact.
[Headnote 1]
In deciding the propriety of the summary judgment we must view the evidence most
favorable to the party against whom summary judgment was granted and give that party the
benefit of all favorable inferences that may be drawn from the subsidiary facts. Ottenheimer
v. Real Estate Division, 91 Nev. 338, 535 P.2d 1284 (1975); Brewer v. Annett, 86 Nev. 700,
475 P.2d 607 (1970); Old West Enterprises v. Reno Escrow Co., 86 Nev. 727, 476 P.2d 1
(1970). After reviewing the record and viewing the evidence most favorable to Lumber
Company we find no material issue of fact to be resolved. Summary judgment was
appropriate. NRCP 56(c); Olson v. Iacometti, 91 Nev. 241, 533 P.2d 1360 (1975); Tobler and
Oliver v. Bd. Trustees, 84 Nev. 438, 442 P.2d 904 (1968); Nevada Land & Mtge. v. Hidden
Wells, 83 Nev. 501, 435 P.2d 198 (1967).
Lumber Company contends that the trial court erred when it held, as a matter of law, that
its claim of $12,126.99 was extinguished by the entry of judgment in that amount against the
Lundgrens. Lumber Company and Myers Realty both agree that Lumber Company obtained a
valid personal judgment against the Lundgrens either through their express waiver of the
benefit of NRS 40.430
2
or by their implied waiver of its protection through failure to
defend Lumber Company's action on the open account.
____________________

2
NRS 40.430: 1. Except as provided in chapter 104 of NRS, there shall be but one action for the recovery
of any debt, or for the enforcement of any right secured by mortgage or lien upon real estate, which action shall
be in accordance with the provisions of this section and NRS 40.440 to 40.459, inclusive. In such action, the
judgment shall be rendered for the amount found due the plaintiff, and the court shall have power, by its decree
or judgment, to direct a sale of the encumbered property, or such part thereof as shall be necessary, and apply
the proceeds of the sale to the payment of the costs and the expenses of the sale, the costs of the suit, and the
amount due to the plaintiff.
2. A sale directed by the court pursuant to subsection 1 shall be conducted by the sheriff of the county in
which the encumbered land is situated, and if the encumbered land is situated in two or more counties, the court
shall direct the sale to be conducted in one of such counties by the sheriff of that county with like proceedings
and effect as if the whole of the encumbered land were situated in that county.
protection through failure to defend Lumber Company's action on the open account.
[Headnotes 2, 3]
The one-action rule, NRS 40.430, requires the holder of a secured note to first exhaust
the security before action on the note and ancillary attachment is permissible. McMillan v.
United Mtg. Co., 82 Nev. 117, 412 P.2d 604 (1966). However, a trustor may waive the
benefits of the statute by failing to call the court's attention to the security on the note, even
though NRS 40.453
3
precludes a mortgagor or trustor from waiving a right secured by the
laws of the state in any document relating to the sale of real property. See Salter v. Ulrich,
138 P.2d 7 (Cal. 1943).
Here we must determine whether NRS 40.430 operates as a sanction to bar Lumber
Company from realizing on its security after it had proceeded to judgment on the promissory
note.
There is an indication by dictum in Hyman v. Kelly, 1 Nev. 179, 185-186 (1865), that the
mortgagee who proceeds against the underlying obligation loses his right in the security. The
court, in discussing the one-action rule stated: The only construction we can put on these
two sections is that the mortgagee shall pursue but one remedy, not two or three remedies at
the same time, for the enforcement of his rights. And that remedy shall in no case be the
action of ejectment to obtain the possession of the land. But the remedy shall be the equitable
one of foreclosure and sale, if the mortgage is relied on. Perhaps, if the mortgagee chooses to
abandon all claim under the mortgage, he may bring the ordinary suit for the collection of a
debt. [Emphasis added.]
The indication in Hyman was acknowledged in McMillan v. United Mortgage Co., 82
Nev. at 119, where this court, after noting that the notes or trust deed did not grant a right to
sue before exhausting the security and the payee of the notes and the beneficiary did not
waive its security stated: The early case of Hyman v. Kelly... hints that one may abandon the
security and sue for the collection of the debt. In Paramount Ins. v. Rayson & Smitley, 86
Nev. 644, 649, 472 P.2d 530 (1970), the holding in McMillan that the action brought on the
note was improper because there had been no waiver of the security, was approved.
____________________

3
NRS 40.453: 1. It is hereby declared by the legislature to be against public policy for any document
relating to the sale of real property to contain any provision whereby a mortgagor or trustor waives any right
secured to him by the laws of this state.
2. No court shall enforce any such provision.
In Salter v. Ulrich, supra,
4
C. A. Kassell encumbered property with a trust deed during the
year 1929, in favor of Ulrich to secure a promissory note. Kassell then issued a street
improvement bond to Oswald against the property. In 1934 Ulrich brought suit on his
promissory note without mentioning to the trial court that the note was secured. Judgment
was entered against Kassell and a writ of execution was issued. In 1936 the property was sold
to Ulrich in partial satisfaction of the judgment. In December, 1936, between the execution
sale and delivery of the deed, Oswald brought an action against Kassell to foreclose the lien
of the bond; Ulrich was not named or served. Kassell defaulted, foreclosure was ordered, and
the property was sold to Oswald on June 7, 1937. Salter bought Oswald's certificate and the
commissioner issued his deed in 1938. The California Supreme Court affirmed the lower
court's finding title in Ulrich but held that he had waived his security by suing on the note
instead of foreclosing and, therefore, his title was subject to Salter's lien. Defendant, [Ulrich]
by suing on the note instead of foreclosing, chose to disregard the security given and to rely
on the title secured on the execution sale. Defendant [Ulrich] thus made an election of
remedies [citations omitted], and cannot now pursue the concurrent remedies of foreclosure
by action or by trustee's sale. Having failed to try to cut off the rights of intervening creditors
by foreclosing his deed of trust, defendant [Ulrich] cannot claim a greater title than his
judgment debtor had at the time of the judgment and execution sale, and since the property
was then subject to the lien of plaintiff's [Salter's] street improvement bond, the judgment
herein properly quieted title in defendant [Ulrich] subject to that lien. 138 P.2d at 9-10.
In James v. P.C.S. Ginning, Co., 80 Cal.Rptr. 457, 460 (Cal.App. 1969), it was held that a
defendant by electing to file a personal action and reducing the indebtedness to a personal
judgment made an election of remedies and, by operation of law, effected a waiver of its
equitable lien priority over plaintiff's subsequent declaration of homestead. That court said:
The language of Salter has been interpreted to mean that when the creditor elects to recover
a personal judgment he loses all right to his security, thereby relegating himself to the
position of an ordinary judgment creditor.' [Citation omitted.]
____________________

4
The California Code of Civil Procedure, section 726, interpreted in Salter, provides in relevant part: There
can be but one form of action for the recovery of any debt, or the enforcement of any right secured by mortgage
upon real property, which action must be in accordance with the provisions of this chapter. . . .
Although the section refers only to mortgage, it is applicable to a deed of trust. Bank of Italy v. Bentley, 20
P.2d 940 (Cal. 1933).
loses all right to his security, thereby relegating himself to the position of an ordinary
judgment creditor.' [Citation omitted.] We believe this is a correct analysis and, by electing to
rely upon a personal judgment, the gin lost all right to a lien priority. . . .
In Walker v. Community Bank, 518 P.2d 329 (Cal. 1974), the California Supreme Court,
citing and relying upon both Salter and James, held that the sanction takes effect regardless of
whether the waived security is owned by the debtor or his successor in interest.
[Headnotes 4-6]
The Lundgrens did not assert NRS 40.430 as an affirmative defense and therefore waived
the right to force Lumber Company to exhaust its security. Failure to assert NRS 40.430 as an
affirmative defense does not result in a waiver of all protection under that statute and leaves
the debtor or his successor in interest free to invoke the sanction aspect of the one-action
rule. When Lumber Company failed to exhaust its security before bringing an action on the
underlying debt it placed into operation the sanction aspect of NRS 40.430 and thereby lost
all security rights in the real property regarding the debt in question.
The judgment of the district court is affirmed.
Gunderson, C. J., and Zenoff, Mowbray, and Thompson, JJ., concur.
____________
92 Nev. 30, 30 (1976) Raby v. State
ALECK EUGENE RABY, Appellant, v. THE
No. 8184
January 23, 1976 544 P.2d 895
Appeal from judgment entered upon jury verdict finding appellant guilty of five counts of
robbery and five counts of use of a deadly weapon in commission of a crime; Eighth Judicial
District Court, Clark County; Paul S. Goldman, Judge.
Defendant was convicted in the district court on five separate counts of robbery and five
separate counts of use of firearm or other deadly weapon in the commission of a crime, all
arising from incidents which took place on the same day and at the same place. The Supreme
Court held that since the use of a firearm or other deadly weapon in the commission of a
crime was not a separate criminal offense, defendant's five convictions therefor would be
annulled; but that the evidence supported defendant's conviction for the five robberies
and supported imposition of a ten-year consecutive sentence imposed for using a firearm
or other deadly weapon in the commission of a crime.
92 Nev. 30, 31 (1976) Raby v. State
the use of a firearm or other deadly weapon in the commission of a crime was not a separate
criminal offense, defendant's five convictions therefor would be annulled; but that the
evidence supported defendant's conviction for the five robberies and supported imposition of
a ten-year consecutive sentence imposed for using a firearm or other deadly weapon in the
commission of a crime.
Robbery convictions affirmed; use of a deadly weapon in commission of a crime
convictions annulled.
Oshins, Brown & Singer, Chartered, and A. Bill Maupin, of Las Vegas, for Appellant.
George E. Holt, District Attorney, H. Leon Simon, and Rimantas A. Rukstele, Deputy
District Attorneys, Clark County, for Respondent.
1. Weapons.
Convictions of defendant for five separate counts of use of firearm or other deadly weapon in commission
of crime in connection with five separate robberies on same day at same place would be annulled since use
of firearm or other deadly weapon in commission of crime is not separate criminal offense. NRS
193.165.
2. Criminal Law.
Evidence, in prosecution for robbery and use of firearm or other deadly weapon in commission of crime,
supported conviction of defendant for five separate robberies as charged and supported imposition of
ten-year consecutive sentence imposed for use of firearm or other deadly weapon in commission of crime.
NRS 193.165.
OPINION
Per Curiam:
The information charged Raby with the commission of ten separate crimesfive robberies
on the same day and at the same place, and the use of a firearm in the commission of each
robbery. The jury found him guilty of ten separate offenses and returned ten verdicts.
Judgment of conviction was entered upon each verdict. He was sentenced to serve concurrent
terms of ten years on each robbery conviction, and concurrent terms of ten years on each use
of firearm in the commission of a crime conviction, with the provision, however, that the
first ten-year sentence for use of a firearm in the commission of a crime was to run
consecutively to the first ten-year sentence for robbery.
92 Nev. 30, 32 (1976) Raby v. State
[Headnotes 1, 2]
Since the use of a firearm or other deadly weapon in the commission of a crime [NRS
193.165] is not a separate criminal offense [Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d
1396 (1975)], the five convictions therefor must be and hereby are annulled. However, since
the evidence is overwhelming that Raby did, indeed, commit the five robberies as charged,
and that he used a firearm in the commission of each robbery, we shall treat the ten-year
consecutive sentence imposed for using such firearm as the enhanced penalty mandated by
NRS 193.165.
Consequently, Raby shall serve concurrent terms of ten years on each robbery conviction,
and a consecutive term of ten years for using a firearm in the commission of the robberies.
Other assigned errors are without merit.
____________
92 Nev. 32, 32 (1976) Hill v. Nevada National Bank
OLIVE M. HILL, Executrix of the Estate of Frederick L. Hill and Successor Trustee of the
Trust of William Hill, Deceased, and Grace Hill, Appellant, v. NEVADA NATIONAL
BANK, Executor of the Estate of William Hill, Respondent.
No. 8316
January 23, 1976 545 P.2d 293
Appeal and cross-appeal from judgment; Second Judicial District Court, Washoe County;
Peter I. Breen, Judge.
Trustee of inter vivos trust brought action against executrix of estate. The district court
ordered trustee to pay federal estate taxes from trust assets and ordered executrix to pay
expenses of testator's last illness from probate estate, and both appealed. The Supreme Court,
Thompson, J., held that direction in trust instrument directing trustee to pay federal estate tax
did not constitute inter vivos direction exempting testator's estate from federal estate tax
liability under Federal Estate Tax Apportionment Law; and that trial court properly ordered
executrix to pay testator's final illness, funeral and burial expenses from assets of estate.
Appeal reversed; cross-appeal affirmed.
Goldwater, Hill, Mortimer, Sourwine & Pinkerton, of Reno, for Appellant and
Cross-Respondent.
Hale and Belford, and Steve Lane, of Reno, for Respondent and Cross-Appellant.
1. Internal Revenue.
Purpose of Federal Estate Tax Apportionment Law is to equitably prorate payment of federal estate tax
among those persons interested in estate, subject only to expressed will of testator to contrary. NRS
150.290-150.390.
Federal estate tax is not debt of deceased but is excise imposed upon transfer of property or shifting in
relationships to property at time of death.
Direction in inter vivos trust instrument directing trustee to pay federal estate tax did not specifically
require payment of tax against trustor's probate estate from trust assets, and thus did not constitute inter
vivos direction as to apportionment of federal estate taxes which would constitute exemption from Federal
Estate Tax Apportionment Law provisions requiring equitable proration of tax over gross estate. NRS
150.310.
Where trustor died after effective date of Federal Estate Tax Apportionment Law, law was applicable to
inter vivos trust which was established five years prior to enactment of law. NRS 150.290-150.390.
5. Executors and Administrators.
Where testator's 1952 inter vivos trust directed trustee to pay expenses of testator's last illness, funeral,
and burial unless other provisions were made, and testator's 1967 will directed that such expenses be paid
by probate estate, trial court properly found that testator's estate was required to pay such expenses. NRS
150.230.
OPINION
By the Court, Thompson, J.:
Nevada National Bank, Executor of the Estate of William Hill, commenced this action to
require the William and Grace Hill Trust to pay the federal estate tax assessed against the
Estate of William Hill, and also to pay the expenses of William's last illness, funeral and
burial. The district court ruled that the trust was obliged to pay the federal estate tax, but that
the expenses of William's last illness, funeral and burial were to be paid by the probate estate.
Each side has appealed from that portion of the judgment adverse to it.
In 1952 William Hill and his wife, Grace, created an inter vivos trust. In 1967 William
Hill executed his Last Will which has been admitted to probate. Frederick L. Hill was the
Trustee of the William and Grace Hill Trust.
of the William and Grace Hill Trust. Frederick died on July 8, 1974, and Olive M. Hill is the
Executor of his estate and has succeeded him as Trustee of the William and Grace Hill Trust.
Grace Hill survives.
This litigation concerns the meaning to be given certain provisions of the 1952 inter vivos
trust, the 1967 Last Will of William Hill, and the effect, if any, of the intervening 1957
Federal Estate Tax Apportionment Law upon those two documents.
The 1952 trust which William and Grace Hill established provided that upon the death of
the Trustors, the Trustee shall (a) Pay the costs and expenses of the Trustors' last illness and
of their funeral and burials unless other provisions shall have been made therefor. (b) Pay and
discharge any and all of the Federal Estate Tax for which no other provision for payment has
been made.
The 1967 Last Will of William Hill directed that my funeral and administration expenses,
and those of my debts which may be legally due and owing at the time of my death, be paid as
soon after my death as may be practicable.
1
His Last Will did not mention payment of the
federal estate tax nor contain any direction as to the apportionment or nonapportionment
thereof.
In 1957 the Nevada Legislature enacted the Federal Estate Tax Apportionment Law. NRS
150.290-150.390, inclusive. Section 150.310 provides that the federal estate tax shall be
equitably prorated over the gross estate, that is, the entire taxable estate, unless the testator
otherwise directs in his will or inter vivos instrument. Succeeding sections provide for the
method of proration, for certain allowances and exemptions, that the taxes shall be paid by
the executor or administrator, and that the executor or administrator may recover his portion
of the taxes from the possessor of nonprobate property subject to the federal estate tax.
The Apportionment Law defines gross estate as all property included for federal estate
tax purposes in determining the federal estate tax pursuant to the federal estate tax law. And,
a person interested in the estate is declared to be any person who receives or is the
beneficiary of any property transferred pursuant to a transfer which is subject to a tax imposed
by any federal estate tax law, now existing or hereafter enacted."
____________________

1
The last illness, funeral and burial expenses of William Hill were $5,548.64. The supplementary inventory
filed in the William Hill Estate reflects the probate estate to have a value of approximately $256,000. That
property, of course, is separate from the corpus of the 1952 Trust which William and Grace created.
federal estate tax law, now existing or hereafter enacted. NRS 150.300.
[Headnote 1]
Before adoption of the Federal Estate Tax Apportionment Law in 1957, the federal estate
tax was a charge solely upon the probate estate. The evident purpose of the Apportionment
Law is to equitably prorate the payment of the federal estate tax among those persons
interested in the estate subject to that tax. This is now the fundamental public policy of this
state, subject only to the expressed will of the testator to the contrary.
It is within this context that we turn to resolve the issue presented by this appeal.
1. The question presented by the appeal is whether the Hill Trust established in 1952 is
liable for all of the federal estate tax assessed against the estate of William Hill, or for only a
prorated share thereof by reason of the 1957 Federal Estate Tax Apportionment Law.
[Headnote 2]
As before noted, the trust instrument provided that upon the death of the trustors, the
Trustee shall pay and discharge any and all of the Federal Estate Tax for which no other
provision for payment has been made. The Last Will of William Hill did not mention
payment of the federal estate tax nor make provision for such payment.
2
Even though
William Hill did not make other provisions for payment of the federal estate tax in his Last
Will, it is the contention of the Trustee that the Federal Estate Tax Apportionment Law
mandates an equitable proration of the tax liability among the persons interested in the
probate and nonprobate estates. The resolution of this contention is dispositive of the appeal.
NRS 150.310 provides for equitable proration except where (1) a testator otherwise directs
in his will, or (2) where by written instrument executed inter vivos direction is given for
apportionment among the beneficiaries of taxes assessed upon the specific fund dealt with in
such inter vivos instrument.
3
In the instant case, the Last Will of William Hill was silent
with regard to the federal estate tax.
____________________

2
The Trustee of the Hill Trust originally contended that the Last Will provision for the payment of debts
which may be legally due and owing at the time of my death, was a provision for payment of the federal
estate tax contemplated by the trust instrument. That contention has been abandoned. The Trustee concedes that
the federal estate tax is not a debt of the deceased. It is, instead, an excise imposed upon the transfer of or
shifting in relationships to property at death. United States Trust Company v. Helvering, 307 U.S. 57 (1938).

3
NRS 150.310: Whenever it appears upon any accounting, or in any appropriate action or proceeding, that
an executor, administrator,
In the instant case, the Last Will of William Hill was silent with regard to the federal estate
tax. Consequently, the first exception to equitable proration is not present. Neither does the
inter vivos trust instrument provide for apportionment among the beneficiaries of taxes
assessed upon the specific fund dealt with by the trust. Thus, the second statutory exception
to equitable proration is not applicable.
[Headnote 3]
Moreover, we note that the Apportionment Law declares that any direction as to
apportionment or nonapportionment contained in a nontestamentary instrument is limited in
its operation to property passing thereunder unless the instrument otherwise directs. NRS
150.320.
4
The nontestamentary instrument in the case at handthe inter vivos
trustdirected the Trustee to pay any and all of the Federal Estate Tax. We do not read that
direction to mean payment of the tax assessed against the probate and nonprobate estates
since the words of the direction do not specifically so declare. By force of the statute we must
conclude that the direction in the trust instrument applies only to trust property, with the
consequence that the probate estate must pay its equitable share of the tax.
[Headnote 4]
It is of no consequence that the trust was established five years before the Apportionment
Law was passed. Indeed, NRS 150.390, by providing that the Apportionment Law shall not
apply to estates of persons who died prior to March 25, 1957, necessarily requires
application of that law to the estates of persons dying after that date.
____________________
trustee or other fiduciary has paid or may be required to pay an estate tax to the Federal Government under the
provisions of any federal estate tax law, now existing or hereafter enacted, upon or with respect to any property
required to be included in the gross estate of a decedent under the provisions of any such law, the amount of the
tax shall be equitably prorated among the persons interested in the estate, whether residents or nonresidents of
this state, to whom such property was, is or may be transferred or to whom any benefit accrues, except:
1. Where a testator otherwise directs in his will.
2. Where by written instrument executed inter vivos direction is given for apportionment among the
beneficiaries of taxes assessed upon the specific fund dealt with in such inter vivos instrument.

4
NRS 150.320: 1. A testator, settlor, or possessor of any appropriate power of appointment may direct how
the estate tax shall be apportioned or allocated or grant a discretionary power to another so to direct. Any such
direction shall take precedence insofar as the direction provides for the payment of the estate tax or any part
thereof from property the disposition of which can be controlled by the instrument containing the direction or
delegating the power to another.
2. Any direction as to apportionment or nonapportionment of the tax, whether contained in a will or in a
nontestamentary instrument, shall be limited in its operation to the property passing thereunder unless such will
or instrument otherwise directs.
150.390, by providing that the Apportionment Law shall not apply to estates of persons who
died prior to March 25, 1957, necessarily requires application of that law to the estates of
persons dying after that date. William Hill died after March 25, 1957. Moreover, case law
elsewhere approves application of that law to a prior inter vivos trust. Wilmington Trust Co.
v. Copeland, 94 A.2d 703 (Del. 1953); Merchants Nat. Bank v. Merchants Nat. Bank, 62
N.E.2d 831 (Mass. 1945); Security First Nat. Bank v. Wellslager, 198 P.2d 700 (Cal. 1948);
In re Ryle's Estate, 10 N.Y.S.2d 597 (N.Y.Sur.Ct. 1939).
We reverse the judgment below imposing sole liability for the federal estate tax assessed
against the Estate of William Hill upon the Hill Trust, and direct that such tax be equitably
prorated in accordance with the Federal Estate Tax Apportionment Law.
2. The question presented by the cross-appeal is whether the Last Will of William Hill
makes other provisions for the expenses of his last illness, funeral and burial so as to make
Nevada National Bank, Executor of his estate, liable therefor, rather than the 1952 Hill Trust.
The trust instrument required the Trustee to pay such expenses unless other provisions
shall have been made therefor. The Last Will of William Hill directed that my funeral and
administration expenses be paid. The district court ruled that the will contained other
provisions and that such expenses were to be paid by the probate estate.
[Headnote 5]
In challenging that ruling the Executor of the Estate appears to contend that since the
language of the will did not expressly direct the Executor to pay such expenses, the obligation
to do so remains with the Trust. We find no merit in that contention. It is the Executor's duty
to carry out that direction. NRS 150.230. We affirm the judgment below in this regard.
Gunderson, C. J., and Batjer, Zenoff, and Mowbray, JJ., concur.
____________
92 Nev. 38, 38 (1976) Ferrara v. Firsching
KAY FERRARA, Executrix of the Estate of Frank N. Ferrara, Deceased, Appellant, v.
HELEN R. FIRSCHING and ALFRED S. HOWES, Ancillary Executrix and Executor of the
Estate of Robert A. Firsching, Deceased, Respondents.
No. 7927
January 23, 1976 544 P.2d 1198
Appeal from summary judgment; Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Estate of realtor, who had entered into agreement providing with regard to two parcels of
real property, that in consideration of a waiver of any and all commissions by realtor,
purchaser agreed to pay one half of all net profits to realtor, brought action against estate of
purchaser for an accounting. The district court granted summary judgment to estate of
purchaser, and estate of realtor appealed. The Supreme Court, Thompson, J., held that estate
of purchaser was not indebted under such agreement and that estate of realtor was not entitled
to imposition of an equitable lien on such property to insure payments of one half of net
profits when realized from subsequent sales of such property.
Affirmed.
Gabe Hoffenberg, of Las Vegas, for Appellant.
Beckley, Singleton, DeLanoy & Jemison, Chartered, of Las Vegas, for Respondents.
Estate of purchaser was not indebted under agreement, which, with regard to two parcels of real property,
provided that, in consideration of a waiver of any and all commissions by realtor, purchaser agreed to
pay one half of all net profits to realtor, where one of parcels purchased by such purchaser had not been
subsequently sold and where the other parcel, which cost purchaser $135,000, had only provided $85,000
from sales or attempted sales thereof.
2. Liens.
Estate of realtor, who had entered into agreement providing, with regard to two parcels of real property,
that, in consideration of a waiver of any and all commissions by realtor, purchaser agreed to pay one half
of all net profits to realtor, was not entitled to imposition of an equitable lien on such property to insure
payment of one half of net profit when realized from subsequent sale of such property, absent
anything in the agreement suggesting an intention to create a security interest.
sale of such property, absent anything in the agreement suggesting an intention to create a security interest.
OPINION
The district court granted summary judgment to the Estate of Firsching in this action for an
accounting commenced by the Estate of Ferrara. Since we do not perceive a genuine issue as
to any material fact, we affirm.
Frank N. Ferrara and Robert A. Firsching are deceased, and this litigation between the
personal representatives of their estates concerns a written agreement made between them on
June 19, 1963. That agreement was with regard to two parcels of real property in Nye County
and provided that in consideration of a waiver of any and all commissions by Ferrara Realty,
and other services, Robert A. Firsching, purchaser and owner of above, agrees to pay one half
of all net profit to Frank Ferrara.
[Headnote 1]
1. The record before the district court, for all practical purposes, contains the requested
accounting and reveals that Parcel 1, approximately 80 acres of land in Nye County, was, by
Firsching, purchased for $12,000 and has not been sold; and, that Parcel 2, known as the
Dollar Ranch in Pahrump Valley, Nye County, cost Firsching $135,000 and has produced
only $85,000 from sales, or attempted sales thereof.
Since neither Firsching, during his lifetime, nor his estate since his death, has realized a
net profit from either parcel, the district court ruled that the Firsching Estate is not presently
indebted to the Ferrara Estate.
[Headnote 2]
2. The complaint below also requested the court to impose an equitable lien upon the land
to insure payment of one half of the net profit when realized.
There is nothing in the June 19, 1963, agreement between Ferrara and Firsching
suggesting an intention to create a security interest giving rise to an equitable lien in Ferrara.
Consequently, the district court properly denied that requested relief. Werner v. Mormon, 85
Nev. 662, 462 P.2d 42 (1969); Commercial Credit Corp. v. Matthews, 77 Nev. 377, 365 P.2d
303 {1961); Union Indemnity Co. v.
303 (1961); Union Indemnity Co. v. Drumm, 57 Nev. 242, 62 P.2d 698 (1936).
Affirmed.
___________
92 Nev. 40, 40 (1976) West Coast Livestock Co. v. Nevada National Bank of Commerce
WEST COAST LIVESTOCK CO., Appellant, v. NEVADA
NATIONAL BANK OF COMMERCE, Respondent.
No. 8012
January 23, 1976 544 P.2d 428
Appeal from order dismissing for want of prosecution; Seventh Judicial District Court,
White Pine County; Merlyn H. Hoyt, Judge.
Affirmed.
A. D. Demetras, of Tonopah, for Appellant.
Guild, Hagen & Clark, Ltd., and Thomas J. Hall, of Reno, for Respondent.
OPINION
Per Curiam:
Almost six years after this action was commenced, the district court dismissed the same,
including the counterclaim filed therein, for failure to prosecute. NRCP 41 (e). This appeal
concerns the propriety of dismissing the counterclaim of appellant, and must be resolved
against appellant by reason of our decision in Great W. Land & Cattle v. District Ct., 86 Nev.
282, 467 P.2d 1019 (1970).
Affirmed.
____________
92 Nev. 40, 40 (1976) Lanham v. State
LUTHER LANHAM, Appellant, v. STATE
OF NEVADA, Respondent.
No. 7976
January 23, 1976 544 P.2d 896
Appeal from convictions; Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
92 Nev. 40, 41 (1976) Lanham v. State
The Supreme Court held that record would not support contention that confession and
admissions to police officer after being given Miranda warnings were coerced or involuntary.
Affirmed.
Horace R. Goff, State Public Defender, and Gary Armentrout, Deputy State Public
Defender, for Appellant.
Larry R. Hicks, District Attorney, and Kathleen M. Wall, Assistant Chief Deputy District
Attorney, Washoe County, for Respondent.
Criminal Law.
Record on appeal from convictions would not support contention that confessions and admissions to
police officer after being given the Miranda warnings were coerced or involuntary.
OPINION
Per Curiam:
The record totally refutes the appellant's contention that his confession and admissions to
the police officer after being given the Miranda warnings were coerced or involuntary.
Accordingly, we affirm the convictions.
____________
92 Nev. 41, 41 (1976) Lange v. Hickman
ALFRED LANGE and BETTIE POTTS LANGE, Husband and Wife,
Appellants, v. CLAYTON DEE HICKMAN, Respondent.
No. 7940
January 23, 1976 544 P.2d 1208
Appeal from order of dismissal; Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Action was brought to recover for personal injuries sustained in automobile collision. The
district court dismissed action for failure of plaintiffs to sign consents for medical and income
tax records as required by court order and, subsequently, refused to set aside the dismissal,
and plaintiffs appealed. The Supreme Court held that dismissal was not an abuse of
discretion, though plaintiffs' counsel assertedly had not advised them of such order.
abuse of discretion, though plaintiffs' counsel assertedly had not advised them of such order.
Affirmed.
Allan D. Bray, of Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy & Jemison, Chartered, and Jack C. Cherry, of Las Vegas, for
Respondent.
1. Attorney and Client.
Notice to an attorney is notice to his client.
2. Dismissal and Nonsuit.
Attorney's neglect is imputed to his client and client is responsible for such neglect; client's recourse is an
action for malpractice.
3. Dismissal and Nonsuit.
Dismissal of action, in which recovery was sought for personal injuries sustained in automobile collision,
due to failure of plaintiffs to sign consents for medical and income tax records as required by court order
was not an abuse of discretion, though plaintiffs' counsel assertedly had not advised them of such order.
NRCP 37(b)(2).
OPINION
Per Curiam:
This action to recover damages for personal injuries sustained in an automobile collision
was, by the district court, dismissed for failure of the plaintiffs to sign consents for medical
and income tax records as ordered by the court. Five months later that court refused to set
aside the dismissal, from which determination this appeal is taken.
Plaintiffs' counsel acknowledged service of the defendant's motion to sign consents for
medical and tax records, but failed to appear when the motion was argued before the court.
The motion was granted and order entered, service thereof being effected upon plaintiffs'
counsel by mail.
Since the ordered consents were not executed by plaintiffs, the defendant, three months
later, moved to dismiss the case. NRCP 37(b) (2). That motion was served upon plaintiffs'
counsel by mail. At the time scheduled for hearing, plaintiffs' counsel did not appear. The
motion was granted and dismissal ordered.
Five months later, new counsel for plaintiffs moved to set aside the dismissal. The basis
for the motion was that the plaintiffs had never been advised by their prior counsel of the
court's order requiring them to sign consents for their medical and tax records to be given
defendant for examination, and had they been so advised they would have done so.
been so advised they would have done so. Their motion to set aside the dismissal was denied.
[Headnotes 1, 2]
Notice to an attorney is, in legal contemplation, notice to his client. Milner v. Dudrey, 77
Nev. 256, 362 P.2d 439 (1961); Aldabe v. Adams, 81 Nev. 280, 402 P.2d 34 (1965). The
attorney's neglect is imputed to his client, and the client is held responsible for it. The client's
recourse is an action for malpractice. Valente v. First Western Savings & Loan, 90 Nev. 377,
528 P.2d 699 (1974).
[Headnote 3]
Tested by these established principles, we cannot conclude that the district court abused its
discretion in ordering dismissal of this case.
Affirmed.
____________
92 Nev. 43, 43 (1976) Southwest Gas Corp. v. Public Serv. Comm'n
SOUTHWEST GAS CORPORATION, a California Corporation, Appellant, v. PUBLIC
SERVICE COMMISSION OF NEVADA, an Administrative Agency of the State of Nevada;
NOEL A. CLARK, Chairman, EVO A. GRANATA and HEBER P. HARDY,
as Members of Said Commission, Respondents.
No. 7912
January 28, 1976 546 P.2d 216
Appeal from a declaratory judgment of the Eighth Judicial District Court, Clark County;
Michael J. Wendell, Judge.
Utility filed application with Public Service Commission containing proposed schedules of
new rates and charges, requesting they become effective upon 30 days' notice, although they
were not to be collectible for a period of several months. The district court affirmed the
Commission's order suspending schedules of rates and charges for a period of 150 days,
commencing on date when collection of rates was to begin and utility appealed. The Supreme
Court, Batjer, J., held that the Commission had statutory power to order suspension of rate
schedules filed with it for period of 150 days beyond date upon which utility proposed to
begin collection, rather than 180 days beyond date of filing of schedule.
Affirmed.
Darrell Lincoln Clark, Charles H. McCrea and Frank J. Cremen, of Las Vegas, for
Appellant.
Robert List, Attorney General, and Robert Crowell, Deputy Attorney General, Carson
City, for Respondents.
1. Public Service Commissions.
In absence of prospective collection date, 30 days is maximum utility can be compelled to wait from time
it files its rate changes until date changes take effect, unless Public Service Commission properly exercises
its suspension power.
Utility has statutory right to effect rate increase subject to being able to justify such increase before the
Public Service Commission, and implicit in that right is prerogative to designate date when new rates and
charges would be collectible so long as that date is not less than 30 days from date of filing notice with
Commission. NRS 704.100, 704.110.
Suspension powers, when timely effected, have been granted to Public Service Commission to provide
status quo during which investigation may be made into reasonableness of proposed new rate schedule.
NRS 704.110.
Public Service Commission has statutory power to order suspension of proposed utility rate schedules for
period of 150 days beyond date on which utility proposed to begin collection, rather than for period of 180
days beyond date of filing of schedule. NRS 704.100, 704.110.
OPINION
On April 3, 1974, pursuant to Chapter 704 of the Nevada Revised Statutes, Southwest Gas
Corporation, appellant, (herein referred to as Southwest) filed an application with the Public
Service Commission of Nevada (herein referred to as the Commission) containing a proposed
schedule of new rates and charges, requesting that they become effective upon 30 days notice,
although they were not to be collectible until October 1, 1974. The Commission issued an
order on April 18, 1974, suspending the schedules of rates and charges for a period of 150
days commencing October 1, 1974. Southwest sought affirmative relief in the district court
from that suspension order. This appeal is taken from the judgment affirming the suspension.
Although there are a number of contentions hurled back and forth between appellant and
respondents, the sole issue on this appeal is whether the district court erred as a matter of law
in declaring that the Commission has the statutory power to order the suspension of a rate
schedule filed with it for a period of 150 days beyond the date upon which Southwest
proposed to begin collection rather than 180 days beyond the date of the filing of the
schedule.
The Commission is authorized to suspend the operation of a rate schedule, but not for a
longer period than 150 days beyond the time when such rate would otherwise go into effect.
NRS 704.110.
1

Without the specification in Southwest's application providing that the schedules
containing the new rates and charges would not become collectible until October 1, 1974,
they would have, subject to an order of suspension, gone into effect and become collectible
30 days after filing with the Commission.
____________________

1
NRS 704.110: 1. Whenever there shall be filed with the commission any schedule stating a new or revised
individual or joint rate, fare or charge, or any new or revised individual or joint regulation or practice affecting
any rate, fare or charge, or any schedule resulting in a discontinuance, modification or restriction of service, the
commission shall have, and it is hereby given, authority, either upon complaint or upon its own motion without
complaint, at once, and if it so orders, without answer or formal pleading by the interested utility or utilities, to
enter upon an investigation or, upon reasonable notice, to enter upon a hearing concerning the propriety of such
rate, fare, charge, classification, regulation, discontinuance, modification, restriction or practice.
2. Pending such investigation or hearing and the decision thereon, the commission, upon delivering to the
utility or utilities affected thereby a statement in writing of its reasons for such suspension, may suspend the
operation of such schedule and defer the use of such rate, fare, charge, classification, regulation, discontinuance,
modification, restriction or practice, but not for a longer period than 150 days beyond the time when such rate,
fare, charge, classification, regulation, discontinuance, modification, restriction or practice would otherwise go
into effect.
3. After full investigation or hearing, whether completed before or after the date upon which the rate, fare,
charge, classification, regulation, discontinuance, modification, restriction or practice is to go into effect, the
commission may make such order in reference to such rate, fare, charge, classification, regulation,
discontinuance, modification, restriction or practice as would be proper in a proceeding initiated after the rate,
fare, charge, classification, regulation, discontinuance, modification, restriction or practice has become
effective.
(The amendments to this section effective July 1, 1975, have no bearing on the issue in this case.)
become collectible 30 days after filing with the Commission. NRS 704.100;
2
NRS 704.110.
Pan American Petroleum Corp. v. Federal Power Com'n, 287 F.2d 469 (10th Cir. 1961).
[Headnote 1]
The 30-day notice to the Commission and the public is not only a minimum notice period
for a utility's customers and the Commission but also a maximum waiting period for a utility.
See United Gas Pipe Line Co. v. Memphis Light, Gas & Water Division, 358 U.S. 103
(1958). In the absence of a prospective collection date such as Southwest included in its
application, 30 days is the maximum a utility can be compelled to wait from the time it files
its rate changes until the date the changes take effect unless the Commission properly
exercises its suspension power. Cf. Indiana & Michigan Electric Co. v. Federal
Power Com'n, 502 F.2d 336 (D.C. Cir. 1974), cert. denied, 420 U.S. 946 (1975).
[Headnote 2]
A utility has a statutory right to effect a rate increase subject to being able to justify such
increase before the Commission. United Gas Pipe Line Co. v. Memphis Light, Gas & Water
Division, supra. Implicit in that right is the prerogative to designate a date when the new rates
and charges would be collectible so long as that date is not less than 30 days from the date of
filing notice with the Commission. Cf. Pan American Petroleum Corp. v. Federal Power
Com'n, supra.
____________________

2
NRS 704.100: 1. No changes shall be made in any schedule, including schedules of joint rates, or in the
rules and regulations affecting any and all rates or charges, except upon 30 days' notice to the commission, and
all such changes shall be plainly indicated, or by filing new schedules in lieu thereof 30 days prior to the time the
same are to take effect. The commission, upon application of any public utility, may prescribe a less time within
which a reduction may be made.
2. Copies of all new or amended schedules shall be filed and posted in the stations and offices of public
utilities as in the case of original schedules.
3. The commission shall determine whether a hearing shall be held when the proposed change in any
schedule stating a new or revised individual or joint rate, fare or charge, or any new or revised individual or joint
regulation or practice affecting any rate, fare or charge, will result in an increase in annual gross revenue as
certified by the applicant of $2,500 or less.
4. In making such determination the commission shall first consider all timely written protests, any
presentation the staff of the commission may desire to present, the application and any other matters deemed
relevant by the commission.
(The amendments to this section effective July 1, 1975, have no bearing on the issue in this case.)
Southwest relies on Re D.C. Transit System, Inc., 81 P.U.R.3d 417 (Wash. Met. Area
Tran. Com'n 1969), and Phillips Petroleum Company v. Federal Power Com'n, 227 F.2d 470
(10th Cir. 1955), cert. denied, 350 U.S. 1005 (1956), to support its position. In D.C. Transit,
the Washington Transit Compact provided for a 30-day notice period and for a 90 day
suspension period which could be extended by the transit commission up to 120 days beyond
the date of suspension. There the date of suspension was June 27, 1969, and the commission
held that a decision must issue by October 26, 1969, which was 150 days beyond May 29,
1969, the date of filing and no later than 120 days beyond the date of suspension. If the
transit commission failed to act, the fares proposed by D.C. Transit would have automatically
gone into effect on October 27, 1969. Neither the facts nor the law is similar to the case
before us; Re D.C. Transit System, Inc., supra, therefore is inapposite. Southwest's reliance
upon Phillips is likewise misplaced, and we also find that case to be inapposite. There the
pertinent question was whether the telegram dispatched to Phillips met the requirements of
Section 4(e) of the Natural Gas Act. No question of when the new rates and charges were to
take effect or would otherwise go into effect was before the court.
Nor is Indiana & Michigan Electric Co. v. Federal Power Com'n, supra, helpful in
Southwest's contention. There I & M filed the proposed change in its tariff schedule with the
Federal Power Commission on June 13, 1972. Nearly two months later, on August 11, 1972,
the Federal Power Commission designated August 13, 1972, as the effective date and
suspended use of the proposed changes in its tariff schedule for five months until January 13,
1973. The Commission by regulation imposed a de facto 60 day requirement on utilities
seeking to increase their rates. That court held that such a requirement contravenes the terms
of Sec. 205(d) of the Federal Power Act which provided for a 30-day notice requirement, that
the lawful effective date of I & M's rate filing was July 14, 1972, and that the Federal Power
Commission had no authority to suspend the use of the new rate schedule on August 11,
1972, nearly a month after it had become effective. Clearly that case is distinguishable on the
facts.
No case has been cited and our research has revealed none specifically deciding the exact
issue before us. However, in Pan American Petroleum Corp. v. Federal Power Com'n, supra,
the triggering event of Pan American's increased price was the increase in price paid under
a "favored nations provision" in the contract of a third party.
was the increase in price paid under a favored nations provision in the contract of a third
party. The Federal Power Commission acting under Sections 4(d) and (e) of the Natural Gas
Act, 15 U.S.C.A. 717c(d), (e), which are similar in wording to NRS 704.100 and 704.110,
suspended the rate and deferred its use until a date five months from the date the
favored-nations provision of the * * * rate schedule becomes activated, and thereafter until
such further time as [it] is made effective in the manner prescribed by the Natural Gas Act.
This had the effect of suspending the rate for 10 months instead of the 5 months authorized.
The United States Court of Appeals, Tenth Circuit, held the Federal Power Commission's
order of suspension was not untimely.
[Headnotes 3, 4]
Suspension powers, when timely effected, have been granted to the Commission to
provide a status quo during which an investigation may be made into the reasonableness of
the proposed new rate schedule. Here the date when the new rates and charges would become
collectible was established by Southwest in its notice to the Commission and became the date
when the same are to take effect (NRS 704.100) and would otherwise go into effect
(NRS 704.110) in the absence of a suspension. It is difficult to imagine a more crucial or
effective date, both for the consumer and the appellant, than the date when the new rates and
charges would become collectible.
The judgment of the district court is affirmed.
Gunderson, C. J., and Mowbray and Thompson, JJ., and Torvinen, D. J., concur.
____________
SOUTHWEST GAS CORPORATION, a California Corporation, Petitioner, v. PUBLIC
SERVICE COMMISSION OF NEVADA, NOEL A. CLARK, Chairman, HEBER P.
HARDY and EVO A. GRANATA, as Members of that Commission, Respondents.
No. 8501
January 28, 1976 546 P.2d 219
Original proceeding in mandamus.
Utility brought original proceeding seeking writ of mandamus to compel the Public
Service Commission and its members to reinstate general rate increase application filed by
utility and subsequently dismissed by Commission.
to reinstate general rate increase application filed by utility and subsequently dismissed by
Commission. The Supreme Court, Smart, D. J., held that mandamus was proper remedy to
compel reinstatement and further consideration of application; that Supreme Court would
entertain writ without requiring prior application to district court; and that Commission did
not have authority to dismiss application where application did not include as justification for
new schedule any items of expense or rate base which were set forth as justification in
pending application or pending litigation.
Writ granted.
Guild, Hagen & Clark, Ltd., of Reno, Charles H. McCrea and Constance L. Howard, of
Las Vegas, for Petitioner.
Robert List, Attorney General, and E. Williams Hanmer, Chief Deputy Attorney General,
Carson City, for Respondents.
1. Mandamus.
Mandamus was proper remedy to compel Public Service Commission and its members to reinstate
general rate increase application filed by utility and subsequently dismissed by Commission, since
Commission had clear duty to process such application to conclusion in accordance with appropriate
statutory provisions. NRS 34.160, 34.170, 703.150.
Order of Public Service Commission which dismissed application of utility for rate increase without
hearing was not subject to judicial review under statute providing for such review with regard to orders that
fix rates. NRS 704.540.
Order of Public Service Commission dismissing utility's application for rate increase without hearing was
not order subject to review under statute providing any person aggrieved by final decision in contested case
could have judicial review. NRS 233B.030, subd. 2, 233B.130, subd. 1.
4. Courts.
Supreme Court would entertain petition by utility for writ of mandamus without requiring prior
application to district court where they were confronted with consideration of conduct of Public Service
Commission in dismissing general rate application filed by public utility serving substantial number of
persons located throughout State and where that action was to be reviewed in light of newly enacted
provisions of statutes which had not heretofore been interpreted or construed by Supreme Court. NRS
34.160, 34.170, 704.100.
Public Service Commission was without authority to dismiss utility's application for rate increase without
hearing where application did not include as justification for new schedule any items of expense or
rate base which were set forth as justification in pending application or pending
litigation and where items of expense or rate base offered as justification which had
been considered and disallowed by Commission previously were buttressed by new
facts and policy considerations.
of expense or rate base which were set forth as justification in pending application or pending litigation and
where items of expense or rate base offered as justification which had been considered and disallowed by
Commission previously were buttressed by new facts and policy considerations. NRS 704.100, subd. 3.
Public Service Commission can look behind items offered by utility as justification for increased rates to
uncover true basis upon which applications are based. NRS 704.100, subd. 3.
OPINION
By the Court, Smart, D. J.:
1

This original proceeding, commenced by petitioner, Southwest Gas Corporation, seeks a
writ of mandamus to compel the respondents, Public Service Commission of Nevada and its
members, Noel A. Clark, Heber P. Hardey and Evo A. Granata, to reinstate a general rate
increase application filed by Southwest Gas and subsequently dismissed by the Commission.
For the reasons hereinafter set forth, we have concluded that the writ should issue.
By the enactment of Chapter 704 of the 1975 Statutes of Nevada, the state legislature
amended NRS 704.100 by adding three subsections designated (3), (4) and (5). The text of
NRS 704.100, as so amended, is set forth in the margin.
2
This amendment became effective
July 1, 1975.
____________________

1
Mr. Justice Zenoff voluntarily disqualified and took no part in this decision. The Governor, pursuant to
Article VI, 4 of the Constitution, designated District Judge Stanley Smart to participate in this case.

2
1. No changes shall be made in any schedule, including schedules of joint rates, or in the rules and
regulations affecting any and all rates or charges, except upon 30 days' notice to the commission, and all such
changes shall be plainly indicated, or by filing new schedules in lieu thereof 30 days prior to the time the same
are to take effect. The commission, upon application of any public utility, may prescribe a less time within which
a reduction may be made.
2. Copies of all new or amended schedules shall be filed and posted in the stations and offices of public
utilities as in the case of original schedules.
3. Except as provided in subsection 4, the commission shall not consider an application by a public utility if
the justification for the new schedule includes any items of expense or rate base which are set forth as
justification in a pending application, are the subject of pending litigation, or have been considered and
disallowed by the commission or a district court.
4. A public utility may set forth as justification for a rate increase items of expense or rate base which have
been considered and disallowed by the commission, only if those items are clearly identified in
At the time of the effective date of the foregoing amendment, Southwest Gas had pending
before the Commission an application for general rate increase which had been filed on
March 26, 1975, and assigned Docket No. 241 by the Commission. On September 22, 1975,
after hearings throughout the State of Nevada, the Commission entered its Opinion and Order
in Docket No. 241. Those portions of that Opinion and Order which are pertinent to this
present proceeding will be mentioned below.
On November 5, 1975, Southwest Gas commenced an action in the Second Judicial
District Court of Washoe County for judicial review of a portion of the Opinion and Order of
the Commission in Docket No. 241. This action was commenced pursuant to NRS 704.540.
Specifically, Southwest Gas sought review of that portion of the Commission's order in
Docket No. 241 disallowing increased depreciation rates for its transmission systems,
distribution mains and services, and office furniture and equipment. The prayer of the
complaint read as follows: That the Commission's Order No. 241 relating to depreciation
expense for Plaintiff's transmission, distribution and office furniture and equipment should be
declared null and void and of no force and effect. The prayer further sought general relief.
In the interim, on October 30, 1975, the Commission had granted the petition of various
intervening parties for a rehearing in Docket No. 241. The record does not reflect that any
date for the rehearing has been set by the Commission.
On October 24, 1975, Southwest Gas filed with the Commission another general rate
increase application which was assigned Docket No. 529 by the Commission. A number of
items were set forth by Southwest Gas as justification for the rate relief sought in Docket
No.
____________________
the application and new facts or policy considerations for each item are advanced in the application to justify a
reversal of the commission's prior decision.
5. If the commission receives an application that is within the prohibition of subsection 3, it shall, within 30
days, notify the public utility that the application is dismissed.
6. The commission shall determine whether a hearing shall be held when the proposed change in any
schedule stating a new or revised individual or joint rate, fare or charge, or any new or revised individual or joint
regulation or practice affecting any rate, fare or charge, will result in an increase in annual gross revenue as
certified by the applicant of $2,500 or less.
7. In making such determination the commission shall first consider all timely written protests, any
presentation the staff of the commission may desire to present, the application and any other matters deemed
relevant by the commission.
rate relief sought in Docket No. 529. It is not necessary that these be detailed here. It is
sufficient to note that the application did not set forth increased depreciation as an item of
justification. However, several of the items of justification did constitute items of rate base or
expense previously disallowed by the Commission. In compliance with NRS 704.100(4),
Southwest Gas clearly identified these items in the application, and set forth new facts or
policy considerations for each such item which, in the opinion of Southwest Gas, would
justify a reversal of the Commission's prior decision with respect to them.
Based upon the foregoing, and without notice to Southwest Gas or other interested parties,
and without any hearing, the Commission did, on November 20, 1975, issue an order
dismissing the application of Southwest Gas in Docket No. 529. This order listed the
following as the basis for dismissal:
(1) Litigation is pending in Docket No. 241; and
(2) A rehearing is pending in Docket No. 241 . . . ; and
(3) The statute [NRS 704.100(3)] requires the dismissal of this application.
The full text of the pertinent provisions of this order is set forth in the margin.
3
On
November 24, 1975, Southwest Gas filed with this Court its application for writ of
mandamus, and on December 10, 1975, the Court made and entered its order directing
that an answer be filed and fixing oral argument for January 12, 1976, in accordance with
the provisions of NRAP 21 {b).
____________________

3
IT APPEARING That on October 25, 1975, Southwest Gas Corporation (Applicant) filed an application
with the Public Service Commission of Nevada (Commission) seeking an increase in natural gas rates on its
Southern and Northern Systems; and
IT FURTHER APPEARING That the 1975 Nevada Legislature passed into law Chapter 704, 1975 Statutes
of Nevada, effective July 1, 1975, of which Section (1)3 amends NRS 704.100 as follows:
Except as provided in subsection 4, the commission shall not consider an application by a public utility
if the justification for the new schedule includes any items of expense or rate base which are set forth as
justification in a pending application, are the subject of pending litigation, or have been considered and
disallowed by the commission or district court.
IT FURTHER APPEARING That litigation is pending in the Second Judicial District Court of the State of
Nevada in and for the County of Washoe relative to the most recent rate proceeding instituted by Applicant,
styled as Docket No. 241; which lawsuit is entitled Southwest Gas Corporation v. Public Service Commission of
Nevada et al, No. 308509, and
IT FURTHER APPEARING That said litigation seeks to vacate and set aside the order of the Commission
in Docket No. 241 pursuant to NRS 704.540 on the grounds that such order is unlawful and unreasonable with
respect to the additional depreciation expense requested by Applicant, which was disallowed by the Commission
in Docket No. 241; and
IT FURTHER APPEARING That should Applicant be successful
On November 24, 1975, Southwest Gas filed with this Court its application for writ of
mandamus, and on December 10, 1975, the Court made and entered its order directing that an
answer be filed and fixing oral argument for January 12, 1976, in accordance with the
provisions of NRAP 21 (b).
The parties have briefed and argued a number of issues in the case, all of which may be
summarized in two general issues which must be decided:
1. Whether mandamus is a proper remedy, given the facts here presented and the
requirements of NRS 34.160 and NRS 34.170, together with the subsidiary issue of whether
this Court should require such proceedings to be instituted in the first instance in the District
Court.
2. Whether the Commission acted beyond its statutory authority under NRS 704.100(3)
and NRS 704.100(5) in summarily dismissing the application of Southwest Gas in Docket
No. 529.
[Headnote 1]
NRS 34.160 provides, in part, that a writ of mandamus . . . may be issued by the supreme
court, a district court or judge of the district court, to compel the performance of an act which
the law especially enjoins as a duty resulting for an office, trust or station; . . .
____________________
in such litigation, the order of the Commission in Docket No. 241 will be vacated and set aside, and the
nullification of such order will affect items of expense and rate base determined in said order and will result in
further adjustment of revenues resulting in rates differing from those found to be just and reasonable by the
Commission in Docket No. 241; and
IT FURTHER APPEARING That any actual adjustment to expense and rate base from that found and
determined by the Commission to be just and reasonable in Docket No. 241, resulting from litigation instituted
by Applicant, will by necessity alter the financial premises on which Docket No. 529 is founded; and
IT FURTHER APPEARING That pursuant to petitions for rehearing, the Commission did, on October 24,
1975 grant a rehearing in Docket No. 241 regarding rate design, which issue is also fundamental to application
of Southwest Gas Corporation in this proceeding, to wit: Docket No. 529; and
Good Cause Appearing Therefor,
IT IS ORDERED that the application on file herein (Docket No. 529) shall be, and the same is hereby
DISMISSED on the grounds that
(1) Litigation is pending in Docket No. 241; and
(2) A rehearing is pending in Docket No. 241 as more fully set out hereinabove; and
(3) The statute set forth herein requires the dismissal of this application.
NRS 34.170 provides, in part, that the . . . writ shall be issued in all cases where there is
not a plain, speedy and adequate remedy in the ordinary course of law.
The Commission first contends that the act sought to be compelled by Southwest Gas is a
discretionary act on the part of the Commission and not, therefore, subject to mandamus.
Both Southwest Gas and the Commission correctly state the law in this regard by quoting
from Teeter v. District Court, 64 Nev. 256, 263, 180 P.2d 590, 594 (1947), as follows:
Performance of a duty, enjoined upon an officer by law, without leaving him any
discretion in its performance, may be compelled by mandamus, if there be no other
adequate remedy.
The position of the Commission in this regard is wholly untenable. NRS Chapter 703
establishes the Public Service Commission of the State of Nevada, and, in Section 703.150,
sets forth the duties of the Commission as follows: The Commission shall supervise and
regulate the operation and maintenance of public utilities, as named and defined in Chapter
704 of NRS, in conformity with the provisions of Chapter 704 of NRS. The Commission is a
legislative creation and possesses those powers and is required to perform those duties set
forth by the legislature in NRS Chapters 703 and 704. NRS 704.070 to NRS 704.130,
inclusive, set forth the powers and duties of the Commission with respect to applications such
as that of Southwest Gas in Docket No. 529 requesting a change in its rate schedules. Unless
such an application is properly dismissed in accordance with the provisions of NRS
704.100(3) and (5), the Commission has the clear duty to process such application to
conclusion in accordance with the appropriate provisions of NRS Chapter 704. Having
concluded that the application was improperly dismissed, as will be discussed more fully
below, mandamus is clearly proper to compel the reinstatement and further consideration of
the application in Docket No. 529. This proceeding does not seek to control the result that
may be reached by the Commission after reinstatement and consideration of the application,
but only to compel the Commission to act, as it is required to do by NRS Chapter 704. As
stated in State Board of Barber Examiners v. Walker, 192 P.2d 723, 729 (Ariz. 1948): The
general rule of law is that where the performance of an act is a matter of discretion on the part
of a public officer, mandamus does not lie to compel him to do the act. . . . But where as a
matter of law he is bound to act in some manner, even though he have discretion as to how he
shall act, he can be compelled to act.' [Headnote 2]
[Headnote 2]
[Headnote 2]
The Commission next contends that an alternative remedy is available to Southwest Gas
under the provisions of NRS 704.540 which provides for judicial review of certain orders of
the Commission. Specifically, subsection (1) of that statute reads as follows:
Any party in interest being dissatisfied with an order of the Commission fixing any
rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any
regulations, practices or services, may within 90 days commence an action in the
district court of the proper county against the Commission and other interested parties
as defendants to vacate and set aside any such order on the ground that the rate fixed in
such order is unlawful or unreasonable, or that any such regulation, practice or service
fixed in such order is unreasonable.
This Court held last year, in Public Serv. Comm'n v. Community Cable TV, 91 Nev. 32,
42, 530 P.2d 1392, 1398 (1975), that the phrase an order of the Commission as used in
NRS 704.540, . . . applies to final rather than interlocutory actions of the PSC since it speaks
in terms of orders that fix rates, fares, charges, classifications, practices or services.
However, without reaching the question of whether or not the order of dismissal under
consideration in this case is a final order subject to review under NRS 704.540, we have
concluded that the section simply does not apply in this case since the order of dismissal did
not, and did not purport to, fix any rate or rates, fares, charges, classifications, joint rate or
rates, or fix any regulations, practices or services.
The Commission contends that the order of dismissal of the application in Docket No. 529
did fix the amount of rate increase sought by Southwest Gas, and that it fixed that
amount at zero. Since the order of dismissal was admittedly entered without a hearing, and
since a hearing is required before the Commission may fix any rates in excess of $2,500
(NRS 704.100(6) and NRS 704.120(1)) the position of the Commission cannot be sustained.
4
Accordingly, the procedures of NRS 704.540 for judicial review of the order of dismissal are
not available to Southwest Gas.
____________________

4
The application of Southwest Gas in Docket No. 529 states that the proposed rates would produce
additional revenues for Southwest Gas of $4,201,282.00 per year, and Southwest Gas asserts in its opening brief
that the proposed rates in Docket No. 529 will result in an average of more than $11,500.00 per day over its
revenues under the present schedule of tariffs. The Commission has not questioned these figures.
[Headnote 3]
The Commission next contends that the order of dismissal may be reviewed under NRS
233B.130(1) which provides as follows:
Any person aggrieved by a final decision in a contested case is entitled to judicial
review thereof under this chapter. Nothing in this section shall be deemed to limit
utilization of trial de novo review where provided by statute, but this section shall
provide an alternative means of review in those cases. Any preliminary, procedural or
intermediate agency act or ruling shall be immediately reviewable in any case in which
review of the final agency decision would not provide an adequate remedy. (Emphasis
added.)
NRS 233B.030(2) defines the phrase contested case as . . . a proceeding, including but
not restricted to rate making and licensing, in which the legal rights, duties or privileges
of a party are required by law to be determined by an agency after an opportunity for hearing.
. . . (Emphasis added.)
Southwest Gas contends that, since there was no opportunity for hearing prior to the entry
of the order of dismissal by the Commission, this does not qualify as a contested case,
subject to judicial review under NRS 233B.130. The argument is persuasive. Even more
persuasive, however, is a careful reading of NRS 233B.140 which prescribes the scope of,
and limitations on, judicial review under NRS Chapter 233B. NRS 233B.140(4) provides, in
part: The review shall be conducted by the court without a jury and shall be confined to the
record. (Emphasis added.) The entire record before the Commission in Docket No. 529
consists of the application of Southwest Gas and the order of the Commission dismissing that
application. As will be pointed out more fully below, the Commission seeks to justify its
dismissal of Docket No. 529 on the basis of matters known to it but outside the record in
Docket No. 529. If such extrinsic matters are necessary to uphold the order of dismissal, and
if such matters would not be a part of the record before the court in a review under NRS
233B.130 and NRS 233B.140, the review must, necessarily, be something less than
adequate and would be, in fact, useless.
Accordingly, we hold that, upon the facts of this case, Southwest Gas has no plain, speedy
and adequate remedy in the ordinary course of law, and that mandamus is, therefore,
appropriate.
As this Court stated in State Ex Rel. Blad v. Jones, 70 Nev. 141, 143, 261 P.2d 519, 520
(1953): . . . [C]oncurrent jurisdiction in mandamus is held by the district courts to which no
resort has yet been had in this matter. It is the practice of this court in exercise of its
discretion to refuse to accept original jurisdiction in the first instance under these
circumstances. However, numerous exceptions to the practice can be found in the cases
based upon a variety of factual circumstances. For example, the Court recently entertained an
original proceeding in mandamus without requiring prior resort to the district court on the
grounds that the application for the writ involved a matter of grave public concern. State ex
rel. List v. County of Douglas, 90 Nev. 272, 524 P.2d 1271 (1974). While no clearly stated
and fixed rules have been established by which it can be determined in advance whether this
Court will entertain an original proceeding in mandamus, the general considerations in such
matters are set forth in Annot., 165 A.L.R. 1431, wherein the compiler states:
Thus, as a general proposition, the rule has been laid down that the conferring of
original jurisdiction in mandamus upon appellate courts does not contemplate that such
courts will take jurisdiction of all mandamus cases which parties may think best to
bring before them, but that such original jurisdiction is conferred so that such courts of
the highest authority in the state shall have the power to protect the rights, interests, and
franchises of the state, and the rights and interests of the whole people, to enforce the
performance of high official duties affecting the public at large, . . . (Emphasis added.)
Id. at 1435.
[Headnote 4]
In this case we are confronted with a consideration of the conduct of the Public Service
Commission of this State in dismissing a general rate application filed by a public utility
serving a substantial number of persons located throughout the State. We are asked to review
that action in light of newly enacted provisions of the statutes which have not heretofore been
interpreted or construed by this Court. The manner in which these provisions are interpreted
and applied by the Commission in this and in subsequent cases will profoundly affect the
people and the public utilities of this State. Accordingly, we have concluded to entertain the
writ without requiring a prior application to the district court.
[Headnote 5]
The propriety of the Commission's action in dismissing Docket No. 529 can best be
analyzed by answering three questions based upon the component parts of NRS 704.100(3).
Those questions are:
1. Did the application of Southwest Gas in Docket No. 529 include as justification for the
new schedule any items of expense or rate base which were set forth as justification in a
pending application?
new schedule any items of expense or rate base which were the subject of pending litigation?
new schedule any items of expense or rate base which had been considered and disallowed by
the Commission or a district court, and not clearly identified in the application with new facts
or policy considerations for each such item to justify a reversal of the Commission's prior
decision?
The only pending application cited by the Commission as requiring an affirmative
answer to the first question, above, is Docket No. 241 in which a rehearing is pending.
Southwest Gas contends that the rehearing in Docket No. 241 does not constitute a pending
application of Southwest Gas, since Southwest Gas did not petition for the rehearing, and,
moreover, that the relief sought by the petitioners for rehearing in that proceeding will have
no effect upon the overall rate structure of Southwest Gas, but will, even if granted, only
change the allocation of rates among the various customers of Southwest Gas. This latter
point was conceded by counsel for the Commission during oral argument.
5
However, the
Commission asserts that if the rehearing results in a change in the Commission's Opinion and
Order in Docket No. 241, such change could affect its consideration of Docket No. 529. In
answer to this, it need only be noted that NRS 704.100(3) does not prohibit an application
which may be affected by the Commission's decision in a pending application, but prohibits
only an application which "includes any item of expense or rate base which are set forth
as justification in a pending application."
____________________

5
By the Court: The rehearing that's pending, that has only to do with the allocation of the payment of the
rates.
Mr. Hanmer: That is true, however. . . .
[Counsel for the Commission then proceeded to qualify this answer stating, basically, that the granting of the
relief sought by the petitioners for rehearing in Docket No. 241 would affect some of the premises on which
Docket No. 529 is based.]
an application which includes any item of expense or rate base which are set forth as
justification in a pending application. Had the legislature intended the Commission to have
such broad authority of dismissal, it could have easily have said so when it enacted the 1975
amendments to NRS 704.100.
The Commission contends, however, that it must be allowed reasonable latitude in
reviewing applications submitted by public utilities to consider other proceedings before it
and not be automatically bound by the labels placed by the applicant on items of justification
for new rate schedules. It is upon this basis that the Commission seeks to justify its dismissal
of Docket No. 529.
6
The Commission, in effect, argues that it is entitled to take notice of
other proceedings pending before it and other proceedings that may be pending elsewhere and
of which it has knowledge. That may very well be the case, but it does not end our
consideration of this matter. As the Supreme Court of the United States noted in Ohio Bell
Tel. Co. v. Comm'n, 301 U.S. 292, 301-302 (1937):
. . . [M]oreover, notice, even when taken, has no other effect than to relieve one of the
parties to a controversy of the burden of resorting to the usual forms of evidence. . . . It
does not mean that the opponent is prevented from disputing the matter by evidence if
he believes it disputable.'. . . There has been more than an expansion of the concept of
notoriety beyond reasonable limits. From the standpoint of due processthe protection
of the individual against arbitrary actiona deeper vice is this, that even now we do not
know the particular or evidential facts of which the Commission took judicial notice
and on which it rested its conclusion. Not only are the facts unknown; there is no way
to find them out.
____________________

6
From the transcript of oral argument:
By the Court: . . . [Y]ou have an application before you that, on its face, appears regular. Correct?
Mr. Hanmer: That may be correct. Yes.
By the Court: And, now, let's assume that, if it were irregular on its face, it would be subject to dismissal and
subject to appeal by the usual provisions to the district court. Let us assume that then there would be an adequate
remedy. Now, . . . here what you have really done is imported into these proceedings by your own knowledge
that is dehors this record considerations relating to the other rate procedure, haven't you?
Mr. Hanmer: That's correct.
By the Court: None of that appears in the record of these proceedings that you have dismissed. Right?
Mr. Hanmer: That's correct.
The requirements of notice and an opportunity to be heard, recently delineated by this Court
in Nevada Power Co. v. Public Serv. Comm'n, 91 Nev. 816, 544 P.2d 428 (1975), apply not
only to a public utility seeking to have the Commission consider and determine issues the
utility has not raised in its application but also to the Commission itself when it proposes to
consider matters outside the record in the exercise of its authority to dismiss under NRS
704.100(3) and (5).
Based upon the foregoing, the answer to the first question stated above must, necessarily,
be in the negative.
With respect to the second question hereinabove posed, the same analysis applies. The
only pending litigation is the action commenced by Southwest Gas in a Washoe County
District Court challenging that portion of the Commission's Opinion and Order in Docket No.
241 relating to depreciation. Again, it is conceded by the Commission, that the application in
Docket No. 529 does not include depreciation as an item of expense or rate base as
justification for that application. However, the Commission again contends that the outcome
of that litigation could affect its consideration of the application in Docket No. 529 and that
it has the right to take notice of such pending litigation. Based upon the same consideration
set forth in answering question number one, the answer to question number two must,
likewise, be in the negative.
As previously pointed out, the application of Southwest Gas in Docket No. 529 does
include items of expense or rate base which had been considered and disallowed by the
Commission in Docket No. 241. As to each such item, however, new facts or policy
considerations were set forth to bring into effect the exception contained in NRS 704.100(4).
The order of dismissal entered by the Commission in the present case does not cite this
portion of NRS 704.100(3) as a basis for the dismissal.
The Commission has not contended in its brief or in oral argument that the application
fails to comply with the statute in this regard. Accordingly, the answer to question number
three must also be in the negative.
Thus, we conclude, that the Commission's dismissal of the application of Southwest Gas
in Docket No. 529 cannot be sustained on the basis of any information on the face of the
application or on the basis of any information or evidence properly before the Commission
and properly subject to consideration by the Commission at the time the order of dismissal
was entered.
Accordingly, we order the issuance of a peremptory writ of mandamus to compel the
reinstatement by the Commission of the application of Southwest Gas in Docket No.
mandamus to compel the reinstatement by the Commission of the application of Southwest
Gas in Docket No. 529 for further proceedings by the Commission in accordance with the
provisions of NRS Chapter 704.
7

Southwest Gas has asserted a number of additional constitutional challenges to both the
1975 amendments of NRS Chapter 704 and the procedures followed by the Commission in
this case. Having concluded that the issues here involved could be resolved by proper
statutory construction and interpretation, as hereinabove set forth, we need not and do not
consider the constitutional issues so advanced.
[Headnote 6]
The Commission has expressed concern that, if the writ is granted in this case, it will be
automatically bound by any representations made or labels used by utilities in their future
applicationsthat the Commission will be unable to look behind items of justification listed
to uncover the true basis upon which the applications are based and which would bring
them within the prohibition of NRS 704.100(3). We do not so hold in this case. The
Commission is free to establish such procedures for this purpose as may be required to carry
into effect the legislative intention expressed in the amendments contained in Stats. of Nev.
1975, ch. 704, p. 1450 et seq. (Cashman Photo v. Nevada Gaming Comm'n, 91 Nev. 424, 538
P.2d 158 (1975)), so long as such procedures comply with the requirements of due notice and
hearing on such factual issues and so long as the time limitation of NRS 704.100(5) is met.
Gunderson, C. J., and Batjer, Mowbray, and Thompson, JJ., concur.
____________________

7
The Commission, having concluded that it has authority under the provisions of NRS 704.100(3) and (5) to
dismiss the application of Southwest Gas in Docket No. 529, sdid not enter an order of suspension in accordance
with NRS 704.110(2). Southwest Gas, in its reply brief and at the time of oral argument, stipulated that, in the
event this Court ordered the issuance of a writ of mandamus, the order of dismissal be regarded as a suspension
order for a period of 150 days in accordance with NRS 704.110(2), thus extending until April 22, 1976 the time
within which the Commission may conclude its proceedingsbefore the proposed rates contained in Docket No.
529 become effective automatically. The peremptory writ herein ordered is issued subject to that stipulation.
____________
92 Nev. 62, 62 (1976) Cardan Overseas, Ltd. v. Harris
CARDAN OVERSEAS, LTD., a Nevada Corporation, Appellant, v.GENE HARRIS, dba
HARRIS PLUMBING AND HEATING, Respondent.
No. 8041
January 28, 1976 544 P.2d 1202
Appeal from judgment in favor of plaintiff in action seeking compensation for labor and
materials. First Judicial District Court; Noel E. Manoukian, Judge.
Plumbing subcontractor brought action against contractor seeking compensation for labor
and materials. The district court awarded judgment in favor of the subcontractor in the
amount of $3,124.37 and denied certain counterclaims interposed by the contractor, and the
contractor appealed. The Supreme Court held that evidence would not support a conclusion
that both parties had agreed to compensation for the subcontractor at the rate of $15.71 per
man-hour; that since the lower court's decision was supported only by unsubstantial
conflicting evidence, it would be modified to award plaintiff $1,511.54; but that evidence
supported a finding that the subcontractor treated plumbing materials at the jobsite in
accordance with commonly accepted plumbing practices and that, therefore, the contractor
was not entitled to recovery on its counterclaims.
Affirmed as modified.
Diehl, Recanzone, Evans and Smart, of Fallon, for Appellant.
Johnson & Belaustegui, of Reno, for Respondent.
1. Work and Labor.
Evidence, in subcontractor's action against contractor seeking compensation for labor and materials,
would not support finding that both parties had agreed to compensation for subcontractor at rate of $15.71
per man-hour of work supplied by him.
Where there is no conflict in evidence on given material point and decision of lower court contradicts
such evidence, reviewing court is bound to take remedial action.
Rule which directs affirmance of decision of lower court where evidence is conflicting does not apply
where evidence supporting lower court's decision is so weak and inconclusive as not to raise substantial
conflict with that produced against it.
Where decision of trial court, in subcontractor's action seeking compensation that parties had agreed to
compensation for subcontractor at rate of $15.71 per man-hour, was supported only by unsubstantial
conflicting evidence, Supreme Court would modify judgment to conform to evidence which was
nonconflicting to reduce subcontractor's total recovery from $3,124.37 to $1,511.54.
5. Work and Labor.
Evidence, in subcontractor's action against contractor seeking compensation for work and materials
supplied, supported finding, in relation to contractor's counterclaim that subcontractor treated plumbing
materials at jobsite in accordance with commonly accepted plumbing practices.
OPINION
Per Curiam:
Cardan Overseas, Ltd. and Gene Harris (doing business as Harris Plumbing and Heating)
entered into an oral agreement in May of 1972. Harris, a plumbing subcontractor, agreed to
furnish certain labor and materials to Cardan, a general contractor, who at that time was
engaged in the construction of housing for military personnel at the Fallon Naval Station.
Both parties agreed that until a formal contract was executed compensation would be
determined on a cost-plus basis.
Harris performed pursuant to the oral agreement for several weeks at which point
negotiations with Cardan broke down. The two could not arrive at a mutually satisfactory
contract for completing the project and Harris removed his men and supplies from the jobsite.
Thereafter, Harris mailed a statement to Cardan requesting payment in the amount of
$5,397.02. Cardan refused and a lawsuit followed.
The lower court awarded judgment in favor of Harris in the amount of $3,124.37 and
denied certain counterclaims interposed by Cardan. On appeal, it is contended that the award
was excessive and that the denial of one of Cardan's counterclaims was improper.
1. We agree that the award in favor of Harris was excessive. Below, the court concluded
that the May 1972 agreement provided that Harris would receive compensation at the rate of
$15.71 for each manhour of work supplied by him. The only evidence in that regard is a
billing statement mailed to Cardan by Harris which was prepared by Harris' wife who was not
a party to the negotiations.1 The record indicates that Mrs.
party to the negotiations.
1
The record indicates that Mrs. Harris arrived at the $15.71 rate by
applying the cost-plus formula but that she mistakenly included certain items of cost more
than once in her calculations.
[Headnote 1]
The evidence is undisputed as to the fact that both parties agreed that the amount of
compensation provided in the oral contract was cost plus an additional 15 percent. With
regard to the $15.71 rate, the evidence is confusing and conflicting and is too insubstantial to
support a conclusion that both parties agreed thereto.
2

[Headnotes 2, 3]
Acknowledging the rule that an appellate court will not disturb a judgment of a lower court
so long as it is supported by conflicting evidence, it is observed that the instant case does not
fall within the ambit of that rule but is governed instead by another rule: Where there is no
conflict in the evidence on a given material point and the decision of the lower court
contradicts such evidence, the reviewing court is bound to take remedial action. Price v.
Sinnott, 85 Nev. 600, 460 P.2d 837 (1969). The rule which directs affirmance of the decision
of the lower court where the evidence is conflicting is not applicable where, as here, the
evidence supporting the decision is so weak and inconclusive as not to raise a substantial
conflict with that produced against it.' Valverde v. Valverde, 55 Nev. 82, 26 P.2d 233
(1933).
[Headnote 4]
Because the decision of the lower court is supported only by unsubstantial conflicting
evidence it must be modified to conform to the evidence which is nonconflicting. The record
reveals that Harris incurred a total of $6,531.77 in costs while working for Cardan.
____________________

1
Harris sent his first statement reflecting the $15.71 rate on June 6 which was received by Cardan on June 9.
The total amount of the bill was $6,095.48. Meanwhile, Cardan had sent Harris a check for $6,000.00 which was
received on June 9. The trial court mistakenly viewed Cardan's payment as acquiescence to the $15.71 rate.
Cardan's payment could not possibly constitute evidence of such acquiescence for the simple reason that Harris'
bill was not received until after the $6,000.00 check had been drafted and mailed.

2
Harris testified that he thought the rate was approximately $17.00 to $18.00 per hour. Cardan presented
testimony indicating that it thought the rate to be $12.95 per hour. It is significant that neither party remembers a
specific rate, if any, agreed upon but both remember that Harris was to receive reimbursement for his costs plus
an additional 15 percent. A review of the record suggests that if, in fact, any specific rate was agreed upon, it
was intended as a ceiling above which Harris would receive no compensation.
reveals that Harris incurred a total of $6,531.77 in costs while working for Cardan. Adding 15
percent, the figure is increased to $7,511.54. From that the sum of $6,000.00 is subtracted as
compensation received by Harris from Cardan leaving the sum of $1,511.54 which remained
owing to Harris. The judgment awarded by the lower court is accordingly reduced from
$3,124.37 to $1,511.54.
2. Cardan also contends that the evidence adduced at trial in support of one of its
counterclaims was of sufficient weight and substance as to render erroneous the trial court's
denial thereof. Cardan produced evidence suggesting that, because of the condition in which
Harris left the jobsite, approximately 60 hours of plumbers' time was required to sort and
inventory plumbing material before further work could proceed. Conflicting evidence
suggested that Harris treated the plumbing materials in accordance with commonly accepted
plumbing practices.
[Headnote 5]
The evidence in support of the trial court's decision denying Cardan's counterclaim is not
weak and inconclusive and the rule followed by appellate courts when addressing lower
court determinations supported by conflicting evidence, discussed but found not applicable
above, applies. Lagrange Construction, Inc. v. Kent Corp., 88 Nev. 271, 496 P.2d 766 (1972);
Sherman Gardens Co. v. Longley, 87 Nev. 558, 491 P.2d 48 (1971); LeMon v. Landers, 81
Nev. 329, 402 P.2d 648 (1965).
____________
92 Nev. 65, 65 (1976) Fisher Bros., Inc. v. Harrah Realty Co.
FISHER BROTHERS, INC., a Corporation, Appellant,
v. HARRAH REALTY CO., Respondent.
No. 8027
January 28, 1976 545 P.2d 203
Appeal from summary judgment entered in favor of defendant in an action to perfect a
mechanic's lien. First Judicial District Court; Frank B. Gregory, Judge.
Subcontractor brought action against building owner to foreclose mechanic's lien. The
district court granted building owner's motion for summary judgment and subcontractor
appealed.
appealed. The Supreme Court held that strict compliance with statutes creating mechanic's
lien was required; that compliance with the provisions of mechanic's lien statutes was placed
in issue by the complaint and was not required to be raised affirmatively; and that grant of
summary judgment was proper even though it was contended that it precluded the
subcontractor from pursuing any common law theories.
Affirmed.
Breen, Young, Whitehead & Hoy, Chartered, of Reno, and Jeffrey K. Rahbeck, of Zephyr
Cove, for Appellant.
Robinson & Cassas, of Reno, for Respondent.
1. Mechanics' Liens.
The mechanic's lien, a product of legislative fiat, was not recognized at common law; strict compliance
with statutes creating the remedy is therefore required before a party is entitled to any benefits occasioned
by its existence. NRS 108.221 et seq.
2. Mechanics' Liens.
If one pursues his statutory remedies by filing a complaint to perfect a mechanic's lien, he necessarily
implies full compliance with the statutory prerequisites giving rise to the cause of action; compliance with
provisions of the mechanic's lien statutes is thus placed at issue by the complaint and need not be raised
affirmatively in the answer.
3. Judgment.
Where subcontractor did not specify, and court could not conceive of, any common law theory on which
claim for relief against building owner could be premised, trial court was not precluded from granting
summary judgment in favor of building owner in subcontractor's action to enforce mechanic's lien, even
though subcontractor argued that the judgment precluded it from pursuing any common law remedies.
NRS 108.238.
OPINION
Per Curiam:
Respondent, Harrah Realty Co., owned certain real property adjoining Lake Tahoe. In
1971, Harrah contracted with Stolte, Inc., a general contractor, for the construction of certain
improvements on the property. Stolte engaged Terry Construction Company to perform the
excavation work. Terry, in turn, contracted with Fisher Brothers, Inc., appellant herein, who
supplied various materials and labor utilized in the excavation work. In accordance with NRS
108.226, a mechanic's lien was recorded by appellant purportedly encumbering Harrah's
property to the extent of the value of the labor and materials furnished by it.
lien was recorded by appellant purportedly encumbering Harrah's property to the extent of the
value of the labor and materials furnished by it. Notice of the lien was never served on Harrah
as required by NRS 108.227.
Harrah fully paid Terry for its work. However, Terry in turn did not pay Fisher Brothers.
Ultimately, appellant failed to receive remuneration from Terry and an action was
commenced to foreclose its mechanic's lien. For appellant's failure to serve notice of the lien
on Harrah, the lower court granted summary judgment dismissing the action.
Here, it is contended that summary judgment was not appropriate for the reason that
respondent waived its defense of noncompliance with the notice provisions of the mechanic's
lien statutes by failing to affirmatively plead said defense in its answer. Alternatively, it is
argued that summary judgment was inappropriate because it precluded appellant from
pursuing certain viable common law theories of relief. We regard both contentions as without
merit.
[Headnotes 1, 2]
1. The mechanic's lien, product of legislative fiat, was not recognized at common law.
NRS 108.221 et seq.; Lamb v. Lucky Boy M. Co., 37 Nev. 9, 138 P. 902 (1914). Strict
compliance with the statutes creating the remedy is therefore required before a party is
entitled to any benefits occasioned by its existence. Clark Lumber Co. v. Passig, 339 P.2d 280
(Kan. 1959.) If one pursues his statutory remedy by filing a complaint to perfect a mechanic's
lien, he necessarily implies full compliance with the statutory prerequisites giving rise to the
cause of action. Thus, compliance with the provisions of the mechanic's lien statutes is placed
at issue by the complaint and need not be raised affirmatively in the answer. See Anderson v.
Chambliss, 262 P.2d 298 (Ore. 1953). Cf. Skyrme v. Occidental Mill and Mining Co., 8 Nev.
219, 229 (1873).
2. NRS 108.238 provides that the mere existence of the mechanic's lien statutes should
not be construed to preclude anyone from maintaining an independent action to recover a debt
resulting from work done or material furnished against the person liable therefore.
[Headnote 3]
Appellant argues that the judgment of the trial court precluded it from pursuing its
common law remedies against Harrah. However, appellant does not specify and, under the
circumstances of this case, we cannot conceive of any common law theory upon which a
claim for relief could be premised.
law theory upon which a claim for relief could be premised. See Vaughn Materials v.
Meadowvale Homes, 84 Nev. 227, 438 P.2d 822 (1968).
Affirmed.
____________
92 Nev. 68, 68 (1976) Heffern v. Vernarecci
MARIE S. HEFFERN, Appellant, v. JOHN G.
VERNARECCI and JOANNA VERNARECCI, Respondents.
No. 8026
January 28, 1976 544 P.2d 1197
Appeal from judgment ordering specific performance; First Judicial District Court, Lyon
County; Noel E. Manoukian, Judge.
Purchasers brought action against vendor to compel specific performance of alleged
written agreement for sale of ranch. The district court decreed specific performance, and
vendor appealed. The Supreme Court, Thompson, J., held that evidence did not justify trial
court's finding that there had been meeting of minds upon essential terms, and that thus no
enforceable agreement existed.
Reversed.
Thornton, Stephens, Atkins & Kellison, of Reno, for Appellant.
Victor Alan Perry, of Reno, for Respondents.
1. Vendor and Purchaser.
Where essential terms of proposal regarding purchase or sale of land are accepted with qualifications, or
not at all, agreement is not made.
2. Vendor and Purchaser.
Under evidence that purchasers submitted offer to buy 160-acre ranch, including rights to 160 acre-feet of
water, and to execute deed of trust in favor of vendor and make monthly payments, that vendor returned
offer to purchasers but reduced tract to be sold to 150 acres and reduced water rights to 125 acre-feet, and
that purchasers submitted another offer which vendor never accepted, trial court was not justified in finding
that meeting of minds had occurred and that agreement for sale of ranch had been made.
minds had occurred and that agreement for sale of ranch had been made.
OPINION
By the Court, Thompson J.:
John and Joanna Vernarecci, buyers, commenced this action against Marie Heffern, seller,
to compel specific performance of an alleged written agreement for the sale of ranch property
in Lyon County, Nevada. In defense, the seller contended that there had not been a meeting of
the minds upon essential terms with the consequence that there was no agreement to be
enforced. The district court found that an agreement was made and decreed specific
performance. In our view, the record does not support that determination. Accordingly, we
reverse and direct the entry of judgment for Marie Heffern.
Marie Heffern owns a 330-acre ranch in Lyon County. The property originally was two
adjoining ranches. One of them, The Old Pittman Ranch, was about 150 acres in size, and the
other, 180 acres. The entire property was encumbered by a deed of trust executed by Marie
Heffern in favor of the First National Bank to secure an indebtedness of $27,500 which, at the
time of trial, had been reduced to approximately $26,000.
The Vernareccis wished to purchase a ranch. They contacted a real estate broker who
showed them the Heffern property. The Vernareccis decided to submit an offer for that part of
the 330-acre tract known as The Old Pittman Ranch, but with one significant modification. A
40-acre parcel of that ranch had been stripped of its water rights and was dry. Consequently,
the Vernareccis wished to substitute an adjoining 40-acre parcel on the other ranch which had
water rights attaching.
An offer was prepared and submitted which did not specifically describe the property the
Vernareccis had in mind. The description: 160 acres of T 14 N, R 25 E, M.D.B.&M. It
provided for a purchase price of $56,000; a down payment of $50, $10,000 to later be placed
in escrow (including the $50 down payment), and the buyers to execute a note and deed of
trust in favor of the seller for $46,000, payable monthly at the rate of $306.06 with 7 percent
interest for thirty years. The buyers were to receive 160 acre-feet of water. That offer was
dated November 28, 1972, and was signed by the Vernareccis.
Several days later, the agent for the buyers mailed to the broker for the seller a rough plat
map outlining the boundaries of the property to be purchased which map included the wet
40 acres and excluded the dry.
On or about December 28, 1972, Marie Heffern signed and returned the offer with the
notation: This offer acceptable with initialed changes. The changes were not insignificant.
The acreage to be sold was reduced from 160 acres to 150 acres; the buyers were to receive
125 acre-feet of water rather than 160 acre-feet; the purchase price was to remain the same;
and a proper legal description of the property was to be supplied and approved in writing by
the parties. Marie Heffern had never seen the rough plat map, although her agent had. It is
apparent that when she submitted her counteroffer reducing the acreage from 160 acres to 150
acres, that she had in mind The Old Pittman Ranch which included the dry 40 acres and not
the wet 40 acres which the Vernareccis wished to substitute.
In any event, her counteroffer was never accepted by the Vernareccis. This is very clear
from the record because on January 22, 1973, the Vernareccis submitted another offer
containing a precise description of the property they wished to purchase (including the wet
40 acres) and providing for payment of the balance of the purchase price ($46,000) on a
yearly rather than a monthly basis. This final counteroffer was never accepted by Heffern.
[Headnotes 1, 2]
It is manifest from the documentary evidence in this case that the parties never reached an
agreement upon the precise property to be sold nor upon the manner in which the balance of
the purchase price was to be paid. Moreover, nothing was ever settled with regard to the deed
of trust over the entire property held by the First National Bank. Where essential terms of a
proposal are accepted with qualifications, or not at all, an agreement is not made. McCone v.
Eccles, 42 Nev. 451, 181 P. 134 (1919); McCall v. Carlson, 63 Nev. 390, 172 P.2d 171
(1946). Here, the November 28, 1972, offer was accepted with qualification, and the January
22, 1973, offer was not accepted at all.
Reversed, with direction to enter judgment for the defendant Marie Heffern.
____________
92 Nev. 71, 71 (1976) Paulette v. State
LLOYD LEONARD PAULETTE, Appellant, v. THE
No. 8241
January 28, 1976 545 P.2d 205
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Joseph
S. Pavlikowski, Judge.
Defendant was convicted in the district court of first degree murder, and he appealed. The
Supreme Court held that the trial court had jurisdiction over defendant even though he was a
non-resident alien and that the trial court acted properly in admitting into evidence certain
damaging admissions made by defendant to a polygraph technician.
Affirmed.
Morgan D. Harris, Public Defender, and Stephen Huffaker, Deputy Public Defender,
Clark County, for Appellant.
Leon Simon, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Trial court had jurisdiction over accused in homicide prosecution even though he was non-resident alien.
NRS 171.010.
2. Criminal Law.
Fact that statements were obtained from defendant while preparing for polygraph examination was factor
to be considered in determining whether defendant's statements were made voluntarily.
3. Criminal Law.
Trial court in murder prosecution did not err in admitting into evidence incriminating statements made by
defendant to polygraph examiner.
OPINION
Per Curiam:
The partially mutilated bodies of Eugene and Mary Carone were found in a motel room in
Las Vegas. Lloyd Leonard Paulette, one of three individuals charged with the homicides,
wasby jury verdictconvicted of two (2) counts of first degree murder.
In this appeal Paulette, who claims to be a citizen of another country, does not challenge
the sufficiency of the evidence to sustain the verdict; however, he contends that we must
reverse because: (1) the Nevada district court lacked jurisdiction to try a non-resident alien
who commits a crime while traveling through the state; and, {2) the district court refused
to exclude certain damaging admissions he had made.
try a non-resident alien who commits a crime while traveling through the state; and, (2) the
district court refused to exclude certain damaging admissions he had made. We reject both
contentions.
[Headnote 1]
1. Insofar as Paulette's first contention is concerned, NRS 171.010 provides: Jurisdiction
of offenses committed in state. Every person, whether an inhabitant of this state, or of a
territory or district of the United States, is liable to punishment by the laws of this state for a
public offense committed by him therein, except where it is by law cognizable exclusively in
the courts of the United States. (Emphasis added.)
Paulette contends the portion of the statute which says . . . whether an inhabitant of this
state, or any other state, or of a territory or district of the United States, . . . should be strictly
construed to provide that only citizens of the United States, the territories and District of
Columbia can be subject to criminal prosecution, and to exclude prosecution of foreign
nationals who commit a crime while traveling through Nevada. In our view such a
construction would be absurd; and, we decline to presume that the legislature intended such
absurdity. Cf. Western Pac. R.R. v. State, 69 Nev. 66, 241 P.2d 846 (1952). While the
aforementioned phrase does not specifically refer to inhabitants of foreign countries, we
believe it to be elucidative and descriptive of the term every person rather than a legislative
expression to exclude those classes of persons not specifically mentioned. Cf. Paulette v.
Sheriff, 90 Nev. 2, 517 P.2d 786 (1974), where an analogous argument was summarily
rejected.
2. Prior to his voluntary submission to a lie detector examination, Paulette made certain
incriminating statements to the polygraph technician. No reference to the polygraph
examination or its results was presented to the jury. However, the polygraph examiner did
testify regarding some of the incriminating statements; and, it is argued that the testimony
regarding those statements compels us to reverse.
[Headnote 2]
The fact that the statements were obtained while preparing for a polygraph examination is
a factor to be considered in determining whether Paulette's statements were made voluntarily.
Cf. State v. Clifton, 531 P.2d 256 (Ore. 1974).
[Headnote 3]
Here, the record reflects that Paulette had been fully advised of the rights enunciated in
Miranda v. Arizona, 384 U.S. 436 {1966), and that he had executed a waiver thereof.
(1966), and that he had executed a waiver thereof. Further, the record reflects he voluntarily
submitted to the examination. The trial court, being advised of those factors and after hearing
testimony on the motion to suppress, ruled Paulette's statements to be voluntary and,
therefore, admissible. We find no error in that ruling. Cf. Lewis v. State, 86 Nev. 214, 467
P.2d 114 (1970); Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968).
Affirmed.
____________
92 Nev. 73, 73 (1976) Boyd v. State
BOBBY BOYD, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 8310
January 28, 1976 545 P.2d 202
Appeal from conviction for robbery and enhanced penalty for use of deadly weapon in its
commission; Eighth Judicial District Court, Clark County; Howard W. Babcock, Judge.
Defendant was convicted before the district court of robbery, and he appealed. The
Supreme Court held that evidence was sufficient to sustain conviction; that defendant's prior
conviction for robbery in another state was properly allowed into evidence; that trial court did
not err in denying defense counsel's request to read magazine article during jury summation;
and that inadvertent submission to jury of motor vehicle registration slip which had not been
received in evidence as exhibit was harmless error.
Affirmed.
Morgan D. Harris, Public Defender, and Joseph T. Bonaventure, Assistant Public
Defender, Clark County, for Appellant.
George E. Holt, District Attorney, and H. Leon Simon, Deputy District Attorney, Clark
County, for Respondent.
1. Robbery.
Evidence in prosecution for robbery was sufficient to sustain conviction.
2. Criminal Law.
In prosecution for robbery, defendant's prior conviction for robbery in another state was properly allowed
into evidence. NRS 50.095.
92 Nev. 73, 74 (1976) Boyd v. State
3. Criminal Law.
In prosecution for robbery, trial court did not err in denying defense counsel's request to read magazine
article during jury summation.
4. Criminal Law.
In prosecution for robbery, inadvertent submission to jury of motor vehicle registration slip which had
not been received in evidence as exhibit, and to which reference never was made during trial, was, in
context of case, harmless error. NRS 178.598.
OPINION
Per Curiam:
[Headnotes 1-4]
Contrary to the appellant's contention, the record contains substantial evidence to support
his conviction. His 1969 prior conviction for robbery in another state was properly allowed
into evidence. NRS 50.095. Error did not occur when the trial judge precluded defense
counsel's desire to read, during jury summation, an article from Time Magazine.
Westenbarger v. State, 91 Nev. 478, 537 P.2d 1195 (1975). The inadvertent submission to the
jury of a motor vehicle registration slip which had not been received in evidence as an
exhibit, and to which reference never was made during trial, was, in the context of this case,
harmless. NRS 178.598.
Affirmed.
____________
92 Nev. 74, 74 (1976) Dinkens v. State
DELMAR DINKENS, Appellant, v. THE STATE
No. 7827
January 28, 1976 546 P.2d 228
Appeal from conviction of rape and attempted infamous crime against nature. Eighth
Judicial District Court, Clark County; Clarence Sundean, Judge.
The Supreme Court, Zenoff, J., held, inter alia, that evidence showing that the young girl
submitted because of fear was sufficient to sustain conviction, that court properly refused
instruction that fear must be reasonable and that evidence was sufficient to sustain
conviction for attempted infamous crime against nature.
sufficient to sustain conviction for attempted infamous crime against nature.
Affirmed.
Harry E. Claiborne, James J. Brown, and Annette R. Quintana, of Las Vegas, for
Appellant.
Robert List, Attorney General, George E. Holt, District Attorney, H. Leon Simon, Chief
Deputy District Attorney, and Elliott Sattler, Deputy District Attorney, Clark County, for
Respondent.
1. Rape.
To establish crime of forcible rape a showing that defendant employed force to achieve his objective is
not required, and prosecution need only show that the act was committed against the will of the victim;
crucial question is not whether victim was physically forced to engage in sexual intercourse but whether act
was committed without her consent. NRS 200.363.
2. Rape.
There is no consent for purpose of forcible rape statute when victim is induced to submit to sexual act
through fear of death or serious bodily injury. NRS 200.363.
3. Rape.
Evidence disclosing that young girl submitted to sexual intercourse because of fear was sufficient to
sustain conviction for forcible rape. NRS 200.363.
4. Rape.
Rape victim is not required to do more than her age, strength, surrounding facts and all attending
circumstances make it reasonable for her to do in order to manifest her opposition. NRS 200.363.
5. Sodomy.
Evidence was sufficient to support finding that defendant committed each element necessary to constitute
an attempted infamous crime against nature, notwithstanding testimony that he finally desisted upon the
approaching of an automobile. NRS 201.190.
6. Rape.
So long as evidence established that victim was induced to submit to sexual acts by actual fear, whether
reasonable woman under such circumstances would have experienced same fear was not a determination
that the court and jury had to make in order to convict defendant of forcible rape, and court properly
refused to instruct that the sexual assault must have been induced by a reasonable fear. NRS 200.363.
7. Criminal Law.
Statute proscribing infamous crime against nature is not unconstitutionally vague. NRS 201.190.
8. Sodomy.
Fellatio does constitute a crime against nature within meaning of statute. NRS 201.190.
OPINION
Early in the evening of August 10, 1973, a young teenage girl was walking home from a
youth recreation center in Las Vegas where she had spent the previous two or three hours. At
that time, she was considering whether to visit a classmate friend who worked at a concession
stand at a public park several miles distant. Observing a small boy riding as a passenger in an
approaching pickup truck, she thought the situation afforded her the opportunity to obtain
safe transportation to the park and decided to make the visit. Delmar Dinkens, driver of the
vehicle, observed the girl, noted her outstretched thumb, pulled the truck to the side of the
road and offered her a ride. She accepted.
Once in the vehicle the trio drove to a motel where Dinkens ordered the boy out of the
truck and told him to wait for his father. Out of earshot of the girl, Dinkens informed the boy
that he was going to get that girl. Alone with the girl, Dinkens drove in the general
direction of her stated destination, Paradise Park. Engaging her in a conversation, he learned
that she was nearly fourteen years old. Dinkens mentioned to the girl that he had difficulty
hearing her and suggested that she sit closer to him to remedy that problem. Becoming
inwardly apprehensive, she refused. Thereafter, it soon became apparent that Dinkens was not
heading towards the park and the girl reached for the door handle in an attempt to escape.
Dinkens grabbed her and pulled her to him. She cried, Please don't kill me, to which he
replied, I'm just going to play with you for a little while.
Dinkens parked his vehicle off the road and commenced to fondle his victim. Abruptly,
she was ordered to disrobe and was forced to assume a prone position on the seat of the car.
Dinkens thereupon engaged her in the act of sexual intercourse. Various attempts to penetrate
her rectum in a similar manner proved futile. During the course of the assault, Dinkens
demanded that the girl give him a little head and he thrust his penis towards her mouth. The
girl resisted and, distracted by an approaching car, he temporarily abandoned that endeavor.
After the car passed, Dinkens directed his vehicle to a more remote area where he engaged
the victim once again in the act of sexual intercourse.
vehicle to a more remote area where he engaged the victim once again in the act of sexual
intercourse. Afterwards he apologized, told the girl to dress and ultimately released her in the
vicinity of the park which had been her destination from the outset.
At Paradise Park she found that her friend had departed but was able to obtain a ride home
from the mother of another girl. Frightened and nervous, she did not reveal her encounter
with the strange man to her father but confided in her older sister. After her mother returned
home from Indiana nine days later, the incident was reported to her and subsequently to the
police. The arrest and prosecution of Dinkens followed.
For no explained or understandable reason the district attorney charged Dinkens with
forcible rape, not statutory rape. NRS 200.365. The first, of course, requires a showing of
forcible entry but a charge of statutory rape would have obviated any concern over the claim
of Dinkens that the young girl consented to his sex acts. Dinkens was also charged in two
counts with the infamous crime against nature and attempt to commit said crime for his
efforts to engage in anal intercourse and to place his penis in the girl's mouth.
A jury verdict of not guilty was returned on the charge of anal intercourse and verdicts of
guilty were returned on the charges of rape and attempted oral copulation. Thereafter,
Dinkens was sentenced to serve two concurrent 20-year terms in the Nevada State Prison.
1. The principal issue raised by Dinkens on review is that the girl consented in the
absence of fear of force or violence to the acts he committed upon her. His argument focuses
on the evidence presented at trial as it relates to the element of force. He claims that the
evidence is insufficient to support a conviction for forcible rape.
[Headnotes 1, 2]
Forcible rape is defined in NRS 200.363 as carnal knowledge of a female against her
will. The statute does not require a showing that the defendant employed force to achieve his
objective but only that the act was committed against the will of the victim. Physical force is
not a necessary ingredient in the commission of the crime of rape. The crucial question is not
whether the victim was physically forced to engage in sexual intercourse but whether the
act was committed without her consent. There is no consent where the victim is induced to
submit to the sexual act through fear of death or serious bodily injury. State v. Denton, 420
P.2d 930 {Ariz.
P.2d 930 (Ariz. 1966), State v. Thomas, 510 P.2d 1137 (Wash.App. 1973).
[Headnote 3]
Under the circumstances shown in this case, it is apparent that the girl submitted because
of fear. The requirements of force and fear are of a different and less degree for a child than a
person of more mature years.
Here, the girl related that a few months prior to her encounter with Dinkens, a uniformed
officer had told her that if she was approached by a person driving a red car she should
submit to any demands he made of her. If she refused, she would be killed. That admonition
was recalled when the girl realized that Dinkens was not driving towards her intended
destination and was responsible for the plea for her life emitted at the instant Dinkens
grabbed her and pulled her to him foiling her attempt to escape.
[Headnote 4]
The young victim testified that she was forced to assume a lying position and was forced
to maintain that position until the sexual act was completed. The fact that the record suggests
that Dinkens employed no violence or express threats to obtain the girl's submission does not
preclude a finding of forcible rape. The fact that force was exerted (albeit no injury resulted
therefrom) in combination with the girl's age and the fact that she expressed fear for her life at
the instant Dinkens touched her sufficiently support the finding of the jury that the sexual act
was committed against her will. NRS 200.363. A rape victim is not required to do more
than her age, strength, surrounding facts and all attending circumstances make it reasonable
for her to do in order to manifest her opposition. Haury v. State, 533 P.2d 991 (Okl.Cr. 1975).
See State v. Hannon, 451 P.2d 602 (Ariz. 1969).
[Headnote 5]
2. After engaging his victim in the act of sexual intercourse, appellant thrust his penis to
within inches of her mouth and demanded that she give him a little head. The girl resisted
and covered her mouth with her hand but Dinkens persisted in this endeavor until informed of
an approaching car. Based on these facts, it is argued, a conviction for attempted infamous
crime against nature cannot stand. We are not persuaded. The jury was presented with
sufficient evidence to support a finding that Dinkens committed each element necessary to
constitute an attempted infamous crime against nature.
against nature. See Johnson v. Sheriff, 91 Nev. 161, 532 P.2d 1037 (1975); Moulton v. State,
476 P.2d 366 (Okl.Cr. 1970).
[Headnote 6]
3. The claim that the state must show that the victim acted as an objectively reasonable
woman in submitting to appellant's sexual assault is not convincing. So long as the evidence
establishes that the victim was induced to submit to the sexual acts by actual fear, whether a
reasonable woman under such circumstances would have experienced the same fear is not a
determination that courts and juries have to make. See Most v. State, 386 S.W.2d 537
(Tex.Cr.App. 1965); Hazel v. State, 157 A.2d 922 (Md. 1960). Hence, appellant's request that
the jury be instructed that submission by the prosecutrix to appellant's sexual assault must
have been induced by a reasonable fear was properly refused.
[Headnotes 7, 8]
4. We have already denied the contention that NRS 201.190, proscribing the infamous
crime against nature, is unconstitutionally vague. Hogan v. State, 84 Nev. 372, 441 P.2d 620
(1968); Allan v. State, 91 Nev. 650, 541 P.2d 656 (1975). Appellant's claim that fellatio does
not constitute a crime against nature is similarly rejected. Jones v. State, 85 Nev. 411, 456
P.2d 429 (1969); Allan v. State, supra; see Rose v. Locke, ___ U.S. ___ (1975) (44 U.S. Law
Week 3301).
Nor do we deem the circumstances of this case appropriate to merit a discussion of
whether NRS 201.190 constitutionally applies to married couples or consenting adults. Here,
appellant attempted to perpetrate the prohibited act on a nonspouse child who did not
willingly consent. Thus applied, there is little doubt as to the constitutionality of the statute.
See Canfield v. State, 506 P.2d 987, appeal dismissed, 414 U.S. 991, rehearing denied, 414
U.S. 1138 (Okl.Cr. 1973).
We have reviewed other assignments of error and find them to be without merit.
Affirmed.
____________
92 Nev. 80, 80 (1976) Biederstadt v. State
ROY C. BIEDERSTADT and ALLEN L. HURT, Appellants,
v. THE STATE OF NEVADA, Respondent.
No. 8073
January 28, 1976 545 P.2d 202
Appeal from convictions for burglary and grand larceny; Second Judicial District Court,
Washoe County; John E. Gabrielli, Judge.
The Supreme Court held that trial court did not err in instructing that one who unlawfully
enters house shall be deemed to have entered with intent to commit grand larceny and that
prosecutor's statement during summation that one defendant's story as to what happened was
unsupported and uncorroborated by any other witness and that defense controlled who
testified did not amount to comment upon failure of codefendant to testify.
Affirmed.
William N. Dunseath, Public Defender, and Thomas R. Brennan, Deputy Public Defender,
Washoe County, for Appellants.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and
Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for
Respondent.
1. Burglary.
In prosecution for burglary and grand larceny, trial court did not err in instructing jury that one who
unlawfully enters a house shall be deemed to have entered with intent to commit grand larceny. NRS
205.065.
2. Criminal Law.
Prosecutor's statement during summation to effect that one defendant's story as to what happened was
unsupported and uncorroborated by any other witness and that defense had power of subpoena and
controlled who testified and that other witnesses could have come forward did not amount to improper
comment upon failure of codefendant to testify.
OPINION
Per Curiam:
Conceding guilt of the offenses charged to them, the appellants, nonetheless, seek to have
their convictions annulled for reasons which they assert precluded a fair and impartial trial.
Their assigned errors possess no merit.
92 Nev. 80, 81 (1976) Biederstadt v. State
[Headnotes 1, 2]
The record simply does not support the contention of the appellant Hurt that the prosecutor
offered evidence of Hurt's bad character or prior infractions of the law. Nor did the court err
in instructing the jury that one who unlawfully enters a house shall be deemed to have entered
with the intent to commit grand larceny. NRS 205.065; Fritz v. State, 86 Nev. 655, 474 P.2d
377 (1970); White v. State, 83 Nev. 292, 429 P.2d 55 (1967). Finally, the prosecutor's
statement during summation to the jury, footnoted below,
1
did not amount to a comment
upon the failure of Hurt to testify within the intendment of the doctrine of Griffin v.
California, 380 U.S. 609 (1965). In Moss v. State, 88 Nev. 19, 492 P.2d 1307 (1972), we
noted that the prosecutor's 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. The same observation applies with equal force to the comment in this case.
Affirmed.
____________________

1
The statement: Mr. Biederstadt's story as to what happened on the 9th of June, 1974, is unsupported and
uncorroborated by any other witness. No other witness testified about what happened on June 9, 1974 for the
defense except Mr. Biederstadt. Now, I have indicated to you before, and I again indicate, that the defense has
the power of subpoena. They control who testifies, and other witnesses could have come forth. . . .
____________
92 Nev. 81, 81 (1976) Beazley v. Davis
CAROL JEAN BEAZLEY, Appellant, v. ROBERT
JURVEY DAVIS, Respondent.
No. 8002
January 28, 1976 545 P.2d 206
Appeal from an order of the Second Judicial District Court, Washoe County; Thomas O.
Craven, Judge.
Former wife sought modification of a divorce decree to obtain custody of the parties' two
children from her former husband. The district court ordered that the children's custody
remain with the former husband and former wife appealed. The Supreme Court held that
denying the natural mother custody of her children and granting custody to their father solely
because the mother was white while the children and father were black denied the mother
and children equal protection.
father were black denied the mother and children equal protection.
Reversed and remanded.
John N. Schroeder, Reno, for Appellant.
Michael R. Specchio, Reno, for Respondent.
1. Constitutional Law.
Since State actions within meaning of Fourteenth Amendment include not only acts of legislature, but
also acts of State's judicial officers, strict standard used to test constitutionality of legislation classifying
persons according to race is same standard which must be applied to State judicial officers' actions which
classify persons according to race. U.S.C.A.Const. Amend. 14.
In absence of showing that race in child custody proceedings is necessary to accomplishment of
permissible State policy, such consideration would constitute impermissible discrimination in violation of
Fourteenth Amendment. U.S.C.A.Const. Amend. 14.
Racial classifications are constitutionally suspect and subject to the most rigid scrutiny. U.S.C.A.Const.
Amend. 14.
4. Constitutional Law; Parent and Child.
Denying natural mother custody of children and granting custody to father solely because mother was
white while children and father were black denied mother and children equal protection. U.S.C.A.Const.
Amend. 14.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying the petition of appellant, Carol
Jean Beazley (formerly Davis), which sought modification of a divorce decree so that Carol
would be awarded the custody of the parties' two children: Scott Jurvey Davis, born on March
17, 1972, and Sonja Cherie Davis, born on September 23, 1968.
Carol was granted an uncontested decree of divorce from respondent, Robert Jurvey Davis,
on December 15, 1972. The decree awarded custody of the two children to Robert, with
reasonable visitation rights to Carol. Both parties remarried. Thereafter, Carol filed the instant
petition, seeking custody of the children. After a hearing on the petition, the district judge
ordered that the children's custody remain with Robert.
1
It is clear from the record that the
court based its ruling on the fact that Sonja and Scott were children of a miscegenous
marriage.
____________________

1
Since Scott was living with Carol, the court ordered that he be permitted to do so pending the outcome of
this appeal.
clear from the record that the court based its ruling on the fact that Sonja and Scott were
children of a miscegenous marriage. Carol is a Caucasian; Robert is a Negro.
2
The district
judge, after reviewing photographs of the children, decided that their physical characteristics
were Negroid and therefore custody should remain with their father. We believe that the court
erred in taking the view it did and that therefore we must remand and order a new hearing.
[Headnotes 1-3]
State actions within the meaning of the Fourteenth Amendment include not only the acts
of a legislature, but also the actions of the State's judicial officers. Therefore, the strict
standard used to test the constitutionality of legislation classifying persons according to race
is the same standard which must be applied to State judicial officers' actions which classify
persons according to race. In the absence of a showing that race in custody proceedings is
necessary to the accomplishment of a permissible State policy, such a consideration would
constitute an impermissible discrimination in violation of the Fourteenth Amendment.
Commonwealth ex rel. Lucas v. Kreischer, 299 A.2d 243 (Pa. 1973). The United States
Supreme Court, in McLaughlin v. Florida, 379 U.S. 184, 192 (1964), stated that the central
purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from
official sources in the States. This strong policy renders void classifications constitutionally
suspect [Bolling v. Sharpe, 347 U.S. 497, 499 (1954)] and subject to the most rigid
scrutiny [Korematsu v. United States, 323 U.S. 214, 216 (1944)].
____________________

2
The court's ruling provided in part:
Plaintiff's Motion for Change in Custody of the two minor children, SONJA CHERIE DAVIS and SCOTT
JURVEY DAVIS, is denied.
. . . [M]ost importantly, the children involved are the results of a miscegenous marriage, between a
caucasion and negro, and the children clearly show negroid physical characteristics.
Both parties hereto have been remarried and Plaintiff-movant, who is caucasian, has remarried a caucasian.
It must be reasonably assumed that Plaintiff and her husband will have caucasian children; and to place the
children within this setting can do nothing less than eventually cause emotional trauma for them.
The Defendant has likewise remarried to a female caucasian, and again it can be reasonably assumed that
children borne of this marriage would have similar physical characteristics from this second miscegenous
marriage, into which environment the children in question would fit far more comfortably and be less susceptible
to emotional trauma during their formative years.
[Headnote 4]
In the instant case, the lower court indirectly restricted the right of the natural mother to be
considered as the proper parent to have custody of her children, because of their [racial]
physical characteristics. Additionally, and for the same reasons, the children, Sonja and
Scott, were denied the benefit of an unprejudiced hearing focused solely on an inquiry into
what custody order would be in their best interest and welfare.
We agree with the words of the Supreme Court of Pennsylvania appearing in
Commonwealth ex rel. Lucas v. Kreischer, supra, 299 A.2d at 246, that in a multiracial
society such as ours racial prejudice and tension are inevitable. If . . . children are raised in a
happy and stable home, they will be able to cope with prejudice and hopefully learn that
people are unique individuals who should be judged as such.'
For these reasons, we reverse and remand the case for a new hearing in the court below.
____________
92 Nev. 84, 84 (1976) Hudson v. State
DEAN JACKSON HUDSON, Appellant, v. THE
No. 8272
February 12, 1976 545 P.2d 1163
Appeal from judgment of conviction for second-degree kidnapping, rape and infamous
crime against nature. Eighth Judicial District Court, Clark County; J. Charles Thompson,
Judge.
The Supreme Court held that the evidence in support of the finding that the crimes
occurred in Nevada, not California, was substantial and that the court's Allen charge was
worded in such a manner as to avoid adulteration of the jury's verdict.
Affirmed.
[Rehearing denied March 23, 1976]
Ohrenschall & Ohrenschall, of Las Vegas, for Appellant.
Robert List, Attorney General; George E. Holt, District Attorney, H. Leon Simon, Chief
Deputy District Attorney, and Elliott A. Sattler, Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Issues raised by defendant for the first time on appeal would not be entertained by the Supreme Court,
where none of the issues was so fundamental as to suggest that the lower court proceedings did not comport
with the requirements of due process or that defendant was afforded anything less than a fair trial.
2. Criminal Law.
Finding that the crimes in question, viz., second-degree kidnapping, rape, and infamous crime against
nature, occurred in the State of Nevada was supported by substantial evidence, including the testimony of
the prosecutrix' husband that he accompanied his wife and a police officer to the site where she believed
the crimes occurred, which site was clearly within the boundaries of the State of Nevada; furthermore, the
trial court indulged in no abuse of discretion by refusing to grant defendant an evidentiary hearing for the
sole purpose of ascertaining jurisdiction.
3. Criminal Law.
Even ignoring the fact that defendant's trial counsel expressly stated that he had no objection to the
court's Allen charge to the jury, reversal of the convictions was not warranted since the instruction was
OPINION
Per Curiam:
The woman, a Filipino National, was 25 years of age, married and the mother of three
children. At approximately 8:15 on the evening of July 13, 1974, she was accosted by a man
as she entered her car in the parking lot of the Silver Nugget in North Las Vegas, Nevada.
Two hours prior to this fateful encounter she had arrived at the gambling establishment to
play keno. She was intending to return home when the man, later identified as Dean Jackson
Hudson, walked up behind her, grabbed her by the elbow, pressed what she believed to be a
knife against her back and threatened to kill her if she did not do as he ordered. He then
escorted her to his automobile. Upon reaching his pickup truck, he opened the door on the
driver's side of the vehicle and pushed the woman inside. After himself entering the vehicle,
Hudson administered several punches to the abdominal area of the victim inducing her to
temporarily lose consciousness.
Hudson drove towards the outskirts of town and proceeded to a remote desert area where
he stopped. He then grabbed the woman by the hair and commanded her to disrobe. She
refused and, attempting to escape, struggled with Hudson striking him on the mouth and
causing his lip to bleed. This incident prompted him to convey further threats of death or
injury to the victim if she did not comply with his demands.
incident prompted him to convey further threats of death or injury to the victim if she did not
comply with his demands.
Ultimately, the young woman was subdued. With Hudson's assistance she removed her
clothes and was ordered to lie down on the seat of the car. In tears, she complied with the
demand and Hudson proceeded to forcibly engage her in the act of sexual intercourse. After
Hudson ejaculated in her vagina, he wiped off his penis and ordered his victim to engage him
in the act of fellatio. Ignoring her protestations, he thrust his penis into her mouth and
removed it only when she began emitting a choking sound. At that point, she attempted once
again to escape. Hudson pursued and caught her and, clutching her by the hair, informed her
that if she tried to escape again he would kill her. The victim was then shoved into the back
of the truck and told to dress.
A short time later, the woman was released in the vicinity of the Silver Nugget and, as
Hudson drove away, she was able to discern the license plate number of his automobile.
Frantic and dishevelled, she arrived home at approximately 10:00 p.m. Her husband
transported her to the hospital where she was examined and treated. Her injuries included
lacerations to an elbow and knee and bruises on her feet, legs, back, buttocks, arms, face and
head. Tests disclosed the presence of semen in her vagina.
The following day, Hudson was summoned to the North Las Vegas Police Department
where he was confronted by the woman who identified him as her assailant. He was
thereupon admitted to police custody and on July 18, 1974, a criminal complaint was issued
charging him with the commission of three crimes: (1) second-degree kidnapping committed
with the use of a deadly weapon,
1
(2) rape, and (3) the infamous crime against nature.
Predictably, Hudson's version of the events which culminated in his arrest differed from
that of the victim. He claimed that he met the woman while playing blackjack at the Silver
Nugget. During the course of an ensuing conversation of sorts, Hudson invited her to dinner.
The two left the establishment in his car and proceeded to his apartment where he picked up
some additional money. After stopping at the apartment, located behind his parent's house,
they drove to the Golden Nugget. There they gambled but did not eat. Leaving the Golden
Nugget approximately 45 minutes after their arrival for the ostensible purpose of returning
the woman to the Silver Nugget where she said she expected to meet some friends to play
bingo, they detoured to a remote desert area where he parked the car.
____________________

1
During the trial the complaint was amended to omit the reference to a deadly weapon.
arrival for the ostensible purpose of returning the woman to the Silver Nugget where she said
she expected to meet some friends to play bingo, they detoured to a remote desert area where
he parked the car. Hudson contends that the couple then began kissing which, after a short
while, led to lovemaking. He claimed that the woman willingly yielded to his advances and
denied that the two ever engaged in the act of fellatio.
Following this erotic interlude, Hudson returned her to the Silver Nugget and then
proceeded home where he spent the remainder of the relevant hours of the evening watching
television with his parents and a friend. From beginning to end, Hudson claimed that the
entire episode lasted approximately three hours (from 5:00 p.m. to 8:00 p.m.).
After a trial before a jury which obviously did not choose to accept Hudson's version of the
events, he was found guilty of all three of the crimes of which he was charged. This appeal
followed.
[Headnote 1]
Hudson attacks his conviction in scatter-gun fashion specifying 11 separate points of
error, five of which will not be entertained for his failure to raise them during the trial.
Sherman v. State, 89 Nev. 77, 506 P.2d 417 (1973). See Sollars v. State, 73 Nev. 343, 319
P.2d 139 (1957). After reviewing each of the five issues raised for the first time on this
appeal, we have concluded that none are so fundamental as to suggest that the lower court
proceedings did not comport with the requirements of due process or that appellant was
afforded anything less than a fair trial. Cf. Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962).
In all, we are satisfied that appellant stands fairly convicted of the offenses with which he was
charged and that the jury verdict is supported amply by the evidence.
[Headnote 2]
1. Hudson claims that from the testimony of the prosecutrix, it is evident that the offenses
were committed in California and that the Nevada court therefore acted without jurisdiction.
It is true that at one point during her testimony the woman stated that during her abduction
she observed a road sign which indicated that Los Angeles was only 218 miles. However, she
later stated on two separate occasions that the distance indicated on the sign was 280 miles. In
light of the fact that the woman was a Filipino National who had lived in the United States
for only a short period of time and who obviously had a limited command of the English
language, the trial court correctly determined that the inconsistency in her earlier
testimony should not be weighed too heavily.
lived in the United States for only a short period of time and who obviously had a limited
command of the English language, the trial court correctly determined that the inconsistency
in her earlier testimony should not be weighed too heavily. It is also noted that other evidence
clearly established that the crimes were committed in Nevada. Such evidence included
testimony of the woman's husband that he accompanied her and a police officer to the site
where she believed the crimes occurred which site was clearly within the boundaries of the
State of Nevada. After reviewing the record, we are satisfied that the evidence in support of
the finding that the crimes occurred in the State of Nevada is substantial. See King v. State,
87 Nev. 537, 490 P.2d 1054 (1971); Anstedt v. State, 89 Nev. 163, 509 P.2d 968 (1973).
Furthermore, we find that the trial court indulged in no abuse of discretion by refusing to
grant appellant an evidentiary hearing for the sole purpose of ascertaining jurisdiction.
Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974).
[Headnote 3]
2. At one point during the deliberations of the jury, the foreman informed the court that he
believed the jury had reached an impasse. Because the jury had deliberated for only a
relatively short period of time (five or six hours with a break for the evening meal) the court
was not convinced that the impasse was insurmountable and proceeded to administer an
Allen Charge
2
to the jury. Appellant argues that the instruction constituted prejudicial
error and that, accordingly, we must reverse. We do not agree.
Even if we ignore the fact that appellant's trial counsel expressly stated that he had no
objection to the instruction and assume for the purposes of discussion that a timely objection
had been interposed thereto, reversal would not be warranted. In our view, the instruction was
3
Cf.
____________________

2
See Allen v. United States, 164 U.S. 492 (1896).

3
The instruction reads 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 matter of 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
Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972); State v. Clark, 38 Nev. 304, 149 P. 185
(1915).
Affirmed.
____________________
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.
____________
92 Nev. 89, 89 (1976) Cranford v. Smart
MELVIN L. CRANFORD, Petitioner, v. STANLEY A. SMART, District Judge, Third
Judicial District Court of the State of Nevada, in and for the County of Lander, Respondent.
No. 8599
February 12, 1976 545 P.2d 1162
Original proceedings in prohibition.
Petition was brought seeking extraordinary writ of prohibition, contending that charge
against petitioner of being an ex-felon in possession of a firearm, as filed, could not stand.
The Supreme Court held that after Supreme Court had reversed denial of habeas corpus relief
to petitioner on grounds that record contained no evidence that petitioner was an ex-felon, if
prosecutor had evidence that petitioner was an ex-felon he could institute the charges in
justice's court or seek a grand jury indictment, but he could not utilize statute providing, inter
alia, that if upon preliminary examination the accused has been discharged the district
attorney may, upon affidavit of any person with knowledge of the commission of the offense,
file an information by leave of court first had.
Writ granted.
Horace R. Goff, State Public Defender, Carson City, for Petitioner.
Robert List, Attorney General, Carson City; George G. Holden, District Attorney, and Hy
T. Forgeron, Deputy District Attorney, Lander County, for Respondent.
1. Indictment and Information.
Statute providing, inter alia, that if upon preliminary examination accused has been discharged the district
attorney may, upon affidavit of any person who had knowledge of commission of offense
and who is a competent witness to testify in the case, setting forth the offense and
the name of the person charged with commission thereof, upon being furnished with
names of witnesses for prosecution, by leave of court first had, file an information,
contemplates a safeguard against egregious error by a magistrate in determining
probable cause, and is not a device to be used by a prosecutor to satisfy, through
affidavit, deficiencies in evidence at a preliminary examination.
affidavit of any person who had knowledge of commission of offense and who is a competent witness to
testify in the case, setting forth the offense and the name of the person charged with commission thereof,
upon being furnished with names of witnesses for prosecution, by leave of court first had, file an
information, contemplates a safeguard against egregious error by a magistrate in determining probable
cause, and is not a device to be used by a prosecutor to satisfy, through affidavit, deficiencies in evidence
at a preliminary examination. NRS 173.035, subd. 2.
After Supreme Court reversed denial of habeas corpus relief to petitioner who was charged, inter alia,
with being an ex-felon in possession of a firearm, on grounds that record contained no evidence that
petitioner was an ex-felon, if prosecutor had evidence that petitioner was an ex-felon he could institute
charges in justice's court or seek a grand jury indictment, but he could not utilize statute providing, inter
alia, that if upon preliminary examination accused has been discharged the district attorney may, upon
affidavit of any person with knowledge of commission of the offense, file an information by leave of court
first had. NRS 173.035, subd. 2.
OPINION
Per Curiam:
Melvin L. Cranford was charged with several offenses, one of which being an ex-felon in
possession of a firearm. After preliminary examination, where Cranford was ordered to stand
trial, he sought and was denied habeas corpus. On appeal we reversed as to the ex-felon in
possession count because the record contained neither probative nor demonstrable evidence
that Cranford was an ex-felon. Cranford v. Sheriff, 91 Nev. 551, 553, 539 P.2d 1215, 1216
(1975). Thereafter, the prosecuting attorney, pursuant to NRS 173.035 (2), obtained leave in
the district court to file an information upon affidavit, charging Cranford with the same
offense.
Cranford then filed a petition seeking the extraordinary writ of prohibition contending the
charge, as filed, cannot stand. The answer, which was ordered pursuant to NRAP 21 (b), fails
to present arguable cause against issuance of the writ.
[Headnotes 1, 2]
After we reversed, if the prosecuting attorney had evidence that Cranford was an ex-felon,
he was not precluded from instituting new charges in the justice's court, or from seeking an
indictment before a grand jury. McGee v. Sheriff, 86 Nev. 421, 470 P.2d 132 (1970). Cf.
Johnson v. Sheriff, 89 Nev.
304, 511 P.2d 1051 (1973). However, he could not proceed under NRS 173.035(2).
1
That
statute contemplates a safeguard against egregious error by a magistrate in determining
probable cause, not a device to be used by a prosecutor to satisfy deficiencies in evidence at a
preliminary examination, through affidavit. See Lamb v. Loveless, 86 Nev. 286, 468 P.2d 24
(1970). Cf. Woofter v. Kelly, 90 Nev. 345, 526 P.2d 337 (1974); Ryan v. District Court, 88
Nev. 638, 503 P.2d 842 (1972); and, Martin v. Sheriff, 88 Nev. 303, 496 P.2d 754 (1972).
Accordingly, we order the issuance of the peremptory writ of prohibition, forthwith,
compelling respondent to dismiss the information filed pursuant to NRS 173.035(2).
____________________

1
The applicable portion of NRS 173.035(2) reads: If, however, upon the preliminary examination the
accused has been discharged, . . . the district attorney or the attorney general . . . 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. . . .
____________
92 Nev. 91, 91 (1976) Silks v. State
DONALD SCOTT SILKS, Appellant, v. THE
No. 8146
February 12, 1976 545 P.2d 1159
Appeal from judgment of conviction and sentence. Fifth Judicial District Court, Nye
County; Kenneth L. Mann, Judge.
Defendant was convicted in the district court of possession of stolen property, and he
appealed. The Supreme Court, Zenoff, J., held that the trial court's consideration of a
presentence report was not improper; that, even if the trial court should have treated
defendant's inappropriate motion to dismiss as a motion that the jury be advised to acquit by
reason of insufficient evidence, where the record fully supported the jury verdict, the verdict
would not be disturbed; and that an incriminating statement made by defendant to private
security officers was properly admitted, despite fact that the officers did not give Miranda
warnings.
92 Nev. 91, 92 (1976) Silks v. State
officers was properly admitted, despite fact that the officers did not give Miranda warnings.
Affirmed.
Horace R. Goff, State Public Defender, and Michael R. Griffin, Special Deputy, Carson
City, for Appellant.
Robert List, Attorney General, Carson City, William P. Beko, District Attorney, and Peter
L. Knight, Deputy District Attorney, Nye County, for Respondent.
1. Criminal Law.
Where presentence report was not objectionable on ground that it contained false material, it was not
improper for trial judge, in determining sentence to be imposed upon conviction for possession of stolen
property, to rely on portions of presentence report which stated, inter alia, that marijuana had been found in
stolen airplane and that there were outstanding federal warrants against defendant charging drug and
narcotic offenses.
2. Criminal Law.
Sentencing procedure is not a second trial, and court is privileged to consider facts and circumstances
which clearly would not be admissible at trial.
3. Criminal Law.
So long as record does not demonstrate prejudice resulting from consideration in sentencing proceeding
of information or accusations founded on facts supported only by impalpable or highly suspect evidence,
Supreme Court will refrain from interfering with sentence imposed.
4. Criminal Law.
Even if trial court should have treated defendant's inappropriate motion to dismiss as a motion to advise
the jury to acquit defendant of charge of possessing stolen property, where evidence fully supported jury
verdict and correct result was reached in case, Supreme Court would not disturb verdict. NRS 175.381.
5. Criminal Law.
Incriminating statement made by defendant to private security guards who had detained him was properly
admitted, in prosecution for possession of stolen property, despite defendant's contention that statement
was involuntary and, therefore, inadmissible because private guards did not give defendant Miranda
warnings.
OPINION
Donald Scott Silks was convicted, by jury verdict, of possession of stolen property (an
airplane owned by the Mexican Navy). After being sentenced to a seven-year term in the
Nevada State Prison Silks caused this appeal to be perfected wherein he contends his
conviction must be reversed because the trial judge denied his motions {1) to strike
portions of the presentence report; and {2) to dismiss the charges against him.
92 Nev. 91, 93 (1976) Silks v. State
wherein he contends his conviction must be reversed because the trial judge denied his
motions (1) to strike portions of the presentence report; and (2) to dismiss the charges against
him. He also contends, unconvincingly, that an incriminating statement made by him to a
private security guard who had detained him was involuntary and therefore was inadmissible;
and further, that the interpreter retained for the purpose of translating the testimony of a
certain material witness was incompetent.
[Headnote 1]
1. We reject Silks' argument that he was prejudiced because the trial judge relied on
portions of the presentence report which stated: (1) marijuana was found in the airplane; (2)
there were outstanding federal warrants against Silks charging drug and narcotic offenses; (3)
he had been exonerated of prior charges of contributing to the delinquency of a minor; (4) he
had been convicted and sentenced to a six-year term in a Mexican prison on narcotic charges;
(5) he had escaped from the Mexican prison just prior to perpetrating the theft of the aircraft
from which the instant charge arose; (6) while incarcerated in the Tonopah jail, prior to trial,
he had been overheard telling a cellmate that a large quantity of marijuana was buried at a
specific location in Nevada; and (7) when law enforcement authorities reached the secret
location, the marijuana cache had been removed, leaving only a few seeds and traces of leafy
material.
Silks does not claim and there is nothing in the record to suggest that the presentence
report contained information of a mendacious character. On that basis, this case is
distinguished from United States v. Weston, 448 F.2d 626 (9th Cir. 1971), so heavily relied
upon by appellant. In Weston, the pernicious material contained in the presentence report
consisted of unsupported highly incriminating accusations of a drug dealer. The great weight
afforded those accusations by the sentencing court was manifested when, before reviewing
the presentence report, the court expressed its inclination to impose the minimum sentence;
after reviewing the report, it imposed the maximum sentence. Here, the material contained in
the presentence report was substantially more tangible in nature and was of a higher and more
persuasive quality than in Weston.
[Headnotes 2, 3]
The sentencing proceeding is not a second trial and the court is privileged to consider facts
and circumstances which clearly would not be admissible at trial.
92 Nev. 91, 94 (1976) Silks v. State
clearly would not be admissible at trial. United States v. Cifarelli, 401 F.2d 512, cert. denied,
393 U.S. 987 (2d Cir. 1968); United States v. Metz, 470 F.2d 1140, cert. denied, 411 U.S.
919 (3d Cir. 1972). So long as the record does not demonstrate prejudice resulting from
consideration of information or accusations founded on facts supported only by impalpable or
highly suspect evidence, this court will refrain from interfering with the sentence imposed. In
that context, we first observe that the record in this case reflects no prejudice occasioned by
the report,
1
and second, that the report contains no objectionable material.
2
Accordingly, we
are constrained to affirm the sentence as imposed by the lower court. See Regas v. State, 91
Nev. 502, 538 P.2d 582 (1975).
[Headnote 4]
2. Silks argues that his motion to dismiss should have been granted because the state did
not prove, beyond a reasonable doubt, that he knew the airplane was stolen and that it was
owned by the Republic of Mexico.
In denying the motion the trial judge concluded that a motion to dismiss was not the
appropriate device to challenge the sufficiency of the evidence. Properly, he should have
moved that the jury be advised to acquit by reason of insufficient evidence. NRS 175.381;
State v. Corinblit, 72 Nev. 202, 298 P.2d 470 (1956).
Even if we assume the trial judge should have treated the motion to dismiss as a motion to
advise, by instruction, the jury to acquit, under NRS 175.381, the correct result was reached
because this record fully supports the jury verdict and, in such cases, the reviewing court will
not disturb the verdict. Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974). Cf. Wheeler v.
State, 91 Nev. 119, 531 P.2d 1358 (1975).
[Headnote 5]
3. We also reject Silks' contention that the statement he made to the private security
officers was involuntary and, therefore, inadmissible because they did not give him the
warning required by Miranda v. Arizona, 384 U.S. 436 (1966). The same contention was
considered by this court and resolved against an accused in Schaumberg v. State, S3 Nev.
372, 374
____________________

1
We note that the trial judge rejected the recommendation of the Department of Parole and Probation that
Silks be sentenced for ten years and instead sentenced him to seven years.

2
. . . [W]e believe that other criminal conduct may properly be considered, even though the defendant was
never charged with it or convicted of it. Its relevance . . . is apparent. United States v. Weston, 448 F.2d 626,
633 (9th Cir. 1971).
92 Nev. 91, 95 (1976) Silks v. State
against an accused in Schaumberg v. State, 83 Nev. 372, 374, 432 P.2d 500, 501 (1967),
where we held Miranda applied only to custodial interrogation initiated by police officers.
Accord: United States v. Casteel, 476 F.2d 152 (10th Cir. 1973); United States v. Bolden, 461
F.2d 998 (8th Cir. 1972); United States v. Birnstihl, 441 F.2d 368 (9th Cir. 1971); and United
States v. Antonelli, 434 F.2d 335 (2nd Cir. 1970).
4. Silks' final allegation of error is that the court failed to appoint a competent interpreter
to translate the testimony of the witness, Commander Jimenez, relating to the Mexican Navy's
ownership of the airplane. The record reflects not only the interpereter's competency, but also
defense counsel's use of his own interpreter on cross-examination. No discrepancies or
mistakes in the translation were demonstrated or even suggested. The contention of error is
clearly spurious.
Affirmed.
____________
92 Nev. 95, 95 (1976) Bails v. State
TERRY MICHAEL BAILS, Appellant, v. THE
No. 7687
February 13, 1976 545 P.2d 1155
Appeal from conviction of murder; Eighth Judicial District Court, Clark County; James D.
Santini, Judge.
The Supreme Court, Thompson, J., held that court properly refused to instruct in a certain
way about circumstantial evidence; that evidence as to defendant's use of narcotics was
admissible to prove motive and identity; and that hearsay testimony of friend of victim
relating to conversation with victim which occurred two days before homicide was admissible
under statute pertaining to such conversations when supported by corroborative evidence.
Affirmed.
Gunderson, C. J., and Batjer, J., dissented.
Raymond E. Sutton, of Las Vegas, for Appellant.
92 Nev. 95, 96 (1976) Bails v. State
George E. Holt, District Attorney, and Daniel M. Seaton, Deputy District Attorney, and
Sherman H. Simmons, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
In murder prosecution, court properly refused instruction that if the evidence is susceptible of two
reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, it is
your duty to adopt that interpretation which points to the defendant's innocence, and reject the other which
points to his guilt, since jury was properly instructed on standards for reasonable doubt, and even though
all evidence was circumstantial in character.
2. Homicide.
In murder prosecution, court properly admitted evidence of defendant's use of narcotics to prove motive
and identity, since, other evidence, which was totally circumstantial, had not substantially established either
motive or identity. NRS 48.045, subd. 2.
3. Criminal Law.
The time remoteness of evidence of other offenses in relation to date of homicide impeached its weight to
some degree, but not its admissibility. NRS 48.045, subd. 2.
4. Homicide.
In murder prosecution, testimony of friend of victim as to conversation with her which occurred two days
prior to homicide and during which conversation victim mentioned her two-dollar bill collection and that
she had not deposited the bills in her safe-deposit box was admissible under statute pertaining to
conversations with or actions of a deceased person, since victim's collection of two-dollar bills and her
failure to deposit them in her safe-deposit box was corroborated by other witnesses and such testimony was
relevant. NRS 48.064.
OPINION
A jury convicted Terry Michael Bails of first degree murder and he has been sentenced to
prison for life with the possibility of parole. The evidence pointing to guilt was wholly
circumstantial in character, but is not assailed as insufficient. Bails does contend, however,
that prejudicial error occurred when the court refused to instruct the jury in a certain way
about circumstantial evidence, and that prejudicial evidence was erroneously received.
1. The court was requested to instruct the jury that if the evidence is susceptible of two
reasonable interpretations, one of which points to the defendant's guilt and the other to his
innocence, it is your duty to adopt that interpretation which points to the defendant's
innocence, and reject the other which points to his guilt."
92 Nev. 95, 97 (1976) Bails v. State
points to the defendant's innocence, and reject the other which points to his guilt. The
request was refused and such refusal is assigned as error.
We have heretofore considered such an instruction in cases involving both direct and
circumstantial evidence and have ruled that it is not error to refuse to give the instruction if
the jury is properly instructed regarding reasonable doubt. Hall v. State, 89 Nev. 366, 513
P.2d 1244 (1973); Anderson v. State, 86 Nev. 829, 477 P.2d 595 (1970); see also: Scott v.
State, 72 Nev. 89, 295 P.2d 391 (1956); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964);
Crane v. State, 88 Nev. 684, 504 P.2d 12 (1972); Vincze v. State, 86 Nev. 546, 472 P.2d 936
(1970); Kovack v. State, 89 Nev. 364, 513 P.2d 1225 (1973); McKinney v. State, 89 Nev.
556, 516 P.2d 1404 (1973). We have also held it permissible to give the instruction in such a
case. Crane v. State, supra. However, in each of the cited cases there was direct testimonial
evidence of guilt.
It is the appellant's contention that when all of the evidence is circumstantial in character,
the court is compelled to give the instruction in order to insure fair jury consideration of the
case. We do not agree. The leading case on this precise point is Holland v. United States, 348
U.S. 121 (1955), which we have cited with approval on at least three occasions. See: Vincze
v. State, supra; Kovack v. State, supra; Hall v. State, supra. In Holland, a wholly
circumstantial evidence case, the court wrote: The petitioners assail the refusal of the trial
judge to instruct that where the government's evidence is circumstantial it must be such as to
exclude every reasonable hypothesis other than that of guilt. There is some support for this
type of instruction in the lower court decisions (citations), but the better rule is that where the
jury is properly instructed on the standards for reasonable doubt, such an additional
instruction on circumstantial evidence is confusing and incorrect (citations).
Circumstantial evidence in this respect is intrinsically no different from testimonial
evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect
result. Yet this is equally true of testimonial evidence. In both instances a jury is asked to
weigh the chances that the evidence correctly points to guilt against the possibility of
inaccuracy or ambiguous inference. In both, the jury must use its experience with people and
events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we
can require no more.
92 Nev. 95, 98 (1976) Bails v. State
[Headnote 1]
In the case before us the jury was properly instructed on the standards for reasonable
doubt. In line with Holland, we hold that it was not error to refuse the requested instruction.
2. Over objection, the court allowed the prosecution to introduce evidence of the
defendant's use of narcotics. This evidence was received under the authority of NRS
48.045(2): Evidence of other crimes, wrongs or acts is not admissible to prove the character
of a person in order to show that he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. The court reasoned that such
evidence was probative of identity and motive, and that the probative value thereof
outweighed its prejudicial effect in this instance. The jury was properly instructed as to the
limited purposes for which the evidence was received. Brown v. State, 81 Nev. 397, 400, 404
P.2d 428 (1965).
As already stated, the evidence of guilt was wholly circumstantial. A third person did not
witness the homicide. The defendant did not confess his guilt nor did he utter incriminating
statements to anyone. He testified at the trial stating that he was elsewhere when the killing
occurred. His testimony was corroborated. However, incriminating circumstances placed him
at the crime scene.
The victim was Mildred Nosler. It is asserted that she was killed on November 11, 1972, at
her home in Las Vegas. Her body was found two days later. It was necessary to force entry
into the home since it was tightly secured. In the opinion of the pathologist the primary cause
of death was a massive hemorrhage about the heart due to penetrating stab wounds of the
lung and heart. The secondary cause of death was extensive brain damage with hemorrhage
caused by a heavy blunt instrument.
A broken knife was found near the victim. The pieces fitted together. A paper towel was
recovered in the kitchen. It had been wet with water and blood and had dried in the shape of a
finger. The defendant had cut his right ring finger seriously enough to cause bleeding. When
he was arrested on November 16, the cut was still unscabbed. The defendant had Type A
blood and the blood on the paper towel also was Type A. About 42 percent of the population
has Type A blood. Blood on the knife was determined to be Type O. The victim had Type O
blood. About 45 percent of the population has Type O blood.
92 Nev. 95, 99 (1976) Bails v. State
During autopsy, the pathologist removed a small plastic fragment from the victim's brain.
It was determined that this fragment came from the support column of the telephone found
beside the victim's body. The defendant's fingerprint in blood was found on the base of the
telephone. Type A blood was found on the telephone in the recessed area around the cradle.
Type O blood was found in the area of the broken fragment.
The victim collected two-dollar bills. The defendant admitted having two two-dollar bills
in his possession on November 11.
Finally, the evidence discloses that the victim was most conscious of the security of her
home. She had multiple locks on all three doors and would seldom allow anyone to enter
except her son, his girl friend, and the defendant. Her son and the defendant were best friends.
Her son, of course, had a key, as did his girl friend. Her son and the defendant lived together
in her home until May 8, 1972, when her son was sent to prison for larceny.
The defendant testified that his finger was cut two days after the homicide when cleaning a
lettuce slicer at the sandwich shop where he was employed. He explained his fingerprint on
the telephone since he had used the phone when visiting the victim on November 9, two days
before the homicide.
We have related the circumstantial evidence in order to show the framework within which
the trial judge had to evaluate the proffered evidence of collateral offenses.
The court allowed the victim's son to testify that he and his best friend, the defendant, were
addicted to the use of drugs, and that prior to the son's departure for prison on May 8, 1972,
the defendant had been living with him in the victim's home and knew of hiding places
therein where drugs and drug paraphernalia were kept. Such testimony related to a period of
time some six months before the homicide. Moreover, the son was permitted to testify that
about eleven months after the homicide he went with law officers to the victim's home and
pointed out where he had hidden drugs and paraphernalia, some of which was, at that time,
recovered and received in evidence. This testimony was corroborated by other witnesses.
In this wholly circumstantial evidence case, it was important to show a motive for the
killing and, of course, the identity of the murderer. The only piece of evidence which placed
the defendant at the scene of the crime was his fingerprint on the telephone, and the evidence
was in conflict as to when it was placed there.
92 Nev. 95, 100 (1976) Bails v. State
placed there. The proffered testimony as to the defendant's drug addiction and his knowledge
of the hiding places inferentially supplied a reason for him to have been there on the day of
the homicide, and to identify him as the perpetrator since he was one who could have
penetrated the security of the victim's home without forcing an entry.
[Headnotes 2, 3]
In our view it was permissible for the court to receive such evidence since other
circumstantial evidence had not substantially established either motive or identity. Jones v.
State, 85 Nev. 4, 5, 6, 448 P.2d 702 (1969); cf. Tucker v. State, 82 Nev. 127, 412 P.2d 970
(1966). The time remoteness of such evidence in relation to the date of the homicide
impeached its weight to some degree, but not its admissibility. In the context of this case the
trial judge properly could conclude that the probative value of evidence of collateral offenses
outweighed the prejudicial effect thereof.
[Headnote 4]
3. The court allowed a friend of the victim to relate a conversation with her which
occurred two days before the homicide during which conversation the victim had mentioned
her two-dollar bill collection and that she had not deposited the bills in her safe-deposit box.
Such hearsay was permitted on the basis of NRS 48.064: Transactions or conversations
with or actions of a deceased person are admissible if supported by corroborative evidence.
The victim's collection of two-dollar bills and her failure to deposit them in her
safe-deposit box was corroborated by other witnesses. The conversation was, therefore,
admissible if relevant. The relevance here was the possible relationship between the victim's
collection of two-dollar bills to the possession of two such bills by the defendant on the day
of the homicide. The trial court properly received the testimony.
4. Other assigned errors lack merit.
Affirmed.
Zenoff and Mowbray, JJ., concur.
Gunderson, C. J., and Batjer, J., dissenting:
We would remand for a new trial.
From appellant's drug use some six months prior to the killing in question, the trial court
permitted the prosecution to suggest the inference that appellant remained a narcotic user.
92 Nev. 95, 101 (1976) Bails v. State
From the inferred fact that appellant remained a narcotic user, the prosecution was
permitted to suggest the further inference that appellant had a present need for narcotic
paraphernalia.
From a showing that the victim's son had hidden narcotic paraphernalia in his mother's
home with appellant's knowledge, and from the supposition that appellant had a need for the
paraphernalia, the prosecution was permitted to suggest the further inference or supposition
that such need provided a motive for the entry of Mrs. Nosler's home.
1

From the inferred fact or supposition that appellant had a motive to invade Mrs. Nosler's
home to satisfy his supposed continuing habit, the prosecution was permitted to suggest the
further inference that he did so.
From the inferred fact or supposition that appellant invaded the victim's home to satisfy his
narcotic habit, the prosecution was permitted to suggest the further inference that,
somehow, Mrs. Nosler caught appellant flagrante delicto, that she tried to prevent him from
purloining the paraphernalia, and that a fatal altercation ensued between them.
Essentially, the prosecution was permitted to build inference upon inference, to suggest the
ultimate inference that appellant was a narcotic user at the time of the killing, and therefore
killed Mrs. Nosler while seeking to satisfy his need for drugs.
1. We think such reasoning, by which the prosecution would justify admitting highly
inflamatory evidence of appellant's prior drug use, intolerably remote under the weighing
process which NRS 48.035 mandates. To repeat an oft-quoted phrase, this was a case where
the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it.' State v.
Goebel, 36 Wash.2d 367, 218 P.2d 300, 306 (1950), cited in McCormick, supra at 333 n. 28;
United States v. Kahaner, supra, 317 F.2d at 472; and Lucero v. Donovan, supra, 354 F.2d at
22 n. 7. DeVore v. United States, 36S F.2d 396 n.
____________________

1
Contrary to the majority opinion, we find nothing in the testimony of the victim's son to indicate that
appellant knew where the son had hidden drugs prior to his imprisonment. The victim's son referred repeatedly
and solely to outfits, i.e., the paraphernalia by which addicts administer drugs to themselves. Transcript, pp.
367, 379, 380. Such paraphernalia, the victim's son testified, is easy to obtain. Transcript, p. 379. In fact, the
victim's son testified, he never told his friends he had drugs stashed at his mother's home, because I didn't
never have that much. Transcript, p. 379. He went on to say: Well, like friends don't look for your outfits.
Transcript, p. 380.
92 Nev. 95, 102 (1976) Bails v. State
States, 368 F.2d 396 n. 4 (9 Cir. 1966). We find that reasoning process to which the majority
accords evidentiary significance no more than rampant speculation. The right of persons
accused of crime to have the evidence confined to the issues on trial cannot be nullified by
any such unrealistic hypothesis. Lovely v. United States, 169 F.2d 386 (4 Cir. 1948).
2. We will not attempt to delineate all constitutional problems posed by the majority's
ruling. As one writer has noted, a body of constitutional doctrine concerning the use of prior
offenses evidence is in the making. That network of constitutional decisions will very likely
form the basis for increasing consideration of the constitutional limits of the use of prior
offenses evidence. Bray, Evidence of Prior Uncharged Offenses and the Growth of
Constitutional Restrictions, 28 U. Miami L. R. 489 (1974). We do, however, wish to notice
one constitutional concern, prominent in the case before us.
The United States Supreme Court has held it unconstitutional to stigmatize drug addiction
as a crime. Robinson v. California, 370 U.S. 660 (1962). Here, however, the majority in
effect hold that a defendant's status as a former drug addict may be shown to stigmatize him
as crime-prone, thereby rendering him especially susceptible to conviction whenever other
crimes may be charged against him. Cf. United States v. Burkhart, 458 F.2d 201 (10 Cir.
1972). [A]n obvious truth is that once prior [offenses] are introduced the trial is, for all
practical purposes, completed and the guilty outcome follows as a mere formality. Id. at 204.
3. The prosecution suggests any error in admission of the evidence in question is harmless
because other evidence linking appellant to the killing is overwhelming. We must reject such
a rationale. Even were we to agree that the evidence overwhelmingly linked appellant to the
killing, a proper new trial should be ordered. As we understand the majority to recognize,
absent evidence of appellant's drug-related activity a conviction for some lesser offense than
first degree murder might result.
It is unnecessary to reach other issues.
____________
92 Nev. 103, 103 (1976) Klepar v. State
RONALD ALBERT KLEPAR, Appellant, v.
No. 8471
February 17, 1976 546 P.2d 231
Appeal from judgment of conviction and sentence, Ninth Judicial District, Douglas
County; Noel E. Manoukian, Judge.
The district court found defendant guilty of burglarizing a hotel room, and he appealed.
The Supreme Court held that the incriminating statement made by defendant to a private hotel
security officer was admissible despite the fact that defendant was not given the required
Miranda warnings; and that the trial judge properly refused to give defendant's requested
instruction on trespass, which defendant suggested was a lesser included offense of burglary,
since, even assuming trespass to be a lesser included offense, defendant's testimony, wherein
he denied any complicity in the crime, did not raise the question and the record was totally
barren of any evidence to support an intermediate verdict.
Affirmed.
Horace R. Goff, State Public Defender, and Michael R. Griffin, Deputy, Carson City, for
Appellant.
Robert List, Attorney General, Carson City; Howard D. McKibben, District Attorney, and
Steven D. McMorris, Deputy, Douglas County, for Respondent.
1. Criminal Law.
Incriminating statement made by defendant to a private hotel security officer was admissible in
prosecution for burglarizing a hotel room, despite the fact that defendant was not given the required
Miranda warnings. NRS 205.060.
2. Criminal Law.
In prosecution for burglarizing a hotel room, the trial judge properly refused to give defendant's requested
instruction on trespass, which defendant suggested was a lesser included offense of burglary, since, even
assuming trespass to be a lesser included offense, defendant's testimony, wherein he denied any complicity
in the crime, did not raise the question and the record was totally barren of any evidence to support an
intermediate verdict. NRS 205.060.
OPINION
Per Curiam:
Ronald Albert Klepar, convicted by jury verdict of burglarizing a hotel room at Lake
Tahoe (NRS 205.060), was sentenced to a five (5) year term in the Nevada State Prison.
92 Nev. 103, 104 (1976) Klepar v. State
[Headnote 1]
In an attempt to obtain release from incarceration Klepar has appealed contending an
incriminating statement he made to a private hotel security officer was inadmissible because
he was not given the warning required by Miranda v. Arizona, 384 U.S. 436 (1966). The
identical issue was recently considered and rejected by this court in Silks v. State, 92 Nev. 91,
545 P.2d 1159 (1976).
[Headnote 2]
Klepar also contends the trial judge erred in refusing to give a requested instruction on
trespass, which he suggests is a lesser included offense of burglary. He argues that since he
testified that he had been invited into the hotel room that he is entitled to the instruction.
Even if we assume trespass to be a lesser included offense, Klepar's testimony does not
raise the question and this record is totally barren of any evidence to support such a finding.
... [W]here the defendant denies any complicity in the crime charged and thus lays no
foundation for any intermediate verdict... the lessor offense is either not proved or shown not
to exist. The [requested] instruction is not only unnecessary but is erroneous because it is not
pertinent. Lisby v. State, 82 Nev. 183, 187, 414 P.2d 592, 595 (1966).
Affirmed.
____________
92 Nev. 104, 104 (1976) Ingle v. State
RICHARD LEE INGLE, Appellant, v. THE
No. 7973
February 20, 1976 546 P.2d 598
Appeal from judgment of conviction; Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant was convicted in the district court of assault with a deadly weapon with intent
to do bodily harm and he appealed. The Supreme Court held that where delay in bringing
defendant to trial resulted from negotiations, changes in the plea, and a mistrial granted at
defendant's request, there was no denial of constitutional right to speedy trial; but that it was
error to refuse defendant's request to testify even though the request was made against the
advice of counsel.
Reversed and remanded for a new trial.
92 Nev. 104, 105 (1976) Ingle v. State
Respondent.
1. Criminal Law.
Where defendant originally entered plea of guilty to information filed in February of 1969, where his
motion to withdraw his plea was granted in June of 1972, and where delay between June 1972 and July
1974, when trial began, resulted from continued negotiations, changes in the plea, and a mistrial granted at
defendant's request, there was no denial of constitutional right to speedy trial.
2. Criminal Law; Witnesses.
It was reversible error to deny defendant's request to testify in his own behalf even though it was against
the advice of counsel.
3. Witnesses.
Defendant may waive the privilege, either expressly or by his actions, to testify in his own behalf.
OPINION
Per Curiam:
After a jury trial, appellant stands convicted of assault with a deadly weapon with intent to
do bodily harm. Here, appellant contends: (1) he was denied his right to a speedy trial; and (2)
the trial court committed reversible error by refusing to allow appellant to testify. We
perceive no speedy trial violation; however, we agree it was reversible error to prohibit
appellant from testifying.
[Headnote 1]
1. The original information in this case was filed in February, 1969. Appellant entered a
guilty plea and received a six year sentence in the Nevada State Prison. In June, 1972,
appellant's motion to withdraw his plea was granted. The trial eventually began in July, 1974.
The delay between the withdrawal of the plea and the ultimate trial on the merits resulted
from continued negotiations, changes in the plea and a mistrial granted at appellant's request.
We perceive no constitutional speedy trial violation where, as here, the record affirmatively
reflects the delays were substantially caused by appellant's actions. Cf. Maiorca v. Sheriff, 87
Nev. 63, 482 P.2d 312 (1971).
92 Nev. 104, 106 (1976) Ingle v. State
[Headnote 2]
2. Against the advice of counsel, appellant expressed a desire to take the stand. The trial
court refused appellant's request to testify. This exclusion from the witness stand constitutes
reversible error.
[Headnote 3]
Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.
Harris v. New York, 401 U.S. 222, 225 (1971). The privilege of a criminal defendant to
testify is the other side of the coin on which appears the privilege against self-incrimination.
United States v. Ives, 504 F.2d 935, 939 (9 Cir. 1974), vacated on other grounds, 421 U.S.
944 (1975). Certainly, the accused may waive the privilege, either expressly or by his actions.
However, We are satisfied that the right to testify in one's own behalf is of such fundamental
importance that a defendant who timely demands to take the stand contrary to the advice
given by his counsel has the right to give an exposition of his defense before a jury. The
defendant's insistence upon testifying may in the final analysis be harmful to his case, but the
right is of such importance that every defendant should have it in a criminal case. Although
normally the decision whether a defendant should testify is within the competence of the trial
attorney where, as here, a defendant insists that he wants to testify, he cannot be deprived of
that opportunity. (Citations omitted.) People v. Robles, 466 P.2d 710, 716 (Cal. 1970). In
Accord: State v. Noble, 514 P.2d 460 (Ariz. 1973); Hughes v. State, 513 P.2d 1115 (Alaska
1973).
Here, appellant, having been fully advised of the consequences, made a timely, knowing
and voluntary rejection of counsel's advice, and asserted his privilege to testify, and we
believe he should have been permitted to do so. Cf. Faretta v. California, 422 U.S. 806
(1975).
____________
92 Nev. 107, 107 (1976) French v. Lionel Sawyer Collins & Wartman
BETTY GENE FRENCH, Executrix of the Estate of James Benjamin French, aka James B.
French, Appellant, v. LIONEL SAWYER COLLINS & WARTMAN and JAMES E.
ORDOWSKI, Respondents.
No. 8029
February 20, 1976 546 P.2d 597
Appeal from award of attorneys' fees in probate. Eighth Judicial District Court, Clark
County; Keith C. Hayes, Judge.
Attorneys who withdrew as counsel prior to completion of final settlement of estate
petitioned for allowance of fees for services performed to the date of their withdrawal. The
district court divided $14,177.50 between the two attorneys and executrix appealed. The
Supreme Court held that fees awarded for services performed on behalf of an estate valued in
excess of $130,000 were commensurate with the services performed.
Affirmed.
R. Paul Sorenson, of Las Vegas, for Appellant.
Lionel Sawyer Collins & Wartman and James E. Ordowski, of Las Vegas, for
Respondents.
Executors and Administrators.
Award of attorney fees of total sum of $14,177.50, specifically divided between two attorneys following
withdrawal of counsel prior to completion of final settlement of estate valued in excess of $130,000, was
reasonable and commensurate with the services performed, and was not premature. NRS 150.060, subd.
2.
OPINION
Per Curiam:
Appellant, executrix of the estate of her deceased husband, appeals the award of two
separate attorneys' fees to attorneys who represented her to settle the estate. Acrimony
between counsel and client arose because of her refusal to follow their advice in connection
with certain matters concerning the probate. They withdrew as counsel prior to completion of
final settlement and petitioned for allowance of their fees for services performed to the date
of their withdrawal.
The executrix appeals the award of the trial court on the grounds that the award was
premature because the estate had not yet been fully settled, that the court failed to hear
all of the evidence bearing on the reasonableness of the fees and that the fees were
excessive.
92 Nev. 107, 108 (1976) French v. Lionel Sawyer Collins & Wartman
grounds that the award was premature because the estate had not yet been fully settled, that
the court failed to hear all of the evidence bearing on the reasonableness of the fees and that
the fees were excessive.
None of the contentions have merit. The evidence in the record reflects that the total sum
of $14,177.50 was specifically divided between the two different attorneys for services
performed on behalf of an estate valued in excess of $130,000.00. The fees were reasonable,
were commensurate with the extensive services performed by the attorneys and were awarded
timely in accordance with the provisions of NRS 150.060(2).
1

Affirmed.
____________________

1
NRS 150.060(2), which subsequently has been amended, provided: Any attorney who has rendered services
to an executor or administrator at any time after the issuance of letters testamentary or letters of administration,
and upon such notice to the executor or administrator and to the persons interested in the estate as the court or a
judge thereof shall require, may apply to the court for an allowance upon his fees. On the hearing, the court shall
make an order requiring the executor or administrator to pay such attorney out of the estate such compensation,
on account of the services rendered up to that time as the court shall deem proper, and such payment shall be
made forthwith. (Emphasis added.)
____________
92 Nev. 108, 108 (1976) Turner v. Saka
KENNETH E. TURNER, TONDELAYO TURNER, SHANIN SAKA and DAVID
MANUEL SAKA, Appellants, v. ELIAS SAKA, Respondent.
No. 8057
February 20, 1976 546 P.2d 233
Appeal from order granting petition to establish parental relation and denying petition for
adoption, Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Husband sought to adopt his wife's two illegitimate children, and children's natural father
petitioned to establish his parental relation. The district court consolidated the proceedings,
granted natural father's petition, and thereupon denied husband's petition to adopt because
natural father had not consented to adoption, and husband appealed. The Supreme Court held
that paternity alone was sufficient to justify declaring parental relationship established, and
there was no necessity for showing it was in best interests of children.
Affirmed.
92 Nev. 108, 109 (1976) Turner v. Saka
Peter L. Flangas, Las Vegas, for Appellant.
Robert N. Peccole, Las Vegas, for Respondent.
Parent and Child.
Paternity alone was sufficient to justify declaring existence between parties of relation of parent and child
between natural father and illegitimate children and there was no necessity for proof that such declaration
was in best interests of children. NRS 41.530, subd. 1.
OPINION
Per Curiam:
Following our decision in Turner v. Saka, 90 Nev. 54, 518 P.2d 608 (1974), appellant
Kenneth Turner sought to adopt his wife's two illegitimate children, Shanin and David
Saka. Appellant Tondelayo Turner, the children's natural mother, joined in his petition and
consented pursuant to NRS 127.030
1
and 127.040(1)(c).
2
After receiving notice of the
pending adoption, respondent Elias Saka, the children's natural father, petitioned to establish
his parental relation under NRS 41.530(1).
3
The district court consolidated the proceedings
and, there being no dispute as to respondent Saka's paternity, the district court granted his
petition, and thereupon denied appellants' petition because Saka had not consented to the
adoption as required by NRS 127.040(1)(c). Appellants here contend paternity alone is
insufficient to justify declaring the parental relationship established, absent proof that it is in
the best interests of the children. We disagree.
____________________

1
Any adult person or any two persons married to each other may petition the district court of any county in
this state for leave to adopt a child. The petition by a person having a husband or wife shall not be granted unless
the husband or wife consents thereto and joins therein.

2
NRS 127.040(1)(c) provides:
1. Written consent to the specific adoption proposed by the petition or for relinquishment to an agency
authorized under NRS 127.050, duly acknowledged by the person or persons consenting, shall be required from:
(c) The mother only of a child born out of wedlock except 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. . . .

3
1. An action may be brought for the purpose of having declared the existence or nonexistence between the
parties of the relation of parent and child, by birth or adoption.
92 Nev. 108, 110 (1976) Turner v. Saka
We are not here concerned with whether a petition to terminate Saka's parental rights
would lie. None has yet been filed. See: NRS 128.010 et seq. On the pleadings before it, the
district court was only called upon to determine existence of the parental relationship under
NRS 41.530. For that purpose, by the statute's express words, proof of paternity alone seems
sufficient. Cf. Huntingdon v. Crowley, 51 Cal.Rptr. 254, 414 P.2d 382 (1966); Girardin v.
Hall, 320 P.2d 163 (Cal.App. 1958); Felts v. Betts, 315 P.2d 73 (Cal.App. 1957).
Affirmed.
____________
92 Nev. 110, 110 (1976) McClure v. State
CURTIS RAY McCLURE, Appellant, v. THE
No. 8323
February 20, 1976 546 P.2d 232
Appeal from judgment of conviction; Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Defendant was convicted after trial in the district court of second degree murder. The
defendant appealed. The Supreme Court held that where, after all peremptory challenges had
been exhausted, the jury contained no one whom defendant had challenged for cause, it was
not necessary to determine whether the trial court properly denied a challenge for cause.
Affirmed.
Respondent.
Criminal Law.
Where, after all peremptory challenges had been exhausted, jury contained no one whom defendant had
challenged for cause, it was not necessary to determine whether trial court properly denied a challenge for
cause.
OPINION
Per Curiam:
After a jury trial, appellant stands convicted of second degree murder for the killing of
Betty Alice McClure. Here, appellant contends the trial court erred in refusing a challenge
for cause to a juror who was later excused peremptorily.
92 Nev. 110, 111 (1976) McClure v. State
appellant contends the trial court erred in refusing a challenge for cause to a juror who was
later excused peremptorily. We disagree.
After exhausting all peremptory challenges, the jury contained no one whom appellant had
challenged for cause. Under such circumstances, we need not determine whether it was error
for the trial court to deny the cause challenge. Odom v. State, 91 Nev. 473, 538 P.2d 167
(1975); Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967).
Affirmed.
____________
92 Nev. 111, 111 (1976) Cherubini v. Sheriff
VINCENT JOSEPH CHERUBINI and ANNA CHERUBINI, Appellants,
v. SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 8628
February 20, 1976 546 P.2d 598
Appeal from an order denying a pretrial petition for a writ of habeas corpus, Eighth
Judicial District Court, Clark County; Howard W. Babcock, Judge.
The Supreme Court held that where petitioners were not indicted for submitting false or
fraudulent insurance claim, a gross misdemeanor, until almost 20 months after charged
offense occurred, their prosecution was precluded by statute providing that indictment for any
misdemeanor must be found within one year after its commission.
Reversed.
James L. Buchanan, II, Las Vegas, for Appellants.
Criminal Law.
Where petitioners were not indicted for submitting false or fraudulent insurance claim, a gross
misdemeanor, until almost 20 months after charged offense occurred, their prosecution for such offense
was precluded by statute providing that indictment for any misdemeanor must be found within
one year after its commission.
92 Nev. 111, 112 (1976) Cherubini v. Sheriff
misdemeanor must be found within one year after its commission. NRS 171.090, 205.385.
OPINION
Per Curiam:
On November 6, 1975, a Clark County Grand Jury returned an indictment which charged
that on March 7, 1974, appellants submitted a false or fraudulent insurance claim, a gross
misdemeanor under NRS 205.385.
They sought and were denied habeas corpus and in this appeal contend the order of the
trial court must be reversed. We agree.
Appellants were not indicted until almost 20 months after the charged offense occurred.
NRS 171.090 provides that [a]n indictment for any misdemeanor must be found, . . . within
1 year after its commission. Accordingly, their prosecution under NRS 205.385 is precluded.
See Bonnenfant v. Sheriff, 84 Nev. 150, 437 P.2d 471 (1968).
Reversed.
____________
92 Nev. 112, 112 (1976) Sheriff v. Lendon
SHERIFF OF WASHOE COUNTY, NEVADA,
Appellant, v. CAROLYN LULA LENDON, Respondent.
No. 8634
February 20, 1976 546 P.2d 234
Appeal from order granting pretrial petition for habeas corpus, Second Judicial District
Court, Washoe County; Roy L. Torvinen, Judge.
Defendant filed pretrial habeas corpus petition challenging sufficiency of evidence to
establish probable cause to support indictment for murder. The district court granted relief
and State appealed. The Supreme Court held that a habeas corpus petition filed after the
defendant entered her plea was not timely, was not cognizable in the district court, and thus
was not reviewable on appeal.
Reversed, with instructions.
[Rehearing denied March 31, 1976] Robert List, Attorney General, Carson City; Larry R.
92 Nev. 112, 113 (1976) Sheriff v. Lendon
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and Donald
K. Coppa, Deputy District Attorney, Washoe County, for Appellant.
Johnson, Belaustegui & Robison, Reno, for Respondent.
Habeas Corpus.
Pretrial habeas corpus petition challenging sufficiency of evidence to establish probable cause to support
indictment, which petition was not filed until after defendant entered her plea, was not timely, was not
cognizable in district court and thus was not reviewable on appeal. NRS 34.380, subd. 1 (c)(1).
OPINION
Per Curiam:
On November 5, 1975, a Washoe County Grand Jury returned an indictment charging
Carolyn Lula Lendon with murder (NRS 200.030). Thereafter, on December 12, 1975, she
was arraigned and entered a plea of not guilty; the sixty (60) day rule was waived and trial
was set for February 17, 1976.
A pretrial habeas petition, filed December 24, 1975, challenged the sufficiency of the
evidence to establish probable cause to support the indictment. The district court granted
habeas on February 5, 1976, and this appeal follows.
We do not reach the merit of the appeal, if any, because the habeas petition, not being
timely filed, was not cognizable in the district court. NRS 34.380(1) (c) (1). A fortiori, it is
not reviewable in this court. See Slattery v. Sheriff, 92 Nev. 19, 544 P.2d 894 (1976).
Accordingly, the order of the district court is reversed and this proceeding is remanded with
instructions to dismiss the habeas petition.
1

____________________

1
The judge who heard and granted the habeas petition was not the arraigning judge.
____________
92 Nev. 114, 114 (1976) State ex rel. List v. County of Douglas
THE STATE OF NEVADA, ex rel. ROBERT LIST, Attorney General of the State of
Nevada, Petitioner, v. THE COUNTY OF DOUGLAS, a Political Subdivision of the
State of Nevada; HAROLD DAYTON, GARRY STONE and CHARLES MENELEY, in
Their Official Capacities as County Commissioners, Respondents.
No. 8600
February 20, 1976 546 P.2d 235
Attorney General commenced original proceedings in mandamus to compel county to pay
its current apportioned share of the expenses of a regional planning agency. The Supreme
Court held that alleged failure of agency to furnish county with accounting contemplated by
statute did not justify refusal by county to pay its apportioned share of agency budget; and
that Agency was not wrongfully paying funds into the State Retirement System.
Writ granted.
Robert List, Attorney General, and James H. Thompson, Chief Deputy Attorney General,
Carson City, for Petitioner.
Howard D. McKibben, District Attorney, Douglas County, for Respondents.
1. Counties.
Alleged failure of regional planning agency to furnish county with accounting contemplated by statute
neither justified nor excused refusal by county to pay its apportioned share of the Agency's budget. Tahoe
Regional Planning Compact, Articles IV(c), VII(c), NRS 277.200.
2. States.
Tahoe Regional Planning Agency was not wrongfully paying funds into State Retirement System. Tahoe
Regional Planning Compact, Articles IV(c), VII(c), NRS 277.200.
OPINION
Per Curiam:
This original proceeding in mandamus, commenced by the Attorney General on behalf of
the people of the State of Nevada, seeks to compel Douglas County to pay its current
apportioned share of expenses to the Tahoe Regional Planning Agency, in order that the
Agency may be assisted in carrying out its purposes and activities.
apportioned share of expenses to the Tahoe Regional Planning Agency, in order that the
Agency may be assisted in carrying out its purposes and activities.
We previously entertained an identical proceeding wherein we ordered . . . issuance of a
peremptory writ of mandate to compel such payment. State ex rel. List v. County of
Douglas, 90 Nev. 272, 282, 524 P.2d 1271, 1277 (1974).
Notwithstanding the prior decision and mandate of the court Douglas County has again
refused to pay its apportioned share of the expense.
In the answer to the instant petition, which was ordered pursuant to NRAP 21(b), Douglas
County and its commissioners fail to present arguable cause against issuance of the writ;
instead, they attempt to justify the failure to continue to comply with our prior decision by
contending (1) the Agency is not furnishing the county with a proper accounting of all funds
it receives, as required by Art. VII(c) of NRS 277.200; (2) the Agency is wrongfully paying
funds into the State Retirement System; and, (3) the Tahoe Regional Planning Compact (NRS
277.190 et seq.) is in contravention of both the Federal and State Constitutions.
[Headnote 1]
1. In the posture of this proceeding, even if we assume the Agency has not furnished
Douglas County the accounting contemplated by NRS 277.200, VII(c), such omission by the
Agency neither justifies nor excuses the refusal by Douglas County to pay its apportioned
share of the Agency budget. Various remedies are available to Douglas County to compel the
Agency to comply with the provisions of NRS 277.200, VII(c), if indeed it has not previously
done so.
[Headnote 2]
2. The claim that the Agency is wrongfully paying funds into the State Retirement System
is without merit. See NRS 277.200, IV(c), which provides that [t]he agency may establish
and maintain or participate in such additional programs of employee benefits as may be
appropriate to afford employees of the agency terms and conditions of employment similar to
those enjoyed by employees of California and Nevada generally.
3. The argument that the compact is unconstitutional was previously considered and
resolved against Douglas County in State ex rel. List v. County of Douglas, supra.
Accordingly, we ORDER the issuance of a peremptory writ of mandate, forthwith, to
compel Douglas County to pay, within 10 days, its apportioned share of expenses to the
Agency for the fiscal year 1975-1976.1
ORDER the issuance of a peremptory writ of mandate, forthwith, to compel Douglas
County to pay, within 10 days, its apportioned share of expenses to the Agency for the fiscal
year 1975-1976.
1

____________________

1
Mr. Justice Zenoff voluntarily disqualified himself and took no part in the consideration and resolution of
this case.
____________
92 Nev. 116, 116 (1976) State v. Jones
THE STATE OF NEVADA, Appellant, v.
EUGENE JONES, Respondent.
No. 8416
February 20, 1976 546 P.2d 235
Appeal from judgment and order of dismissal, Fifth Judicial District Court, Mineral
County; Llewellyn A. Young, Judge.
Non-Indian defendant was charged with possession of marijuana on Indian reservation.
The district court dismissed charges, and State appealed. The Supreme Court held that State
had jurisdiction over such alleged defense and that offenses, which are committed on an
Indian reservation but which do not involve Indians or Indian property, are punishable by
State.
Robert List, Attorney General, and Larry G. Bettis, District Attorney, Mineral County, for
Appellant.
Harry A. Busscher, Reno, for Respondent.
1. Indians.
State had jurisdiction over alleged crime consisting of non-Indian's purported possession of marijuana on
Indian reservation.
2. Indians.
Offenses committed on Indian reservation are punishable by State if they do not involve Indians or Indian
property.
OPINION
Per Curiam:
A Nevada Highway Patrolman arrested respondent Eugene Jones, a non-Indian, on U.S.
Highway 95 within the exterior boundaries of the Walker River Paiute Indian Reservation
for possession of marijuana.
92 Nev. 116, 117 (1976) State v. Jones
boundaries of the Walker River Paiute Indian Reservation for possession of marijuana. The
district court, ruling that it lacked jurisdiction over all criminal matters occurring on an Indian
reservation, dismissed the charges against respondent. The State here contends that it has
jurisdiction over crimes involving neither Indians nor their property committed on an Indian
reservation. We agree.
An Indian reservation is a part of the State within which it is located, and offenses
committed thereon, not involving Indians or Indian property, are punishable by the State.
N.Y. ex rel. Ray v. Martin, 326 U.S. 496 (1945); Draper v. United States, 164 U.S. 240
(1896); United States v. McBratney, 104 U.S. 621 (1881). The State, therefore, may assert
jurisdiction over respondent. Ex Parte Crosby, 38 Nev. 389, 149 P. 989 (1915).
____________
92 Nev. 117, 117 (1976) Corbett v. State
WILBERT CORBETT, Jr., Appellant, v. THE
No. 8232
February 23, 1976 548 P.2d 641
Appeal from conviction for robbery, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
The Supreme Court, Thompson, J., held that where record disclosed no information to
support warrantless arrest of defendant, reviewing court had no choice but to set aside the
conviction and remand for another trial.
Reversed.
[Rehearing denied April 29, 1976]
Gunderson, C. J., dissented in part.
Morgan D. Harris, Public Defender, and Robert D. Larsen, Deputy Public Defender,
George E. Holt, District Attorney, H. Leon Simon, Chief Appellate Deputy District
Attorney, and Elliott Sattler, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Tardiness in presenting motion to suppress evidence did not preclude appellate consideration of the
constitutional issue sought to be raised. NRS 174.125, subds. 3(a), (b).
2. Criminal Law.
Probable cause for a warrantless arrest must be shown on the record.
3. Arrest.
Court must be informed of the facts upon which officer acted if probable cause for a warrantless arrest is
to be shown.
4. Arrest.
Burden rests with the prosecution to establish probable cause for warrantless arrest. NRS 174.125,
subds. 3(a), (b).
5. Arrest.
Hearsay will support a finding of probable cause for warrantless arrest if the informer is found credible
and the basis for believing him credible is shown.
6. Criminal Law.
Absence of proof of probable cause to consummate a warrantless arrest of defendant could not be
deemed harmless.
7. Criminal Law.
Where record on appeal from robbery conviction contained nothing to support validity of warrantless
arrest of defendant by officers who kicked open door of motel room without having demanded admittance
or explaining purpose for which admittance was desired, reviewing court had no choice but to set aside the
conviction and remand for another trial. NRS 171.138.
OPINION
Corbett was charged and, by a jury, found guilty of robbing Leonard Cutler on November
5, 1974, at Motel Six in Las Vegas. He has been sentenced to serve a term of 12 years in the
Nevada State Prison and is now there confined. Originally, he and Clarence Mitchell were
jointly charged with the crime. Later, the court granted a motion for separate trials.
[Headnote 1]
On the day trial was to commence, defense counsel presented a motion to suppress
evidence, including evidence concerning the constitutionality of Corbett's arrest which
occurred four days after the robbery without an arrest warrant. The motion was denied since it
was not timely made, that is, it was not made not less than 15 days before trial, and the court
was not persuaded that good cause was shown to permit a tardy motion. NRS 174.125(3)(a),
(b). The tardiness in presenting the motion to suppress, however, does not preclude appellate
consideration of the constitutional issue sought to be raised.
consideration of the constitutional issue sought to be raised. Indeed, we are obliged to
consider it. Hardison v. State, 84 Nev. 125, 128, 437 P.2d 868 (1968).
As Leonard Cutler entered his motel room he was hit on the head, placed on the bed with a
blanket over his head and his hands were bound behind his back. He never saw his assailant
or assailants, and did not know whether one person or more than one was involved. Later, he
was dragged into the bathroom. His watch, wallet, money, camera, clothing and credit cards
were stolen, and his parked automobile as well. After the perpetrator or perpetrators had left
the scene, Cutler managed to free himself and telephone the police. Officers arrived soon
thereafter, received Cutler's report, and dusted for fingerprints. The fingerprints of Corbett
and Mitchell were found in the motel room.
Four days later two police officers went to room 102 of another motel, The Ranch Inn, at
the opposite end of Las Vegas from Motel Six. Room 102 was registered to a person named
Rosa Adelman. The officers did not possess an arrest warrant. They knocked on the door
several times. Finally, window curtains separated and an unidentified person peered out. So
far as the record shows, the officers had no reason to believe that either Corbett or Mitchell
was in the motel room. The officers kicked open the door without having demanded
admittance or explaining the purpose for which admittance was desired, NRS 171.138,
entered the room, and there arrested Corbett, Mitchell and two women. Rosa Adelman was
not one of them.
[Headnotes 2-4]
It is established law that probable cause for a warrantless arrest must be shown on the
record. The court must be informed of the facts upon which the officer acted if probable
cause for a warrantless arrest is to be shown. The burden rests with the prosecution to
establish probable cause. Gordon v. State, 83 Nev. 177, 426 P.2d 424 (1967); Cf.
Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966), and Fairman v. Warden, 83 Nev.
332, 431 P.2d 660 (1967), where probable cause was shown on the record.
The United States Supreme Court will not tolerate a warrantless arrest unless probable
cause therefor is shown on the record. Beck v. Ohio, 379 U.S. 89 (1964). The Court there
observed: ... The record in this case does not contain a single objective fact to support a
belief by the officers that the petitioner was engaged in criminal activity at the time they
arrested him. Id. at 95. Neither does the record in the case at hand contain a single
objective fact to support a belief by the officers that Corbett was in The Ranch Inn Motel
room, or that they possessed reliable information that he had committed a robbery four
days earlier.
hand contain a single objective fact to support a belief by the officers that Corbett was in The
Ranch Inn Motel room, or that they possessed reliable information that he had committed a
robbery four days earlier.
When the prosecutor inquired of one of the arresting officers why he had gone to The
Ranch Inn Motel, defense counsel objected on the ground of hearsay.
1
Although the
prosecutor did not then submit an offer of proof, it is evident that the purpose of his question
was to obtain, for the record, the information which led the arresting officers to believe they
had probable cause to consummate a warrantless arrest of the occupants of the motel room.
[Headnotes 5-7]
Hearsay will support a finding of probable cause if the informer is found credible and the
basis for believing him credible is shown. McCray v. Illinois, 386 U.S. 300 (1967). The court
should have overruled the objection and received the proffered testimony, since without it,
the record contains nothing to support the validity of the warrantless arrest. This void in proof
may not be deemed harmless. We have no choice but to set aside the conviction and remand
for another trial. We may not speculate that the arrest was either valid or unlawful. The
consequences of such speculation are too drastic.
Batjer, Zenoff, and Mowbray, JJ., concur.
Gunderson, C. J., concurring and dissenting:
I agree that the prosecution had the burden of showing probable cause for its actions at The
Ranch Inn, that it did not do so, and that we must require the district court to determine
whether it can. However, neither I nor appellant's counsel agree with the majority's
conclusion that this court has no choice but to set aside his conviction and remand for a new
trial.
As defense counsel conceded during oral argument, a new trial may not be necessary. It
would be quite appropriate for this court to require, on remand, that the district court proceed
first to hear appellant's motion to suppress. If the district court found the police acted
properly, and therefore denied appellant's motion, no new trial would be required unless
we reversed the denial of appellant's motion to suppress on appeal.
____________________

1
Q: What caused you to go to this motel?
A: Received information that the
Defense counsel: I'll object as being hearsay.
Court: Sustained.
found the police acted properly, and therefore denied appellant's motion, no new trial would
be required unless we reversed the denial of appellant's motion to suppress on appeal.
I suggest that this course of action, which might save substantial cost and court time,
should be adopted here.
____________
92 Nev. 121, 121 (1976) Kline v. Sheriff
SAMUEL LEE KLINE, Appellant, v. SHERIFF,
CLARK COUNTY, NEVADA, Respondent.
No. 8642
February 27, 1976 546 P.2d 1000
District Court, Clark County, Howard W. Babcock, Judge.
Petitioner charged with robbery filed pretrial petition for habeas corpus challenging the
quantum of evidence adduced at his preliminary examination. The district court denied the
petition and petitioner appealed. The Supreme Court held that under statute providing that a
district court shall not consider any pretrial petition for habeas corpus if such petition is not
filed and brought on for hearing before a plea to the charge is entered, the mere filing of a
motion to withdraw plea of not-guilty prior to filing the petition for habeas corpus did not
render the petition cognizable in the district court.
District Court order vacated, with instructions.
Morgan D. Harris, Public Defender, and Gary White, Deputy, Clark County, for
Appellant.
1. Habeas Corpus.
Under statute providing that district court shall not consider any pretrial petition for habeas corpus if such
petition is not filed and brought on for hearing before a plea to the charge is entered, the mere filing of a
motion to withdraw plea of not-guilty on the day before petitioner filed pretrial petition for habeas corpus
did not render petition cognizable in the district court. NRS 34.380, subd. 1(c).
92 Nev. 121, 122 (1976) Kline v. Sheriff
2. Habeas Corpus.
Inasmuch as petitioner's pretrial petition for habeas corpus was not cognizable in the district court, it was
not reviewable. NRS 34.380, subd. 1(c).
OPINION
Per Curiam:
Appellant, charged with robbery, was arraigned and entered a plea of not-guilty on
November 19, 1975. He waived the 60 day rule and trial was scheduled February 9, 1976.
On December 30, 1975, he filed a motion to withdraw his plea and, the following day,
December 31, 1975, he filed a pretrial petition for habeas corpus challenging the quantum of
evidence adduced at his preliminary examination.
On January 27, 1976, the district court entered an order vacating the trial date and setting
aside the not-guilty plea and, on January 29, 1976, the court considered and denied the habeas
petition. This appeal follows.
[Headnotes 1, 2]
We do not reach the merit, if any, of the habeas petition because, in our view, the mere
filing of a motion to withdraw a plea does not circumvent the mandatory language of NRS
34.380(1) (c) (1).
1
In the posture of this appeal we conclude that since the habeas petition
was filed prior to the time appellant was permitted to withdraw his plea it was not cognizable
in the district court.
2
A fortiori, it is not reviewable. Slattery v. Sheriff, 92 Nev. 19, 544 P.2d
894 (1976).
The order denying habeas is vacated and the district court is instructed to dismiss the
habeas petition and set aside its order which permitted appellant to withdraw his not-guilty
plea.
____________________

1
The statute provides, in part: A district court shall not consider any pretrial petition for habeas corpus . . . If
such petition is not filed and brought on for hearing before a plea to the charge is entered. [Emphasis added.]

2
At this juncture we need not and do not consider the question of whether, and under what circumstances, if
any, it would be permissible to pursue pretrial habeas after an accused has been arraigned, and has been
permitted to withdraw his plea for some purpose other than circumvention of our statute. When, and if, that issue
becomes cognizable, it will be considered and resolved.
____________
92 Nev. 123, 123 (1976) Arley v. State ex rel. Dep't of Hwys.
CHARLOTTE ARLEY, Appellant, v. THE STATE OF NEVADA, on Relation of its
DEPARTMENT OF HIGHWAYS and ROMAN A. BERZINSKI and his Wife, THELMA
BERZINSKI, and JAMES A. AGERTON and DOROTHY M. AGERTON, his Wife,
Respondents.
No. 7915
February 27, 1976 546 P.2d 1001
Appeal from order of Second Judicial District Court, Washoe County; William N. Forman,
Judge.
Action was brought to obtain declaratory judgment that plaintiff had right to bid on parcel
of State real property, which was situated immediately south of plaintiff's property and which
State intended to sell at a private sale to joint owners of two parcels of property located
immediately to the south and northwest of State's property. The district court granted
defendants summary judgment, and plaintiff appealed. The Supreme Court held that material
issue of fact whether an easement over State's property provided such joint owners with
access to public highway precluded summary judgment.
Charlotte Arley, Reno, In Pro Per.
Robert List, Attorney General, and Stephen C. Mollath and George Stout, Deputies,
Carson City, for Respondents.
1. Judgment.
Mere conclusions in an affidavit supporting a motion for summary judgment are not sufficient to establish
nonexistence of a material fact.
2. Judgment.
In an action for declaratory judgment that plaintiff had right to bid on parcel of State real property, which
was situated immediately south of plaintiff's property and which State intended to sell at a private sale to
joint owners of two parcels of property located immediately to the south and northwest of State's property,
material issue of fact whether an easement over State's property provided such joint owners with access to
public highway precluded summary judgment for defendants. NRS 408.999, subd. 1(c).
OPINION
Per Curiam:
This is an appeal from an order of the district court granting summary judgment in favor of
the respondents and against the appellant, Charlotte Arley.
the appellant, Charlotte Arley. For the reasons hereinafter set forth, we reverse, and we
remand the case to the court below for a trial on its merits.
Charlotte Arley sought a declaratory judgment declaring her rights to bid on a parcel of
State real property which the State intended to sell to Respondents Berzinskis and Agertons at
a private sale under the provisions of NRS 408.999(1) (c).
1

Charlotte Arley is the owner of certain real property situated immediately north of a strip
of land which had been conveyed to the State in 1954 by Arley's predecessor in interest. The
Berzinskis and the Agertons are the joint owners of two separate parcels of property that are
located immediately adjacent to the south and northwest of the State's property.
2

In 1971, State declared surplus their strip of land separating the parties' properties, and the
State proposed to sell the property to the Berzinskis and the Agertons under the provisions of
NRS 408.999(1) (c), supra, which authorizes such a private sale if public sale or sale by
sealed bid would work an undue hardship upon a property owner . . . as . . . a denial of
access to a public highway.
____________________

1
NRS 408.999(1)(c):
1. All real property . . . shall, after [highway department] board [of directors] approval, be disposed of by
the [state highway] engineer in accordance with the provisions of this section, when such property is found to be
no longer required for highway purposes . . . except that:
. . .
(c) When the title to such real property has been acquired in fee . . . and, in the opinion of the board, such
property cannot be sold by means of public auction or sealed bids without working an undue hardship upon a
property owner either as a result of a severance of the property of such owner or a denial of access to a public
highway, the board may first offer such property to such owner at a price determined by the board to be in the
best interest of the state.

2
Prior to 1954, all of the subject property constituted a single parcel of land known as the Riverbend Ranch,
owned and operated by John and Ida Davies. In 1954, the Davieses conveyed to the State a strip of land running
through the middle of the property for purposes of realigning U.S. Highway 40, which at that time abutted their
ranch on the north. The Davieses simultaneously took back a right of entry, use, and occupancy over said land
until such time as it was actually utilized by the State. In 1955, the Davieses conveyed to appellant that part of
their ranch lying immediately north of the strip previously conveyed to the State, excepting therefrom only a
very small parcel of land which formed the extreme northwest corner of the ranch. This parcel they conveyed to
the Berzinskis in 1959, along with the entire remaining part of the ranch lying immediately south of the parcel
previously granted the State. In 1961, the Agertons took an undivided one-half interest in the land conveyed to
the Berzinskis.
Appellant Arley, in paragraph 6 of her complaint and in her affidavit opposing State's
motion for summary judgment, alleges that the Berzinski-Agerton southerly parcel has access
to a public highway via a gravel road that connects with U.S. Highway 40 on the north.
A Mr. Porch, an unidentified state official, filed a conclusory affidavit stating that his
office had determined that the subject parcel should be first offered to the Berzinskis and the
Agertons; otherwise, they would be denied access to a public highway. These allegations
raise a significant factual issue.
[Headnotes 1, 2]
Mere conclusions in an affidavit supporting a motion for summary judgment are not
sufficient to establish the nonexistence of a material fact. Daugherty v. Wabash Life Ins. Co.,
87 Nev. 32, 38, 482 P.2d 814, 818 (1971). It is axiomatic that in reviewing a summary
judgment this court must view the evidence in the light most favorable to the party against
whom summary judgment was granted, and give that party the benefit of all favorable
inferences that may be drawn from subsidiary facts. Old W. Enterprises v. Reno Escrow Co.,
86 Nev. 727, 476 P.2d 1 (1970). The pleadings and affidavit submitted by Appellant Arley
clearly put into issue factual matters as to whether an easement exists over the State's
property, providing the Berzinski-Agerton southerly parcel with access to a public highway.
This issue cannot be resolved by the conclusionary allegation of an unidentified state official
that a private sale is statutorily authorized because certain property would otherwise be
denied access to a public highway. We therefore reverse the lower court's order granting
summary judgment and remand the cause for a full hearing on the merits.
3

____________________

3
Although appellant has directed our attention to other issues of material fact raised in the pleadings and in
her affidavit, it is not necessary for us to consider them.
92 Nev. 126, 126 (1976) Feibel v. Sheriff
FRED LEOPOLD FEIBEL and JAMES ARTHUR McCULLY, Appellants, v. SHERIFF,
ESMERALDA COUNTY, NEVADA, Respondent.
No. 8644
February 27, 1976 546 P.2d 1003
Appeal from order denying pretrial petition for writ of habeas corpus, Fifth Judicial
District Court, Esmeralda County; William P. Beko, Judge.
The district court entered an order denying pretrial petition for writ of habeas corpus in
prosecution for crime of unlawfully employing, inducing or using a minor to transport or
carry a controlled substance, marijuana, and defendants appealed. The Supreme Court held
that evidence was insufficient to warrant prosecution.
Harry E. Claiborne and James J. Brown, Las Vegas, for Appellants.
Robert List, Attorney General, Carson City; and Alan R. Harter, District Attorney,
Esmeralda County, for Respondent.
Infants.
Evidence was insufficient to warrant prosecution of defendants for the crime of unlawfully employing,
inducing or using a minor to transport or carry a controlled substance. NRS 453.401, subd. 2.
OPINION
Per Curiam:
This appeal challenges the sufficiency of the evidence to warrant prosecution of Fred
Leopold Feibel and James Arthur McCully for the crime of unlawfully employing, inducing
or using a minor to transport or carry a controlled substance (marijuana), a felony under NRS
453.401 (2).
The only probative evidence of record, suggesting such a crime occurred, is that after an
automobile (camper) accident appellant McCully placed a quantity of marijuana in his eleven
(11) year old son's suitcase, which contained clothes belonging to both McCully and to his
son; and, that McCully then placed the suitcase in an inconspicuous place beneath a bed in
the camper.
Deeming this evidence insufficient to hold Feibel and McCully for trial on the charged
offense, we reverse with instructions to grant the petition for a writ of habeas corpus, without
prejudice to such rights as the state may have to initiate other proper charges. Cf.
Hammond v. Sheriff, 91 Nev. 176
92 Nev. 126, 127 (1976) Feibel v. Sheriff
without prejudice to such rights as the state may have to initiate other proper charges. Cf.
Hammond v. Sheriff, 91 Nev. 176, 532 P.2d 1030 (1975).
____________
92 Nev. 127, 127 (1976) Williams v. Sheriff
BILLY WILLIAMS, Appellant, v. SHERIFF OF
WASHOE COUNTY, NEVADA, Respondent.
No. 8649
February 27, 1976 546 P.2d 1003
Appeal from order denying pretrial petition for habeas corpus, Second Judicial District
Court, Washoe County; Peter I. Breen, Judge.
Prior to retrial on charge of robbery, defendant filed petition for habeas corpus, alleging
insufficiency of evidence to establish probable cause to hold him for trial. The district court
denied writ, and defendant appealed. The Supreme Court held that district court properly
denied writ.
Affirmed.
David Dean, Reno, for Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and Mills
Lane, Deputy, Washoe County, for Respondent.
1. Habeas Corpus.
While habeas corpus is proper procedure for challenging probable cause, petition must be filed and
finally determined prior to trial and conviction.
2. Criminal Law.
Motion to suppress is remedy normally used to preclude introduction at trial of evidence which is claimed
to be inadmissible for constitutional reasons, and is remedy contemplated by criminal code.
3. Habeas Corpus.
Where defendant sought writ of habeas corpus on basis that evidence adduced at preliminary hearing was
insufficient to support retrial on charge of robbery, district court properly denied writ.
OPINION
Per Curiam:
Billy Williams' conviction for robbery was nullified by this court. Williams v. Warden, 91
Nev. 16, 530 P.2d 761 {1975).
(1975). Prior to being retried Williams filed a petition for habeas corpus contending the
evidence adduced at his preliminary examination was insufficient to establish probable cause
to hold him for trial. At the writ hearing his counsel also argued certain items of evidence
should be suppressed. The district court concluded that habeas should be denied and this
appeal follows.
[Headnote 1]
1. While habeas is the proper procedure for challenging probable cause, the petition
must be filed and finally determined prior to trial and conviction.' Apgar v. Sheriff, 89 Nev.
224, 225-226, 510 P.2d 632, 633 (1973).
[Headnote 2]
2. The motion to suppress is the remedy normally used to preclude the introduction of
evidence at trial which is claimed to be inadmissible for constitutional reasons, and is the
remedy contemplated by our criminal code. Cook v. State, 85 Nev. 692, 694-695, 462 P.2d
523, 526 (1969).
[Headnote 3]
Accordingly, the district court's conclusion was correct and this appeal is without merit.
Affirmed.
____________
92 Nev. 128, 128 (1976) Lovell v. State
RAYMOND ALLEN LOVELL, Appellant, v. THE
No. 8282
DAVID LEROY CARRERA, Appellant, v. THE
No. 8283
February 27, 1976 546 P.2d 1301
Joint appeals from convictions on charges of robbery and kidnapping. Ninth Judicial
District Court, Douglas County; Noel E. Manoukian, Judge.
The Supreme Court, Zenoff, J., held that robbery was not lesser included offense of
kidnapping and that consequently defendants were not subjected to double jeopardy; that trial
court did not err in ordering joinder of trials of defendants; that defendant was not denied
effective assistance of counsel by counsel's failure to object to purportedly impermissible
suggestive photographic identification; that such photographic identification was
permissible; that defendant's failure to appeal denial of habeas corpus barred present
consideration of ruling's propriety; and that issues raised on appeal but not supported by
authority would not be considered.
counsel's failure to object to purportedly impermissible suggestive photographic
identification; that such photographic identification was permissible; that defendant's failure
to appeal denial of habeas corpus barred present consideration of ruling's propriety; and that
issues raised on appeal but not supported by authority would not be considered.
Affirmed.
Victor Alan Perry, of Reno, for Appellant Raymond Allen Lovell.
Horace R. Goff, State Public Defender, and Gary S. Armentrout, Deputy State Public
Defender, Carson City, for Appellant David Leroy Carrera.
Robert List, Attorney General, Carson City, Howard D. McKibben, District Attorney, and
Steven D. McMorris, Deputy District Attorney, Douglas County, for Respondent.
1. Criminal Law.
Robbery, which requires seizure of personal property by force, by not holding or asportation of victim,
is not lesser included offense of kidnapping, which requires seizure of human being by force together
with asportation, not mere capture of his personal property, in that different acts are required to complete
each of crimes, and thus defendants, convicted of both offenses, were not subjected to double jeopardy.
NRS 200.310, 200.380.
2. Kidnapping.
Kidnapping constitutes carrying away of person for purpose such as ransom or committing bodily
felony; elements of kidnapping are taking or seizure of human being, asportation or movement of seized
individual, by means of unlawful force or fraud, and for purpose of ransom, reward or committing felony.
NRS 200.310.
3. Criminal Law.
Joinder of two or more indictments or informations, permitted by statute if defendants could have
demanded single indictment or information, is within discretion of trial court and its action will not be
reversed absent abuse of discretion. NRS 174.155.
4. Criminal Law.
Failure to present authority in support of alleged error eliminates issues from appellate consideration
unless error is so unmistakable that it is revealed by casual inspection of record.
5. Criminal Law.
Where on appeal from robbery and kidnapping convictions, defendants failed to cite any relevant
authority in support of alleged error of trial court in ordering joinder of their trials, issue was eliminated
from appellate consideration unless error was so unmistakable that it was revealed by casual inspection of
records; however, there was no evidence to show prejudice by joinder. NRS 200.310, 200.380.
In robbery and kidnapping prosecution, defendant was not denied effective assistance of counsel so as to
constitute denial of due process by failure of his attorney to object to allegedly suggestive photographic
lineup containing only his photo and no others, since trial was not reduced to sham, farce or pretense by
reason thereof. NRS 200.310, 200.380.
7. Criminal Law.
Mailing of six photos, which had been approved as to similarity to defendant by defendant's counsel, to
robbery and kidnapping victim after crime and after defendant's arrest for purpose of allowing witness to
attempt identification of offender was proper. NRS 200.310, 200.380.
8. Habeas Corpus.
Failure of defendant to appeal denial of habeas corpus, sought on ground that he was not properly
arraigned, within 15 days of trial court's ruling barred consideration by the Supreme Court of ruling's
propriety on appeal from defendant's convictions of robbery and first-degree kidnapping. NRS 34.380,
subd. 3, 200.310, 200.380.
9. Criminal Law.
Issues raised on appeal from robbery and kidnapping convictions, i.e., that prosecutor's comment that
defendant refused to talk to appropriate individuals compiling presentence report prejudiced judge and that
trial court erred in admitting gun and bullets when chain of custody was not properly established, would not
be considered on appeal where neither issue was supported by authority. NRS 200.310, 200.380.
OPINION
After jury trial, appellants, Raymond Allen Lovell and David Leroy Carrera, stand
convicted of robbery (NRS 200.380) and first-degree kidnapping (NRS 200.310).
On November 16, 1974, Gale House, after dropping his wife at the front entrance of the
Sahara Tahoe Hotel, parked his car in the rear parking lot. As he walked towards the casino,
Mr. House was accosted by two individuals, later identified as Carrera and Lovell. They
forced him to return to his car and sit in the front passenger seat while Carrera drove the
vehicle and Lovell sat in the back seat with a weapon pointed at House. Lovell immediately
took all of the victim's cash and his billfold. Carrera, noting that he had inadvertently exited
north on Highway 50, entered the parking lot at Harvey's Inn, approximately 1 1/2 miles from
the Sahara, to turn around. As the car slowed, House attempted to escape but Lovell shoved a
gun in his ribs and said, "Try it again and you will be dead, dead, dead."
but Lovell shoved a gun in his ribs and said, Try it again and you will be dead, dead, dead.
Appellants have raised the following issues
1
for our consideration:
1. That robbery is a lesser included offense of kidnapping and therefore appellants are
being subjected to double jeopardy by being punished twice for the same offense.
2. Whether the lower court erred in ordering joinder of the trials of Carrera and Lovell.
3. That Carrera was denied effective assistance of counsel for counsel's failure to object to
a purportedly impermissible suggestive photographic identification.
4. That Lovell was improperly arraigned and therefore denied procedural due process.
5. That the prosecutor's comment on Lovell's refusal to give a statement for the purposes
of presentence investigation was prejudicial to his sentencing.
6. That the trial court erred when it admitted into evidence a weapon and bullets obtained
from Lovell.
We find no merit in any of the contentions and affirm.
[Headnotes 1, 2]
1. They were not subjected to double jeopardy on the contention that robbery is a lesser
included offense of kidnapping. Kidnapping constitutes the carrying away of a person for a
purpose such as ransom or the committing of a bodily felony. Jensen v. Sheriff, 89 Nev. 123,
508 P.2d 4 (1973); see also, McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973). The
elements of kidnapping are (1) taking or seizure of a human being, (2) asportation or
movement of a seized individual, (3) by means of unlawful force or fraud, and (4) for the
purpose of ransom, reward or committing a bodily felony.
Robbery is . . . the unlawful taking of personal property from the person of another, or
in his presence, against his will, by means of force or violence or fear of injury, immediate or
future, to his person or property . . .' State v. Feinzilber, 76 Nev. 142, 146, 350 P.2d 399, 401
(1960); NRS 200.380. Thus the crimes of robbery and kidnapping are distinctly different.
Kidnapping requires the seizure of a human being by force together with asportation, not the
mere capture of his personal property. Robbery requires seizure of personal property by
force, but not the holding or asportation of the victim.
____________________

1
Carrera's appeal does not include some of the issues raised by Lovell. However, their contentions coincide
in some respects.
property by force, but not the holding or asportation of the victim. Different acts are required
to complete each of the crimes, thus, the principle Where the offense charged cannot be
committed without necessarily committing another offense, the latter is a necessarily
included' offense, State v. Carter, 79 Nev. 146, 149 n. 3, 379 P.2d 945, 947 n. 3 (1963), does
not apply.
[Headnote 3]
2. The court may order joinder of two or more indictments or informations if the
defendants could have been named in a single indictment or information. NRS 174.155.
Joinder is within the discretion of the trial court and its action will not be reversed absent an
abuse of discretion. Moeller v. United States, 378 F.2d 14 (5th Cir. 1967).
[Headnotes 4, 5]
Appellants have failed to cite any relevant authority. Failure to present authorities in
support of an alleged error eliminates the issues from appellate consideration unless the error
is so unmistakable that it is revealed by a casual inspection of the record. Franklin v. State, 89
Nev. 382, 513 P.2d 1252 (1973). There is no evidence to show prejudice by the joinder.
[Headnote 6]
3. Carrera was not denied effective assistance of counsel by the failure of his attorney to
object to an allegedly suggestive photographic lineup containing only his photo and no others.
First, we held in Rodriguez v. State, 91 Nev. 782, 542 P.2d 1065 (1975), that failure of
counsel to object to an allegedly suggestive lineup waived the objection. Before a denial of
due process based on inadequate counsel will be declared the trial must be a sham, a farce or
a pretense. Founts v. Warden, 89 Nev. 280, 511 P.2d 111 (1973). Failure in this instance to
object did not reduce the trial to those criteria. Both appellants were well and ably
represented.
[Headnote 7]
4. Secondly, in the same connection Lovell contends that the mailing of six photos to Mr.
House in Washington after the crime and after Lovell's arrest was impermissibly suggestive.
The pictures were shown to Lovell's counsel prior to being sent to House. He approved their
similarity to appellant Lovell with respect to facial features, hair and the like. The purpose of
the photographic displays was to allow the witness to attempt the identification of the
offender.
to attempt the identification of the offender. Even without the counsel's approval, the display
comports with the language of United States v. Ash, 413 U.S. 300 (1973).
[Headnote 8]
5. Prior to trial, Lovell sought habeas corpus on the ground that he was not properly
arraigned. His petition was denied. He failed to appeal that denial within 15 days of the trial
court's ruling as required by NRS 34.380(3), and that failure bars present consideration of the
ruling's propriety. Apgar v. Sheriff, 89 Nev. 224, 510 P.2d 632 (1973).
[Headnote 9]
6. Lovell further claims that the prosecutor's comment that Lovell refused to talk to the
appropriate individuals compiling the presentence report prejudiced the judge so that he could
not properly sentence Lovell, and that the trial court also erred in admitting a gun and bullets
when the chain of custody was not properly established. Neither issue is supported by
authority and will not be considered. See Franklin v. State, supra.
Affirmed.
____________
92 Nev. 133, 133 (1976) Balish v. Farnham
ELVERDA FARNHAM BALISH, Appellant, v.
JESSIE FARNHAM, Respondent.
No. 8009
February 27, 1976 546 P.2d 1297
Appeal from judgment in interpleader action; Second Judicial District Court; Thomas O.
Craven, Judge.
Title company commenced action to require wife and daughter of decedent to interplead
their claims to a sum of money representing balance owing on a note in which decedent had a
beneficial interest. The district court entered judgment that either a resulting or constructive
trust was to be impressed in favor of wife, and daughter appealed. The Supreme Court,
Thompson, J., held that neither statement by decedent to his wife that payments on
installment note constituted source of their support money or fact that wife's name appeared
as a cobeneficiary on deed of trust was sufficient to form a basis for impressing a trust
upon balance owing on notes for wife's benefit inasmuch as wife was a total stranger to
transaction and, since decedent did not intend for his daughter to have a beneficial
interest in money due to her undue influence in obtaining an assignment of same,
beneficial interest sprung back to decedent's estate, and title company held interest upon
a resulting trust for estate; further, equitable remedy of a constructive trust was not
available to wife under circumstances.
cobeneficiary on deed of trust was sufficient to form a basis for impressing a trust upon
balance owing on notes for wife's benefit inasmuch as wife was a total stranger to transaction
and, since decedent did not intend for his daughter to have a beneficial interest in money due
to her undue influence in obtaining an assignment of same, beneficial interest sprung back to
decedent's estate, and title company held interest upon a resulting trust for estate; further,
equitable remedy of a constructive trust was not available to wife under circumstances.
Reversed with direction to pay the fund in dispute to the Estate of E. D. Farnham.
Vargas, Bartlett & Dixon, and Peter D. Durney, of Reno, for Appellant.
Guild, Hagen & Clark, Ltd., and Thomas J. Hall, of Reno, for Respondent.
1. Interpleader.
Interpleader is an equitable proceeding to determine the rights of rival claimants to property held by a
third person having no interest therein; it proposes to protect the stakeholder from a double vexation in
regard to one liability. NRCP 22.
2. Interpleader.
Each claimant in an interpleader proceeding is treated as a plaintiff and must recover on the strength of
his own right or title and not upon the weakness of his adversary's right or title. NRCP 22.
3. Interpleader.
Failure of one claimant in interpleader proceeding to prove his claim does not mean that other claimant
automatically wins. NRCP 22.
4. Trusts.
That trial court impressed a trust in favor of decedent's wife upon moneys placed on deposit by title
company in interpleader proceeding was not such as to require affirmance of judgment in favor of wife;
rather, affirmance of judgment could come only if record supported wife's right to fund over that of
decedent's estate. NRCP 22.
5. Trusts.
Neither statement by decedent to his wife that payments on installment note constituted source of their
support money or fact that wife's name appeared as a cobeneficiary on deed of trust was sufficient to form a
basis for impressing a trust upon balance owing on notes for wife's benefit inasmuch as wife was a total
stranger to transaction and, since decedent did not intend for his daughter to have a beneficial interest in
money due to her undue influence in obtaining an assignment of same, beneficial interest sprung back to
decedent's estate, and title company held interest upon a resulting trust for estate.
decedent's estate, and title company held interest upon a resulting trust for estate.
6. Trusts.
The resulting trust which the law creates from a gratuitous transfer wherein the transferee is not intended
to take beneficially is a trust in favor of the transferor.
7. Trusts.
The law does not create from a gratuitous transfer a resulting trust in favor of a stranger to the transfer.
8. Trusts.
A constructive trust is, in proper circumstances, imposed as an equitable remedy to prevent unjust
enrichment.
9. Trusts.
Wife of decedent could not claim equitable remedy of a constructive trust with respect to decedent's
assignment of his beneficial interest in a deed of trust and a promissory note under undue influence of his
daughter inasmuch as wife was a stranger to transaction and had no interest in property or proceeds from
sale thereof.
10. Interpleader.
Since neither claimant in interpleader proceeding was able to show entitlement to moneys in which
decedent held a beneficial interest during his lifetime, and since it appeared, as a matter of law, that
decedent's estate was entitled thereto, payment of such moneys was directed to be made to bank as executor
of decedent's estate for appropriate distribution under his last will and testament.
Failure of bank to intervene in interpleader proceeding involving dispute over funds in which decedent
held a beneficial interest during his lifetime was excused where action was tried only ten days after bank
was appointed as executor of decedent's estate. NRCP 22.
OPINION
First American Title Company of Nevada commenced this action to require the
defendants, Jessie Farnham and Elverda Farnham Balish, to interplead their claims to the sum
of $30,000 held by the title company as the result of a ranch sale. After the defendants had
appeared in the action the title company was allowed to deposit the money with the court and
withdraw from the litigation. The matter proceeded to trial with the interpled defendants as
the litigating parties.
Elverda claimed the fund by reason of an assignment thereof from her father, E. D.
Farnham. Jessie, the second wife of E. D. Farnham, claimed the money by reason of
statements and representations made to her by E. D. Farnham which, in her view, gave cause
to impress a trust upon the fund for her benefit.
The district court set aside the assignment to Elverda upon the ground that she had
practiced undue influence upon her ageing father. Consequently, her claim to the entire
$30,000 was denied. The court honored Jessie's claim to the money upon the basis that either
a resulting or a constructive trust (it is not clear which) should be impressed thereon in her
favor. Elverda has appealed from that determination.
Although Elverda does not now challenge the finding of undue influence (since the
evidence was in conflict on that issue), she does insist that she has standing to complain of
the award to Jessie because of her (Elverda's) status as one of four residuary legatees of the
Last Will of E. D. Farnham. It is her contention that the record does not support Jessie's claim
to the fund, and that the $30,000 should be a part of the Farnham Estate for distribution to his
residuary legatees under his Last Will. With this preliminary statement, we turn to recite the
chronology of circumstances which gave birth to this dispute.
E. D. Farnham and his first wife, Emma, lived on the Big Creek Ranch in Humboldt
County, Nevada, from 1926 until Emma's death on December 2, 1960. Upon her death the
ranch became the sole and separate property of E. D. Farnham. They raised four children,
Ellis, Edwin, Elverda (one of the claimants in this case) and Elwin. On November 3, 1961, E.
D. Farnham married Jessie Farnham, the other claimant in this case, whom the court favored
with its judgment.
On April 30, 1964, E. D. Farnham sold his ranch to a copartnership named Nevada Alder
Creek Ranch and, in addition to the down payment, received therefor a promissory note for
$150,000 payable in ten annual installments of $15,000 each. The promissory note named
only E. D. Farnham as payee. The note, however, was secured by a deed of trust which named
both E. D. Farnham and his wife, Jessie, as the beneficiaries thereof. Why Jessie was named
as a cobeneficiary is not known.
On August 28, 1969, E. D. Farnham assigned his beneficial interest in the deed of trust and
promissory note to his daughter, Elverda. E. D. was then 92 years old. After that assignment,
Elverda received three installment payments, that is, $45,000. This is the assignment the court
found to have been the result of undue influence practiced upon E. D. by Elverda. Since that
finding is not attacked we shall not detail the circumstances surrounding the assignment.
On April 29, 1970, E. D. Farnham executed his Last Will. By that instrument he
bequeathed $8,000 to his second wife, Jessie, and gave the residue of his estate equally to
his four children.
Jessie, and gave the residue of his estate equally to his four children. The estate is ample to
pay the bequest to Jessie without regard to the $30,000 here in dispute.
On August 14, 1972, Nevada Alder Creek Ranch sold the Big Creek Ranch to North Fork
Ranch and the First American Title Company became obligated to deliver to the buyer a
reconveyance of the deed of trust. The title company did so and, by reason thereof, came into
possession of $30,000, the balance owing on the $150,000 promissory note and the subject of
this lawsuit.
E. D. Farnham died June 9, 1974, at the age of 97 years. In July of that year, Letters
Testamentary were issued to the First National Bank of Nevada, and the estate presently is in
the course of administration.
The issue to be resolved is the propriety of the judgment below impressing the fund with a
trust, either resulting or constructive, for the benefit of Jessie Farnham.
[Headnote 1]
1. Interpleader is an equitable proceeding to determine the rights of rival claimants to
property held by a third person having no interest therein. It proposes to protect the
stakeholder from a double vexation in regard to one liability. Rutherford v. Union Land and
Cattle Co., 47 Nev. 21, 213 P. 1045 (1923). In the language of our rule, Persons having
claims against the plaintiff may be joined as defendants and required to interplead when their
claims are such that the plaintiff is or may be exposed to double or multiple liability. NRCP
22.
[Headnotes 2-4]
In such a proceeding, each claimant is treated as a plaintiff and must recover on the
strength of his own right or title and not upon the weakness of his adversary's. United States
v. Chapman, 281 F.2d 862 (C.A. 10 Cir. 1960); Star-Times Publishing Co. v. Buder, 245
S.W.2d 59 (Mo. 1951); Rockwell v. Carroll Printing & Publishing Co., 62 A.2d 545 (Md.
1948). Consequently, the failure of one claimant to prove his claim does not mean that the
other claimant automatically wins. Rutherford v. Union Land and Cattle Co., supra. In the
case before us, Elverda's loss in the trial court does not require an affirmance of the judgment
in favor of Jessie Farnham. We may affirm that judgment only if the record supports Jessie's
right to the fund. We now direct our attention to this aspect of the case.
As already noted, the ranch was the sole and separate property of E. D. Farnham to do with
as he pleased. Jessie has never contended otherwise. The proceeds from the sale of the ranch
also belonged to E. D. Farnham alone until the assignment to his daughter, Elverda, in 1969.
Jessie was a stranger to that assignment and knew not of its existence until the Spring of 1970
when she joined with E. D. in executing a gift tax return which covered that assignment.
Thereafter, and without complaint, Jessie allowed Elverda to receive three installment
payments on the note.
[Headnote 5]
Jessie's claim that a resulting or constructive trust somehow arose was first tendered
during this litigation, and rests mainly upon statements made by E. D. to her that they had
plenty to live on and indicating that the installment note payments was the source of their
support money; also, upon the fact that her name appeared as a cobeneficiary of the trust
deed. In our view, neither is sufficient to form the basis for impressing a trust upon the
$30,000 fund for Jessie's benefit.
A resulting trust arises where a person makes or causes to be made a disposition of
property under circumstances which raise an inference that he does not intend that the person
taking or holding the property should have the beneficial interest therein. . . . Rest., Trusts
2d, 404. Perhaps the most common instance of a resulting trust occurs where a transfer of
property is made to one person and the purchase price is paid by another. In such instance, a
resulting trust may arise in favor of the person by whom the purchase price is paid. Werner v.
Mormon, 85 Nev. 662, 462 P.2d 42 (1969).
Here, we have a gratuitous assignment of the proceeds of a promissory note. Jessie was a
total stranger to that transaction. If E. D. Farnham did not intend for his daughter, Elverda, to
have the beneficial interest in that money (and that is the consequence of the trial court's
unchallenged finding that the assignment was occasioned by Elverda's undue influence upon
her father), then the beneficial interest springs back or results to the person who made the
disposition or to his estate, and the person holding the property holds it upon a resulting trust
for him or his estate.
[Headnotes 6, 7]
The resulting trust which the law creates from a gratuitous transfer wherein the transferee
is not intended to take beneficially is a trust in favor of the transferor. The law does not create
from a gratuitous transfer a resulting trust in favor of a stranger to the transfer.
a stranger to the transfer. Frame v. Wright, 9 N.W.2d 364 (Iowa 1943). The district court
erred in concluding that a resulting trust arose in favor of Jessie.
[Headnotes 8, 9]
Neither do we perceive a basis for impressing a constructive trust upon the fund for
Jessie's benefit. A constructive trust is, in proper circumstances, imposed as an equitable
remedy to prevent unjust enrichment. Where the owner of property transfers it, being
induced by fraud, duress or undue influence of the transferee, the transferee holds the
property upon a constructive trust for the transferor. Rest., Restitution 166; see also:
Davidson v. Streeter, 68 Nev. 427, 234 P.2d 793 (1951); Bowler v. Curler, 21 Nev. 158, 26 P.
226 (1891). Undue influence was not practiced upon Jessie. She was a stranger to the
transaction between E. D. and Elverda and had no interest in the ranch or the proceeds from
the sale thereof. Only E. D. Farnham, or his estate, may claim the equitable remedy of a
constructive trust.
Thus, we have determined that neither litigant before us is entitled to the fund; Elverda,
the daughter, because of the finding of undue influence which she has not challenged on this
appeal. And, Jessie, the second wife, because the trial court erred when it impressed a trust
upon the fund for her benefit.
[Headnote 10]
2. This action was tried before the Second Judicial District Court in Washoe County only
ten days after the First National Bank of Nevada was appointed Executor of the E. D.
Farnham Estate by the Sixth Judicial District Court of Humboldt County. This probably
explains the failure of the Bank to attempt intervention in this litigation. Cf. Rutherford v.
Union Land and Cattle Co., 47 Nev. 21, 213 P. 1045 (1923).
Had the trial court known of the Bank's possible claim to the fund it undoubtedly would
have ordered it joined as a party. NRCP 19. Unfortunately, the trial apparently was concluded
without that knowledge and judgment erroneously entered.
[Headnote 11]
Since neither claimant has shown entitlement to the fund, and since it appears, as a matter
of law, that the Estate of E. D. Farnham is entitled thereto, we direct payment thereof to the
First National Bank, Executor of the Estate of E. D.
Farnham, for appropriate distribution under his Last Will. The Bank's failure to intervene and
claim the fund, as well as the court's failure to order the Bank joined as a party is excused by
reason of the circumstances mentioned.
Reversed.
____________
92 Nev. 140, 140 (1976) Hulett v. State
MARVIN LEE HULETT, Jr., Appellant, v. THE
No. 8554
March 12, 1976 546 P.2d 1293
Appeal from judgment of conviction and sentence, Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
Defendant was convicted before the district court of second degree kidnapping and use of
deadly weapon in commission of crime, and he appealed. The Supreme Court held that
evidence was sufficient to sustain convictions and that trial judge did not commit reversible
error by permitting prosecuting attorney, during closing argument, to read to jury from
verbatim transcript of testimony.
Affirmed.
Morgan D. Harris, Public Defender, and Keith E. Galliher, Jr., Deputy, Clark County, for
Appellant.
1. Kidnapping; Weapons.
Evidence was sufficient to sustain convictions of second degree kidnapping and use of deadly weapon in
commission of crime. NRS 193.165, 200.310, subd. 2.
2. Criminal Law.
It is within discretion of trial court whether to permit counsel to read from trial transcript during closing
argument.
3. Criminal Law.
In prosecution for second degree kidnapping and use of deadly weapon in commission of crime,
trial judge did not commit reversible error by permitting prosecuting attorney, during
closing argument, to read to jury from verbatim transcript of testimony.
weapon in commission of crime, trial judge did not commit reversible error by permitting prosecuting
attorney, during closing argument, to read to jury from verbatim transcript of testimony. NRS 193.165,
200.310, subd. 2.
OPINION
Per Curiam:
Marvin Lee Hulett, Jr., was convicted, by jury verdict, of second degree kidnapping (NRS
200.310(2)); and, it having been determined that he had used a deadly weapon in the
commission of the crime (NRS 193.165), the trial judge imposed consecutive ten (10) year
sentences. The sentences were made to run concurrently with an eight year sentence
previously imposed pursuant to a conviction for robbery.
In this appeal Hulett contends we must reverse because (1) there was insufficient evidence
to sustain the jury verdict; and, (2) the trial judge committed reversible error by permitting the
prosecuting attorney, during closing argument, to read to the jury from a verbatim transcript
of testimony. Neither contention has merit.
[Headnote 1]
1. On appeal, the issue is not whether this court would have found appellant guilty, but
whether the jury properly could. Anstedt v. State, 89 Nev. 163, 165, 509 P.2d 968, 969
(1973).
In addition to the victim's convincing testimony, three other eyewitnesses gave ample
evidence to enable the jury to conclude that Hulett was guilty, beyond a reasonable doubt.
Where there is substantial evidence to support a verdict in a criminal case, as the record
indicates exists in this case, the reviewing court will not disturb the verdict nor set aside the
judgment. Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974).
[Headnotes 2, 3]
2. In support of his claim that it was reversible error for the prosecutor, during closing
argument, to read from a verbatim transcript of testimony, Hulett argues that we should adopt
the stand taken in People v. Hoggs, 307 N.E.2d 800 (Ill.App. 1974), and Richardson v. State,
111 So. 202 (Ala.App. 1925).
Indeed, Hoggs and Richardson did announce a rule which prohibits transcript reading
during closing argument.1 However, in our view, the better rule is enunciated in United
States v. Kuta, 51S F.2d 947, 954 {7th Cir.), cert.
prohibits transcript reading during closing argument.
1
However, in our view, the better rule
is enunciated in United States v. Kuta, 518 F.2d 947, 954 (7th Cir.), cert. denied, ___ U.S.
___, 96 S.Ct. 446 (1975), which held that it is ... within the discretion of the trial court
whether to permit counsel to read from the trial transcript during closing argument.
Historically, this has always been the rule of eighteen (18) of the twenty-one (21)
jurisdictions that have considered and resolved the issue; and, it is now the rule in twenty (20)
of those jurisdictions. Thus, Illinois stands alone in absolutely proscribing the practice.
2
We
adopt the majority rule.
Perceiving no error, we affirm.
____________________

1
In Lakey v. State, 61 So.2d 117, 121 (Ala. 1952), the Alabama Supreme Court rejected the Richardson
rationale and stated, rather critically, that its intermediate appellate court's gratuitous observation regarding
transcript reading . . . was not necessary to [the] decision and hence no binding rule of practice was thereby
enunciated.

2
We note dicta espoused in an early Mississippi case (Davis v. State, 37 So. 1018 (Miss. 1905)) suggested
there should be a rule similar to that in Illinois when the verbatim testimony . . . is delivered by a prosecutor so
eminently eloquent, vigorous, and forceful as the one who guarded the interest of the state in the case at bar. Id
at 1020. However, we find no reported case which follows Davis; furthermore, Peel v. Gulf Transport Company,
174 So.2d 377 (Miss. 1965), specifically rejects the Illinois rule in civil cases. Thus, the viability of Davis, if
any, is most suspect.
____________
92 Nev. 142, 142 (1976) Daniels v. Hughes Tool Co.
RUTH DANIELS, Appellant, v. HUGHES TOOL CO., INC., a Delaware
Corporation, dba THE SANDS HOTEL, Respondent.
No. 8098
March 12, 1976 546 P.2d 1296
Appeal from order of dismissal, Eighth Judicial District Court, Clark County; Keith C.
Hayes, Judge.
Hotel patron brought action against hotel to recover for injuries sustained in fall at hotel.
The district court granted defendant's motion for involuntary dismissal, and plaintiff
appealed. The Supreme Court held that plaintiff's evidence, that her shoe heel caught
something at edge of carpeting and raised portable dancing floor in hotel, causing her to fall,
and that lighting at scene of accident was poor, established prima facie case of hotel's
liability.
that lighting at scene of accident was poor, established prima facie case of hotel's liability.
Fadgen & Johnson, Las Vegas, for Appellant.
Dickerson, Miles & Pico, Las Vegas, for Respondent.
Innkeepers.
Plaintiff's evidence, in action against hotel to recover for injuries sustained in fall at hotel, that her shoe
heel caught something at edge of carpeting and raised portable dancing floor in hotel, causing her to fall,
and that lighting at scene of accident was poor, established prima facie case of hotel's liability. NRCP
41(b).
OPINION
Per Curiam:
Appellant commenced this action after being injured in a fall at the Sands Hotel in Las
Vegas. At the close of appellant's evidence, respondent was granted an involuntary dismissal
pursuant to NRCP 41 (b). Appellant contends this was error. We agree.
NRCP 41 (b) provides in pertinent part: 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.
On a motion for an involuntary dismissal made by a defendant pursuant to NRCP 41 (b),
the truth of plaintiff's evidence and all reasonable inferences flowing from it must be accepted
by the trial court and all the evidence must be interpreted most strongly in favor of the
plaintiff and against the defendant. Bearden v. City of Boulder City, 89 Nev. 106, 108, 507
P.2d 1034, 1035 (1973).
Here, appellant testified that she was attending a fashion show in the Grand Ballroom of
the Sands Hotel and that while leaving the room, her shoe heel caught on the edge of a raised
portable dance floor. She fell causing the injury that is the subject of this action. On
cross-examination, appellant stated that she did not actually see her heel catch the edge of the
dance floor, but that her heel caught something at the edge of the carpeting and the raised
floor. William Taylor, a part time employee of the hotel, testified the lighting at the scene
of the accident was poor.
employee of the hotel, testified the lighting at the scene of the accident was poor. Taylor
further testified that the dance floor was portable and was not in use during the fashion show.
Considering the provisions of NRCP 41 (b) and applying the rationale of Bearden, supra,
we conclude appellant's evidence established a prima facie case of liability. Accordingly, we
reverse and remand.
____________
92 Nev. 144, 144 (1976) Solorzano v. State
XAVIER P. SOLORZANO, Appellant, v. THE
No. 8561
March 12, 1976 546 P.2d 1295
County; Carl J. Christensen, Judge.
Defendant was convicted before the district court of battery with intent to kill, and he
appealed. The Supreme Court held that trial court did not err in allowing prosecuting attorney
to introduce testimony that defendant had threatened victim on numerous occasions, for
limited purpose of showing defendant's intent to commit crime, and in permitting prosecution
to introduce murder-suicide note during rebuttal.
Affirmed.
Morgan D. Harris, Public Defender, and Joseph T. Bonaventure, Deputy, Clark County,
for Appellant.
1. Homicide.
Trial court did not err in prosecution for battery with intent to kill in allowing prosecuting attorney to
introduce testimony that defendant had threatened victim on numerous occasions, which testimony was
offered for limited purpose of showing defendant's intent to commit crime, and not to show bad
character. NRS 48.045, subd. 2, 200.400.
2. Criminal Law.
Trial court did not err in permitting prosecution to introduce murder-suicide note during rebuttal in
prosecution for battery with intent to kill, where note, which contained probative language, was admitted
after defense witness, a neuropsychiatrist, raised question of defendant's ability to
distinguish right from wrong and limiting instruction specified that jury could
consider note only on issue of sanity or insanity.
admitted after defense witness, a neuropsychiatrist, raised question of defendant's ability to distinguish
right from wrong and limiting instruction specified that jury could consider note only on issue of sanity or
insanity. NRS 200.400.
OPINION
Per Curiam:
A jury found Xavier P. Solorzano guilty of battery with intent to kill, a felony under
NRS 200.400. After being sentenced to a five (5) year term in the Nevada State Prison
Solorzano perfected this appeal contending the trial judge committed two (2) reversible
errors.
[Headnote 1]
1. The first claim of error, which we reject, is directed to the trial judge's ruling which
allowed the prosecuting attorney to introduce testimony that Solorzano had threatened the
victim on numerous occasions.
This record reflects the challenged testimony was offered for the limited purpose of
showing Solorzano's intent to commit the crime, and not, as he suggests, to show bad
character. The evidence was admissible. NRS 48.045(2).
1
Our prior decisions have so held.
See, for example, Peoples v. State, 83 Nev. 115, 423 P.2d 883 (1967), and cases cited therein;
and, State of Nevada v. Bonds, 2 Nev. 265 (1866). Compare: concurring opinion of Beatty, C.
J. in State of Nevada v. Hymer, 15 Nev. 49, 54-56 (1880).
[Headnote 2]
2. Solorzano's second claim of error is directed to the trial judge's ruling which permitted
the prosecution to introduce a murder-suicide note during rebuttal. We reject his claim that
the note could only be admitted as a part of the case-in-chief.
Here, the question of Solorzano's ability to distinguish right from wrong was brought in
issue by his only defense witness, a neuropsychiatrist. Thereafter, the note, which contained
probative language, was admitted; and, a limiting instruction specified the jury could
consider it "only on the issue of sanity or insanity."
____________________

1
The statute reads, in part: Character evidence inadmissible to prove conduct: Exceptions; other crimes. . . .
2. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Our
emphasis.)
probative language, was admitted; and, a limiting instruction specified the jury could consider
it only on the issue of sanity or insanity. In this context, and under our decision in Hilt v.
State, 91 Nev. 654, 541 P.2d 645 (1975), the trial judge did not err in permitting the note to
be admitted on rebuttal.
Affirmed.
____________
92 Nev. 146, 146 (1976) Melvin v. Sheriff
BARBARA MELVIN, Appellant, v. SHERIFF,
No. 8668
March 12, 1976 546 P.2d 1294
District Court, Clark County; Thomas J. O'Donnell, Judge.
Criminal complaint was filed charging defendant with gross misdemeanor of making false
statements to obtain payments under aid to dependent children. Defendant filed a pretrial
petition for a writ of habeas corpus. The district court denied relief, and petitioner appealed.
The Supreme Court held that prosecution was precluded where charge was not brought within
one year after offense was allegedly committed.
Reversed.
Morgan Harris, Public Defender, and Gary Alexander White, Deputy, Clark County, for
Appellant.
Criminal Law.
Prosecution for gross misdemeanor of making false statement to obtain payments under aid to dependent
children was precluded where charge was not filed within one year after alleged commission of the offense.
NRS 171.090, 425.250.
OPINION
Per Curiam:
A criminal complaint, filed January 2, 1974, charged that between July 18, 1972, and
December 29, 1972, Barbara Melvin made false statements to obtain payments under aid to
dependent children", a gross misdemeanor under NRS 425.250.
92 Nev. 146, 147 (1976) Melvin v. Sheriff
to dependent children, a gross misdemeanor under NRS 425.250. A preliminary
examination, concluded on September 25, 1975, resulted in her being ordered to stand trial;
and, the information charging the offense was filed October 9, 1975.
Melvin then petitioned the district court for habeas corpus, contending the evidence
adduced at the preliminary examination did not meet the probable cause test delineated in
NRS 171.206. The district judge denied habeas and in this appeal the same contention is
reurged.
We do not reach the merit, if any, of appellant's contention, because the case must be
reversed, sua sponte, for want of jurisdiction, an issue counsel did not present to the district
judge.
The charge against Barbara Melvin was not brought within one year, as required by NRS
171.090.
1
Accordingly, her prosecution under NRS 425.250 is precluded.
2
See Cherubini v.
Sheriff, 92 Nev. 111, 546 P.2d 598 (1976).
Reversed.
____________________

1
NRS 171.090 provides: Misdemeanors: 1-year limitation. An indictment for any misdemeanor must be
found, or an information or complaint filed, within 1 year after its commission.

2
In this case the record reflects that a request for prosecution was timely made to the then incumbent Clark
County District Attorney; however, no charge was filed until after the statutory one year period had passed.
____________
92 Nev. 147, 147 (1976) State ex rel. Welfare v. Capital Convalescent
STATE OF NEVADA, by and through its Welfare Division of the Department of Health,
Welfare and Rehabilitation, Appellant, v. CAPITAL CONVALESCENT CENTER, INC.;
and MAX FAYLOR and HAROLD N. FAYLOR, individually and doing business as
CAPITAL CONVALESCENT CENTER, Respondents.
No. 7730
March 22, 1976 547 P.2d 677
Appeal from order of First Judicial District Court, Carson City; Frank B. Gregory, Judge.
State brought action against convalescent center which contracted to provide for the State
certain health care services for medically indigent persons at stipulated per diem rate of $16
per person to recover overpayments resulting from alleged modification of payment rate
from fixed per diem rate to cost reimbursement rate with fixed profit factor and
convalescent center filed counterclaim seeking compensatory damages based on $16 per
diem rate.
per person to recover overpayments resulting from alleged modification of payment rate from
fixed per diem rate to cost reimbursement rate with fixed profit factor and convalescent
center filed counterclaim seeking compensatory damages based on $16 per diem rate. The
district court entered judgment that State was liable for 1,946 patient care days at the $16 per
diem rate, and State appealed. The Supreme Court, Mowbray, J., held that in that State
initiated the action, convalescent center's failure to comply with statutes providing for
presentation of contract claims against State to state board of examiners did not preclude
court from having jurisdiction over compulsory counterclaim; that where original contract
between parties was binding upon them until terminated and center never accepted State's
suggested cost reimbursement method of payment, center was entitled to recover on basis of
$16 per diem rate; and that center which received an award exceeding $10,000 was not
entitled to recover attorney fees.
Affirmed as modified with respect to attorney's fees.
Robert List, Attorney General, Carson City; Margie Ann Richards, Deputy, Carson City;
Marilyn V. Romanelli, Deputy, Las Vegas, for Appellant.
Arthur J. Bayer, Jr., Carson City, for Respondents.
1. States.
Where State initiated action against convalescent center to recover alleged overpayments made under
contract for center to provide health care services for medically indigent persons, center's failure to comply
with statutes providing for presentation of contract claims against State to state board of examiners did not
preclude court from having subject matter jurisdiction over center's compulsory counterclaim seeking
recovery of money allegedly owed by State under contract. NRS 41.036, 353.085; NRCP 13(a), (c).
2. States.
Where contract under which convalescent center agreed to provide for the State certain health care
services for medically indigent persons at stipulated per diem rate of $16 per person was binding upon
parties until terminated and State's suggested modification of contract to provide cost reimbursement rate
of payment rather than fixed per diem rate was never accepted by center, center which was owed for 1,946
patient care days was entitled to recover on basis of $16 per diem rate. Social Security Act, 1901 et seq.,
42 U.S.C.A. 1396 et seq.
3. Costs.
Where amount awarded on counterclaim exceeded $10,000, counterclaimant was not entitled to
recover attorney fees.
counterclaimant was not entitled to recover attorney fees. NRS 18.010, subd. 3(b).
OPINION
By the Court, Mowbray, J.:
This is an appeal from an order of the district court granting summary judgment in favor of
the respondent-defendant for $27,445.86, hereinafter referred to as Convalescent, and against
the appellant-plaintiff, hereinafter referred to as State.
The judgment is predicated upon a written contract between the two parties dated April 1,
1970, wherein Convalescent agreed to provide certain health care services for medically
indigent persons for State at a stipulated per diem rate of $16 per person. The contract also
provided, among other things, that the agreement would remain in effect until terminated by
30 days' written notice given by one of the parties of intent to do so.
State commenced this action in August 1972, seeking the recovery of $11,896.08 for
advances paid Convalescent during the period March 16, 1971, through December 31, 1971;
State also sought recovery for alleged overpayments covering the period January 1, 1972, to
August 20, 1972, which State estimated to be about $9,000. Although State sued on the April
1, 1970, contract of the parties, alleging that it would be terminated on August 20, 1972, State
claimed that paragraph 2 thereof, fixing $16.00 as the total daily rate of payment for care of
State patients, had been modified from a flat fixed per diem rate to a cost reimbursement rate
with a fixed profit factor, said change accomplished retroactively to March 16, 1971, by the
Nevada State Welfare Board meeting in June 1971, wherein it adopted the cost
reimbursement method.
On August 30, 1972, Convalescent filed its answer and counterclaim, seeking
compensatory damages of $20,384.90, based on the $16 per diem rate as set forth in the
parties' contract, plus $10,000 punitive damages, attorney's fees, and costs. Subsequently,
Convalescent, in an amended counterclaim, increased its prayer for compensatory damages to
$26,186.06 and abandoned its claim for punitive damages.
State petitioned the court on January 8, 1973, in accordance with NRCP 67, for an order
permitting State to deposit with the clerk the sum of $10,383.13, as an offer of judgment.
The sum was deposited on January 10, 1973. Convalescent never accepted the offer.
State filed on August 29, 1973, a motion for summary judgment, alleging that [w]hen the
heat and smoke are eliminated, this case resolves itself into a few questions which the Court
may decide as a matter of law since there are now no genuine issues as to any material facts.
Thereafter, on October 9, 1973, Convalescent filed its motion for summary judgment. Both
motions were heard on October 23, 1973, and the district judge filed his memorandum of
decision on February 8, 1974; notice of entry was filed February 11, 1974.
In the memorandum of decision, the district judge found that State and Convalescent
entered into a contract dated April 1, 1970,
1
and that the terms of the contract remained
unaltered and in effect until State terminated the contract effective August 20, 1972;
2
that
State's suggested cost reimbursement method of payment had never been accepted by
Convalescent;
3
that Convalescent had not been paid for 1,946 patient care days.
4
Therefore,
applying the 1,946 patient care days to the $16 per diem rate, the judge found that State
owed Convalescent $27,445.S6 {after deducting a $3,690.14 payment made by State);
and judgment was entered accordingly.
____________________

1
2. That the State entered into an Agreement with Capital Convalescent Center, dated April 1, 1970,
providing for a payment of Sixteen ($16.00) Dollars per patient per day for the care of Welfare patients certified
by the State as recepients [sic] of Title XIX of the Social Security Act (Medicaid).

2
3. That the terms of this contract of April 1, 1970, remained unaltered and in effect until the Welfare
Department terminated the contract on August 20, 1972. A termination notice was sent by letter of August 2,
1972, from the State of Nevada Welfare Division, signed by John Duarte, Acting Administrator, indicating the
State would not make any further payments after August 20, 1972. The cause of termination of the April 1, 1970
contract was because of a dispute over a new payment proposal which was not accepted by Capital
Convalescent. The contract further provided that the terms of the agreement were to remain in effect until
terminated by either party with written notice given at least thirty days in advance.

3
4. That the State introduced a cost reimbursement method of payment which would have changed the price
terms of the April 1, 1970 contract. Negotiations for acceptance were without success. That a proposed
agreement dated June 30, 1972 referencing this new payment formula was submitted to Capital Convalescent
Center but was not executed by both of the parties and was in fact voided by the State. A valid provider
agreement such as the contract of April 1, 1970, and June 30, 1972, was required by Federal law as well as by
general contract law. (45 CFR 249.10(b) (4) (i) (h).)

4
6. That for the purposes of the motions herein presented, the State accepted the accuracy of Capital
Convalescent's Exhibit A' attached to their Reply to Interrogatories, filed July 12, 1973, representing 1,946 per
patient days for which the State is responsible to Capital Convalescent at $16.00 per patient per day. In addition,
the
$16 per diem rate, the judge found that State owed Convalescent $27,445.86 (after deducting
a $3,690.14 payment made by State); and judgment was entered accordingly. State has
appealed, seeking a reversal and a remand ordering a full trial.
[Headnote 1]
1. First State claims that the district court lacked subject matter jurisdiction in the case,
because Convalescent failed to comply with NRS 41.036
5
and NRS 353.085.
6
We do not
believe that the aforementioned statutes have any application in the instant case. Here, State
initiated the action against Convalescent, and Convalescent filed a compulsory counterclaim.
NRCP 13(a), (c).
7
It would be anomalous to hold that a defendant, in court in an action he
did not bring, is required to plead a counterclaim against the State because it is
compulsory under Rule 13{a), but once plead, his counterclaim is subject to dismissal on
the ground that he had not, before being sued, taken affirmative action as set forth in
NRS 41.036, supra.
____________________
State's Request for Admissions, Admission Number One and Exhibit A' attached thereto, comports exactly with
Capital Convalescent's Exhibit A' attached to their Reply to Interrogatories mentioned above, except as to the
addition of 34 patient days for a patient D', #28895. Thus, the figures set forth by the respective parties are
accepted as accurate as to the 1,946 per patient days.

5
NRS 41.036 reads in part:
2. Every claim against the state arising out of contract shall be presented in accordance with the provisions
of NRS 353.085 or 353.090 . . .
The applicability, if any, of this court's decision in Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973), has
not been raised and is not considered.

6
NRS 353.085 reads in part:
1. The state board of examiners shall:
(a) Examine all claims arising out of contract . . .
(b) Take all evidence in regard to the same which may be offered by the claimant or deemed proper by the
board.
2. The evidence shall be reduced to writing, and the petition, the written evidence and the opinion of the
board in reference to the merits of the same shall be transmitted to the legislature on the first day of its next
session.

7
NRCP 13(a), (c):
RULE 13. COUNTERCLAIM AND CROSS-CLAIM
(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of
serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence
that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the
time the action was commenced the claim was the subject of another pending action or (2) the opposing party
brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to
render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.
. . .
(c) Counterclaim Exceeding Opposing Claim. A counterclaim may
defendant, in court in an action he did not bring, is required to plead a counterclaim against
the State because it is compulsory under Rule 13(a), but once plead, his counterclaim is
subject to dismissal on the ground that he had not, before being sued, taken affirmative action
as set forth in NRS 41.036, supra. Such a conclusion is consistent with the purpose of the
statute, which is to prevent the State, a county, or a city from being surprised by claims it has
not had time to consider administratively. As long as the same transaction or occurrence is
involved, surprise is minimized. Cf. Frederick v. United States, 386 F.2d 481 (5th Cir. 1967).
The district court did have jurisdiction to entertain Convalescent's counterclaim.
2. The principal issue presented is whether this case should have been disposed of by
summary judgment. Here, both parties sought summary judgment, and both claimed there
was no material issue of fact to be determined. This court said, in City of Las Vegas v. Cragin
Industries, Inc., 86 Nev. 933, 937, 478 P.2d 585, 588 (1970):
Because all the parties moved for summary judgment, the trial court was at liberty to find
that the parties had conceded that there remained no material question of fact and that the
case could be determined on a question of law. . . . [T]he appellants, in their motions for
summary judgment[,] both alleged that there is no genuine issue as to any material fact' and
they are now precluded from changing their position upon this appeal. [Cites omitted.]
The issue before the district court was the interpretation to be given the April 1, 1970,
contract of the parties regarding the daily rate of payment for the State's patients. Paragraph 2
expressly provided:
WHEREAS, Vendor agrees:
. . .
2. To accept $16.00 as the total daily rate of payment for care of State patients and will
not bill patient, or relatives, for an additional amount.
The agreement was to remain in effect until terminated by 30 days' advance written notice.
The agreement provided:
NOW, therefore, this AGREEMENT shall be in effect until terminated by either party to
this AGREEMENT by prior written notice given to the other at least thirty (30) days in
advance of the effective date thereof.
____________________
or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in
amount or different in kind from that sought in the pleading of the opposing party.
It is agreed that written notice of termination of the contract was never given by State until
August 1972; the parties agreed that State owed Convalescent for 1,946 patient care days.
The dispute is narrowed to whether the $16 per diem provision had been superseded by a cost
reimbursement method of payment. The court found that it had not, since the contract of
April 1, 1970, was binding upon the parties until it was terminated.
[Headnotes 2, 3]
We find that there was no material factual issue of dispute remaining in the instant case
and that the record supports the finding of the district judge, with the exception that it was
error to grant Convalescent attorney's fees, as the amount awarded Convalescent on its
counterclaim exceeded $10,000. NRS 18.010, subsection 3(b).
8
In all other respects, the
judgment is affirmed.
Gunderson, C. J., and Batjer, Zenoff, and Thompson, JJ., concur.
____________________

8
NRS 18.010, subsection 3(b):
3. The court may make an allowance of attorney's fees to:
. . .
(b) The counterclaimant as prevailing party when he has not recovered more than $10,000 . . .
__________
92 Nev. 153, 153 (1976) Potter v. Board of Co. Comm'rs
DELWIN C. POTTER, Appellant, v. BOARD OF COUNTY
COMMISSIONERS, CLARK COUNTY, NEVADA, Respondent.
No. 8211
March 25, 1976 547 P.2d 681
Appeal from order of district court dismissing petition for writ of certiorari; Eighth
Judicial District Court, Clark County; Paul S. Goldman, Judge.
Township Justice of the Peace sought review by certiorari of Board of County
Commissioner's declaring his office vacant after his conviction in federal court of willfully
making and subscribing a false income tax return. The district court upheld the Board's action
and Justice of the Peace appealed. The Supreme Court, Thompson, J., held that where the
Justice of the Peace was convicted of a felony, he was disqualified from holding office, and it
was of no consequence that his conviction was upon a plea of nolo contendere, rather than
under a plea of guilty or under an adjudication of guilt after a plea of not guilty.
upon a plea of nolo contendere, rather than under a plea of guilty or under an adjudication of
guilt after a plea of not guilty.
Affirmed.
Peter L. Flangas, of Las Vegas, for Appellant.
George E. Holt, District Attorney, and Thomas R. Severns, Deputy District Attorney, Clark
Justices of the Peace.
Where Justice of the Peace was convicted of felony, he was disqualified from holding office, and it was
of no consequence that his conviction was under plea of nolo contendere, rather than under plea of guilty or
under adjudication of guilt after plea of not guilty. Const. art. 2, 1; art. 15, 3; NRS 197.230,
245.140, 283.040.
OPINION
Upon a plea of nolo contendere, the Nevada Federal Court convicted Delwin C. Potter of
the felony of willfully making and subscribing a false income tax return in violation of 26
U.S.C. 7206(1). Potter then held the office of Justice of the Peace, Henderson Township.
By reason of that conviction, the County Clerk of Clark County certified to the Board of
County Commissioners that the office of Justice of the Peace was vacant, and the Board
thereupon declared the office vacant. It was the Clerk's duty to so certify, and the duty of the
Board to so declare.
1
By certiorari Potter unsuccessfully sought review of the Board's action
by the district court, and now has appealed to us.
____________________

1
Nev. Const. art. 2, 1:
All citizens of the United States . . . shall be entitled to vote . . . ; provided, that no person who has been . . .
convicted of treason or felony in any state or territory of the United States . . . shall be entitled to the privilege of
an elector.
Nev. Const. art. 15, 3:
No person shall be eligible to any office who is not a qualified elector under this Constitution. . . .
NRS 197.230:
The conviction of a public officer of any felony . . . shall entail . . . the forfeiture of his office. . . .
NRS 245.140:
Whenever a vacancy occurs in any county office . . . the clerk of the board of county commissioners . . .
shall certify to the board of county
the Board's action by the district court, and now has appealed to us. We affirm.
It is his contention that his plea of nolo contendere to the felony charge somehow alters the
consequences attending his conviction upon that plea.
For the purposes of our law concerning vacancy in a public office, no distinction is drawn
between a conviction under a plea of nolo contendere on the one hand, and a conviction under
a plea of guilty, or an adjudication of guilt after a plea of not guilty, on the other. It is the
conviction of guilt rather than any admission or absence thereof to be implied from the plea
that is the disqualifying factor. Sokoloff v. Saxbe, 501 F.2d 571 (2 Cir., 1974); In re Eaton,
152 N.E.2d 850 (Ill. 1958); Kravis v. Hock, 54 A.2d 778 (N.J. 1947); State v. Fousek, 8 P.2d
795 (Mont. 1932).
Other claimed errors possess no merit.
Affirmed.
____________________
commissioners the cause of such vacancy. If such vacancy occurs . . . from his conviction of a felony . . . the
clerk of the board of county commissioners shall also accompany his certificate with . . . a certified copy of the
record of conviction for such felony. . . .
NRS 283.040:
1. Every office becomes vacant upon the occurring of any of the following events before the expiration of
the term:
. . . .
(d) A conviction of the incumbent of any felony. . . .
____________
92 Nev. 155, 155 (1976) Stutes v. Sheriff
ROLIN K. STUTES, Appellant, v. SHERIFF,
CARSON CITY, NEVADA, Respondent.
No. 8703
March 25, 1976 547 P.2d 319
Appeal from order denying pretrial petition for writ of habeas corpus, First Judicial
District Court, Carson City; Frank B. Gregory, Judge.
The Supreme Court held that petitioner was not subject to prosecution under indictment
charging him with sale of a controlled substance and four counts of possession of controlled
substances, where such charges against him had previously been dismissed and where the
prosecutor failed as matter of law to sustain its burden of showing an excuse for
occasioning the dismissals by his failure to make proper motions.
law to sustain its burden of showing an excuse for occasioning the dismissals by his failure to
make proper motions.
Cromer, Barker & Michaelson, and Victor Alan Perry, Reno, for Appellant.
Robert List, Attorney General; Michael E. Fondi, District Attorney, and Terry A.
Friedman, Deputy, Carson City, for Respondent.
Criminal Law.
Petitioner seeking writ of habeas corpus was not subject to prosecution under indictment charging him
with sale of a controlled substance and four counts of possession of controlled substances, where such
charges against him had previously been dismissed due to the failure of prosecutor to proceed with
prosecutions or to seek continuances and where prosecutor failed as a matter of law to sustain his burden of
showing an excuse for occasioning the dismissals by his failure to make proper motions. NRS 453.321.
OPINION
Per Curiam:
This record establishes Rolin K. Stutes was charged, by criminal complaint, with four (4)
separate counts of possession of controlled substances. Stutes was admitted to bail and when
he timely appeared for his scheduled preliminary examination on December 11, 1975, the
charges were dismissed because the prosecuting attorney was not prepared to proceed.
However, Stutes did not achieve freedom, as he was immediately arrested and charged with
another felony, sale of a controlled substance (NRS 453.321). He was brought before the
magistrate on this charge December 16, 1975, at which time preliminary examination was set
for December 30, 1975. For reasons which were undocumented in the records of the justice
court the preliminary was continued to January 22, 1976, at which time the prosecuting
attorney made no attempt to go forward with the scheduled preliminary, or to seek a
continuance pursuant to DCR 21. Cf. Bustos v. Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971).
At that hearing defense counsel, noting that Stutes had been incarcerated on the sale charge
since December 11, 1975, [42 days] without having waived the 15 day rule, or being afforded
a bail hearing, moved the magistrate to either set bail or dismiss the charge. The magistrate
dismissed the complaint.
The following day, January 23, 1976, a five (5) count indictment was filed charging Stutes
with the sale of a controlled substance, and four (4) counts of possession of controlled
substances. The sale count was for the same offense the magistrate had dismissed the
previous day; and, the four (4) possession counts were the same as those which had been
dismissed December 11, 1975. After the indictment was challenged by a timely filed petition
for habeas corpus, the district court denied relief and the matter is now before us on appeal.
Stutes contends we are compelled to reverse because, under the decisions of this court, he
is not subject to prosecution under the indictment. We agree.
The prosecutor has, in our view, failed as a matter of law to sustain his . . . burden of
showing an excuse when he has occasioned a dismissal by failing to make a proper motion.
McNair v. Sheriff, 89 Nev. 434, 438, 514 P.2d 1175, 1177 (1973).
We therefore reverse and remand, with instruction to grant a writ of habeas corpus as to
the charges in the indictment.
1

____________________

1
There are other viable charges against Stutes which were unsuccessfully challenged in a separate appeal.
____________
92 Nev. 157, 157 (1976) Kettenhofen v. Ricciardi
E. N. KETTENHOFEN, Appellant, v. A. U. RICCIARDI
and M. T. RICCIARDI, Respondents.
No. 8016
March 25, 1976 547 P.2d 685
Appeal from judgment of injunction; Second Judicial District Court, Washoe County;
John E. Gabrielli, Judge.
The Supreme Court held that on granting a preliminary injunction, the district court had to
require plaintiff to post security for costs and damages should it be finally determined that the
defendant was wrongfully enjoined.
Reversed.
Streeter, Sala & McAuliffe, of Reno, for Appellant.
Sanford, Sanford, Fahrenkopf & Mousel, and M. Craig Haase, of Reno, for Respondents.
92 Nev. 157, 158 (1976) Kettenhofen v. Ricciardi
Injunction.
On granting preliminary injunction, district court had to require plaintiff to post security for costs and
damages should it be finally determined that defendant was wrongfully enjoined.
OPINION
Per Curiam:
We are unable to determine from the record whether this appeal is from a preliminary or a
permanent injunction. The appellant contends the former and the respondents the latter. It is
clear that the motion originally was for a preliminary injunction. NRCP 65(a)(2) invests the
court with power to order trial of the action on the merits and consolidated with the hearing
on the application for preliminary injunction. Memory Gardens v. Bunker Bros. Mortuary, 91
Nev. 344, 535 P.2d 1293 (1975). Such an order does not appear in the record before us.
1
Accordingly, we are constrained to treat this appeal as one from an order granting a
preliminary injunction, and reverse for failure of the district court to require security for costs
and damages should it be finally determined that the defendant was wrongfully enjoined.
NRCP 65(c); Brunzell Constr. v. Harrah's Club, 81 Nev. 414, 404 P.2d 902 (1965); State ex
rel. Friedman v. Dist. Ct., 81 Nev. 131, 399 P.2d 632 (1965).
____________________

1
Counsel for the parties may, or may not have agreed to such consolidation when meeting with the court in
chambers. The court's minute orders do not reflect such agreement if one was made.
____________
92 Nev. 158, 158 (1976) Taylor v. State
JAMES FAIRBANKS TAYLOR, Appellant, v. THE
No. 8212
March 25, 1976 547 P.2d 674
Appeal from conviction of first-degree murder. Eighth Judicial District Court, Clark
County; Howard W. Babcock, Judge.
The Supreme Court, Zenoff, J., held that where the police, in negligent violation of
defendant's Fourth Amendment rights, inadvertently, in the course of a rape investigation,
captured innocuous items by means of a photograph, which items later tended to connect
defendant to a murder subsequently committed, the photograph did not become
inadmissible in the murder prosecution by virtue of the exclusionary rule; and that where
defendant had vacated his Salem Street house in accordance with the terms of an
exchange agreement with the owners of a house on Palmdale, the latter persons clearly
had the right to use or occupy the Salem Street residence and consequently had authority
to consent to a police search thereof, even though defendant, who had moved the bulk of
his possessions from the house on Salem to the house on Palmdale, had not relinquished
his key to the Salem residence.
tended to connect defendant to a murder subsequently committed, the photograph did not
become inadmissible in the murder prosecution by virtue of the exclusionary rule; and that
where defendant had vacated his Salem Street house in accordance with the terms of an
exchange agreement with the owners of a house on Palmdale, the latter persons clearly had
the right to use or occupy the Salem Street residence and consequently had authority to
consent to a police search thereof, even though defendant, who had moved the bulk of his
possessions from the house on Salem to the house on Palmdale, had not relinquished his key
to the Salem residence.
Affirmed.
George Foley, of Las Vegas, for Appellant.
Robert List, Attorney General, Carson City, George E. Holt, District Attorney, and Joel M.
Cooper, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim; instead, its
prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth
Amendment against unreasonable searches and seizures; it is a judicially created remedy designed to
safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal
constitutional right of the party aggrieved. U.S.C.A.Const. Amend. 4.
2. Criminal Law.
Where no deterrent effect would be achieved by the exclusion of evidence seized as the result of an
unlawful search, the exclusionary rule will not be applied.
3. Criminal Law.
Where the police, in negligent violation of defendant's Fourth Amendment rights, inadvertently, in the
course of a rape investigation, captured innocuous items by means of a photograph, which items later
tended to connect defendant to a murder subsequently committed, the photograph did not become
inadmissible in the murder prosecution by virtue of the exclusionary rule; the murder was so remotely
connected to the unlawful search incident to defendant's arrest for the rape that application of the
exclusionary rule to exclude the evidence obtained as a result of the search could have no conceivable
deterrent effect on future police misconduct of the type involved. U.S.C.A.Const. Amend. 4.
4. Searches and Seizures.
Where defendant had vacated his Salem Street house in accordance with the terms of an exchange
agreement with the owners of a house on Palmdale, the latter persons clearly had the right to use or occupy
the Salem Street residence and consequently had authority to consent to a police search thereof, even
though defendant, who had moved the bulk of his possessions from the house on Salem
to the house on Palmdale, had not relinquished his key to the Salem residence.
who had moved the bulk of his possessions from the house on Salem to the house on Palmdale, had not
relinquished his key to the Salem residence.
OPINION
James Fairbanks Taylor, sentenced to life imprisonment without possibility of parole,
stands convicted of the murder of Vicky Wilhelmi Price.
The principal issue on appeal stems from a previous arrest of Taylor for a crime unrelated
to the murder for which he ultimately was convicted. On August 13, 1972, a woman
contacted the Las Vegas Police Department claiming that she had been raped during the early
morning hours of the same day. She provided the police with a description of her assailant
and a description of the dwelling where the alleged rape occurred. She recalled that the name
of the street upon which the house was located was Salem and provided that information to
the police as well. Later that same day, a police officer, accompanied by the woman, traveled
the designated street until she recognized the house and certain automobiles parked in front of
it. The officer noted the address and the license plate number of one of the vehicles and
returned to the police station. It later was ascertained that the vehicle was registered in the
name of James Fairbanks Taylor.
In the early afternoon of the following day, three police officers returned to the Salem
Street residence to arrest Taylor for rape. Upon answering the door, Taylor was informed of
the purpose of the police visit and invited the officers inside. After Taylor was arrested and
handcuffed, one of the officers walked through the premises and noted in one of the
bedrooms a twin bed mattress, a blanket and various articles of clothing strewn over the floor.
A police photographer was summoned who arrived approximately 1 1/2 hours after the arrest.
Photographs were taken of the exterior and interior of the house. At least one of the
photographs depicted the bedroom in which the mattress and blanket were lying.
Two months later, on October 16, 1972, the nude body of Vicky Wilhelmi Price was
discovered in an abandoned mine shaft near the town of Searchlight in Clark County, Nevada.
The body was wrapped in a pink blanket, was bound with a certain type of electrical wiring
and was covered with a twin bed mattress.
During the ensuing investigation, one of the officers who had investigated the August rape
incident notified an officer investigating the Price murder that he had a photograph of a
mattress. A comparison was made between the mattress found in the mine shaft and the
mattress depicted in the photograph of Taylor's bedroom. It was determined that the
mattresses were the same. Thereafter, the investigation began to focus rather narrowly on
Taylor and ultimately he was arrested and prosecuted for the crime.
1. In essence, Taylor argues that his conviction is based upon evidence illegally seized in
violation of his Fourth Amendment rights. He claims that by virtue of the exclusionary rule
such evidence never should have been admitted against him at trial. We do not agree.
We acknowledge with disapprobation the action taken by the police in connection with
Taylor's arrest for rape and the subsequent search of his residence. We are not persuaded by
the argument of the state that the requirement of a search warrant was excused for the reason
that the search was conducted incident to a lawful arrest or that exigent circumstances
existed.
1
In view of the acknowledged unlawfulness of the search which produced the
evidence in question, our discussion is confined to whether the exclusionary rule should apply
given the rather unique circumstances of this case to preclude admission of such evidence at
trial.
[Headnotes 1, 2]
The purpose of the exclusionary rule is not to redress the injury to the privacy of the
search victim. . . . Instead, the rule's prime purpose is to deter future unlawful police conduct
and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches
and seizures. . . . In sum, the rule is a judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect, rather than a personal constitutional
right of the party aggrieved. United States v. Calandra, 414 U.S. 338, 347-48 (1974). The
rule is calculated to prevent, not to repair. Its purpose is to deterto compel respect for the
constitutional guaranty in the only effectively available wayby removing the incentive to
disregard it."
____________________

1
We note also that appellant was arrested at his home without a warrant. It is apparent from the record that
probable cause to arrest existed some 24 hours beforehand, yet no attempt whatsoever was made to obtain an
arrest warrant. We do not discuss the propriety of such police conduct only because the issue has not properly
been raised, not because it has received the imprimatur of our approval. See United States v. Watson, ___ U.S.
___ (Docket No. 74-538, filed January 26, 1976), concurring opinion of Stewart, J., and cases cited therein.
the only effectively available wayby removing the incentive to disregard it. Elkins v.
United States, 364 U.S. 206, 217 (1960). Where no deterrent effect would be achieved by the
exclusion of evidence seized as the result of an unlawful search, the United States Supreme
Court has steadfastly rejected the application of the exclusionary rule. State v. McFarland,
526 P.2d 361, cert. denied 420 U.S. 1005 (Wash. 1974).
[Headnote 3]
It is difficult to conceive of circumstances where the deterrent effect realized by excluding
unlawfully seized evidence would be less perceptible than in the instant case. The search
which divulged the objectionable evidence was directed at a crime completely unrelated to
the crime for which appellant ultimately was convicted. Further, the crime for which
appellant was convicted was committed two months after the unlawful search. There is no
suggestion that the violation of appellant's Fourth Amendment rights by the police was willful
or that it was calculated to produce evidence which would or could prove incriminating in the
future. Where the police, in negligent violation of an individual's Fourth Amendment rights,
inadvertently capture innocuous items by means of a photograph, which items later tend to
connect the victim of the search to a crime which subsequently was committed, the
photograph does not become inadmissible by virtue of the exclusionary rule. People v.
McInnis, 494 P.2d 690, cert. denied 409 U.S. 1061 (Cal. 1972). Under the circumstances of
this case, the purpose of the exclusionary rule would not be served by excluding the illegally
seized evidence. The murder of Vicky Price was so remotely connected to the unlawful
search incident to Taylor's arrest for the crime of rape that application of the exclusionary rule
to exclude the evidence obtained as a result of the search could have no conceivable deterrent
effect on future police misconduct of the type involved here. It would be one thing to bar the
photograph of the mattress if Taylor was being tried for the rape, it is quite another to bar its
use for an unrelated murder committed several months subsequent to the search.
In our view, the exclusionary rule as it presently stands constitutes a sufficient deterrence
to police conduct violative of the Fourth Amendment. Any incremental deterrence achieved
by an extension of the rule to encompass the facts of this case would be at best uncertain but
more likely nonexistent.
[Headnote 4]
2. There was also a second warrantless search of Taylor's house which divulged certain
incriminating evidence. Prior to the rape incident in August, Taylor had negotiated an
exchange of his house on Salem Street for a house located on Palmdale.
the rape incident in August, Taylor had negotiated an exchange of his house on Salem Street
for a house located on Palmdale. The owners of the Palmdale house, Alfred and Shirley
Flippin, and Taylor had agreed orally to the exchange. Before the appropriate documents were
executed, Taylor moved the bulk of his possessions from the house on Salem to the house on
Palmdale leaving only a few items in the backyard of the Salem address. The house itself was
vacant.
Although Taylor had not relinquished his key to the Salem residence, the Flippins
somehow had obtained one and when, in late November of 1972, the investigation began to
focus on Taylor, the police obtained the written consent of the Flippins to conduct a search of
the Salem house. Alfred Flippin admitted the police to the house on November 30, 1972, and
a search ensued. The search revealed a small piece of green fuzz which appeared to match
some green fuzz found in the victim's hair.
A subsequent search of the house on Palmdale with a warrant uncovered a green blanket of
the same hue as the fuzz. Additionally, the police discovered a spool of electrical wiring of
the same type used to wrap the body found in the mine shaft.
Taylor contends, because he had not relinquished legal title to the house on Salem, that his
consent or a warrant was required before a search legally could be conducted. We are not
persuaded. Taylor had vacated the premises in accordance with the terms of the exchange
agreement with the Flippins. Clearly, the Flippins had the right to use or occupy the Salem
Street residence and consequently had the authority to consent to a police search. Radkus v.
State, 90 Nev. 406, 528 P.2d 697 (1974). See also People v. Robinson, 116 Cal.Rptr. 455
(1974); People v. Carr, 502 P.2d 513 (Cal. 1972).
Affirmed.
____________
92 Nev. 163, 163 (1976) Foss v. State
FRANK FOSS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 7751
March 25, 1976 547 P.2d 688
92 Nev. 163, 164 (1976) Foss v. State
Defendant was convicted in the district court of first degree murder and second degree
kidnapping, and he appealed. The Supreme Court, Gunderson, C. J., held that trial court did
not err in advising jury that witnesses implicated in the crime had asserted their Fifth
Amendment privilege against self-incrimination and that their refusal to testify should not be
considered as evidence of defendant's guilt; that statements made by defendant to
coconspirator after the killing but prior to disposal of body were admissible under
coconspirator exception to hearsay rule; and that statute prohibiting examination of husband
or wife as to communications made during marriage did not preclude admission of statements
made by defendant to his wife during marriage in presence of third persons.
Affirmed.
Horace R. Goff, Public Defender, for Appellant.
Respondent.
1. Criminal Law.
Court did not commit prejudicial error in informing jury that witnesses who were implicated in the crime
and called by State had asserted their privilege against self-incrimination and refused to testify and that
their refusal to testify should not be considered as evidence of defendant's guilt. U.S.C.A.Const. Amend. 5.
2. Criminal Law.
Court was not obliged to preclude State from calling witnesses implicated in the crime merely because
witnesses said they would assert their Fifth Amendment privilege. U.S.C.A.Const. Amend. 5.
3. Conspiracy.
Duration of a conspiracy is not limited to commission of principal crime but can continue during period
when coconspirators perform affirmative acts of concealment.
4. Conspiracy.
Where murder is committed under circumstances such that body must be disposed of to avoid detection,
conspiracy to commit murder persists until disposition is accomplished.
5. Criminal Law.
Where disposal of body to avoid detection was integral part of conspiracy, statements made by defendant
to coconspirator after the killing but prior to disposal of body were admissible under coconspirator
exception to hearsay rule. NRS 51.035, subd. 3(e).
6. Witnesses.
Phrase any communication in statute prohibiting the examination of a husband or wife as a witness as
to any communication made by one to the other during marriage means a confidential communication.
NRS 49.295.
92 Nev. 163, 165 (1976) Foss v. State
7. Witnesses.
Statute prohibiting examination of husband or wife as witness as to any communication made by one to
the other during marriage did not prevent wife from testifying to statements made by husband during
marriage in presence of third persons. NRS 49.295.
8. Witnesses.
Where defense counsel during cross-examination of defendant's wife attempted to show her animus by
establishing that she had refused to surrender parental rights to one of their children, State's attempt to
rebut inference of animosity on wife's part by asking her whether she had previously testified against
defendant was proper redirect examination.
9. Criminal Law.
Denial of motion to strike certain evidence was proper where defendant failed to object to evidence at
time it was offered.
OPINION
By the Court, Gunderson, C. J.:
Convicted by jury of first degree murder and second degree kidnapping, appellant
contends the district court erred by: (1) advising the jury that witnesses implicated in the
crime had asserted their Fifth Amendment privilege against self-incrimination, (2) admitting
out-of-court statements of a coconspirator, (3) allowing appellant's ex-wife to testify about
conversations during marriage, (4) permitting appellant's ex-wife to testify that she previously
had testified against appellant and one William Marquette, and (5) denying appellant's motion
to strike certain evidence. We reject all contentions.
In February, 1972, appellant's wife, Francine Foss, moved from El Paso, Texas, to Las
Vegas, where she commenced divorce proceedings. Shortly thereafter, Francine met the
victim, Gordon Brady, who helped her find a job and a place to stay. When appellant
discovered Francine's whereabouts, he ventured to Las Vegas to induce her to return. While
in Las Vegas, appellant threatened his wife, and announced that a contract had been issued on
Gordon Brady's life. Evidence at trial indicated appellant had hired Dwayne Gunter to kill
Brady. On March 2, 1972, the last time Brady was seen alive, Gunter picked him up at his
residence.
1. At trial, the State desired to call as witnesses Gunter and Marquette, both of whom had
been constantly mentioned throughout the trial. Outside the jury's presence, Gunter and
Marquette told the court they refused to testify and, if called, would assert their Fifth
Amendment privilege against self-incrimination. The court ruled that the State could properly
call the two; however, when they refused to remove their prison clothes, the court instead
informed the jury:
92 Nev. 163, 166 (1976) Foss v. State
call the two; however, when they refused to remove their prison clothes, the court instead
informed the jury:
Ladies and Gentlemen of the jury. The State has called a witness, Mr. William Marquette.
Mr. Marquette has indicated to the Court that if called to testify he would invoke his Fifth
Amendment privilege against self-incrimination. The Court has determined that Mr.
Marquette's invocation of the privilege would be proper, and for that reason has excused him
from appearing in this proceeding.
The State has also called Mr. Dwayne Lee Gunter. Mr. Gunter has indicated that he, too,
will invoke the Fifth Amendment privilege. Unlike Mr. Marquette, the Court has ruled that
Gunter may not invoke the privilege of self-incrimination. But in view of Mr. Gunter's
continued refusal, he will not appear as a witness.
I want you to listen very carefully to this additional admonishment. You are admonished
not to consider the refusal of Mr. Marquette and Mr. Gunter to testify as evidence of the guilt
or innocence of the defendant. (Emphasis added.)
[Headnotes 1, 2]
We do not necessarily approve the wording of this statement. It might have been better, if
appellant had requested it, to tell the jury that, through no fault of either the State or the
appellant, the witnesses were not available, and then follow with the admonishment not to
consider their non-appearance. However, we conclude the court committed no prejudicial
error. The court was not obliged to preclude the State from calling Gunter and Marquette
merely because they said they would assert their Fifth Amendment privilege. Namet v. United
States, 373 U.S. 179 (1963); United States v. Compton, 365 F.2d 1 (6 Cir. 1966). The State's
evident purpose was not to prejudice appellant unfairly. Failure either to have Gunter and
Marquette testify, or to show they were unavailable, might arguably have left a gap in the
State's case. Cf. United States v. Kilpatrick, 477 F.2d 357 (6 Cir. 1973); State v. Cota, 432
P.2d 428 (Ariz. 1967), cert. denied, 390 U.S. 1008 (1968). The trial court's admonishment
guarded appellant from possible prejudice at least as effectively as permitting the State to call
Gunter and Marquette would have done. Cf. Cota v. Eyman, 453 F.2d 691 (9 Cir. 1971), cert.
denied, 406 U.S. 949 (1972).
2. Appellant next contends that statements concerning the crime Gunter made to his
common law wife, after the killing but prior to disposal of the body, were not admissible
under the coconspirator exception to the hearsay rule.
92 Nev. 163, 167 (1976) Foss v. State
the coconspirator exception to the hearsay rule. NRS 51.035 (3)(e).
1
While appellant does
not challenge the existence of a conspiracy, he argues that it ended with the killing of Brady
rather than continuing through disposal of the body.
[Headnotes 3-5]
The duration of a conspiracy is not limited to the commission of the principal crime, but
can continue during the period when coconspirators perform affirmative acts of concealment.
Goldsmith v. Sheriff, 85 Nev. 295, 454 P.2d 86 (1969); cf. Dutton v. Evans, 400 U.S. 74
(1970); State v. Davis, 528 P.2d 117 (Or.App. 1974). [W]here murder is committed under
circumstances such that the body must be disposed of to avoid detection, the conspiracy . . .
persists until disposition is accomplished. Gelosi v. State, 255 N.W. 893, 895-96 (Wis.
1934). Here, we believe disposal of the body to avoid detection was an integral part of the
conspiracy. Thus, the statements by Gunter to his common law wife were admissible under
NRS 51.035(3) (e).
3. The district court permitted appellant's ex-wife, Francine Foss Wilson, to testify against
appellant regarding conversations which occurred during their marriage. These conversations
took place in the known presence of third persons and consisted of threats against the lives of
Francine and Brady. Appellant contends that NRS 49.295 prevented Francine from testifying
to any communication, confidential or otherwise.
2

[Headnotes 6, 7]
Appellant's reliance on NRS 49.295 is misplaced. While it is true that NRS 49.295 refers
to any communication, we deem this to mean confidential communications. This approach
is consistent with our case law construing a similar predecessor statute.
____________________

1
NRS 51.035(3)(e) provides:
Hearsay' means a statement offered in evidence to prove the truth of the matter asserted unless:
3. The statement is offered against a party and is:
. . .
(e) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

2
NRS 49.295 provides in pertinent parts:
A husband cannot be examined as a witness for or against his wife without her consent, nor a wife for or
against her husband without his consent. Neither a husband nor a wife can be examined, during the marriage
or afterwards, without the consent of the other, as to any communication made by one to the other during
marriage, . . . (Emphasis added.)
92 Nev. 163, 168 (1976) Foss v. State
statute. Guyette v. State, 84 Nev. 160, 438 P.2d 244 (1968); see also 8 Wigmore, Evidence
2336 at 651-652 (McNaughton rev. ed. 1961). Because appellant spoke in the known
presence of others, there were no confidential communications warranting protection under
NRS 49.295.
[Headnote 8]
4. During cross-examination of Francine Foss Wilson, appellant attempted to show her
animus by establishing that he had refused to surrender parental rights to one of their
children. On re-direct, for purposes of rehabilitation, the State asked Francine whether she
had previously testified against appellant and Marquette. Appellant contends that this
question, coupled with Marquette's refusal to testify, was improper. We believe the State's
attempt to rebut any inference of animosity on Francine's part, which might have reflected on
her truth and veracity, was proper re-direct examination. State v. Tranmer, 39 Nev. 142, 154
P. 80 (1915); cf. State v. Stevens, 421 P.2d 360 (Wash. 1967).
[Headnote 9]
5. Finally, appellant contends that the court erroneously denied his motion to strike certain
evidence relating to matters which occurred after Brady's death. At the time the evidence was
offered, appellant failed to object. Under these circumstances, the court properly denied his
later motion to strike. Barra v. Dumais, 76 Nev. 409, 356 P.2d 124 (1960); State v. Clarke, 48
Nev. 134, 228 P. 582 (1924); cf. Ward v. Daniels, 51 Nev. 125, 269 P. 913 (1928).
Appellant's conviction is affirmed.
Batjer, Zenoff, Mowbray, and Thompson, JJ., concur.
____________
92 Nev. 168, 168 (1976) Stewart v. State
JAMES RUDY STEWART, Appellant, v. THE
No. 8299
March 25, 1976 547 P.2d 320
Appeal from conviction for first-degree murder. Second Judicial District Court, Washoe
The Supreme Court held that where substantial evidence supported finding that, at time
defendant made incriminating statement to doctor, defendant's ability to comprehend was
not so impaired by his intoxication that he was incapable of freely and voluntarily
rendering statement, defendant's constitutional rights were not violated so as to preclude
admission of incriminating statement.
statement to doctor, defendant's ability to comprehend was not so impaired by his
intoxication that he was incapable of freely and voluntarily rendering statement, defendant's
constitutional rights were not violated so as to preclude admission of incriminating statement.
Affirmed.
William N. Dunseath, Public Defender, and William B. Puzey, Deputy Public Defender,
Washoe County, for Appellant.
Kathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
Where substantial evidence supported finding that, at time defendant made incriminating statement to
doctor while at hospital for treatment for lip injury that was not serious, defendant's ability to comprehend
was not so impaired by his intoxication that he was incapable of freely and voluntarily rendering statement,
defendant's constitutional rights were not violated so as to preclude admission of incriminating statement in
subsequent murder prosecution.
2. Criminal Law.
Intoxication without more will not preclude admission of incriminating statements unless it is shown that
defendant was so intoxicated that he was unable to understand meaning of his statements.
3. Criminal Law.
In prosecution for first-degree murder, defendant's proffered instruction that arose out of testimony of
police officer that perhaps metal trace test should have been performed was not appropriate instruction
under circumstances of case and was properly rejected.
OPINION
Per Curiam:
On appeal from his conviction for first-degree murder appellant James Rudy Stewart
claims that an incriminating statement he gave to a doctor in the presence of two police
officers should not have been used in evidence because he was too intoxicated to realize the
import of what he was saying.
The evidence against Stewart for the killing of Hoyt Scott is abundant. During the course
of two employee Christmas parties sponsored by the management of two Reno restaurants,
Stewart invited Scott to walk outside with him and they departed. Hoyt was manager of the
restaurant where Stewart's wife was employed.
employed. Stewart was an employee of the other restaurant. Stewart had attended both parties
and at each a generous quantity of alcoholic beverages had been made available to the guests.
Noting her husband's departure with Scott, Stewart's wife became alarmed and asked
others to search them out. They were located on an adjoining parking lot. Stewart was
standing over Scott, Scott was lying on the pavement with three bullets in him. At the scene,
police officers confiscated a pistol from Stewart and gave him the Miranda warning. Later,
bullet casings found at the scene corresponded with the bullets in Scott's body which were
determined to have been fired from Stewart's pistol.
Scott, not yet dead, was taken to Washoe Medical Center. Stewart was first booked into
police headquarters and again advised of his Miranda rights. Because of a fresh laceration on
Stewart's lip the officers took him to Washoe Medical Center for treatment.
At the hospital a doctor attending Scott asked one of the police officers for permission to
talk to Stewart in order to ascertain the angle and distance from which Scott was shot. He
needed the information to aid him in locating and removing the bullets. Before the question
was posed to Stewart he was again told that he had the right to remain silent and was asked if
he knew his constitutional rights. Stewart then said that he had the gun in his left hand and
was standing to the right of the victim, that the first two bullets did not seem to have any
effect but after the third one, he dropped.
Scott died a short time later. Stewart was tried and convicted of first-degree murder and
sentenced to life imprisonment with possibility of parole.
[Headnotes 1, 2]
1. At trial, the fact of Stewart's drinking was not disputed, only the degree of his
intoxication. He argues that the drinking together with the injury to his lip and the absence of
counsel prejudicially infected the statement he made to the doctor. It is evident from the
record that Stewart's injury was not serious. Moreover, there is substantial evidence
supporting the finding that Stewart's ability to comprehend was not so impaired by his
intoxication that he was incapable of freely and voluntarily rendering a statement. In keeping
with Wallace v. State, 84 Nev. 603, 447 P.2d 30 (1968), we perceive no violation of Stewart's
constitutional rights. Intoxication without more will not preclude the admission of
incriminating statements unless it is shown that the defendant was so intoxicated that he
was unable to understand the meaning of his statements.
more will not preclude the admission of incriminating statements unless it is shown that the
defendant was so intoxicated that he was unable to understand the meaning of his statements.
State v. Clark, 517 P.2d 1238 (Ariz. 1974). Substantial evidence here supports the finding of
voluntariness. Wallace v. State, supra.
[Headnote 3]
2. Appellant's proffered instruction that arose out of the testimony of a police officer that
perhaps a metal trace test should have been performed was properly rejected. It was not an
appropriate instruction under the circumstances of the case.
3. Stewart submitted a supplementary brief in proper person listing many varied denials of
his rights. All of them are completely unsupported by the record nor are they accorded
citation of relevant authority.
We find no error in the proceedings.
Affirmed.
____________
92 Nev. 171, 171 (1976) Est. of Sawyer v. Ygnacio Med. Center
ESTATE OF EDGAR P. SAWYER, also known as E. P. SAWYER, also known as TED
SAWYER, Deceased, Appellant, v. YGNACIO MEDICAL CENTER, a Limited Partnership,
Respondent.
No. 8115
March 25, 1976 547 P.2d 317
Appeal from summary judgment in favor of plaintiff in action arising from default on lease
against personal guarantor of lessee. Second Judicial District Court, Washoe County; Grant
L. Bowen, Judge.
A medical center brought an action against an estate to enforce a personal lease guarantee
executed by the deceased. The district court entered summary judgment in favor of the
medical center, and the estate appealed. The Supreme Court, Zenoff, J., held that the
deceased's personal guarantee was binding on his estate for defaults on the lease which
occurred after his death.
Affirmed.
Edmund S. Barnett, of Crystal Bay, for Appellant.
McDonald, Carano, Wilson, Bergin & Bible, and John Frankovich, of Reno, for
Respondent.
1. Guaranty.
Personal guarantee of lease bound estate of guarantor for defaults on lease which occurred after his death.
2. Guaranty.
Although acts guaranteed may cover long or indefinite period of time, guarantee, if supported by
sufficient consideration, is binding contract which is neither revocable by guarantor nor terminable by his
death.
Where party defendant in action to enforce personal guarantee moved for summary judgment, claiming
there existed no issues as to any material fact, it was thereafter precluded from claiming that entry of
summary judgment against it was improper because material issues should have been presented to trier of
fact.
OPINION
Ygnacio Medical Center was holder of the master lease on a convalescent hospital located
in Contra Costa County, California. The medical center leased the hospital to Ygnacio
Convalescent Hospital, Inc. for a period of 20 years commencing January 1, 1967. Provisions
of the lease included rent of $7,680.00 per month, payment of taxes semiannually and
payment of a security deposit of $46,080.00.
In conjunction with the lease agreement, the only two shareholders of the lessee, Edgar P.
Sawyer and Kenneth R. Keller, executed a personal guarantee promising to reimburse the
medical center in the event of default on the lease. The guarantee was to remain effective for
a period of 12 years.
Certain defaults occurred by March of 1973 which Sawyer and Keller agreed to cure in a
manner not here material. In June of 1973 Sawyer died. Sawyer's untimely demise evidently
frustrated the hospital's attempt to cure the default and caused it to become even further
delinquent. Ultimately, the hospital became indebted to the medical center in the amount of
$66,079.99. On the basis of Sawyer's personal guarantee, the medical center filed a claim
against Sawyer's estate for the amount of the delinquency. The claim was rejected and this
litigation followed.
Motions for summary judgment were filed by both parties and each alleged the existence
of no genuine issues as to any material fact. The principal question presented to the lower
court was whether, as a matter of law, Sawyer's personal guarantee bound his estate for
the defaults on the lease which occurred after his death.
court was whether, as a matter of law, Sawyer's personal guarantee bound his estate for the
defaults on the lease which occurred after his death. His estate contends that the personal
guarantee expired on his death and that any arrearages in rent or taxes accruing after that time
do not constitute charges against the estate.
The trial court decided otherwise and we affirm that decision.
[Headnote 1]
1. The guarantee was to exist for the stated period of 12 years. The language of the
guarantee is explicit; there were no stated exceptions or contingencies that would change,
alter or modify the agreed period, such as may be found in a continuing guarantee for future
advances. Valentine v. Donohoe-Kelly Banking Company, 65 P. 381 (Cal. 1901). The
effective period was 12 years irrespective of whether Sawyer lived or died during that period.
It is unlikely the medical center would have entered the lease in the absence of Sawyer's
personal guarantee. Its purpose was to insure faithful compliance with the provisions of the
lease and it was executed in return for sufficient consideration.
[Headnote 2]
Although the acts guaranteed may cover a long or indefinite period of time, a guarantee, if
supported by sufficient consideration, is a binding contract which is neither revocable by the
guarantor nor terminable by his death. United States ex rel. Wilhelm v. Chain, 300 U.S. 31,
34 (1937); see also Hard v. Mingle, 99 N.E. 542 (N.Y. 1912); Exchange National Bank of
Spokane v. Hunt, 135 P. 224 (Wash. 1913).
[Headnote 3]
2. Appellant also protests that summary judgment was improper because certain material
issues of fact should have been presented to a trier of fact. Such a contention cannot be
maintained in the face of the motion for summary judgment filed by appellant wherein it
claimed that there existed no genuine issue as to any material fact. Appellant is now
precluded from claiming otherwise. City of Las Vegas v. Cragin Industries, 86 Nev. 933, 478
P.2d 585 (1970).
Affirmed.
____________
92 Nev. 174, 174 (1976) Hearne v. Sheriff
EDWARD GEORGE HEARNE, Appellant, v. SHERIFF,
No. 8673
March 25, 1976 547 P.2d 322
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Accused charged with attempted murder sought a writ of habeas corpus, contending that
there was insufficient evidence adduced at preliminary hearing to warrant the prosecution.
The district court denied relief and accused appealed. The Supreme Court held that where
accused, while participating in a heated argument and confrontation over who turned off a
residential water supply, fired a shotgun between 2 and 6 times in the direction of several
people, one of whom was struck in the arm, leg and chest, and another in the head and
shoulders, and both wounded required medical treatment, defendant could be charged with
attempted murder, notwithstanding contention that defendant's conduct lacked magnitude of
charged offense because shotgun shells were loaded with number 6 shot, which was
allegedly intended only to kill birds or rabbits and was incapable of inflicting fatal wound on
a human being.
Affirmed.
Morgan D. Harris, Public Defender, and Thomas L. Leen, Deputy, Clark County, for
Appellant.
Homicide.
Where defendant, while participating in heated argument and confrontation over who turned off a
residential water supply, fired shotgun between 2 and 6 times in direction of several people, one of whom
was struck in arm, leg and chest, while another was struck in head and shoulders, and both wounded
required medical treatment, defendant could be prosecuted for attempted murder, notwithstanding
contention that defendant's conduct lacked magnitude of charged offense because shotgun shells were
loaded with number 6 shot, which allegedly was intended only to kill birds and rabbits and was
incapable of inflicting fatal wound on human being.
92 Nev. 174, 175 (1976) Hearne v. Sheriff
only to kill birds and rabbits and was incapable of inflicting fatal wound on human being.
OPINION
Per Curiam:
In this appeal from an order denying a pretrial petition for habeas corpus Edward George
Hearne contends there was insufficient evidence adduced at the preliminary examination to
warrant his prosecution on two (2) counts of attempted murder. The contention is without
merit.
The record establishes that Hearne, while participating in a heated argument and
confrontation over who turned off a residential water supply, fired a shotgun between 2
and 6 times in the direction of several people, one of whom was struck in the arm, leg and
chest, another in the head and shoulders. Both of the wounded required medical treatment and
one testified there were still 9 slugs to be removed from his body.
Hearne contends his conduct lacks the magnitude of the charged offense because the
shotgun shells were loaded with number 6 shot, which, it is argued, is intended only to kill
birds or rabbits and is, therefore, incapable of inflicting a fatal wound on a human being.
We view Hearne's unique argument as being in the nature of a defense, to be considered
and resolved by the trier of fact. Ricci v. Sheriff, 88 Nev. 662, 503 P.2d 1222 (1972). See
Mathis v. State, 82 Nev. 402, 419 P.2d 775 (1966). Cf. Maupin v. Sheriff, 90 Nev. 99, 520
P.2d 237 (1974).
Affirmed.
____________
92 Nev. 175, 175 (1976) Russell v. Sheriff
RICHARD WILLIAM RUSSELL, Appellant, v. SHERIFF,
No. 8690
March 25, 1976 547 P.2d 313
Petitioner who at conclusion of preliminary examination was ordered to stand trial for
grand larceny sought writ of habeas corpus.
corpus. The district court entered order denying the petition and petitioner appealed. The
Supreme Court held that quantum of evidence warranted magistrate's determination that
petitioner should stand trial; and that state's alleged failure to schedule arraignment within the
ten-day period provided in local rule did not give rise to a presumption of prejudice.
Affirmed.
Jones, Jones, Bell, LeBaron, Close & Brown and Michael E. Buckley, Las Vegas, for
Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Melvyn
T. Harmon, Deputy, Clark County, for Respondent.
1. Criminal Law.
Quantum of evidence adduced at preliminary examination warranted magistrate's determination that
petitioner should stand trial for grand larceny. NRS 171.206, 205.220.
2. Criminal Law.
State's alleged failure to schedule petitioner's arraignment within the ten-day period provided in local rule
of court did not give rise to a presumption of prejudice. Eighth Judicial District Court Special Rule III(c)
(1).
OPINION
Per Curiam:
At the conclusion of a preliminary examination Richard William Russell was ordered to
stand trial for grand larceny (NRS 205.220), committed at the Fur Shop in the Tropicana
Hotel, Las Vegas.
In an effort to avoid trial Russell timely petitioned for habeas corpus, contending the
charge should be dismissed because (1) the evidence adduced at the preliminary examination
did not meet the probable cause test delineated in NRS 171.206; and, (2) of the failure of the
prosecution to timely schedule his arraignment in the district court.
[Headnote 1]
1. Contrary to Russell's contention, we believe the quantum of the evidence adduced at the
preliminary examination met the requirements of NRS 171.206 and, therefore, warranted the
magistrate's determination that Russell should stand trial. Cf. McDonald v. Sheriff, 89 Nev.
326, 512 P.2d 774 (1973).
[Headnote 2]
2. In support of his second contention Russell argues there is a, presumption of
prejudice because of the state's alleged failure to schedule his arraignment within the ten-day
period provided in Rule III(c)(1) of the Special Rules of the Eighth Judicial District Court. He
cites no authority in support of the contention, and, in fact, case law is otherwise. See, for
example, State v. Vassar, 533 P.2d 544 (Ariz. 1975).
Affirmed.
____________
92 Nev. 177, 177 (1976) Landex, Inc. v. State, Dep't Commerce
LANDEX, INC., a Corporation; PAUL EDWARDS, Appellants, v. STATE OF NEVADA,
DEPARTMENT OF COMMERCE, DIVISION OF REAL ESTATE, Respondent.
No. 8075
March 25, 1976 547 P.2d 315
Appeal from order granting preliminary injunction and from denial of motion to amend,
modify and change decision and findings of fact and conclusions of law. Second Judicial
District Court, Washoe County; Peter I. Breen, Judge.
Action was brought by the Nevada Department of Commerce for money damages and
injunctive relief with respect to real estate development company. The district court entered a
judgment preliminarily enjoining company from using unapproved advertising and using
registered representatives for sales of real estate and an appeal was taken. The Supreme Court
held that no appeal lay from denial of motion to amend findings of fact, conclusions of law
and judgment, that there was substantial evidence supporting decision to preliminarily enjoin
the use of unapproved advertising and registered representatives and that the issue of use of
registered representatives has become moot in view of statute.
Affirmed.
Brown & Deaner, of Las Vegas, for Appellant Landex, Inc.
Douglas J. Shoemaker, of Las Vegas, for Appellant Paul Edwards.
Robert List, Attorney General, Robert E. Edmondson, Deputy Attorney General, Elliott A.
Sattler, Deputy Attorney General, E.
General, E. William Hanmer, Deputy Attorney General, Carson City, for Respondent.
Appellants' objections to findings of fact, conclusions of law and judgment of trial court as it pertained to
the first cause of action were appropriately raised by a motion to amend which was denied by trial court,
and no appeal would lie from such order.
2. Injunction.
There was substantial evidence supporting decision of trial court to preliminarily enjoin real estate
development firm from continuing the use of unapproved advertising in connection with sales of land and
from the use of registered representatives in the land sales rather than licensed real estate brokers. NRS
119.120, subd. 1(c), 119.176, 119.180.
In view of statute providing that after January 1, 1975 registered representatives may not sell or offer to
sell subdivision property, any issue arising from granting of a preliminary injunction against real estate
development company with respect to its use of registered representatives in connection with its sales of
subdivision property was rendered moot after effective date of statute. NRS 119.180.
OPINION
Per Curiam:
The Nevada Department of Commerce, Division of Real Estate, initiated this action
against appellant Landex, Inc., seeking money damages and an injunction. The complaint
alleged three causes of action. The first cause of action requested money damages pursuant to
NRS 207.174 for false and misleading advertising and requested the issuance of an injunction
pursuant to NRS 207.176 enjoining Landex from continuing its deceptive practices. The
second cause of action requested that an injunction be issued to enjoin Landex from using
advertising material in its land sales business which previously was not approved by the
Department of Commerce in accordance with the requirements of NRS 119.180(7). In its
third cause of action the state requested the issuance of an injunction to enjoin Landex from
selling real estate through registered representatives rather than through licensed real estate
salesmen or brokers.
In each case where an injunction was sought, a preliminary injunction also was requested
and a hearing for the purpose of determining whether such injunctions should issue was
conducted.
In the decision and order from which this appeal is taken, the court granted a preliminary
injunction enjoining Landex from using nonapproved advertising and from selling land
through "registered representatives" instead of licensed real estate salesmen or brokers.
the court granted a preliminary injunction enjoining Landex from using nonapproved
advertising and from selling land through registered representatives instead of licensed real
estate salesmen or brokers. The court expressly deferred the granting of a preliminary
injunction as requested in the first cause of action until after a hearing on the merits. This
appeal is confined to the issuance of the preliminary injunction in connection with the second
and third causes of action.
Appellant urges reversal on three grounds: (1) that there was no showing that the
advertising of Landex consisted of false or misleading statements; (2) that appellant was not
using nonapproved advertising and the lower court erred in so finding; and (3) that the
Department of Commerce is estopped from denying Landex the right to sell property through
registered representatives.
[Headnote 1]
1. The trial court issued no preliminary injunction with respect to the first cause of action
preferring instead to hold that issue in abeyance until after a full hearing on the merits.
Appellants objected to the findings of fact, conclusions of law and judgment as it pertained to
the first cause of action. Their objections were appropriately raised by a motion to amend
which was denied by the trial court. An appeal will not lie from an order denying a motion to
amend findings of fact, conclusions of law and judgment. Casino Operations, Inc. v. Graham,
86 Nev. 764, 476 P.2d 953 (1970); Securities Investment Co. v. Donnelley, 89 Nev. 341, 513
P.2d 1238 (1973).
[Headnote 2]
2. We find that the trial court committed no error in granting the preliminary injunction
sought in connection with the second and third causes of action. The injunction restrained
appellants from continuing the use of all unapproved advertising and from the use of
registered representatives in the sales of Mountain Meadow Ranches subdivision properties.
See NRS 119.120(1) (c), 119.180 and 207.176. Appellants claim that the injunction was the
product of an abuse of discretion by the trial court. The record does not support that claim but
rather consists of substantial evidence supporting the decision of the trial court.
[Headnote 3]
3. The issue involving the use of registered representatives has become moot. NRS
119.180 provides that on and after January 1, 1975, registered representatives may not sell
or offer to sell subdivision property registered under Chapter 119 of the Nevada Revised
Laws.
January 1, 1975, registered representatives may not sell or offer to sell subdivision property
registered under Chapter 119 of the Nevada Revised Laws. Thus, any issue arising from the
restraint upon appellants for the use of registered representatives is no longer viable. See
Ottenheimer v. Real Estate Division, 91 Nev. 338, 535 P.2d 1284 (1975).
Affirmed.
____________
92 Nev. 180, 180 (1976) Perkins v. Sheriff
ROBERT PERKINS, Appellant, v. SHERIFF, CLARK
COUNTY, NEVADA, Respondent.
No. 8674
March 25, 1976 547 P.2d 312
Petitioner, who had been ordered to stand trial for attempted murder, petitioned for habeas
corpus relief. The district court denied petition, and petitioner appealed. The Supreme Court
held that evidence was sufficient to justify determination that there was probable cause to
hold petitioner for trial.
Affirmed.
David M. Schreiber, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Francis J.
Morton, Deputy, and Frank J. Cremen, Deputy, Clark County, for Respondent.
1. Criminal Law.
Evidence at preliminary examination was sufficient to justify determination that there was probable cause
to hold accused for trial on charge of attempted murder. NRS 171.206.
2. Criminal Law.
Evidence at preliminary examination may be sufficient to justify determination that there was probable
cause to hold an accused for trial on certain charge, though such evidence would be insufficient to convict
accused of the charged offense.
OPINION
Per Curiam:
Robert Perkins was charged with, and ordered to stand trial for, attempted murder.
Thereafter he filed a petition for habeas corpus contending the evidence adduced at the
preliminary examination was insufficient to meet the probable cause requirement
delineated in NRS 171.206.
92 Nev. 180, 181 (1976) Perkins v. Sheriff
corpus contending the evidence adduced at the preliminary examination was insufficient to
meet the probable cause requirement delineated in NRS 171.206. The district court denied
habeas and the same contention has been brought forward by appeal.
This record establishes, inter alia, that during an altercation over a parking space John
Shields wrested a knife from Perkins' hand and discarded it; Perkins then ran into his lodging
and returned with a revolver; the parties again struggled; the gun discharged; and, Shields was
wounded.
[Headnotes 1, 2]
We believe such evidence, while marginal, justified the magistrate's determination that
there was probable cause to hold Perkins for trial. See State v. Havas, 91 Nev. 611, 540 P.2d
1060 (1975). Cf. Maupin v. Sheriff, 90 Nev. 99, 520 P.2d 237 (1974); Mathis v. State, 82
Nev. 402, 419 P.2d 775 (1966). We are not now concerned that such evidence may, by itself,
be insufficient to convict Perkins of the charged offense. McDonald v. Sheriff, 89 Nev. 326,
512 P.2d 774 (1973).
Affirmed.
____________
92 Nev. 181, 181 (1976) Wise v. State
REGGI WISE, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 8547
March 25, 1976 547 P.2d 314
Defendant was convicted by jury verdict in the district court of robbery. The defendant
appealed. The Supreme Court held that testimony was properly introduced on rebuttal to
show that defendant had been in a casino immediately after robbery, a fact he had denied
when testifying in his own defense, and admission of such testimony was not objectionable
on the ground that the prosecution purposely withheld a portion of its case in chief so as to
introduce it subsequently in the guise of rebuttal testimony.
Affirmed.
92 Nev. 181, 182 (1976) Wise v. State
Morgan D. Harris, Public Defender, and Stephen L. Huffaker, Deputy, Clark County, for
Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Rene
Arceneaux, Deputy, Clark County, for Respondent.
1. Criminal Law.
Testimony was properly introduced on rebuttal to show that defendant had been in casino immediately
after robbery, a fact he had denied when testifying in his own defense, and admission of such testimony
was not objectionable on ground that prosecution purposely withheld portion of its case in chief so as to
introduce it subsequently in the guise of rebuttal testimony.
2. Criminal Law.
Suggested impropriety on part of prosecution attorney in identifying defendant to witnesses as he entered
courtroom would not be considered on appeal where no objection was made at trial.
3. Criminal Law.
Eyewitness identification was not inherently unreliable so as to require reversal of conviction for
insufficiency of evidence.
4. Criminal Law.
In court identification was not tainted merely because defendant was confronted by prosecution witness
immediately after robbery.
OPINION
Per Curiam:
Reggi Wise was convicted, by jury verdict, of robbery and sentenced to a term of ten (10)
years in the Nevada State Prison. Sentence was suspended and Wise was placed on probation
for a period of four (4) years. In this appeal Wise contends we should reverse his conviction
because (1) he did not receive a fair trial; and, (2) there was insufficient evidence to support
the jury verdict. We reject both contentions.
[Headnote 1]
1. In support of the contention that his right to a fair trial was abridged Wise argues the
prosecution purposely withheld a portion of its case in chief which was subsequently
introduced in the guise of rebuttal testimony. The record establishes the challenged
testimony was introduced to show Wise had been in the Golden Nugget Casino immediately
after the robbery, a fact he had denied when testifying in his own defense. In this posture,
admission of the testimony during rebuttal was permissible. Hilt v. State, 91 Nev. 654, 541
P.2d 645 {1975).
92 Nev. 181, 183 (1976) Wise v. State
645 (1975). See also, Goldsby v. United States, 160 U.S. 70 (1895).
[Headnote 2]
Wise also suggests it was improper for the prosecuting attorney to identify him to
witnesses, as he entered the courtroom. This action was not deemed sufficiently prejudicial to
warrant an objection when it occurred; therefore, we decline to consider it on appeal. Walker
v. State, 89 Nev. 568, 516 P.2d 739 (1973).
[Headnote 3]
2. In support of his challenge to the sufficiency of evidence to support the verdict, Wise
suggests we should reverse because of the inherent unreliability of eyewitness
identification. This novel argument finds no support in this record. During trial Wise was
positively identified by two witnesses as the individual who committed the charged robbery.
The weight and credibility of the identifying witnesses, testimony is solely within the
province of the jury. Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972); King v. State, 87
Nev. 537, 490 P.2d 1054 (1971).
[Headnote 4]
The ancillary contention that the in court identification was tainted, because Wise was
confronted by a prosecution witness immediately after the robbery, is equally without merit.
See Moss v. State, 88 Nev. 19, 492 P.2d 1307 (1972). Cf. Riley v. State, 86 Nev. 244, 468
P.2d 11 (1970).
Affirmed.
____________
92 Nev. 183, 183 (1976) Gemini, Inc. v. Fertil
GEMINI, INC., a Nevada Corporation, d.b.a. LADY
LUCK CASINO, Appellant, v. MINNA FERTIL, Respondent.
No. 8145
March 25, 1976 547 P.2d 687
Appeal from an order denying a motion to set aside a default judgment; Eighth Judicial
District Court, Clark County; Michael J. Wendell, Judge.
The Supreme Court held that in absence of any reasons for the alleged inadvertence or
neglect, the trial court was not compelled to set aside default merely because summons and
complaint after delivery to defendant's insurance carrier by a local insurance agent simply
disappeared with no apparent explanation, apparently because procedure for handling
such documents was not followed.
insurance agent simply disappeared with no apparent explanation, apparently because
procedure for handling such documents was not followed.
Affirmed.
Cromer, Barker & Michaelson, and Corby D. Arnold, of Las Vegas, for Appellant.
Cochran, Lehman & Nelson, of Las Vegas, for Respondent.
Judgment.
In absence of any reasons for alleged inadvertence or neglect, trial court was not compelled to set aside
default merely because summons and complaint after delivery to defendant's insurance carrier by a local
insurance agent simply disappeared with no apparent explanation, apparently because procedure for
handling such documents was not followed. NRCP 60(b).
OPINION
Per Curiam:
Minna Fertil filed this action after being injured in a fall at appellant's Lady Luck Casino
in Las Vegas. Appellant failed to answer the complaint and a default judgment was taken.
A motion to set aside the judgment, timely brought under NRCP 60 (b), contended that
appellant's failure to answer was the result of inadvertence and/or excusable neglect.
1
The
motion was denied, as was rehearing, and on this appeal it is contended that the refusal of the
district court to set aside the judgment was an abuse of discretion. We do not agree.
The record establishes that the summons and complaint were delivered to appellant's
insurance carrier by a local insurance agent shortly after service thereof upon the defendant.
By affidavit, an employee of the insurance carrier outlined office policy and procedure for
handling such documents. The procedure apparently was not followed, resulting in the
unexplained loss or misplacement of the complaint.
This is not a case, as appellant suggests, where a defendant has been misled into believing
a default would not be taken. Cf. Minton v. Roliff, 86 Nev. 478, 471 P.2d 209 (1970). Here,
the summons and complaint simply disappeared with no apparent explanation.
____________________

1
NRCP 60(b) provides in pertinent part: 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.
apparent explanation. Although it may be argued that inadvertence or neglect in the abstract
has been shown, the reasons for such inadvertence or neglect are not presented.
Consequently, we are unable to say that the trial court should have found such surmised
inadvertence or neglect to be excusable. Bryant v. Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952).
Perceiving no abuse of discretion, we affirm.
____________
92 Nev. 185, 185 (1976) Theriault v. State
CLAUDE THERIAULT, Appellant, v. THE
No. 8147
March 26, 1976 547 P.2d 668
Appeal from judgment of Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Defendant was convicted in the district court of two counts of first-degree murder and he
appealed. The Supreme Court, Mowbray, J., held that Supreme Court's decision on pretrial
petition for habeas corpus relief with respect to speedy trial contentions was law of the case;
that fact that defendant was citizen of another country did not mean that he was not amenable
to criminal process in Nevada; that palm print and fingerprint evidence was properly
admitted; that pawnshop ticket and envelope in which ring taken from one of the murder
victims was placed after it was pawned were properly admitted; that indictment in
felony-murder case was not required to allege that the killing was perpetrated in the
commission of a felony; that evidence was sufficient to sustain finding of felony-murder; that
evidence was sufficient to justify giving of instruction on flight; and that trial court properly
refused to instruct on defendant's failure to produce evidence on his behalf.
Affirmed.
Alan R. Johns and Gordon Hawkins, Las Vegas, for Appellant.
Leon Simon and Rimantas A. Rukstele, Deputies, Clark County, for Respondent.
1. Habeas Corpus.
Rejection, on pretrial petition for habeas corpus relief, of claim of denial of speedy trial became law of
the case and would not be reconsidered on appeal from conviction where the points and authorities in
support of the motion in habeas proceeding were word-for-word the same argument advanced on appeal.
2. Aliens.
Fact that defendant may have been a citizen of another country did not mean that he was not amenable to
criminal process in Nevada despite fact that statute setting forth those who were liable to punishment by the
laws of Nevada for public offenses committed in Nevada referred to Every person, whether an inhabitant
of this state or any other state, or of a territory or district of the United States. NRS 171.010.
3. Criminal Law.
It was error to overrule objection to prosecutor's statement, in his opening argument, that defendant was
driving a stolen vehicle at the time of his arrest. NRS 48.035, 48.045, subd. 2.
4. Criminal Law.
Evidence of other offenses is universally regarded as prejudicial and is therefore admitted into evidence
only for certain specified purposes, and then only when its probative value outweighs its prejudicial effect.
NRS 48.035, 48.045, subd. 2.
5. Criminal Law.
In view of overwhelming evidence of guilt, error in overruling objection to prosecutor's statement, made
during opening argument, that defendant had been driving a stolen vehicle at the time of his arrest was
harmless and it was not error for trial court to have denied motion for mistrial.
6. Criminal Law.
Neither fact that certain photographs of palm prints and fingerprints had been enlarged nor fact that the
expert could not testify as to which of the fingerprints and palm prints he had enlarged precluded
introduction of the photographs of the prints into evidence where the witness had personal knowledge that
the photographs were what they were claimed to be. NRS 52.025.
7. Criminal Law.
Where witness testified that he negotiated transaction at pawnshop and dictated the information on the
items which he received and that he was responsible for their care, custody and control, pawnshop ticket
and envelope in which a pawned ring which had been taken from murder victim was placed were properly
admitted into evidence as business records even though there was no showing that the items were
permanent records of the business and even though the witness testified that he had custody and control
only as an employee. NRS 51.135.
8. Homicide.
Indictment in a felony-murder case need not allege that the killing was perpetrated in the commission of a
felony in order to have jury instructed on felony-murder.
9. Criminal Law.
Instruction is proper when it is consistent with any reasonable inference which the jury might draw.
10. Homicide.
Evidence, including evidence of subsequent pawning of ring taken from one murder victim, was
sufficient to permit jury to infer that defendant and his accomplice entered room in which crime was
committed for the purpose of committing a robbery and killed the victims in the course of that crime, and
was thus sufficient to permit jury to be instructed on felony-murder.
11. Criminal Law.
Evidence that accomplice checked out of motel on morning after murder and received a refund for
checking out one day early, and that defendant and his accomplice then left Las Vegas for Los Angeles and
checked into a hotel under assumed names was sufficient to permit finding that defendant left the scene of
the crime for the purpose of avoiding arrest and thus supported instruction on flight.
12. Criminal Law.
Where trial court specifically instructed that the burden was on the State to prove beyond a reasonable
doubt each and every element of the crime charged, it was not reversible error for trial court to refuse to
give separate instruction on the burden of proof required in a felony-murder case.
13. Criminal Law.
Trial court did not err in refusing to give an instruction regarding defendant's failure to produce evidence
on his behalf where it did offer to give appropriate instruction regarding defendant's Fifth Amendment
rights. NRS 175.181; U.S.C.A.Const. Amend. 5.
14. Criminal Law.
Trial court properly permitted State to elicit testimony regarding defendant's refusal to give certain
handwriting exemplars and to comment on such refusal in closing argument where handwriting exemplars
which the State had on file were inadequate for purposes of making handwriting comparisons because they
contained examples of mixed writing and printing. U.S.C.A.Const. Amend. 5.
15. Criminal Law.
Where photographs, although gruesome, depicted scene of the crime, they were properly admitted in
defendant's trial for murder since the probative value outweighed the prejudicial effect.
OPINION
A jury found Claude Theriault guilty of two counts of first-degree murder. He has
appealed from his judgment of conviction, asserting numerous assignments of error, which
we reject as meritless. We therefore affirm the judgment.
1. During the evening of December 18, 1971, Eugene and Mary Carone were brutally
murdered in their room at the Westward Ho Motel in Las Vegas. The victims had been
stabbed repeatedly.
stabbed repeatedly. Both expired from deep chest wounds. Police investigation revealed that
Mrs. Carone's wedding ring was missing. Later investigation revealed that Lloyd Leonard
Paulette, who was also charged with the two murders, and found guilty in a separate trial,
pawned the ring on December 19, 1971, in a Las Vegas hock shop. It was further learned that
Paulette had checked a party of two into the Westward Ho Motel on December 17, 1971, and
checked out the morning of December 19, 1971.
That same day, Paulette checked into the Terminal Hotel in Los Angeles, using an
assumed name. The following day, Theriault was asked to sign the hotel register because he
was staying with Paulette. He did so, using an assumed name. On December 21, 1971,
Theriault and Paulette were stopped for running a red light in San Diego. It was learned the
car they were driving had been stolen; so they were both placed under arrest. Two days later,
the Carones' car was found abandoned in Los Angeles. Theriault's fingerprints were found in
the car, and Theriault's fingerprint and palm print were found in the Carones' motel room.
[Headnote 1]
2. Theriault cites as error the district court's failure to dismiss the indictment for not
affording him a speedy trial. This same issue was included in Theriault's pretrial petition for
habeas corpus relief, which was rejected by order of the district court, said order being
affirmed on appeal to this court in Theriault v. Sheriff, 89 Nev. 506, 515 P.2d 397 (1973). An
examination of Theriault's points and authorities in support of his motion to dismiss in the
habeas proceedings reveals that the argument is word-for-word the same argument advanced
in this appeal. The prior ruling on this point became the law of the case, and it will not be
reconsidered in this appeal. See Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975); Walker v.
State, 85 Nev. 337, 455 P.2d 34 (1969).
[Headnote 2]
3. Theriault, who claims to be a citizen of another country, claims that the district court
erred in ruling that he was amenable to criminal process in this State. NRS 171.010 provides:
Every person, whether an inhabitant of this state, or any other state, or of a territory or
district of the United States, is liable to punishment by the laws of this state for a public
offense committed by him therein, except where it is by law cognizable exclusively in the
courts of the United States. (Emphasis added.)
Theriault claims that the portion of the statute which says . . . whether an inhabitant of
this state, or any other state, or of a territory or district of the United States . . . should be
construed to provide that only citizens of the United States, the territories, and the District of
Columbia can be subject to criminal prosecution and that foreign nationals who may commit
a crime while in Nevada are exempt from prosecution. As this court said in Paulette v. State,
92 Nev. 71, 72, 545 P.2d 205, 206 (1976):
. . . [W]e decline to presume that the legislature intended such absurdity. [Cite omitted.]
While the aforementioned phrase does not specifically refer to inhabitants of foreign
countries, we believe it to be elucidative and descriptive of the term every person' rather than
a legislative expression to exclude those classes of persons not specifically mentioned. . . .
4. Theriault claims the district judge committed reversible error in refusing to grant a
motion for a mistrial.
[Headnotes 3, 4]
In his opening argument to the jury, the prosecutor indicated that Theriault was driving a
stolen vehicle at the time of his arrest in San Diego. An objection to this comment was
overruled. The objection should have been sustained. Evidence of other offenses is
universally regarded as prejudicial and is therefore admitted into evidence only for certain
specified purposes, NRS 48.045(2), and only then when its probative value outweighs its
prejudicial effect. NRS 48.035. The arresting officer testified that Theriault was apprehended
when he was observed running a red light and that, pursuant to this routine traffic stop,
appellant was discovered to be driving without a driver's license and without proper vehicle
registration. As a result, the arresting officer ran the vehicle through the department's
computer system and subsequently decided to arrest Theriault and his passenger, Lloyd
Paulette. The officer did not tell the jury that the vehicle was stolen.
Theriault contends the prosecutor's implication during opening argument, coupled with the
arresting officer's testimony regarding the arrest, engenders an unmistakable inference and
suggestion that appellant had stolen the car he was driving. State contends evidence of this
offense was nevertheless admissible to show that Paulette and Theriault were together at the
time of their apprehension.
[Headnote 5]
In proving that the two were together when apprehended, it was not necessary to show (by
unmistakable inference) that they were driving a stolen vehicle.
they were driving a stolen vehicle. To this extent there was error. However, when viewed in
relation to the overwhelming evidence of guilt presented at trial and the collateral nature of
the erroneously admitted evidence (it did not bear directly on the guilt or innocence of the
accused), such error must be viewed as harmless. See Serrano v. State, 84 Nev. 676, 447 P.2d
497 (1968); Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969). The court did not err in
denying the motion for a mistrial.
[Headnote 6]
5. At trial, the State introduced two enlarged fingerprint photographs that had been taken
by the State's expert witness. Theriault contends that the photographs should not have been
admitted because the State's witness could not testify as to which of the particular fingerprints
he had enlargednor could he absolutely determine which of the two palm prints taken from
Theriault had been enlargedalthough the State's witness did testify that he had personally
made the enlarged photographs of the fingerprints and palm prints and that he had personally
lifted them from Theriault. The photographs were offered only to demonstrate to the jury the
manner in which fingerprint comparisons are made, and the court admitted them for that
purpose only. Theriault cites no authority for his contention that the enlarged photographs
should not have been admitted. NRS 52.025 provides that testimony of a witness is sufficient
for authentication or identification if he has personal knowledge that a matter is what it is
claimed to be. The statute was satisfied, and the evidence properly admitted.
[Headnote 7]
6. State offered in evidence a pawnshop ticket and the envelope in which the pawned ring
was placed. Without citing any authority, Theriault contends that the two items should not
have been received, because there was no showing that the items were permanent records of
the business and because the State's witness testified that only in his capacity as an employee
did he have care, custody, and control of the items, rather than testifying that he was the
actual custodian. NRS 51.135 provides that business records are admissible in any form, so
long as they are made at or recorded near the time of the transaction and the information
therein transmitted by a person having knowledge of the transaction, as shown by the
testimony of the custodian or some other qualified witness. The statute does not require that
the records be kept permanently. In this case, the State's witness testified that he
negotiated the transaction and he dictated the information on the items received and that
he was responsible for their care, custody, and control.
State's witness testified that he negotiated the transaction and he dictated the information on
the items received and that he was responsible for their care, custody, and control. Clearly,
the mandates of NRS 51.135 were satisfied and the exhibits were properly received.
[Headnote 8]
7. At trial, Theriault objected to Jury Instructions Nos. 8, 11, 12, 13, 14, and 15. The
instructions all relate to the law regarding the commission of a felony murder. They were
objected to on the ground that a felony murder was not pleaded in the original indictment and
on the additional ground that there was insufficient evidence adduced at trial to warrant the
giving of any felony murder instructions. These contentions are without merit. This court
held, in Rogers v. State, 83 Nev. 376, 432 P.2d 331 (1967), that the indictment in a felony
murder case need not allege that the killing was perpetrated in the commission of a felony. In
Rogers, this court said, 83 Nev. at 378, 432 P.2d at 332, in quoting from State v. Mangana, 33
Nev. 511, 518, 112 P. 693, 696 (1910).
It has often been held that a felony and a homicide committed in perpetrating or
attempting to perpetrate it, together, constitute the one crime of murder and may be charged
as such and in the same manner as ordinary murders are alleged, and that it is not necessary to
charge in the indictment that the murder was committed in the perpetration of another crime
in order to introduce testimony showing that a felony was committed in addition to it, and
that, under an indictment charging murder in the ordinary form and proof that it was
committed in the perpetration of a felony, malice, deliberation, and premeditation are implied.
[Cites omitted.]'
[Headnotes 9, 10]
An instruction is proper when it is consistent with any reasonable inference the jury might
have drawn. Moser v. State, 91 Nev. 809, 544 P.2d 424 (1975). From the evidence adduced,
the jury could have reasonably inferred that Theriault, with Paulette, entered the Carones'
room for the purpose of committing a robbery and in doing so killed the Carones. Such a
theory is supported by evidence showing Theriault's presence in the room and by the
subsequent pawning of Mrs. Carone's ring.
[Headnote 11]
Theriault also objects to the giving of an instruction on flight, on the ground that it was not
supported by any evidence adduced at trial.
adduced at trial. He cites this court's ruling in State v. Rothrock, 45 Nev. 214, 229, 200 P.
525, 529 (1921), wherein the court said: Flight' signifies something more than a mere
going away. It embodies the idea of going away with a consciousness of guilt, for the purpose
of avoiding arrest. The evidence shows that Paulette checked out of the motel the morning
after the murder, receiving a refund for checking out one day early; that Theriault and he left
for Los Angeles, checking into a hotel under assumed names. Given these facts, the jury
could reasonably infer that Theriault left the scene of the crime for the purpose of avoiding
arrest. The instruction was proper.
[Headnote 12]
8. Theriault also contends that the court below committed reversible error in refusing to
give certain instructions. The court refused to give a separate instruction on the burden of
proof required in a felony murder case. Since the jury were specifically instructed that the
burden was upon the State to prove beyond a reasonable doubt each and every element of the
crime charged, the jury were adequately instructed on the quantum of proof required.
[Headnote 13]
Theriault also claims the court erred in refusing to give an instruction regarding Theriault's
failure to produce evidence on his behalf. The court refused the proposed instruction, but
offered to give an appropriate instruction regarding Theriault's Fifth Amendment rights, as
provided in NRS 175.181.
1
In McNeeley v. State, 81 Nev. 663, 409 P.2d 135 (1965), it was
contended that failure to expand on a statutory instruction in a manner similar to that
requested by Theriault was error. This court rejected that contention in language stating in
part: The [statutory] instruction given was in the constitutional and statutory language and it
was proper and adequate. Id., 81 Nev. at 666, 409 P.2d at 136. McNeeley is controlling in
the instant case.
____________________

1
NRS 175.181:
1. No instruction shall be given relative to the failure of the person charged with the commission of crime
or offense to testify, except, upon the request of the person so charged, the court shall instruct the jury that, in
accordance with a right guaranteed by the constitution, no person can be compelled, in a criminal action, to be a
witness against himself.
2. Nothing herein contained shall be construed as compelling any such person to testify.
[Headnote 14]
9. Theriault next cites as error the court's ruling permitting the State to elicit testimony
regarding Theriault's refusal to give certain handwriting exemplars and in allowing the State
in closing argument to comment on such refusal. Although Theriault concedes that under
certain circumstances exemplars of handwriting may be compelled without violating the
defendant's constitutional rights under the Fifth Amendment, he contends that a prerequisite
for such an order is the unavailability of other exemplars of the defendant's handwriting,
citing United States v. Green, 282 F.Supp. 373 (S.D. Ind. 1968). Green, however, does not
support the proposition for which it is cited. Green held that it would be an infringement of
constitutional rights against self-incrimination to require a defendant to write selected phrases
narrowed to the very issues involved in the case. In Green, the defendant was asked to write
the name appearing on the sales receipt of a fraudulent claim that he was accused of filing.
Such was not the situation in the instant case. Additionally, the evidence shows the
handwriting exemplars the State had on file were inadequate for purposes of making
handwriting comparisons, because they contained examples of mixed writing and printing.
[Headnote 15]
10. Theriault further claims that the court erred in admitting certain photographs of the
murder victims, on the ground that they were so gruesome as to be prejudicial. The photos are
gruesome. They do, however, depict the scene of the crime. Despite gruesomeness,
photographic evidence has been held admissible when it accurately shows the scene of the
crime, Langley v. State, 84 Nev. 295, 439 P.2d 986 (1968), or when utilized to show the
cause of death, Allen v. State, 91 Nev. 78, 530 P.2d 1195 (1975), and when it reflects the
severity of wounds and the manner of their infliction, Nalls v. State, 90 Nev. 124, 520 P.2d
611 (1974). In the instant case, the district judge found that the probative value of the
photographic evidence outweighed the prejudicial effect, if any, and properly received the
photos in evidence.
11. Finally, Theriault complains that the district judge committed prejudicial misconduct
by, among other things, referring to a witness by his first name. We have reviewed the record
and find such and similar allegations utterly meritless. Therefore, we affirm.
____________
92 Nev. 194, 194 (1976) Galardi v. Jonco Corporation
ANGEL GALARDI and JACK GALARDI, also known as JOHN GALARDI, Appellants, v.
JONCO CORPORATION, a Nevada Corporation, Respondent.
No. 8189
March 31, 1976 547 P.2d 667
Appeal from an order denying a motion to set aside default judgment; Eighth Judicial
The Supreme Court held that failure to answer, although accurately classified as
inadvertence or neglect, did not constitute conduct which district court necessarily had to find
excusable and thus refusal to set aside default judgment was not abuse of discretion.
Affirmed.
Allan D. Bray, Las Vegas, for Appellants.
Leavitt, Edwards & Leavitt, Las Vegas, for Respondent.
Judgment.
Where, inter alia, defendants' attorney, after being informed of pendency of unlawful detainer suit,
service on defendants, order shortening time for answer to three days, and name of plaintiff's attorney,
conducted unsuccessful inquiries as to whether suit, which in fact had been filed more than eight months
earlier, had been filed against defendants in last few days, attorney in talking to plaintiff's attorney day after
default judgment was rendered did not suggest that he was representing defendants, and defendants'
attorney did nothing further for approximately 25 days when he moved to set aside judgment, failure to
answer was not inadvertence or neglect which district court must necessarily have found excusable and thus
refusal of district court to set aside default judgment was not abuse of discretion. NRCP 60(b).
OPINION
Per Curiam:
In this appeal appellants' only claim of error is that the district judge abused his discretion
by refusing to set aside a default judgment.
The record establishes that on October 17, 1973, Jonco Corporation filed a complaint in
unlawful detainer and secured an order shortening the time in which the Galardis were
required to answer to three days.
an order shortening the time in which the Galardis were required to answer to three days.
After several futile attempts personal service was perfected on Angel and Jack Galardi at
Terminal Island, California, July 9, 1974.
Jack Galardi communicated to his wife Shirley, in Las Vegas, (1) the pendency of the suit;
(2) he and Angel Galardi had been served July 9, 1974; (3) there were only three days to
answer; and, (4) the name of Jonco's attorney was Leavitt. Mrs. Galardi gave this
information to attorney Allan Bray July 11, 1974.
Bray instructed his secretary to (1) call all attorneys in the Las Vegas area named Leavitt
and inquire whether they had filed suit against the Galardis in the last few days; and, (2) call
the clerks of both the district and justice courts in Las Vegas to see whether a suit had
recently been filed against appellants herein. Each query brought a negative response, and no
further inquiry was directed to either the attorneys named Leavitt or to the respective clerks
as to pending litigation.
Counsel made no attempt to contact the Galardis by telephone; instead, on Thursday, July
12, 1974, he dispatched Shirley Galardi to Terminal Island with instructions to obtain and
bring back copies of the complaint and order shortening time. Shirley accomplished her
mission and delivered the papers to the attorney July 16, 1974.
On July 19, 1974, seven days after the Galardis were required to answer, and three days
after their attorney had received the suit papers, Jonco's counsel filed a default with the clerk
and four days later, July 23, 1974, the judgment was rendered by the court.
According to the record, appellants' counsel did nothing further in the case until August
16, 1974, when he filed a motion to set aside the judgment.
In an affidavit in support of the motion, Galardis' attorney says he . . . did not give too
much attention to the Complaint on file herein because sometime prior to July 24, 1974,
affiant talked to Elwin Leavitt, attorney for the Plaintiff in subject law suit, at the courthouse
with reference to this matter . . . Although an affidavit of respondent's counsel acknowledges
that he did have a conversation with Bray, he states that Bray lead me to believe that he
represented a buyer who desired to buy the business. Bray never suggested that he
represented the Galardis.
In support of the motion, which was brought under NRCP 60{b), it was argued that the
failure to answer was the result of mistake, inadvertence, surprise or excusable neglect.1
60(b), it was argued that the failure to answer was the result of mistake, inadvertence, surprise
or excusable neglect.
1

In our view, this is not a case, as appellant suggests, where a defendant has been misled
into believing a default would not be taken. Cf. Minton v. Roliff, 86 Nev. 478, 471 P.2d 209
(1970). Rather, the chronicled derelictions and dilatory actions, while accurately classified as
inadvertence or neglect, are not such conduct which the district court must necessarily have
found excusable. Bryant v. Gibbs, 69 Nev. 167, 243 P.2d 1050 (1952). See also, Gemini, Inc.
v. Fertil, 92 Nev. 183, 547 P.2d 687 (1976). Cf. Gottwals v. Rencher, 60 Nev. 35, 92 P.2d
1000 (1939), and its progeny.
Perceiving no abuse of discretion, we affirm.
____________________

1
NRCP 60(b) provides in pertinent part: 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; . . .
____________
92 Nev. 196, 196 (1976) Beets v. Sheriff
ALVIN ROLAND BEETS, Sr., Appellant, v. SHERIFF,
No. 8689
March 31, 1976 547 P.2d 666
The district court denied petition for habeas corpus filed by defendant who had been
ordered to stand trial for murder and being an ex-felon in possession of a firearm, and
defendant appealed. The Supreme Court held that evidence was sufficient to meet
requirement of probable cause with respect to murder charge and that where evidence was
insufficient to establish that defendant was an ex-felon, charge of being an ex-felon in
possession of a firearm could not stand.
Affirmed in part, reversed in part.
Morgan D. Harris, Public Defender, and Thomas L. Leen, Deputy, Clark County, for
Appellant.
92 Nev. 196, 197 (1976) Beets v. Sheriff
1. Criminal Law.
Evidence presented at preliminary examination was sufficient to meet requirement of probable cause for
purpose of standing trial on murder charge. NRS 171.206, 200.010, 200.030.
2. Habeas Corpus.
In habeas corpus proceeding challenging sufficiency of evidence presented at preliminary examination
with respect to requirement of probable cause to stand trial, Supreme Court, in its determination of
existence of probable cause, did not need to decide whether evidence before magistrate would support
conviction. NRS 171.206.
3. Criminal Law.
Where evidence presented at preliminary examination was insufficient to establish that defendant was an
ex-felon, defendant could not stand trial for being an ex-felon in possession of a firearm. NRS 171.206,
202.360.
OPINION
Per Curiam:
At the conclusion of a preliminary examination Alvin Roland Beets, Sr., was ordered to
stand trial for (1) murder (NRS 200.010; NRS 200.030); and, (2) being an ex-felon in
possession of a firearm (NRS 202.360).
A timely filed petition for habeas corpus contended there was insufficient evidence to meet
the requirement of probable cause set forth in NRS 171.206. The district court denied habeas
and the same contention has been brought forth in this appeal.
[Headnotes 1, 2]
1. The probable cause challenge to the murder charge is without merit. At this juncture we
need not and do not decide whether the evidence before the magistrate would support a
conviction. Cf. McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973).
[Headnote 3]
2. The prosecution offered neither probative nor demonstrative evidence to establish that
Beets was, in fact, an ex-felon; therefore, that charge cannot stand. Cranford v. Sheriff, 91
Nev. 551, 539 P.2d 1215 (1975).
The order of the trial court denying habeas is reversed as to the ex-felon in possession of a
firearm count; as to the murder count, we affirm.
____________
92 Nev. 198, 198 (1976) City of Las Vegas v. Carver
CITY OF LAS VEGAS, NEVADA, a Municipal Corporation,
Appellant, v. ADEN I. CARVER, Respondent.
No. 8061
March 31, 1976 547 P.2d 688
Appeal from judgment reversing municipal court conviction and dismissing complaint for
violation of municipal ordinance, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Defendant was convicted of a misdemeanor in Las Vegas Municipal Court, and he
appealed. The district court reversed, and city appealed. The Supreme Court held that they
had no jurisdiction for appellate review of district court judgment entered on appeal from
municipal court, and defendant's remedy, if any, would have been timely petition for
certiorari.
Appeal dismissed.
Carl E. Lovell, Jr., City Attorney, and John J. Graves, Jr., Deputy City Attorney, Las
Vegas, for Appellant.
Boyd & Freedman, Las Vegas, for Respondent.
Criminal Law.
Supreme Court had no jurisdiction for appellate review of district court judgment reversing defendant's
misdemeanor conviction in municipal court, and defendant's remedy, if any, would have been timely
petition for certiorari. NRS 34.020, subd. 3; Const. art. 6, 6.
OPINION
Per Curiam:
Aden I. Carver was convicted of a misdemeanor in a Las Vegas Municipal Court. A timely
appeal to a District Court resulted in the conviction being reversed and the misdemeanor
complaint being dismissed. The City of Las Vegas then caused this appeal to be lodged.
We do not reach the merit, if any, of the appeal. We have no jurisdiction for appellate
review of a district court judgment, which has been entered on an appeal from a municipal
court. Nev. Const. art. VI, 6. See The City of Reno v. Dixon, 42 Nev. 67, 172 P. 367
(1918), and cases cited therein. Appellant's remedy, if any, would have been to timely petition
for certiorari, under NRS 34.020{3).
92 Nev. 198, 199 (1976) City of Las Vegas v. Carver
certiorari, under NRS 34.020(3). City of Reno v. District Court, 83 Nev. 201, 427 P.2d 4
(1967). Accordingly, we
ORDER this appeal dismissed.
____________
92 Nev. 199, 199 (1976) Cortez v. Mirin
MANUEL CORTEZ, Administrator, CLARK COUNTY TAXICAB AUTHORITY, an
Agency of the State of Nevada, Appellant, v. WILLIAM MIRIN, dba STRIP CAB
COMPANY, Respondent.
No. 8500
March 31, 1976 547 P.2d 312
Appeal from order granting permanent injunction and holding statute unconstitutional,
Eighth Judicial District Court, Clark County; Paul S. Goldman, Judge.
Reversed.
Robert List, Attorney General, Carson City, and Jeffrey N. Clontz, Deputy, Las Vegas, for
Appellant.
Raymond E. Sutton, Las Vegas, for Respondent.
OPINION
Per Curiam:
For the same reasons we delineated in, and on the authority of, Kitchen Factors, Inc. v.
Brown, 91 Nev. 308, 535 P.2d 677 (1975), we reverse the district court's order which granted
a permanent injunction and held NRS 706.8827(3), as amended, unconstitutional.
____________
92 Nev. 200, 200 (1976) Lord Baronoff Apts. v. Southwest Gas
LORD BARONOFF APARTMENTS, INC., CORNELIA KELLAR and CHARLES L.
KELLAR, Appellants, v. SOUTHWEST GAS CORPORATION, UTILITY FINANCIAL
CORP., C. H. McCREA, DARRELL LINCOLN CLARK, McKELLAR AND
ASSOCIATES, Respondents.
No. 8173
March 31, 1976 547 P.2d 686
Appeal from summary judgment on four counterclaims and from order striking a fifth
counterclaim, Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Interlocutory appeal was taken from order of the district court granting respondents'
motion for summary judgment on four counterclaims and ordering a fifth counterclaim
stricken. The Supreme Court held that where counterclaims involved same issues previously
considered and resolved against corporation and parties who were injected into case as
officers and stockholders of the corporation offered no legal theory upon which they might,
either in their individual capacity or as stockholders, have either an equal or different claim
than corporation against respondents whose nonliability had already been adjudicated,
officers and stockholders and the corporation were barred, under doctrine of res judicata,
from relitigating the counterclaims.
Affirmed.
Charles L. Kellar, Las Vegas, for Appellants.
Darrell Lincoln Clark, Las Vegas, for Respondent Southwest Gas Corporation.
Albright & McGimsey, Las Vegas, for Respondents McKellar and Associates.
Judgment.
Where counterclaims involved same issues which had previously been considered and resolved against
corporation and others and parties who were injected into case as officers and stockholders of the
corporation offered no legal theory upon which they might, either in their individual capacity or as
stockholders of corporation, have either an equal or different claim than corporation against respondents
whose nonliability had already been adjudicated, the corporation and the officers and stockholders were
barred, under the doctrine of res judicata, from relitigating the counterclaims.
92 Nev. 200, 201 (1976) Lord Baronoff Apts. v. Southwest Gas
were barred, under the doctrine of res judicata, from relitigating the counterclaims.
OPINION
Per Curiam:
Appellants have perfected this interlocutory appeal, as permitted under NRCP 54(b), from
a district court order which (1) granted respondents' motion for summary judgment on four
counterclaims; and, (2) ordered a fifth counterclaim stricken insofar as it applied to
Southwest Gas Corporation and Utility Financial Corporation, and dismissed as to McKellar
and Associates, for failure to state a claim upon which relief can be granted.
1. The first four (4) counterclaims involved the same issues which were previously
considered and resolved against the corporate appellant, and others, in Lawrence v. Southwest
Gas Corp., 89 Nev. 433, 514 P.2d 868 (1973).
1
The Kellars, who were injected into this case
as officers and stockholders of the corporate appellant, have offered no legal theory upon
which they might, either in their individual capacity or as stockholders of the corporation,
have either an equal or different claim than the corporation against respondents; and, since
the non-liability of respondents has already been adjudicated, all of the appellants are barred
from relitigating the counterclaims under the doctrine of res judicata.
2

2. The contention that the district court erred in striking and dismissing appellants' fifth
counterclaim, being without merit, is also rejected. See Agran v. Isaacs, 306 F.Supp. 945
(N.D.Ill. 1969).
Affirmed.
____________________

1
In addition to the Lawrence case and the instant appeal, appellants have attempted to relitigate the same
issues in two other state court proceedings and in one instance in the federal courts.

2
The general principle announced in numerous cases is that a right, question or fact distinctly put in issue
and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a
subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of
action, the right, question or fact once so determined must, as between the same parties or their privies, be taken
as conclusively established, . . .' Lucas v. Page, 91 Nev. 493, 495, 538 P.2d 165, 166 (1975).
____________
92 Nev. 202, 202 (1976) Cragun v. Nevada Pub. Employees' Ret. Bd.
BARBARA M. CRAGUN, For Herself and as Guardian ad Litem for KAYA E. CRAGUN
and KERRY L. CRAGUN, Minors, Appellants, v. NEVADA PUBLIC EMPLOYEES'
RETIREMENT BOARD, Respondent.
No. 7935
March 31, 1976 547 P.2d 1356
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Teacher's survivors brought an action for declaratory relief to determine entitlement to
survivor benefits under Public Employees' Retirement Act. The district court entered
summary judgment for respondent Retirement Board, and plaintiffs appealed. The Supreme
Court, Gunderson, C. J., held that phrase 2 years of accredited contributing service, in
Public Employees' Retirement Act providing for survivorship benefits, required only that an
employee perform the accredited contributing service contemplated in a period of 2 years,
and employment was not required for 2 calendar years; and that thus, teacher's survivors were
entitled to survivor benefits where teacher was employed under contract from August 24,
1970, until his death on July 13, 1972, even though teacher did not live for 2 full calendar
years from date of employment, where teacher had performed all the teaching services
required of him under his employment contract for the 1971-1972 school year.
Reversed.
Thompson, J., dissented.
Steffen & Simmons, Las Vegas, for Appellants.
Robert List, Attorney General, and William E. Isaeff, Deputy Attorney General, for
Respondent.
1. Statutes.
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.
2. Statutes.
The entire subject matter and the policy of the law may be involved to aid in its interpretation, and it
should always be construed so as to avoid absurd results.
3. Officers.
The Public Employees' Retirement Act must be construed reasonably to afford employees the protection
they earn. NRS 286.672, subd. 1.
4. Schools and School Districts.
Phrase 2 years of accredited contributing service, in Public Employees' Retirement Act providing for
survivorship benefits, required only that an employee perform the accredited contributing service
contemplated in a period of 2 years, and employment was not required for 2 calendar years; thus teacher's
survivors were entitled to survivor benefits where teacher was employed under contract from August 24,
1970, until his death on July 13, 1972, even though teacher did not live for 2 full calendar years from date
of employment, where teacher had performed all the teaching services required of him under his
employment contract for the 1971-1972 school year. NRS 286.672, subd. 1.
Even though some employees may not complete the accredited contributing service required to qualify
for survivorship benefits under Public Employees' Retirement Act until 2 full calendar years on the job,
considerations of equal protection do not mandate denying earned benefits to those who qualify at an
earlier point in time. NRS 286.672, subd. 1.
In Public Employees' Retirement Act, requirement of not less than 6 months of accredited contributing
service in the 7 months immediately preceding his death must be satisfied by all employees, including a
teacher, but purpose of this requirement is to withhold benefits when an employee has failed, for more than
one month in the seven preceding death, to perform required services. NRS 286.672, subd. 1.
OPINION
Calvin Cragun, husband of appellant Barbara Cragun and father of appellants Kaya and
Kerry Cragun, died while employed as a teacher by the Clark County School District.
Appellants brought this action for declaratory relief, to establish that decedent qualified for
survivor benefits under the Public Employees' Retirement Act. Upon cross motions for
summary judgment, the district court ruled he did not, and entered judgment for respondent.
This appeal follows.
The material facts are not in dispute. Calvin Cragun was employed under contract by the
school district from August 24, 1970, until his death on July 13, 1972. By its answer,
respondent admits that, decedent had performed all the teaching services required of him
under his employment contract for the 1971-1972 school year. By his contract, although his
work was complete, Cragun's salary was payable in equal monthly installments over a
twelve-month period. The last installment under the 1971-1972 contract was paid August 25,
1972.
25, 1972. Thus, although earned before, Cragun's 24th monthly retirement fund payment was
automatically withheld and credited after his death, under the accounting system employed by
the school district.
In late July, 1972, the Public Employees' Retirement Board had advised Mrs. Cragun by
letter that she was not entitled to survivor benefits, enclosing a refund application for her
husband's retirement contributions. In August, 1972, appellants' counsel informed the
Retirement Board that appellants contested the Board's position regarding benefits.
Nonetheless, without advising counsel, in November of 1972, the Retirement Board sent
another refund application directly to Mrs. Cragun. She filled out the form and respondent
sent her a check.
Thereafter, upon learning of the supposed settlement, her counsel filed suit on appellants'
behalf, asserting their right to receive benefits earned by their husband and father, despite
respondent's efforts to achieve a lump-sum settlement. While other points have been argued,
we deem two dispositive.
1. Eligibility for survivor benefits is governed by NRS 286.672(1), and the controlling
issue is the meaning to be accorded the phrase 2 years of accredited contributing service.
1
Respondent contended and the district court agreed that NRS 286.672(1) required
employment for 2 calendar years. Here, appellants contend that, reasonably and correctly
construed, the disputed phrase only requires an employee to perform the accredited
contributing service contemplated in a period of 2 years, and that the decedent fulfilled
this requirement. We agree.
Respondent's interpretation of the phrase in question focuses entirely on the term 2
years. The qualifying phrase, of accredited contributing service, is totally ignored.
Similarly, cases respondent cites define the term years in the context of tenure or
employment contracts. See: Grace v. Board of Education of City of New York, 241 N.Y.S.2d
429 (N.Y.
____________________

1
NRS 286.672(1) provides: If a deceased member has had 2 years of accredited contributing service in the
2 1/2 years immediately preceding his death and not less than 6 months of accredited contributing service in the
7 months immediately preceding his death, certain of his dependents are eligible for payments as provided in
NRS 286.671 to 286.6791, inclusive. If the death of such member resulted from a mental or physical condition
which required him to leave the employ of a participating public employer, his eligibility pursuant to the
provisions of this section shall extend for 18 months after such termination. (Emphasis added.)
1963); Zimmerman v. Bd. of Educ. of Newark, 183 A.2d 25 (N.J. 1962); State v. East Baton
Rouge Parish School Board, 35 So.2d 804 (La. 1948). Minimum tenure or probational
periods are used to protect the employer from unqualified employees. Cf. Zimmerman v. Bd.
of Educ. of Newark, cited above. This is not the interest to be protected by a retirement
system.
Were we to adopt respondent's interpretation of NRS 286.672(1), then even an employee
who died minutes before the close of the second calendar year would fail to qualify, although
all work for the calendar year was completed. We believe such a result would be
unreasonable, and that we must resolve any doubt as to legislative intent in favor of what is
reasonable, as against what is unreasonable. Penrose v. Whitacre, 61 Nev. 440, 455, 132
P.2d 609, 616 (1942).
NRS 286.220(2) provides: It is hereby declared to be the policy of the legislature that the
public employees' retirement fund is a trust fund established to afford a degree of security to
long-time public employees of the state and its political subdivisions. . . .
[Headnotes 1-4]
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. 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. Welfare Div.
v. Washoe Co. Welfare Dep't., 88 Nev. 635, 637, 638, 503 P.2d 457, 459 (1972). The Public
Employees' Retirement Act must therefore be construed reasonably, to afford employees the
protection they earn. Thus, we hold NRS 286.672(1) requires only that, within the 2 1/2 years
immediately preceding death, employees must complete whatever accredited contributing
service is required in a 2 year period, not that they must necessarily live two full calendar
years from the date of their employment. The statute's emphasis is on service, not on
survivorship, and contains no clear indications that contemplated benefits were fixed with
reference to actuarial concerns related to longevity.
[Headnote 5]
We agree, of course, as respondent suggests, that our law should apply equally to all
employees. However, although some employees may not complete the accredited
contributing service required to qualify, until two full calendar years on the job, in our view
considerations of equal protection do not mandate denying earned benefits to those who
qualify at an earlier point in time.
92 Nev. 202, 206 (1976) Cragun v. Nev. Pub. Employees' Ret. Bd.
on the job, in our view considerations of equal protection do not mandate denying earned
benefits to those who qualify at an earlier point in time.
[Headnote 6]
We also agree that a deceased employee, including a teacher, must also satisfy the
requirement of not less than 6 months of accredited contributing service in the 7 months
immediately preceding his death. However, the statute's obvious purpose in this regard is to
withhold benefits when an employee has failed, for more than one month in the seven
preceding death, to perform required services. Here, no such failure occurred. In the instant
case, except for taking two days sick leave in June, Calvin Cragun worked every day his
contract required him to work, in the seven months before his demise. All physical aspects of
his work thus having been performed earlier, we do not read the law to contemplate
penalizing Cragun's survivors because he did not and could not do more, during his last
month of life.
2. Regardless of what interpretation may be accorded NRS 286.672(1), respondent
contends Mrs. Cragun's acceptance of a lump-sum refund of all contributions constituted an
irrevocable election of remedies. Even in the absence of a controlling statute, we question
such an election would follow from Mrs. Cragun's uncounseled actions. However, in this
case, NRS 286.678 precludes a lump-sum refund, since more than one person is eligible for
benefits.
2
The money erroneously refunded to Mrs. Cragun may, of course, be offset against
benefits to which she has become entitled since July 13, 1972. It may not be offset against
benefits owing to Kaya and Kerry Cragun.
Reversed.
Thompson, J., dissenting:
Respectfully, I wish to record my disagreement with the opinion of the Court.
____________________

2
As worded at the time this litigation arose, NRS 286.678 provided: Any beneficiary eligible for payments
under the provisions of NRS 286.674, 286.675, 286.676 or 286.677 may elect to waive payment of a monthly
allowance and to receive instead a lump-sum refund of all contributions to the retirement fund made by a
deceased member, but if more than one person is eligible for benefits on account of the contributions of any one
deceased member, no such lump-sum payment may be made.
The appellants have submitted a case which evokes sympathy. I, too, would like to see the
Cragun family eligible for survivor benefits. This result, however, should not be
accomplished by a construction of the Public Employees' Retirement Act which may prove
detrimental to the survivors of other public employees, including school teachers, when the
tragedy of death strikes. Equal application of the Act to all members of the system should be
the rule of eligibility for survivor benefits unless the legislature has otherwise expressed
itself. The legislature has not done so. The Act contemplates equal application and the
eligibility formula is clear and easily understood.
1. Eligibility for survivor benefits is governed by NRS 286.672(1), and the issue here is
the meaning to be accorded the phrase two years of accredited contributing service.
1
It is
the appellants' contention that Mr. Cragun had completed two full teaching years and had
been credited with 24 monthly payments to the retirement fund, thereby meeting the statutory
eligibility requirement. On the other hand, the respondent Board contends that the word
years as used in the statute is not to be restricted to a school year of nine or ten months
duration, but means an ordinary year of twelve months duration measured from anniversary to
anniversary date. The district court agreed with the Board.
The common meaning of the word year, when used without limitation such as
academic year, is a period of twelve months from anniversary to anniversary date. State v.
East Baton Rouge Parish School Board, 35 So.2d 804 (La. 1948); see generally, annot. 3
A.L.R.3rd 584 (1966). Such common meaning is to be used unless the statute suggests that
some other meaning was intended. Application of Filippini, 66 Nev. 17, 24, 202 P.2d 535
(1949); Ex Parte Ming, 42 Nev. 472, 492, 181 P. 319 (1919); Ex Parte Zwissig, 42 Nev. 360,
363, 178 P. 20 (1919).
The Public Employees' Retirement Act contains nothing to indicate that school teachers
are to be treated differently than other public employees.
____________________

1
NRS 286.672(1) in relevant part reads: If a deceased member has had 2 years of accredited contributing
service in the 2 1/2 years immediately preceding his death and not less than 6 months of accredited contributing
service in the 7 months immediately preceding his death . . . certain of his dependents shall be eligible for
payments as provided in NRS 286.671 to 286.6791 inclusive. If the death of such member resulted from a
mental or physical condition which required him to leave active service, such eligibility shall extend for eighteen
months after such member left active service.
other public employees. There is no intimation that a year of service for a school teacher is
less than 12 months for the purposes of eligibility under the Act. The term academic year is
not used. I believe that the legislature intended equal application of the Act to all members of
the retirement system insofar as two years of accredited contributing service is concerned.
The legislature did not designate one or another group of public employees to receive special
consideration in that regard.
School teachers are employed on a yearly basis, that is, for a period of twelve months from
anniversary to anniversary date, and are paid monthly for their service during the entire year.
They are in service of the employer for that period even though not teaching during the
Thanksgiving, Christmas and Easter recesses, nor during the summer recess months. An
employee on paid vacation remains in the service of his employer. Butler v. Bakelite Co., 160
A.2d 36 (N.J. 1960).
Indeed, the appellants implicitly have acknowledged that summer nonteaching months are
service months in computing the precondition to eligibility of two years of service. I say
this because the appellants have counted the 1971 summer nonteaching months for that
purpose. To now contend that Mr. Cragun's second year of service ended at the end of the
spring school semester of 1972 because he had completed his teaching responsibilities, is a
contradiction and points out the flaw in the appellants' position.
This conclusion is compelled, as well, by the requirement of NRS 286.672(1) that the
deceased member has had not less than 6 months of accredited contributing service in the 7
months immediately preceding his death. . . . If summer months are not counted as service
months for a teacher's service year, then no teacher who dies between August and the
following March will be able to satisfy the requirement that he have 6 months of accredited
contributing service in the 7 months immediately preceding his death. The legislature could
not have intended that result.
2. The appellants' contention that the last sentence of NRS 286.672(1) may be utilized to
establish eligibility is similarly without substance. That sentence: If the death of such
member resulted from a mental or physical condition which required him to leave active
service, such eligibility shall extend for eighteen months after such member left active
service.
Mr. Cragun did not leave the active service of the school district as the result of a mental
or physical condition. He became ill two days before his teaching responsibilities were
completed under his 1971-72 contract.
became ill two days before his teaching responsibilities were completed under his 1971-72
contract. However, he thereafter continued in the service of the school district until his
death on July 13, 1972.
The quoted sentence contemplates the circumstance where, because of physical or mental
illness, the employment is terminated. It does not apply to the case of an ill employee who
continues to be employed, paid and in service of his employer.
For the reasons expressed, I would affirm the summary judgment entered below.
____________
92 Nev. 209, 209 (1976) Curtis v. Sheriff
GERALD M. CURTIS, Appellant, v. SHERIFF,
No. 8695
March 31, 1976 547 P.2d 1360
Appeal from order denying pretrial petition for writ of habeas corpus, Second Judicial
District Court, Washoe County; John W. Barrett, Judge.
The district court entered an order denying pretrial petition for writ of habeas corpus filed
by defendant who had been indicted for murder, and defendant appealed. The Supreme Court
held that where, after defendant had entered plea of not guilty and had accepted trial date, trial
court entered order purporting to allow defendant to withdraw plea of not guilty and
purporting to allow defendant right to file pretrial petition for habeas corpus, trial court
directly contravened statute, and, despite defense counsel's argument that such procedure was
more convenient, appeal would therefore be dismissed so that trial could proceed on date
scheduled.
Appeal dismissed.
William N. Dunseath, Public Defender, and William B. Puzey, Deputy, Washoe County,
for Appellant.
Robert List, Attorney General, Larry R. Hicks, District Attorney, and Calvin Dunlap,
Deputy, Washoe County, for Respondent.
1. Habeas Corpus.
Where, after defendant entered plea of not guilty to murder charge and accepted trial date, district court
entered order purporting to allow defendant to withdraw his plea and purporting to allow defendant the
right to file a pretrial petition for habeas corpus, district court directly contravened statute prohibiting
pretrial petitions for habeas corpus not filed before plea was entered, and despite defense counsel's
argument that such procedure was more convenient, appeal from decision denying writ of habeas corpus
would therefore be dismissed so that trial could proceed on date scheduled. NRS 34.380, 34.380, subd.
1 (c) (1), 178.556.
2. Criminal Law.
Record contained ample evidence to hold defendant for trial on charge of murdering two-year-old child.
OPINION
Per Curiam:
Indicted on November 5, 1975, for murdering Kenneth Todd Butler, a two-year-old child,
Gerald M. Curtis was arraigned and pleaded not guilty on December 3, 1975. The record
establishes that, although the Grand Jury transcript was filed November 14, 1975, defense
counsel prepared no pretrial habeas petition prior to arraignment. Therefore, attempting to
accommodate counsel, the district court granted Curtis an additional 21 days, to and including
December 24, in which to file motions and writs. However, as defense counsel declined to
waive the sixty-day rule, NRS 178.556, the court set Curtis's trial to begin January 5, 1976.
1

Of course, the district court's order, purporting to allow Curtis the right to file a pretrial
petition for habeas corpus notwithstanding his entry of a plea, and his acceptance of a trial
date directly contravened NRS 34.380(1) (c) (1).
2
Moreover, subsequent events occasioned
one of the very procedural dislocations which NRS 34.3S0 was amended in 1973 to
eliminate: defense counsel filed a pretrial habeas petition close to the eve of trial, and
repeated continuances of the scheduled trial date resulted.
____________________

1
NRS 178.556 provides: Dismissal by court for unnecessary delay. If no indictment is found or information
filed against a person within 15 days after he has been held to answer for a public offense, or if a defendant
whose trial has not been postponed upon his application is not brought to trial within 60 days after the finding of
the indictment or filing of the information, the court may dismiss the indictment, information or complaint.

2
NRS 34.380(1) (c) (1) provides:
(c) A district court shall not consider any pretrial petition for habeas corpus:
(1) Based on alleged want of probable cause or otherwise challenging the court's right or jurisdiction to
proceed to the trial of a criminal charge if such petition is not filed and brought on for hearing before a
dislocations which NRS 34.380 was amended in 1973 to eliminate: defense counsel filed a
pretrial habeas petition close to the eve of trial, and repeated continuances of the scheduled
trial date resulted. On this appeal, therefore, we are constrained to review the import of
counsel's conduct.
The record reflects that defense counsel took no action whatever until December 29, 1975,
i.e., three judicial days before Curtis's trial was set to commence. Then, having previously
insisted on an early trial date, defense counsel and Curtis stipulated with the prosecution
that the assigned date should be vacated, and a later date allowed. The district court purported
to approve this stipulation, vacated the January 5 trial setting, set the habeas petition for
January 9, and assigned Curtis a new trial date on March 15, 1976.
Defense counsel subsequently stipulated to continue the hearing on Curtis's habeas
petition, and finally caused it to be heard on January 30, 1976.
3
However, the district court
did not decide the petition until March 5, 1976, at which time it ruled adversely to Curtis.
Thus, for the second time, Curtis was again permitted to delay his scheduled trial; we are
advised by the Second Judicial District's court administrator that the March 15 date was not
utilized for any other trial; and Curtis's trial was again reset, and is now scheduled for May
17, 1976. Accordingly, were our court also to ignore NRS 34.380(1)(c)(1)reviewing
formally the supposed merits of Curtis's petition notwithstanding that legislative command,
and taking as much time to write an opinion as the district court found necessary to reach its
decisionthen the third trial date now scheduled might also have to be vacated, and Curtis's
case allotted yet a fourth date for trial.
4

____________________
plea to the charge is entered by the accused or on the accused's behalf by his counsel or the court.
This provision of NRS 34.380 seeks to implement this court's pronouncements in Howard v. Sheriff, 83 Nev.
150, 425 P.2d 596 (1967), involving facts much like those here concerned.

3
On January 30, counsel and the district judge were not only aware of NRS 34.380(1)(c)(1), but of this
court's January 16 decision in Slattery v. Sheriff, 92 Nev. 19, 544 P.2d 894 (1976), wherein we dismissed a
pretrial habeas appeal because the petition had not been filed and brought on for hearing before a plea to the
charge was entered, as our statute requires. At counsel's instance, however, the district judge purported to allow
a withdrawal of the plea of not guilty, which will technically satisfy the statute and allow a hearing of the petition
of the defendant in this case.

4
For example, if our court were only to consume 36 days to formulate its initial decision, as did the district
courtand if counsel were
[Headnote 1]
In the instant case, the record shows no excuse for violating NRS 34.380(1) (c) (1), except
that counsel indicates he has done so repeatedly in the past, and considers his accustomed
procedures more convenient than those established by law. Counsel's tactic of seeking to
withdraw the not guilty plea heretofore entered, solely and only to circumvent our statute's
mandatory language, was considered and specifically disapproved in Kline v. Sheriff, 92 Nev.
121, 546 P.2d 1000 (1976). As noted in Kline: At this juncture we need not and do not
consider the question of whether, and under what circumstances, if any, it would be
permissible to withdraw his plea for some purpose other than circumvention of our statute.
When, and if, that issue becomes cognizable, it will be considered and resolved. 92 Nev. at
122, 546 P.2d at 1000.
We do not fault the district court for seeking to accommodate counsel. However, in our
view, this court may not properly ignore NRS 34.380(1) (c) (1), merely because we might
deem other procedural devices more convenient, which it happens we do not. Certainly,
neither the district court nor counsel may constrain us to accept alternative procedures
counsel have devised as preferable to our statute.
[Headnote 2]
This appeal is therefore dismissed; remittitur will issue forthwith; trial may and should
proceed on the date now scheduled.
5

____________________
to exercise their option to exhaust another 31 days in filing a petition for rehearing, and the permissible
responsethen computing from the date when this appeal was docketed on March 15, the 68 days thereby
expended would necessitate at least one more continuance of the trial currently set for May 17.
To alleviate such problems, in this and other similar cases, our own court could only accord still higher
priority to pretrial habeas matters, endeavoring to decide all cases before further continuances became necessary.
This preemption of our energies, of course, would only further reduce our capacity to accord needed priority to
other worthy matters, including important civil litigation affecting the livelihood and business of honest Nevada
citizens.

5
We note, in passing, that we have perused the record, and believe the record contains ample evidence to
hold Curtis for trial on the charge of murdering Kenneth Todd Butler, a minor child two years of age.
____________
92 Nev. 213, 213 (1976) Vipperman v. State
FRANK DELANO VIPPERMAN, Appellant, v. THE
No. 8301
March 31, 1976 547 P.2d 682
Appeal from judgment of Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Defendant was convicted before the district court of murder in second degree, and he
appealed. The Supreme Court held that district attorney's repeated questioning of defendant
with regard to his failure to reveal his alibi to police was reversible error.
Jeffrey D. Sobel, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George Holt, District Attorney, and H. Leon
Simon and Rimantas A. Rukstele, Deputy District Attorneys, Clark County, for Respondent.
In proceeding in which accused was convicted of murder in second degree, district attorney's repeated
questioning of accused with regard to his failure to reveal his alibi to police was reversible error.
Due process prohibits any inference to be drawn from exercise of one's constitutional right to remain
silent after arrest.
OPINION
Per Curiam:
A jury found the appellant, Frank Delano Vipperman, guilty of murder in the second
degree. He was sentenced to life imprisonment in the state penitentiary. He has appealed from
his judgment of conviction, asserting several assignments of error. We need consider only
one, for it requires a reversal and a remand for a new trial.
On April 20, 1973, David McPeake, an employee of an auto body shop in Las Vegas,
heard a shotgun blast, followed by screams, from his employer, Bill Parquette, Help me,
Dave, help me. Frank shot me. McPeake testified that he saw Vipperman standing in the
corner of the shop and watched him as he raised the gun and fired a second and fatal shot
into Parquette.
watched him as he raised the gun and fired a second and fatal shot into Parquette.
At trial, the State proved that Vipperman purchased a 20-gauge shotgun on the day of the
killing and that a 20-gauge shotgun shell was recovered from the scene of the crime.
Vipperman testified at trial in his own behalf, claiming that he was with a girl named Sue
on the night of the killing and that while he was with her his shotgun was stolen from his car.
The defense presented a witness who testified that a Jack Heath had admitted to him that
Heath, a girl named Carol, and an employee from the body shop had killed Parquette and
framed Vipperman.
[Headnote 1]
Vipperman, who was subsequently arrested and given a full Miranda
1
warning, remained
silent at the time of his arrest, and he made no mention of his alibi testimony later presented
at trial. On cross-examination, he was asked repeatedly by the district attorney why he had
failed to reveal his alibi to the police. The questions are footnoted below.
2
Vipperman
claims that the prosecutorial questioning constituted reversible error in view of the recent
opinion of the High Court in United States v. Hale, 422 U.S. 171 {1975).
____________________

1
Miranda v. Arizona, 384 U.S. 436 (1966).

2
Q. [by Deputy District Attorney Earl Gripentrog]. Why didn't you tell the police that you were with a girl
named Sue at the Horseshoe?
MR. SOBEL [Appellant Vipperman's attorney]: I object to that, Your Honor, on the basis that at no point
does a man have the duty to have any excuse with the police, as Mr. Gripentrog knows.
. . .
THE COURT: The objection is overruled.
. . .
Q. My question is the police arrested you for murder and you just left a girl named Sue at the hotel and the
police had just arrested you for murder, and you never told the police?
A. I don't recall the police ever telling me what I was arrested for. The following day I was told by an
attorney and I never spoke to a policeman again.
. . .
Q. Then when you found out what you were being arrested for and your attorney told you, why didn't you
have your attorney go to the police and tell them that you were with a girl named Sue?
A. My attorney told me to remain silent, which I did.
. . .
Q. But at no time did you indicate that to law enforcement?
MR. SOBEL: I would like the record to reflect a continuing objection to this line of questioning regarding a
failure to speak to the police, Your Honor; it violates the defendant's rights under Miranda.
THE COURT: The objection is overruled.
MR. GRIPENTROG:
claims that the prosecutorial questioning constituted reversible error in view of the recent
opinion of the High Court in United States v. Hale, 422 U.S. 171 (1975). We agree. The
defendant in Hale was arrested after a victim of a robbery identified the defendant as one of
the robbers. He was advised of his right to remain silent, and was searched. When an officer
asked the defendant to explain how he had obtained the money found in his possession, the
defendant made no response. At his trial, the defendant testified in his own defense and
explained his possession of the money. In an effort to impeach this explanation, the
prosecutor caused the defendant to admit on cross-examination that he had not offered the
exculpatory information to the police at the time of the arrest. The Supreme Court reversed
Hale's conviction on the grounds that Hale's silence failed to qualify as a prior inconsistent
statement (permitting prosecutorial comment) and because Hale's silence carried with it an
intolerably prejudicial impact. In reaching this conclusion, however, the majority of the High
Court avoided constitutionalizing its ruling, by holding, 422 U.S. at 181:
Accordingly, we hold that under the circumstances of this case it was prejudicial error for
the trial court to permit cross-examination of respondent concerning his silence during police
interrogation, and we conclude, in the exercise of our supervisory authority over the lower
federal courts, that Hale is entitled to a new trial.
3

The Nevada case law states that [M]ere passing reference to such silence... does not
mandate automatic reversal. The consequences should be governed by a consideration of the
trial as a whole. Shepp v. State, 87 Nev. 179, 181, 484 P.2d 563, 564 {1971).
____________________
Q. Then the one girl that could absolutely clear you and tell of your whereabouts, you did not inform the
police at all, did you?
A. No, sir, I did not.
Q. Did you tell them that you were with this girl?
A. I did not tell the police anything.
. . .
Q. Well, why didn't you tell the police what you knew that evening?
A. The police did not tell me what I was arrested for. I didn't know until the following day what I was
arrested for, and then I was told by an attorney not to speak of anything.

3
Justices Douglas and White concurred in Justice Marshall's majority opinion of reversal, on the grounds that
the case was controlled by Miranda v. Arizona, supra, and that due process was violated when the prosecution
called attention to the silence of the defendant at the time of his arrest.
P.2d 563, 564 (1971). See also Edwards v. State, 90 Nev. 255, 524 P.2d 328 (1974).
[Headnote 2]
In the instant case, there was more than mere passing reference to Vipperman's
post-arrest silence. No less than six times did the prosecution press Vipperman to explain his
post-arrest silence (see f. 2, supra), knowing full well that under the Miranda rule he had been
told by the police officers that he had every right to remain silent. We believe that due
process prohibits any inference to be drawn from the exercise of one's constitutional right to
remain silent after arrest. To hold otherwise would not only burden the exercise of the
privilege to an intolerable degree, but would also operate unfairly against the accused, who,
when informed of his rights, would not suppose that his silence could in any way be used
against him. Cf. Johnson v. United States, 318 U.S. 189, 196-199 (1943). Accordingly, we
reverse and remand the case for a new trial.
____________
92 Nev. 216, 216 (1976) Kressman v. Shangle
FREDRICK W. KRESSMAN, Appellant, v. JOAN SHANGLE, Treasurer of the County of
Eureka, State of Nevada, Respondent.
No. 8228
April 14, 1976 548 P.2d 641
Appeal from judgment, Third Judicial District Court, Eureka County; John F. Sexton,
Judge.
In an action involving title to certain land, appeal was taken from a judgment entered in
district court. The Supreme Court held that where respondent failed to file answering brief
and offered no explanation for such failure, failure would be treated as a confession of error
and judgment would be reversed sua sponte.
Richard G. Barrows, Elko, for Appellant.
Johnson W. Lloyd, District Attorney, Eureka, for Respondent.
92 Nev. 216, 217 (1976) Kressman v. Shangle
Appeal and Error.
Where respondent on appeal of civil action failed to file answering brief and offered no explanation for
such failure, such unexplained and unexcused omission would be treated as confession of error and
Supreme Court would reverse judgment of district court sua sponte. NRAP 31(a), (c).
OPINION
Per Curiam:
This appeal involves title to certain land located in Eureka County.
The Record on Appeal in this case was filed in May, 1975. Oral argument is set for May,
1976. Respondent was required, under NRAP 31 (a), as amended, to file the answering brief
on or before September 27, 1975. The brief has not been filed; furthermore, there has been no
explanation tendered for the failure to do so.
Under these circumstances and for the same reasons stated in, and on the authority of,
Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975), we elect to treat
respondent's unexplained and unexcused omission as a confession of error and, sua sponte,
reverse the judgment of the district court. NRAP 31 (c). See also, Grogan v. County of
Esmeralda, 91 Nev. 728, 541 P.2d 1101 (1975).
This case is remanded to the district court with instructions to enter judgment permitting
appellant to obtain a reconveyance of the land in question upon payment of applicable taxes,
interest, penalties and costs.
____________
92 Nev. 217, 217 (1976) Flowers v. Sheriff
TERRY DEE FLOWERS, Appellant, v. SHERIFF,
No. 8746
April 14, 1976 548 P.2d 644
Defendant charged with battery with intent to commit rape petitioned for habeas corpus,
contending that the charge should be dismissed because the evidence adduced at a
preliminary examination did not establish probable cause.
be dismissed because the evidence adduced at a preliminary examination did not establish
probable cause. The district court denied relief and petitioner appealed. The Supreme Court
held that the quantum and quality of the evidence adduced at the preliminary examination
established probable cause; and that the petitioner's attempted constitutional challenge to the
admissibility of an in-court identification was not cognizable in habeas, but should have been
raised through a motion to suppress.
Affirmed.
Morgan D. Harris, Public Defender, and Mike Harrison, Deputy, Clark County, for
Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Frank
J. Cremen, Deputy, Clark County, for Respondent.
1. Criminal Law.
Quantum and quality of evidence adduced at preliminary hearing was sufficient to establish probable
cause to warrant trial for battery with intent to commit rape. NRS 171.206, 200.400.
2. Habeas Corpus.
Constitutional challenge to admissibility of in-court identification was not cognizable in habeas corpus,
but should have been raised through motion to suppress. NRS 174.125.
OPINION
Per Curiam:
At the conclusion of a preliminary examination Terry Dee Flowers was ordered to stand
trial for battery with intent to commit rape, a felony under NRS 200.400.
In an effort to avoid trial Flowers timely petitioned for habeas corpus, contending the
charge should be dismissed because the evidence adduced at the preliminary examination did
not meet the probable cause test delineated in NRS 171.206. He also contends his in-court
identification should be suppressed because it was based on an unduly suggestive pretrial
lineup.
[Headnote 1]
1. Contrary to Flowers' contention, we believe the quantum and quality of the evidence
adduced at the preliminary examination met the requirements of probable cause specified in
NRS 171.206 and, therefore, warranted the magistrate's determination that Flowers should
stand trial.
determination that Flowers should stand trial. State v. Havas, 91 Nev. 611, 540 P.2d 1060
(1975).
[W]e are not now concerned with the prospect that the evidence presently in the record
may, by itself, be insufficient to sustain a conviction. McDonald v. Sheriff, 89 Nev. 326,
327, 512 P.2d 774, 775 (1973).
[Headnote 2]
2. Flowers' attempted constitutional challenge to the admissibility of the in-court
identification is not cognizable in habeas; rather, it should be raised through a motion to
suppress, as contemplated by NRS 174.125. See Cook v. State, 85 Nev. 692, 462 P.2d 523
(1969), and its progeny.
Affirmed.
____________
92 Nev. 219, 219 (1976) Blackman v. Mikulich
A. W. BLACKMAN, Executor of the Estate of MARY MIKULICH, Deceased; ANDREW J.
MIKULICH; and WILLIS B. SMITH, Appellants, v. SEBASTIAN F. MIKULICH,
Respondent.
No. 8164
April 15, 1976 548 P.2d 645
Appeal from order of Eighth Judicial District Court, Clark County; William P. Compton,
Judge.
Appeal was taken from an order of the district court which granted a preliminary
injunction restraining appellants from entering on respondent's property. The Supreme Court
held that where the parties had not secured district court approval of the agreed statement of
facts on which the record was submitted, the agreed statement of facts was fatally defective.
Affirmed.
Raymond E. Sutton and Michael Schaefer, Las Vegas, for Appellants.
Dickerson, Miles & Pico, Las Vegas, for Respondent.
Appeal and Error.
Under rule which provides that in lieu of an actual record of proceedings, parties may prepare statement
of case showing how issues presented by appeal arose and were decided and setting forth essential facts,
and that such statement must be approved by the district court, where parties to appeal from district court
order did not secure district court approval of agreed statement of facts, statement was
fatally defective.
not secure district court approval of agreed statement of facts, statement was fatally defective. NRAP
10(e).
OPINION
Per Curiam:
This is an appeal from an order of the district court granting a preliminary injunction
restraining the appellants from entering upon respondent's property and from damaging
respondent's fence.
Appellants seek reversal on the grounds that the record below does not support the
findings of the court that the injunction should issue and that the court abused its discretion in
awarding respondent's counsel fees in the sum of $2,000, which award, appellants claim, is
excessive.
The record has come before us on an agreed statement of facts. NRAP 10(e) provides that
in lieu of an actual record of the proceedings the parties may prepare and sign a statement of
the case showing how the issues presented by the appeal arose and were decided and setting
forth only so many of the facts alleged and proved as are essential to a decision of the issues
presented. The rule clearly provides that the statement must be approved by the district court.
1
The district court approval was not secured in the instant case. Therefore, the agreed
statement is fatally defective. In Moore v. Cherry, 90 Nev. 390, 396, 528 P.2d 1018, 1022
(1974), we held:
Appellants have attempted to file a statement of the evidence pursuant to the provisions
of NRAP 10(c) (formerly NRCP 75(n)), but there is nothing to indicate that the statement was
ever submitted to the district court for settlement and approval. We must therefore, because
appellants failed to comply with NRAP 10(c) (formerly NRCP 75(n)), refuse to consider it as
a part of the record on appeal.
____________________

1
NRAP 10(e):
(e) Agreed Statement as the Record on Appeal. In lieu of the record on appeal as defined in subdivision (a)
of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the
appeal arose and were decided in the district court and setting forth only so many of the facts averred and proved
or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the
truth, it, together with such additions as the court may consider necessary fully to present the issues raised by the
appeal, shall be approved by the district court and shall then be certified to the Supreme Court as the record on
appeal and transmitted thereto by the clerk of the district court within the time provided by Rule 11. Copies of
the agreed statement may be filed as the appendix required by Rule 30.
As we said in Alexander v. Simmons, 90 Nev. 23, 518 P.2d 160 (1974), when this court is
not favored with a transcript of the proceedings in the district court and the appellants have
failed to submit a settled and approved statement of the evidence taken in the proceedings
below, this court is not able to decide under the facts whether the judgment of the trial court
was erroneous or that it was not based upon substantial evidence. In such a case, the judgment
is affirmed.
____________
92 Nev. 221, 221 (1976) Geer v. State
PAUL RAYMOND GEER, Jr., Appellant, v. THE
No. 8265
April 15, 1976 548 P.2d 946
Appeal of judgments of convictions of murder and attempted murder by the Eighth
Judicial District Court, Clark County; Carl J. Christensen, Judge.
The Supreme Court, Mowbray, J., held that the evidence, with respect to altercation in bar,
was sufficient to support finding of premeditation and malice aforethought; that motion to
strike rebuttal testimony that defendant had been asked to leave the bar during an incident a
week prior to the homicide on ground that such testimony was irrelevant and immaterial was
properly denied; and that instruction on confessions and admissions was properly given.
Affirmed.
[Rehearing denied May 13, 1976]
Alan R. Johns, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George Holt, District Attorney, and Elliott A.
Sattler and Howard Jones, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
Granting an advisory instruction to acquit rests within the sound discretion of the trial court.
2. Homicide.
In prosecution for murder and attempted murder arising from an altercation in bar, evidence was
sufficient to support finding of premeditation and malice aforethought.
92 Nev. 221, 222 (1976) Geer v. State
3. Criminal Law.
Where defendant in homicide prosecution arising from altercation at bar denied having been asked a
week before the homicide to leave the bar for causing a disturbance, and bartender testified in rebuttal that
she had personally asked defendant to leave on the prior occasion, motion to strike such testimony on the
ground that it was irrelevant and immaterial was properly denied.
4. Criminal Law.
Where evidence is admitted over a defendant's objection at trial, new grounds for objection may not be
raised on appeal.
5. Criminal Law.
Where, in prosecution for murder and attempted murder, term assault was used only in conjunction
with issues presenting defendant's theory of self defense, defendant, if he wanted his theory better defined,
should have offered a desired definition of assault or at least an objection on the record that no definition
was given, and failure to do so precluded appellate consideration.
6. Criminal Law.
Admission is an out-of-court statement made by defendant that tends to prove his guilt, and a statement
purportedly exculpatory in nature may nevertheless qualify as an admission if it tends to establish guilt.
7. Criminal Law.
Where, upon being arrested at home following homicide occurring during altercation at bar, defendant
acknowledged his presence at the bar and being involved in an altercation with the victim, such statements
warranted giving of an instruction on confessions and admissions despite contention that since the
statements were consistent with defendant's self-defense theory of the case, they could not be considered as
admissions.
8. Criminal Law.
Where jury was not made aware that defendant had been returned to custody because he could not make
increased bail imposed during trial and court made certain that defense counsel had access to his client, no
prejudicial error resulted from the increase in bail. NRS 178.499.
OPINION
A jury found the appellant, Paul Raymond Geer, Jr., guilty of murder and attempted
murder. He was sentenced to life imprisonment with possibility of parole on the murder
charge and 20 years on the attempted murder charge, the sentences to run concurrently. He
has appealed from his judgments of convictions, asserting numerous assignments of errors,
which we reject as meritless.
On the evening of November 28, 1973, Geer and his wife visited a bar in North Las Vegas.
Geer had just finished a shift as a sheet metal worker and was attired in his work clothes.
92 Nev. 221, 223 (1976) Geer v. State
as a sheet metal worker and was attired in his work clothes. He carried on his belt a 4-inch
knife that he used in cutting insulation and other materials on the job. The Geers met Raul
Ortiz and Warren Ferrell in the bar. A conversation resulted among them that the Geers
considered offensive. The verbal exchange became heated. Geer pulled his knife, and he and
Ortiz struggled. Ferrell came to Ortiz's rescue, but it required the intercession of the bar
owner to separate them. Geer left the bar and went home with his wife. Ortiz collapsed and
died from massive blood loss resulting from a stab wound over an inch deep that severed a
carotid artery in his neck. Ferrell's arm was cut from elbow to arm pit, severing the nerves and
arteries in the process. He was also stabbed through the larynx. Ferrell survived the fracas,
but has lost the use of one arm, and his eye has been permanently damaged.
[Headnotes 1, 2]
Geer claims that the record below does not support the jury's finding that he was guilty of
charges set forth in the Information. This complaint is completely without merit. There is
overwhelming evidence of Geer's guilt; and in such cases we shall not disturb the verdict. See
Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974). Geer complains that it was error for the
district judge not to advise the jury to acquit. The law with regard to advisory instructions has
been developed over the past century. See State v. Little, 6 Nev. 281 (1871); Terrano v. State,
59 Nev. 247, 91 P.2d 67 (1939); State v. Corinblit, 72 Nev. 202, 298 P.2d 470 (1956); Cook
v. State, 74 Nev. 51, 321 P.2d 587 (1958). The granting of an advisory instruction to acquit
rests within the sound discretion of the court. In the instant case, the district judge was of the
opinion that the facts in the record were sufficient to support a finding of premeditation and
malice aforethought. A review of the record supports the court's conclusion. The motion for
an advisory instruction was properly denied.
[Headnotes 3, 4]
Geer would assign error to admission of the testimony of Judy Holyoak, a bartender. She
was called during the presentation of the State's case in chief and was questioned regarding
the ownership of a truck abandoned by Geer in the parking lot of the bar. At that time she was
not permitted to testify as to Geer's past behavior in the bar. The court held, however, that
such testimony could become relevant in rebuttal, depending upon what the defense
presented. During his testimony, Geer specifically denied having been asked, a week before
the homicide, to leave the bar for causing a disturbance.
92 Nev. 221, 224 (1976) Geer v. State
homicide, to leave the bar for causing a disturbance. Miss Holyoak was later called as a
rebuttal witness, and she testified that she personally asked Geer to leave because he was
drunk, belligerent, cursing loudly, and kicking the dice machine.
Geer moved to strike that testimony, on the grounds that it was irrelevant and immaterial.
The motion was properly denied. On appeal, Geer now contends that the testimony should
have been stricken as improper character evidence, inadmissible under the provisions of NRS
48.055. Miss Holyoak was called as a witness to rebut a statement made by Geer while on the
stand. Where evidence is admitted over a defendant's objection at trial, new grounds for
objection may not be raised on appeal. O'Briant v. State, 72 Nev. 100, 295 P.2d 396 (1956).
[Headnote 5]
Next, Geer complains that the district judge erred in failing to define assault in his
instructions to the jury. He cites Wilkerson v. State, 87 Nev. 123, 482 P.2d 314 (1971),
wherein this court held, in an appeal from a judgment of conviction of assault with intent to
kill and assault with a deadly weapon, that the term assault should have been defined for
the jury. The court in Wilkerson refused to reverse, however, on the grounds that the failure
to define assault was harmless error and the accused's guilt was clear. Wilkerson is
distinguishable from this case. In Wilkerson, assault was an essential element of the crime
with which the defendant was charged. Here, assault is used only in conjunction with issues
presenting the defendant's theory of the case, i.e., self-defense. If defense counsel wanted his
theory of the case better defined, he should have offered a desired definition of assault, or
at least objected on the record that no definition was given. Failure to make a proper
objection on the record will generally preclude appellate consideration in such cases. See
Clark v. State, 89 Nev. 392, 513 P.2d 1224 (1973).
[Headnotes 6, 7]
As an additional assignment of error, Geer contends that certain exculpatory statements
made by him after his arrest did not warrant the giving of an instruction on confession and
admission. After being arrested at his home by police and having been warned of his rights,
Geer volunteered a brief statement to the officers in which he acknowledged his presence at
the bar and being involved in an altercation with the victim. He claimed that he was acting in
self-defense and that he had a right to do what he did.
92 Nev. 221, 225 (1976) Geer v. State
a right to do what he did. In giving this admission, he placed himself at the crime scene and
impliedly identified himself as the person who inflicted the injuries upon the victims. Geer
claims it was error to instruct the jury regarding the voluntariness of any admission that may
have been made by him. He contends that, since the statements given to the officers were
consistent with his theory of the case, they may not be considered as admissions. An
admission is an out-of-court statement made by the defendant that tends to prove his guilt.
State v. Behiter, 55 Nev. 236, 29 P.2d 1000 (1934). A statement purportedly exculpatory in
nature may nevertheless qualify as an admission, if it tends to establish guilt. People v.
Sourisseau, 145 P.2d 916, 923 (Cal.App. 1944). The instruction was proper.
[Headnote 8]
Geer finally contends that the trial court erred by increasing his bail during his trial. Under
the provisions of NRS 178.499,
1
the trial court may on its own motion increase bail for good
cause. We need not undertake the task of examining the exercise of judicial discretion in this
matter, for we fail to see how the court's decision could have affected the verdict. The court
took precaution to insure that the jury was not made aware that Geer had been returned to
custody because he could not make the bail, and the court made certain that Geer's attorney
had access to his client. We find no error in the ruling of the court.
The remaining assignments of error are meritless.
We affirm the judgments of the lower court.
____________________

1
NRS 178.499:
1. At any time after a district or justice's court has ordered bail to be set at a specific amount, and before
acquittal or conviction, the court may upon its own motion or upon motion of the district attorney and after
notice to the defendant or to his counsel, increase the amount of bail for good cause shown.
____________
92 Nev. 226, 226 (1976) Miller v. York
GORDON B. MILLER, EDDIE MILLER, and HELEN SPENCER, Appellants, v. DON
YORK and KATHRYN YORK, Respondents.
No. 7930
April 16, 1976 548 P.2d 941
Appeal from judgment of Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
In response to attempt to foreclose on deeds of trust executed to secure promissory note,
borrowers filed complaint praying for judgment decreeing that promissory note secured by
deeds of trust had been paid, requiring repayment of usurious interest and issuance of
injunction preventing sale under deeds of trust, and requiring reconveyance of title to
borrowers. The district court entered judgment in favor of plaintiffs, and defendants appealed.
The Supreme Court, Mowbray, J., held that payment of $10,500 loan commission, to party
who was not independent lender or independent broker from purported lender, for execution
of promissory note providing on its face for $35,000 loan, payable in two years with 10
percent interest, was additional interest payment that made entire transaction usurious; that
thus plaintiffs were entitled to be reimbursed for all sums paid over $24,500 they actually
received; that right to use interest payment as setoff against principal amount of indebtedness
sued for by lender could not be barred by statute of limitations; that right to affirmatively
recover usurious interest payments is governed by 4-year statute of limitations; that limitation
commences to run from date last or most recent interest payment was made; and that action
was not barred by limitations.
Affirmed.
Robinson & Cassas, Reno, for Appellants.
Stewart & Horton and Raymond B. Little, Reno, for Respondents.
1. Usury.
Payment of $10,500 loan to party who was not independent lender or independent broker from purported
lender, for execution of promissory note providing on its face for $35,000 loan, payable in two years with
10 percent interest, would be deemed additional interest payment that made entire transaction usurious and
borrowers were thus entitled to be reimbursed for all sums paid to alleged broker over and above $24,500
they actually received from him.
92 Nev. 226, 227 (1976) Miller v. York
2. Limitation of Actions.
Inasmuch as period of limitation cannot begin to run before payment, and since payment of interest on
usurious contract is allocated to principal indebtedness so as to automatically reduce it at time and to extent
of payment, right to use interest payment as setoff against principal amount of indebtedness sued for by
lender cannot be barred by statute of limitations. NRS 11.190, subd. 2(c).
Right to affirmatively recover usurious interest payments is governed by 4-year statute of limitations
covering actions upon contract, obligation or liability not predicated upon written instrument. NRS
11.190, subd. 2(c).
4. Usury.
Right to recover usurious interest is not predicated upon written contract under which usury was paid, but
rather on duty imposed by law to repay unjust and unmerited enrichment; liability based upon obligation of
this kind arises purely upon implication of law, independent of agreement or intention of parties, in that
usury exacted by lender is deemed to be received and retained by him for use of borrower under implied
promise to repay him, similar to constructive trust relationship.
Four-year limitation on action to recover interest paid under usurious contract commences to run from
date last or most recent interest payment was made. NRS 11.190, subd. 2(c), 11.200.
Where action to recover usurious interest payments was brought within four years of date of last interest
payment, action was not barred by limitations. NRS 11.190, subd. 2(c), 11.200.
OPINION
This is an appeal from a judgment of the district court declaring usurious a promissory
note signed by the respondents, Don and Kathryn York, made payable to Appellant Gordon
B. Miller, in the principal sum of $35,000; ordering appellants to return to the Yorks (1) the
sum of $7,958.85, representing moneys paid to appellants in excess of the actual amount
loaned to them, (2) accrued interest thereon in the amount of $2,655.11, and (3) $1,000
attorney's fees; and permanently enjoining Miller from proceeding with foreclosure
proceedings under three deeds of trust securing the aforementioned promissory note.
On March 1, 1973, the Yorks were served with notice of default and election to sell certain
trust deeds that they had executed in favor of Appellant Gordon B. Miller to secure a loan.
92 Nev. 226, 228 (1976) Miller v. York
loan. The Yorks responded to the notice of default and election to sell by filing a complaint in
the district court and moving for an injunction to prevent the sale of the properties.
The deeds of trust had been given by the Yorks to secure a promissory note dated February
25, 1966, in favor of Appellant Gordon B. Miller. The promissory note was in the sum of
$35,000, payable in two years, with 10 percent interest.
Although the promissory note provided a face amount of $35,000, the Yorks received only
$24,500, because a $10,500 loan commission was paid to Appellant Gordon B. Miller, the
payee on the original note. Miller received the $10,500 commission plus an additional
$10,500 commission in consideration for a renewal of the note. Again at a subsequent date
the note became delinquent, and Miller was paid an additional commission of $1,602.16 on
or about February 13, 1970.
The Yorks' complaint in the court below, filed in response to Miller's attempt to foreclose
on the deeds of trust, was filed March 1, 1973. The complaint prayed for judgment decreeing
that the promissory note secured by the deeds of trust had been paid, requiring the repayment
of $7,958.85 as usurious interest and the issuance of an injunction preventing the sale under
the deeds of trust, and requiring reconveyance of title therein to the Yorks.
The appellants filed their answer on May 3, 1973, denying that the transaction was
usurious and asserting the affirmative defense of the statute of limitations, among others.
Trial was held before the court, sitting without a jury. At the conclusion of the trial, the
district judge entered judgment in favor of the Yorks, declaring that the promissory note was
paid in full, permanently enjoining the sale under the deeds of trust, decreeing that
reconveyance should be made to the Yorks, and awarding them $7,958.85, representing past
payments of usurious interest, together with accrued interest thereon in the amount of
$2,655.11; attorney's fees in the sum of $1,000; and their costs of suit. From that judgment
the appellants have appealed to this court.
The basis of the Yorks' claim of usury in the instant case is that they received $24,500
from the subject loan and were required to give their note in the sum of $35,000. The
remainder, or $10,500, was retained by Appellant Gordon B. Miller as a fee for obtaining the
loan for the Yorks. Additional sums were paid to Appellant Gordon B. Miller for various
renewals of the note that occurred over the life of the transaction.
92 Nev. 226, 229 (1976) Miller v. York
renewals of the note that occurred over the life of the transaction. Appellants attempted to
purge the transaction of its usurious nature, at trial, by claiming that Appellant Gordon B.
Miller was the agent for Mrs. Ray Korn, his mother-in-law, now deceased, and that Mrs.
Korn was the true lender (even though Gordon B. Miller is named as the sole payee in the
promissory note and as the sole beneficiary under the deed of trust). Miller contends that he
was merely acting as a broker for the loan and that his fees cannot be added to the 10 percent
interest provided in the note, to make the loan usurious. Our decision in Pease v. Taylor, 88
Nev. 287, 496 P.2d 757 (1972), is controlling on this issue. There, this court said:
. . . 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. Id., 88 Nev. at 290, 496 P.2d at
759.
. . . 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. [Cite omitted.] In testing for an usurious
exaction, a fee or bonus beyond the legal rate of interest constitutes an additional charge for
interest. [Cites omitted.] Id., 88 Nev. at 291, 496 P.2d at 760.
. . . 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. . . . (Emphasis
added; footnote omitted.) Id., 88 Nev. at 290, 496 P.2d at 760.
The record shows that this transaction was not the act of an independent lender or
independent broker. The close relationship between the purported lender, Korn, and the
alleged broker, Miller, is evidenced by their close family relationship, in that the loan was
assigned to and carried on the records of a family trust wherein George B. Miller's wife
(Eddie Miller, one of the appellants) was named as a beneficiary of the income of the trust,
and their children, beneficiaries of the corpus of the trust.
[Headnote 1]
Transactions by which one member of a family receives commissions for alleged services
in negotiating loans from another member of the family have been held usurious where they
appeared to be merely devices by which an excessive compensation was received for the
loan.
92 Nev. 226, 230 (1976) Miller v. York
appeared to be merely devices by which an excessive compensation was received for the loan.
See Grady v. Price, 383 P.2d 173 (Ariz. 1963). We agree with the ruling of the court below
that the Miller loan commission was an additional interest payment that made the entire
transaction usurious, and that the Yorks were entitled to be reimbursed for all sums paid to
Miller over and above the $24,500 they actually received from him.
The next issue presented is whether the recovery of those excess sums may be barred in
whole or in part by the statute of limitations.
The Yorks executed the $35,000 promissory note on February 25, 1966. On January 2,
1969, the payee, George B. Miller, assigned the note to Eddie Miller, his wife, and Helen
Spencer, his sister-in-law, as trustees of an inter vivos trust established by Miller's
mother-in-law, Mrs. Korn. The Yorks paid additional renewal commissions$10,500 on
March 14, 1968, and $1,624.81 on October 29, 1970totaling completed payments on the
note of $32,458.85 by October 29, 1970. On June 21, 1968, the Yorks had paid Miller
$24,747.88 ($247.88 more than the $24,500 they had received on the original note). The court
below ordered all payments above $24,500 to be remitted to the Yorks, with interest thereon
at 7 percent per annum until paid. As a result, the trial court found the Yorks were entitled to
$7,958.85, representing past payments of usurious interest, together with accrued interest
thereon in the sum of $2,655.11, plus $1,000 for attorney's fees. In reaching this conclusion,
the trial court rejected appellants' contention that the Yorks' claim was barred by the statute of
limitations, stating: The Court is of the opinion that the correct rule is that the statute of
limitations has no application since it has been established that the transaction is usurious.
Both parties concede, however, that an action to affirmatively recover usurious interest is
governed by a statute of limitations. The prime issue presented to us is to determine which
statute is controlling.
[Headnote 2]
It is the Yorks' contention that there is no statute of limitations regarding the right of setoff
as long as the usurious transaction remains unpaid and the lender attempts to enforce the
same. We agree. The California courts have specifically held that as long as any part of the
debt remains unpaid the usurious payments made or agreed to be made may be set off against
the whole amount and are not affected by the statute of limitations.
92 Nev. 226, 231 (1976) Miller v. York
whole amount and are not affected by the statute of limitations. The debtor can, at any time,
set off the usurious payments where the lender seeks to collect the obligations by an action or
otherwise. See Richlin v. Schleimer, 7 P.2d 711, 120 Cal. App. 40 (1932), where the court
said:
. . . [W]e believe the true rule under our statute to be that, when the lender attempts at any
time to enforce the usurious obligation by action or otherwise, there is no statute of
limitations which bars the right of the borrower to assert the invalidity thereof as to unpaid
interest, and he may do so in any appropriate manner which the circumstances may require.
We deem it immaterial that, by reason of the nature of foreclosure proceedings under a deed
of trust, it becomes necessary in such case for the borrower to assert his rights as plaintiff in
an action seeking to enjoin the threatened foreclosure rather than as a defendant urging his
defense in an action brought by the borrower [sic]. Id., 7 P.2d at 713, 120 Cal.App. at 44.
See also Shirley v. Britt, 313 P.2d 875 (Cal.App. 1957); Paillet v. Vroman, 126 P.2d 419,
423, 52 Cal.App.2d 297, 305 (1942), where the court restated the rule:
. . . Where the lender brings an action to recover an indebtedness, none of the usurious
payments, nor payments on renewal notes, are barred by limitation so as to preclude their use
in the reduction of the principal debt. . . .
Other jurisdictions have invoked the same rule. See O'Malley v. United States Bldg. &
Loan Ass'n, 298 P. 675 (Ida. 1931).
We conclude, therefore, that, inasmuch as the period of limitation cannot begin to run
before payment, and since payment of interest on a usurious contract is allocated to the
principal indebtedness so as to automatically reduce it at the time and to the extent of
payment, the right to use the interest payment as a setoff against the principal amount of
indebtedness sued for by the lender cannot be barred by a statute of limitations. To hold
otherwise would do violence to the principal announced in Pease v. Taylor, supra, where this
court stated, in quoting Justice Traynor in Stock v. Meek, 221 P.2d 15, 22 (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.
. . .
If no loophole is provided for lenders, and all borrowers save fraudulent ones are
protected, usurious transactions will be discouraged.' Id., 88 Nev. at 292, 496 P.2d at 761.
92 Nev. 226, 232 (1976) Miller v. York
We turn to consider which statute of limitations should govern the right of persons who
affirmatively sue to recover usurious interest payments and when such limitation period
would begin to run in the instant case.
[Headnotes 3, 4]
An examination of the schedule of payments demonstrates that the Yorks' payments did
not exceed the amount of the loan until June 21, 1968, when the sum of $24,747.88 had been
paid to Gordon B. Miller. Thereafter, other payments were made beginning June 30, 1969,
and ending October 29, 1970, which brought the total excess to $7,958.85. The Yorks'
complaint was filed herein on March 1, 1973. The question of the limitations period to be
applied to the recovery of usury is one of first impression in this State. While, in Pease v.
Taylor, this court did allude to the California law as to limitations on usury, 88 Nev. at
292-293, 496 P.2d at 762, this court did not decide which statute of limitations applied in the
usurious loan transaction to recover the whole of any interest paid above the principal. We
believe, and so hold, that the right to recover usurious interest payments is governed by our
4-year statute of limitations, as set forth in NRS 11.190, subsection 2(c).
1
In so holding, we
find that the right to recover usurious interest is not predicated upon the written contract (in
this case a promissory note) under which the usury was paid, but rather on a duty imposed by
law to repay an unjust and unmerited enrichment. The liability based upon an obligation of
this kind arises purely upon an implication of law, independent of the agreement or intention
of the parties. See Edwards v. Surety Fin. Co., 30 P.2d 225 (Wash. 1935). This view accords
with the great weight of authority. See Annot., 59 A.L.R.2d 519, 527 (1958). The reason
given for this rule of recovery is that usury exacted by the lender is received and retained by
him for the use of the borrower under an implied promise to repay him, similar to a
constructive trust relationship. Thus, the 4-year statute of limitations covering actions upon a
contract, obligation or liability" not predicated upon a written instrument is controlling.2
____________________

1
NRS 11.190, subsection 2(c):
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:
. . .
2. Within 4 years:
. . .
(c) An action upon a contract, obligation or liability not founded upon an instrument in writing.
92 Nev. 226, 233 (1976) Miller v. York
obligation or liability not predicated upon a written instrument is controlling.
2

[Headnotes 5, 6]
Finally, we must decide when the statute of limitations commences to run in an action to
recover interest paid under a usurious contract. NRS 11.200 is controlling on this issue.
3
The
statute starts to run from the date the last or most recent interest payment was made. In the
instant case, the last interest payment was made on October 29, 1970, bringing the total
excess payments over the $24,500 actually received by the Yorks to $7,958.85. This action
was commenced on March 1, 1973, well within the 4-year limitation period. We therefore
affirm the judgment below.
____________________

2
Cf. Plitt v. Kaufman, 53 A.2d 673 (Md. 1947); Neuscheler v. See, 36 A.2d 753 (N.J. 1944); Hawkins v.
Ellis, 151 So. 569 (Miss. 1934); Clanton v. Community Fin. & Thrift Corp., 262 S.W.2d 252 (Tex. 1953); and
Trautman v. Spokane Sec. Fin. Corp., 1 P.2d 867 (Wash. 1931).

3
NRS 11.200:
The time in NRS 11.190 shall be deemed to date from the last transaction or the last item charged or last
credit given; and whenever any payment on principal or interest has been or shall be made upon an existing
contract, whether it be a bill of exchange, promissory note or other evidence of indebtedness if such payment be
made after the same shall have become due, the limitation shall commence from the time the last payment was
made.
____________
92 Nev. 234, 234 (1976) Gibbens Co. v. Archie
THE GIBBENS CO., INC., HUGHES TOOL CO., HOTEL PROPERTIES, INC., dba
LANDMARK HOTEL, HAROLDS CLUB, INC., all being Nevada Corporations and
SILVER SLIPPER, a Nevada Proprietorship, Appellants, v. ROBERT ARCHIE, Executive
Director, Nevada Employment Security Department, Respondent.
FLAMINGO RESORTS, INC., dba FLAMINGO HOTEL AND CASINO, and LAS VEGAS
INTERNATIONAL HOTEL, INC., dba LAS VEGAS HILTON, Amici Curiae.
No. 7854
April 26, 1976 548 P.2d 1366
Appeal from judgment of the First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Certain employers brought action against director of Employment Security Department
challenging adoption of contribution rate for unemployment compensation fund. The district
court denied relief and employers appealed. The Supreme Court held that the Employment
Security Department, in setting the contribution rate for employers, was bound by the
Administrative Procedure Act; and that failure to comply with the Act rendered regulation
invalid as to those employers who timely asserted their objection.
Reversed.
[Rehearing denied June 17, 1976]
Stan L. Lyon, Reno, for Appellants.
John A. Flangas, Reno, for Respondent.
Lionel, Sawyer & Collins, Las Vegas, for Amici Curiae.
1. Administrative Law and Procedure.
By enacting the Nevada Administrative Procedure Act, legislature intended to establish minimum
procedural requirements governing regulation-making process of state agencies. NRS 233B.010 et seq.
2. Taxation.
Director of Employment Security Department is not prohibited by law from commencing
regulation-making procedures with respect to employers' contributions to the unemployment compensation
fund prior to November 30, the date on which the fund must be tested for solvency, so that statute
governing setting of employers' contribution rate is not in conflict with the
Administrative Procedure Act, so that provisions of the Administrative Procedure Act
are applicable to that regulation-making procedure. NRS 233B.010 et seq., 233B.060,
subds. 1-3, 233B.160, 612.010 et seq., 612.550, subds.
of employers' contribution rate is not in conflict with the Administrative Procedure Act, so that provisions
of the Administrative Procedure Act are applicable to that regulation-making procedure. NRS 233B.010
et seq., 233B.060, subds. 1-3, 233B.160, 612.010 et seq., 612.550, subds. 2, 7.
3. Taxation.
Failure of executive director of Employment Security Department to comply with Administrative
Procedure Act requirements for public hearing and opportunity, to be heard rendered regulation which set
certain employers' contribution rate for the unemployment compensation fund invalid as to those employers
who timely asserted their objection. NRS 233B.010 et seq., 233B.020, 233B.060, subds. 1-3, 5,
233B.160, 612.010 et seq., 612.550, subds. 2, 7.
OPINION
Per Curiam:
In January, 1972, respondent adopted Regulation ESD-17 (Rev.) which established
appellants' 1972 contribution rate to the unemployment compensation fund pursuant to NRS
Ch. 612. In the district court, appellants argued respondent's failure to comply with the
Nevada Administrative Procedure Act, NRS Ch. 233B, rendered the regulation invalid. The
district court ruled it was unnecessary to comply with the Act. Appellants contend this was
error, and we agree.
[Headnote 1]
By enacting the Nevada Administrative Procedure Act, it is clear our legislature intended
to establish minimum procedural requirements governing the regulation-making process of
state agencies. NRS 233B.020. Those procedural requirements mandate that, prior to the
adoption, amendment, or repeal of any regulation, an agency first must give at least thirty
days' notice of its intended action and the time, place, and manner in which interested persons
may present their views. NRS 233B.060(1) and (2). Further, the agency must afford interested
persons an opportunity to submit, orally or in writing, data, views, or arguments. NRS
233B.060(3). Where required, such minimum procedural requirements may not be ignored.
Cf. Checker, Inc. v. Public Serv. Comm'n, 84 Nev. 623, 446 P.2d 981 (1968).
[Headnote 2]
Respondent does not dispute his noncompliance with these procedural requirements, but,
instead, contends compliance was unnecessary pursuant to NRS 233B.160 which provides in
part: Insofar as any provision of this chapter conflicts with any provision of chapter 612 . . .
of NRS, chapter 612 . . . of NRS shall govern."
any provision of chapter 612 . . . of NRS, chapter 612 . . . of NRS shall govern. Respondent
argues a conflict exists between the two chapters because the time sequence required for
adoption of regulations in accordance with NRS Ch. 233B cannot be satisfied when adopting
regulations pursuant to NRS Ch. 612. It cannot be satisfied, respondent asserts, because he
cannot commence regulation-making procedures until after November 30, the date the
unemployment compensation fund must be tested for solvency pursuant to NRS 612.550(7),
and the regulation must be in effect by January 1. However, we find nothing in NRS Ch. 612
that so restricts respondent. On the contrary, it appears respondent could commence
regulation-making procedures at any time after June 30, thereby giving ample time to satisfy
the minimum dictates of NRS Ch. 233B. See NRS 612.550(2).
[Headnote 3]
Respondent's failure to comply with the Nevada Administrative Procedure Act renders the
regulation invalid as to those employers who timely asserted their objection.
1

Reversed.
____________________

1
NRS 233B.060(5) provides:
5. No regulation adopted after July 1, 1965, is valid unless adopted in substantial compliance with this
section, but no objection to any regulation on the ground of noncompliance with the procedural requirements of
this section may be made more than 2 years after its effective date. . . .
____________
92 Nev. 236, 236 (1976) Richardson v. Brennan
MARGARET S. RICHARDSON, Appellant, v. HERBERT F.
BRENNAN and IRENE BRENNAN, Husband and Wife, Respondents.
No. 7966
April 26, 1976 548 P.2d 1370
Appeal from an order of dismissal. Eighth Judicial District Court, Clark County; Keith C.
Hayes, Judge.
Property owner brought action in which she sought to quiet title to claimed driveway
easement over defendants' adjacent property and sought to have defendants permanently
enjoined from interfering with plaintiff property owner's use of easement. The district court
granted defendants' motion for involuntary dismissal, and plaintiff appealed. The Supreme
Court, Batjer, J., held that evidence that an easement by prescription appurtenant to
plaintiff's property was in existence was sufficient to withstand motion for involuntary
dismissal.
Batjer, J., held that evidence that an easement by prescription appurtenant to plaintiff's
property was in existence was sufficient to withstand motion for involuntary dismissal.
Eric Zubel, of Las Vegas, for Appellant.
Monte J. Morris, of Boulder City, for Respondents.
1. Trial.
On motion for involuntary dismissal, plaintiff's evidence and all reasonable inferences must be accepted
by trial court and the evidence must be interpreted in favor of plaintiff. NRCP 41(b).
2. Easements.
Easement by prescription can be created through five years' adverse, continuous, open and peaceable use.
3. Easements.
No presumption that servient estate's owner's use of road across dominant estate is permissive will arise
where road has for many years been the only means of ingress to and egress from dominant estate and has
not been established by owner of servient estate for his own use.
4. Easements.
In action in which plaintiff property owner sought to quiet title to claimed driveway easement over
defendants' adjacent property and sought to have defendants permanently enjoined from interfering with
plaintiff's use of easement, evidence that an easement by prescription appurtenant to plaintiff's property was
in existence was sufficient to withstand defendants' motion for involuntary dismissal. NRCP 41(b);
Boulder City Act of 1958, 72 Stat. 1726.
OPINION
Appellant commenced an action against respondents seeking to quiet title to a claimed
driveway easement over respondents' property and to permanently enjoin respondents from
interfering with her use of such easement. At trial, after the close of appellant's case, the
district court granted respondents' NRCP 41(b) motion to dismiss. This appeal followed.
[Headnote 1]
The complaint alleged an easement by express grant, implication or prescription. On a
motion for involuntary dismissal under NRCP 41(b) plaintiff's evidence and all reasonable
inferences must be accepted by the trial court and the evidence must be interpreted in favor
of plaintiff.
must be interpreted in favor of plaintiff. Bearden v. City of Boulder City, 89 Nev. 106, 108,
507 P.2d 1034 (1973). Interpreting the evidence introduced and the inferences that can be
drawn from it in appellant's favor we find she presented a case that requires respondents to
answer her evidence which establishes that an easement by prescription exists appurtenant to
her real property.
Appellant is the owner of Lot 14A, Block 5, 618 Arizona Street, and respondents are the
owners of Lot 14, Block 5, 421 Avenue I, in Boulder City, Nevada. Respondents' lot lies with
frontage to the west on Avenue I. The driveway in question begins on Avenue I and divides to
circle respondents' house with an upper and lower roadway. Appellant's lot 14A is on the
eastern boundary of respondents' lot and the front of her house and garage face respondents'
lot and Avenue I. The only access to appellant's garage is through the lower roadway from
Avenue I across respondents' lot.
Appellant's lot does not abut any public street. In 1966 Boulder City opened a gravelled
alleyway from Arizona Street to the east of appellant's lot; however, it only allows appellant
to park at the rear of her house and conveniently enter her home through the back door.
Without an easement across respondents' lot appellant cannot drive a vehicle to the front of
her lot and enter her garage.
Prior to the official incorporation of Boulder City the property which is now within the
boundaries of Boulder City was governed and controlled by the United States Government,
Bureau of Land Reclamation, which leased land to those who built homes on the property.
Congress, by the Boulder City Act of Sept. 2, 1958, Pub. L. No. 85-900, 72 Stat. 1726,
authorized the Secretary of the Interior, upon the incorporation of Boulder City, to transfer to
the municipality without cost the improved lands within the municipal area, subject to
existing leases. The leases were to be assigned to the municipality provided they be amended
to offer the lease holders options to purchase.
Appellant's predecessor in interest to lot 14A held a ten year lease from the federal
government from July 1, 1951 to June 30, 1961. On June 27, 1960, Boulder City as a
municipal corporation issued its quitclaim deed to the lease holder. The deed was a standard
quitclaim form which recited the conveyance was subject to easements, reservations,
conditions and covenants of record but contained no mention of a driveway easement
appurtenant to the lot. Title passed by inheritance to Frances Spencer Belknap who on
October 28, 1964 deeded the property to appellant.
the property to appellant. That deed also failed to mention any easement.
Respondents' lot 14 was originally leased by the federal government to respondents'
predecessors for the ten year period of July 1, 1951 to June 30, 1961. Prior to the expiration
of the ten year term the lease was assigned several times. On September 2, 1958, it was
assigned to respondents, and Boulder City quitclaimed the property to respondents on
October 10, 1960. The deed was again a standard quitclaim form and recited it was subject to
easements of record but did not mention any driveway easement to lot 14A.
[Headnote 2]
An easement by prescription can be created through five years adverse, continuous, open
and peaceable use. Stix v. LaRue, 78 Nev. 9, 11, 368 P.2d 167 (1962); Howard v. Wright, 38
Nev. 25, 29, 143 P. 1184 (1914). Here the evidence relative to adverse use is to some degree
in conflict but must be considered in a light most favorable to appellant. Appellant received
her deed to the property on October 28, 1964. She testified at trial that when she bought the
house her predecessor indicated the driveway across respondents' lot had always been used
and could be used as long as appellant wanted. Respondent, Herbert F. Brennan, testified that
when appellant moved in he explained the boundaries of the property and gave her
permission to use the driveway. Despite the conflict concerning permission in 1964, it is clear
that a dispute arose in April, 1968, when appellant indicated her claim of right in the
driveway. At that time Irene Brennan presented appellant with a driveway use agreement
which appellant failed to sign. Appellant testified she did not sign the agreement because she
believed she would lose what right she had in the driveway, and if respondents in reliance
upon such an agreement closed the driveway she would have been unable, without difficulty,
to use her front door and garage. Appellant, visitors and salesmen continued to use the
driveway until October, 1973, when respondents, after warning appellant, blocked the lower
roadway with a boat and the upper roadway with a jeep.
[Headnote 3]
Respondents rely on Turillas v. Quilici, 72 Nev. 289, 303 P.2d 1002 (1956), and Howard
v. Wright, supra, for the proposition that where a roadway is established or maintained by a
landowner for his use, the fact that his neighbor also uses it under circumstances which in no
way interferes with use by the landowner himself, no presumption of adverseness is
created.
the landowner himself, no presumption of adverseness is created. The factual posture of this
case precludes the application of Turillas and Howard. Instead we apply the holding in Stix v.
LaRue, supra, that no presumption of permissiveness will arise where the road was for many
years the only means of ingress to and egress from the dominant estate and was not
established by the owner of the servient estate for his own use.
[Headnote 4]
The driveway across respondents' lot has been used by the occupants of lot 14A since the
lease from the federal government to appellant's predecessors became effective on July 1,
1951. The driveway was in existence and being used by the lessee of lot 14A when
respondents were assigned their lease and was still being used when respondents purchased
the property from Boulder City on October 10, 1960. The driveway is the only means of
ingress to and egress from the front of appellant's house and garage. In fact, it was the only
access to the house until Boulder City opened the alleyway access to the rear of appellant's
house from Arizona Street.
Respondents contend that they have continuously asserted control over the driveway by
closing the driveway to establish and maintain that control. They refer specifically to
appellant's testimony in which she stated that on at least one occasion respondents put up a
private drive sign and posted the driveway closed for 24 hours after warning appellant the
night before. Appellant stated she had discussed the purpose of the closing with respondents
and understood that according to the statutes of Boulder City a private road had to be posted
closed for 24 hours in order to keep the city from dedicating it to the public. Such testimony,
without more, merely reveals the road was closed by mutual consent of the parties to keep the
driveway from becoming public, and respondents acknowledged appellant's right of use in the
driveway by contacting her to warn of the closing. See Sufficool v. Duncan, 9 Cal.Rptr. 763
(Cal. App. 1960).
Other evidence tending to show appellant's use as free and continuous and respondents'
acknowledgment of that use is found in appellant's testimony describing the maintenance of
the driveway. On several occasions respondent Herbert F. Brennan purchased gravel to spread
on the driveway. On three or four occasions within the ten years prior to commencement of
this action, appellant helped respondents spread the gravel around with a rake, and at least
once, in 1971, paid $20.00 of the $40.00 cost of the gravel. See Feldman v. Knapp, 250 P.2d
92 {Ore.
92 (Ore. 1952); Gano v. Strickland, 52 So.2d 11 (Miss. 1951). See also LeDeit v. Ehlert, 22
Cal.Rptr. 747 (Cal.App. 1962); Sufficool v. Duncan, supra; DiLeo v. Pecksto Holding Corp.,
109 N.E.2d 600 (N.Y. 1952).
Viewing the evidence most favorably to appellant, she has proved a sufficient case to
establish a prescriptive easement appurtenant to her lot. NRCP 41(b). The judgment of the
district court is reversed and the case is remanded for further proceedings to afford
respondents an opportunity to contravene the prescriptive easement.
____________
92 Nev. 241, 241 (1976) Johnstone v. State
ROBERT GORDON JOHNSTONE, Appellant, v. THE
No. 8163
April 26, 1976 548 P.2d 1362
Appeal from judgment of conviction; Eighth Judicial District Court, Clark County; Joseph
Defendant was convicted before the district court of murder, and he appealed. The
Supreme Court, Gunderson, C. J., held that where couple interviewed by detective had no
evident involvement with police, defendant or murder victims, prosecution did not suggest
that either defendant or absent couple had any motive to lie, couple evidently agreed that they
saw only two unkempt men in vicinity of victims' motel room and that one of two men
referred to room in which defendant and two others ultimately accused of murder were
lodged, and couple's testimony lent credence to defendant's story that he was not with his
traveling companions when they killed victims, statements of absent couple were not
excluded by hearsay rule and should have been admitted.
Batjer, J., dissented.
Raymond E. Sutton, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George Holt, District Attorney, Dan Seaton
and Rimantas A. Rukstele, Deputy District Attorneys, Clark County, for Respondent.
Criminal Law.
Where couple interviewed by detective had no evident involvement with police, defendant or murder
victims, prosecution did not suggest that either detective or absent couple had any motive to lie, couple
evidently agreed that they saw only two unkempt men in vicinity of victims' motel room and that one of two
men referred to room in which defendant and two others ultimately accused of murder were lodged, and
couple's testimony lent credence to defendant's companions when they killed victims, statements of absent
couple to detective were not excluded by hearsay rule and should have been admitted. NRS 51.075,
51.315.
OPINION
Appellant Robert Johnstone stands convicted of murdering Eugene and Mary Carone,
tourists stabbed to death December 18, 1971, in room 5212 of the Westward Ho Motel, at Las
Vegas, Nevada. Claude Theriault and Lloyd Paulette have heretofore been tried for the
Carone murders, sentenced to life imprisonment without possibility of parole, and this court
has affirmed their convictions on appeal. Theriault v. State, 92 Nev. 185, 547 P.2d 668
(1976); Paulette v. State, 92 Nev. 71, 545 P.2d 205 (1976). Here appellant Johnstone, whose
connection with the crimes is inferable only from later possession of Carone credit cards, and
from criminal association with Theriault and Paulette, contends his conviction should be
reversed because the district court: (1) refused an instruction appellant proffered concerning
circumstantial evidence; (2) lacked jurisdiction to try a nonresident alien; and (3) refused to
admit statements that absent witnesses had made to an investigating detective, from which the
jury might have inferred appellant did not participate in the murders.
Appellant's first contention is repelled by this court's decision in Bails v. State, 92 Nev. 95,
545 P.2d 1155 (1976). See also: Holland v. United States, 348 U.S. 121 (1954). Appellant's
second argument was reviewed and rejected in Paulette v. State, 92 Nev. 71, 545 P.2d 205
(1976). However, appellant's third assignment of error has merit, and necessitates a new trial.
Circumstantial evidence linking Theriault and Paulette to the Carone murders is strong. It
appears that, the day following the crime, Paulette pawned Mrs. Carone's rings in Las Vegas,
after which Paulette and Theriault fled to California together in the victims' car. Theriault's
fingerprints were found in the Carones' room.
Carones' room. Theriault's fingerprints, and Paulette's, were found in the victims' abandoned
car. Theriault and Paulette were apprehended together at San Diego, in another stolen car, in
possession of a knife with a blood-stained sheath. The blood on the sheath and on Paulette's
leather jacket was type A, as was that of Mr. and Mrs. Carone. Paulette and Theriault both
have type O blood.
At trial, appellant unsuccessfully sought to introduce statements Detective Lee elicited
from a married couple staying in room 5228 at the Westward Ho Motel. According to Lee,
the couple said that at approximately 9:30 p.m., December 18, 1971, they decided to take
their dog for a walk, left their room, and proceeded downstairs. They observed two dirty
appearing white males with hair down to their collars, one possibly a Mexican, standing in
the parking lot. The couple did not like their appearance, and turned to go back to their room.
The two unkempt men thereupon asked directions to room 1214. The husband informed them
that they were at the building containing the 5200 room series, and that room 1214 was in
another building. The couple then retreated to their room and locked the door. Defense
counsel could not locate the couple to testify at trial, and thereafter attempted unsuccessfully
to show their statements through Lee's testimony.
Appellant testified he, Paulette and Theriault left Canada in a stolen Ford Mustang which
they abandoned in Idaho Falls, where Theriault stole a 1969 Ford. The trio arrived in Las
Vegas, December 17, 1971, and eventually checked into the Westward Ho Motel, Room
1214. On the evening of December 18, 1971, they drove around town, then returned to the
motel parking lot, and parted company. Some thirty or forty minutes later, appellant returned
to room 1214, where he found Paulette and Theriault, both with blood smeared over their
clothes. Theriault had Eugene Carone's credit cards in his possession, some of which he gave
to appellant. Next morning, Paulette and Theriault left the motel in the victims' car. Appellant
left in the 1969 Ford, using the credit cards to travel across the country before being
apprehended in Florida.
It is apparent that the detective's report contained evidence important, if not essential, to
appellant's defense; for it lent credence to an otherwise most questionable story. Since it was
inferable from the other evidence that both Theriault and Paulette participated in the Carone
murders, if the jury had been allowed to know that only two persons with a connection to
room 1214 had been prowling near the Carone room on the evening of those murders, then
they might well have accepted appellant's testimony that he was not with his traveling
companions when they killed the Carones.
appellant's testimony that he was not with his traveling companions when they killed the
Carones. Appellant therefore contends the couple's statements, as given to Detective Lee,
should have been admitted pursuant to NRS 51.075. We agree.
According to Nevada's Evidence Code, adopted in 1971, a statement is not excluded by the
hearsay rule if its nature and the circumstances under which it is made offer assurances of its
accuracy not likely to be enhanced by calling the declarant as a witness. NRS 51.075; see
also, NRS 51.315.
1
Our statutes thus endorse Judge Learned Hand's observation that the
requisites of an exception to the hearsay rule are necessity and circumstantial guaranty of
trustworthiness. G. & C. Merriam Co. v. Syndicate Pub. Co., 207 F. 515, 518 (2 Cir. 1913);
see also, Dallas County v. Commercial Union Assurance Co., 286 F.2d 388, 395 (5 Cir.
1961). Our Evidence Code explicitly disavows any attempt to limit hearsay rule exceptions to
some preconceived list; for it twice declares that expressly stated exceptions are illustrative
and not restrictine. See, again: NRS 51.075(2) and NRS 51.315(2). It therefore is this court's
obligation to decide whether the general criteria recognized in NRS 51.075(1) and NRS
51.315(1) are satisfied in the instant case. We believe they are.
Here, the couple interviewed by Detective Lee had no evident involvement with the police,
the accused, or the victims. The prosecution does not suggest either Detective Lee or the
absent witnesses had any motivation whatever to lie, or to assist appellant in any way. Indeed,
apparently the declarants had no capacity even to know what might, or might not, ultimately
assist appellant. There was not one, but two, declarants, and evidently material aspects of
their recollections agreed: they saw only two unkempt men in the vicinity of the Carone
murder room; one of those two men referred to room 1214, where the three men
ultimately accused of murdering the Carones were lodged.
____________________

1
1. A statement is not excluded by the hearsay rule if its nature and the special circumstances under which it
was made offer assurances of accuracy not likely to be enhanced by calling the declarant as a witness, even
though he is available.
2. The provisions of NRS 51.085 to 51.305, inclusive, are illustrative and not restrictive of the exception
provided by this section.
NRS 51.315 also provides:
1. A statement is not excluded by the hearsay rule if:
(a) Its nature and the special circumstances under which it was made offer strong assurances of accuracy;
and
(b) The declarant is unavailable as a witness.
2. The provisions of NRS 51.325 to 51.355, inclusive, are illustrative and not restrictive of the exception
provided by this section.
murder room; one of those two men referred to room 1214, where the three men ultimately
accused of murdering the Carones were lodged. It is doubtful that cross-examination would
alter these critical aspects of the couple's simple story. While a serious argument might be
made that exclusion of the evidence would violate the due process clause by withholding
evidence favorable to the defendant, no Sixth Amendment confrontation clause problem
exists where, as here, evidence favorable to an accused is offered.
2

In light of the foregoing, we therefore hold that the excluded evidence, which manifestly
was important to appellant's theory of noninvolvement in the murders, should have been
admitted pursuant to NRS 51.075 and NRS 51.315. Compare: People v. Lettrich, 108 N.E.2d
488 (Ill. 1952), holding that a third party's hearsay confession should have been admitted in
the interest of justice; and United States v. Melillo, 275 F.Supp. 314 (E.D.N.Y. 1967),
holding highly probative hearsay admissible in an income tax evasion case.
Zenoff, Mowbray, and Thompson, JJ., concur.
Batjer, J., dissenting:
I do not believe the trial judge committed reversible error in refusing to allow the
investigating officer to repeat from his police report what he had been told by the married
couple and as a consequence I respectfully dissent.
Hearsay is inadmissible as evidence except as provided in NRS Chapter 51, NRS Title 14
and the Nevada Rules of Civil Procedure. In an apparent effort to avoid a conflict between the
Confrontation Clause of the Sixth Amendment, United States Constitution, and the hearsay
rule, the exceptions set forth in NRS 51.075 to NRS 51.305, and NRS 51.315 to NRS 51.355
are stated in terms of exemption from the general mandate of the hearsay rule rather than in
terms of admissibility. Cf. Brookhart v. Janis, 384 U.S. 1 (1966); Pointer v. Texas, 380 U.S.
400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965).
Factual findings resulting from an investigation made pursuant to authority granted by law
and admissible against the state pursuant to NRS 51.1551 refers to facts within the
personal knowledge of the reporting officer and not to hearsay statements or conclusions
or opinions of others contained in official reports.
____________________

2
See: J. Weinstein, Alternatives to the Present Hearsay Rules, 44 F.R.D. 375, 385 (1968), written before
adoption of the new federal rules. Compare: People v. Crump, 125 N.E.2d 615 (Ill. 1955).
state pursuant to NRS 51.155
1
refers to facts within the personal knowledge of the reporting
officer and not to hearsay statements or conclusions or opinions of others contained in official
reports. See Orth v. Bauer, 429 P.2d 279 (Colo. 1967).
Police reports are not admissible for the sole purpose of establishing the truth of the matter
asserted by a third party informant. The recital of a statement of others in a police report is
hearsay within hearsay or double hearsay, NRS 51.365,
2
and is inadmissible upon proper
objection unless it comes within a recognized exception to the hearsay rule independent of the
business or public record exception, NRS 51.135
3
and NRS 51.155. Cf. In re Estate of
Paulos, 229 N.W.2d 721 (Iowa 1975); Westinghouse El. Corp. v. Dolly Madison L. & F.
Corp., 326 N.E.2d 651 (Ohio 1975).
I believe the statements made by the married couple and recorded by the detective during
his investigation are inadmissible under NRS 51.135 or NRS 51.155, and the trial court
committed no error in excluding them. Compare United States v. Smith, 521 F.2d 957 (D.C.
Cir. 1975), where it was held that a police report and broadcast transcript were admissible on
the defendant's behalf as business records to impeach the credibility of the complaining
witness who was the declarant. Federal Rules of Evidence, Rule 803 (6).
I further believe that the excluded statements are inadmissible within NRS 51.075, which
is a recognized exception of the hearsay rule independent of the business or public record
exception.
____________________

1
NRS 51.155: Records, reports, statements or data compilations, in any form, of public officials or agencies
are not inadmissible under the hearsay rule if they set forth:
1. The activities of the official or agency;
2. Matters observed pursuant to duty imposed by law; or
3. In civil cases and against the state in criminal cases, factual findings resulting from an investigation made
pursuant to authority granted by law, unless the sources of information or the method or circumstances of the
investigation indicate lack of trustworthiness.

2
NRS 51.365: Hearsay included within hearsay is not excluded under the hearsay rule if each part of the
combined statements conforms to an exception to the hearsay rule provided in this chapter.

3
NRS 51.135: A memorandum, report, record or data compilation, in any form, of acts, events, conditions,
opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with
knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or
other qualified witness, is not inadmissible under the hearsay rule unless the source of information or the method
or circumstances of preparation indicate lack of trustworthiness.
Our statute was designed to permit the admission of hearsay evidence which imparts a
circumstantial guarantee of trustworthiness not otherwise admissible under any other
exception. There can be no rigid rule of admissibility for in every case [t]he test is one of
reliability. United States v. Hickey, 360 F.2d 127, 143 (7th Cir. 1966).
The trial judge must be left some discretion to decide whether the source of the
information or the method or circumstances of preparation indicate a lack of trustworthiness
or whether the nature of the recorded statement and the special circumstances under which it
was made offer assurances of accuracy not likely to be enhanced by calling the declarant as a
witness. United States v. Bohle, 445 F.2d 54 (7th Cir. 1971).
Here the trial judge, without specificity, indicated that he did not believe the material in
the investigator's report to be trustworthy or reliable. The statements sought to be admitted for
the truth of the matter reported contained not only double hearsay statements made by the
married couple to the investigator about what they observed but triple hearsay statements
made by the two unkempt persons to the couple. NRS 51.365. There is no foundation in the
record to indicate that the reporting couple were able to accurately perceive, hear or
remember what they related to the investigator. I would affirm the judgment of the district
court.
____________
GABRIEL X. TAYLOR, Appellant, v. THE
No. 8622
April 26, 1976 548 P.2d 1375
Appeal from order revoking probation, Eighth Judicial District Court, Clark County; Carl
J. Christensen, Judge.
The Supreme Court held that probative evidence in the record supported district judge's
determination that defendant violated the terms of his probation.
Affirmed.
Morgan Harris, Public Defender, and Mike Harrison, Deputy, Clark County, for
Appellant.
Robert List, Attorney General, Carson City; George E.
Holt, District Attorney and H. Leon Simon, Deputy, Clark County, for Respondent.
Criminal Law.
Probative evidence in the record supported district judge's determination that defendant violated the
terms of his probation.
OPINION
Per Curiam:
Gabriel X. Taylor was charged with grand larceny, a felony under NRS 205.220. His
attorney negotiated a plea bargain whereby Taylor entered a guilty plea to the reduced charge
of attempted grand larceny. The court imposed, but suspended, a five (5) year sentence and
placed Taylor on probation.
Taylor was subsequently accused of multiple violations of the terms and conditions of
probation and, after a hearing, the district judge so found, revoked probation, and imposed the
previously suspended five (5) year sentence. Taylor has perfected this appeal wherein the
thrust of his argument suggests the state did not meet its burden of producing enough
admissible evidence to warrant revocation.
The contention is without merit. In our view, the probative evidence in the record supports
the district judge's determination that Gabriel X. Taylor violated the terms of his probation.
See Lewis v. State, 90 Nev. 436, 529 P.2d 796 (1974).
Accordingly, we affirm.
____________
92 Nev. 248, 248 (1976) Isler v. Sheriff
PAUL HALE ISLER, Appellant, v. SHERIFF,
No. 8672
April 26, 1976 548 P.2d 1373
Following preliminary hearing, defendant was charged with robbery, use of deadly weapon
in commission of crime, and second-degree kidnaping, and he petitioned for habeas corpus.
The Supreme Court held that magistrate at preliminary examination had found probable cause
to hold defendant for trial, that habeas corpus was improper method of raising defendant's
attempted constitutional challenge to admissibility of in-court identification of defendant,
and that evidence was sufficient to support charging defendant with kidnaping in addition
to robbery.
that habeas corpus was improper method of raising defendant's attempted constitutional
challenge to admissibility of in-court identification of defendant, and that evidence was
sufficient to support charging defendant with kidnaping in addition to robbery.
Affirmed.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Rene
C. Arceneaux, Deputy, Clark County, for Respondent.
1. Criminal Law.
Fact that magistrate conducting defendant's preliminary hearing stated that court found that crimes listed
had occurred and that there was sufficient evidence adduced to suggest that defendant was guilty was
sufficient to show that magistrate found probable cause to hold defendant for trial. NRS 171.206.
2. Habeas Corpus.
Defendant improperly raised habeas corpus challenge to in-court identification which was based on
allegedly suggestive photographic display, for such objection should properly be raised through motion to
suppress. NRS 174.125.
3. Criminal Law.
Evidence that, after defendant robbed convenience store, he compelled employee of store to walk outside,
directed employee to enter pickup truck under pain of being shot, and drove employee approximately
one-half mile before releasing employee, was sufficient to establish probable cause that defendant had
committed crime of kidnaping in addition to crime of robbery.
OPINION
Per Curiam:
At the conclusion of a preliminary examination Paul Hale Isler was ordered to stand trial
for robbery (NRS 200.380); use of a deadly weapon in commission of a crime (NRS
193.165); and, second degree kidnaping (NRS 200.310).
In an effort to avoid trial, Isler timely petitioned for habeas corpus, contending the charges
should be dismissed because: (1) the magistrate did not make a finding of probable cause as
contemplated in NRS 171.206; (2) the in-court identification should be suppressed because it
was based on an unduly suggestive photographic display; and, (3) his conduct did not
constitute the offense of kidnaping.
[Headnote 1]
1. At the conclusion of the preliminary examination the magistrate stated: Mr. Isler, this
court has read the complaint and found the crimes listed . . . have occurred and there has been
sufficient evidence adduced to suggest you are guilty . . . The quoted statement is sufficient
to show the magistrate found probable cause to hold Isler for trial. See NRS 171.206.
[Headnote 2]
2. Isler's attempted constitutional challenge to the admissibility of the in-court
identification is not cognizable in habeas; rather, it should be raised through a motion to
suppress, as contemplated by NRS 174.125. See Cook v. State, 85 Nev. 692, 462 P.2d 523
[Headnote 3]
3. Isler's final contention urges the kidnaping was incidental to the robbery and therefore
did not amount to a separate offense. Here, the record shows that Isler, after robbing a 7-11
Store, compelled an employee of the store to . . . walk outside. The employee protested and
told Isler he could not leave the store unattended. Whereupon Isler retorted, Shut up, or I'll
shoot you. Go outside. Upon leaving the store the employee was directed to a pickup truck
and told: Don't try anything funny, because this gun will shoot through windows.
Thereafter the employee was driven approximately one-half mile from the 7-11 Store and
released. This conduct supports the charge of kidnaping. Cf. Stalley v. State, 91 Nev. 671,
541 P.2d 658 (1975). Compare Lovell v. State, 92 Nev. 128, 546 P.2d 1301 (1976).
Affirmed.
____________
92 Nev. 250, 250 (1976) Leaders v. State
LARRY JAMES LEADERS, Appellant, v. THE STATE
No. 8527
April 29, 1976 548 P.2d 1374
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Joseph
Defendant was convicted before the district court of second degree murder, and he
appealed. The Supreme Court held that voluntary intoxication does not negate malice and
thereby reduce crime of murder to either voluntary or involuntary manslaughter and that
record supported determination that inadvertent exhibition of allegedly gory photograph
of homicide victim did not warrant declaration of mistrial.
reduce crime of murder to either voluntary or involuntary manslaughter and that record
supported determination that inadvertent exhibition of allegedly gory photograph of homicide
victim did not warrant declaration of mistrial.
Affirmed.
W. Randall Mainor, Las Vegas, for Appellant.
Leon Simon, Chief Deputy, Clark County, for Respondent.
1. Homicide.
Element of malice inherent in crime of murder may not be negated by a showing of voluntary intoxication
and, hence, does not reduce the crime to voluntary or involuntary manslaughter.
2. Criminal Law.
Record supported determination that exhibition of allegedly gory photograph of homicide victim was
inadvertent and not for purpose of inflaming jurors and, hence, that mistrial was not required; in any event,
trial judge instructed jury that they must disregard all evidence ruled to be inadmissible and defendants
failed to cite any relevant authority in support of contention that mistrial was required and failed to
designate and include the alleged photograph in the record.
OPINION
Per Curiam:
Larry James Leaders was convicted, by jury verdict, of second degree murder and
sentenced to fifty (50) years in the Nevada State Prison. He has perfected this appeal
contending the trial court erred in (1) not instructing the jury properly and (2) denying his
motion for mistrial.
[Headnote 1]
1. In support of his first contention Leaders alleges he was entitled to have the jury
instructed that the element of malice inherent in the crime of murder may be negated by a
showing of voluntary intoxication, thus reducing his crime to either voluntary or involuntary
manslaughter.
1
This is not, and has never been, the law in Nevada.
____________________

1
Proposed instruction 19-G read in pertinent part:
1. Voluntary manslaughter, an intentional killing in which the law, recognizing human frailty, permits the
defendant to establish the lack of malice either by
a. . . .
been, the law in Nevada. See State v. Fisko, 58 Nev. 65, 77, 70 P.2d 1113, 1117 (1937),
where this court said: While the authorities are not all agreed, the great weight thereof in this
country is to the effect that mere intoxication cannot reduce murder to manslaughter.
Appellant has advanced no persuasive reason, and we perceive none, why we should now
change this rule. The refusal to give the instruction was correct. Lisby v. State, 82 Nev. 183,
414 P.2d 592 (1966). Cf. Stewart v. State, 92 Nev. 168, 547 P.2d 320 (1976).
[Headnote 2]
2. In support of his contention that a mistrial should have been granted, Leaders argues the
display of what he alludes to as a gory photograph of the victim, which had not been
admitted in evidence, prejudiced the jury. When the motion was made, the trial judge excused
the jury, conducting a hearing and concluded the exhibition was inadvertent and, therefore,
not for the purpose of inflaming the jurors. See State v. Holt, 47 Nev. 223, 241-242, 219 P.
557, 559-560 (1923). In our view, the record supports that determination; furthermore, the
trial judge instructed the jury that they must disregard all evidence ruled to be inadmissible.
Leaders' contention that a mistrial should have been granted must also be rejected because (1)
he has failed to cite any relevant authority in support of the contention (see Franklin v. State,
89 Nev. 382, 513 P.2d 1252 (1973)); and, (2) he has failed to designate and include the
alleged gory photograph in the record. Cf. Lamoureux v. Sheriff, 85 Nev. 44, 449 P.2d 471
(1969).
Affirmed.
____________________
b. Showing that due to diminished capacity caused by mental illness, mental defect, or intoxication, the
defendant did not attain the mental state constituting malice.
2. . . .
Thus, if you find the defendant killed while unconscious as a result of voluntary intoxication and was
therefor unable to formulate a specific intent to kill or harbor malice, his killing is involuntary manslaughter.
____________
92 Nev. 253, 253 (1976) In re Cochrane
In the Matter of THOMAS H. COCHRANE,
Attorney at Law.
No. 8229
April 29, 1976 549 P.2d 328
Petition for review of the recommendations of the Board of Governors of the State Bar of
Nevada for suspension of the petitioner from the practice of law.
Attorney convicted of willful failure to file federal income tax returns petitioned for
review of recommendation of Board of Governors of Nevada State Bar for suspension of
attorney from practice of law. The Supreme Court held that under the circumstances the
offense did not involve moral turpitude, but discipline was warranted requiring payment to
client's security fund and treasury of the State Bar.
James P. Logan, President; Maurice J. Sullivan, Executive Secretary, State Bar of Nevada;
Peter D. Laxalt, of Carson City, and Steve Morris, of Las Vegas, Special Prosecutors.
George E. Graziadei and Robert E. Rose, of Las Vegas, for Petitioner.
Conviction of some crimes establishes moral turpitude on its face for attorney disciplinary purposes, and
these include crimes which necessarily involve an intent to defraud or intentional dishonesty for purpose of
personal gain.
No intent to defraud need be established to sustain a conviction for willful failure to file federal income
tax return. 26 U.S.C.A. (I.R.C. 1954) 7203.
Attorney is subject to discipline only if his moral turpitude is established by special circumstances which
are not present when the offense for which an intent to defraud need not be established is committed.
Facts surrounding attorney's conviction of willful failure to file federal income tax return did not
sufficiently support finding that attorney had intent to defraud or was intentionally dishonest for purpose of
personal gain, and hence conviction was not for an offense involving moral turpitude. 26 U.S.C.A. (I.R.C.
1954) 7203.
Although attorney's conviction for willful failure to file federal income tax return did not involve moral
turpitude, circumstances of case warrant discipline requiring him to pay $2,500 to the client's security fund
plus $1,000 to the treasury of the State Bar together with the costs of proceedings.
together with the costs of proceedings. SCR 86.5, 99(1)(c), (2), 204.
Objective of disciplinary action is not additional punishment of attorney but to protect public from
persons unfit to serve as attorney and to maintain public confidence in bar as a whole.
OPINION
Per Curiam:
Thomas H. Cochrane, convicted of willful failure to file an income tax return for the
calendar year 1971 (26 U.S.C. 7203), has petitioned this court to review the
recommendation of the Board of Governors of the Nevada State Bar favoring the imposition
of a six month suspension from the practice of law, based on the premise that the petitioner's
conviction involved moral turpitude.
[Headnotes 1, 2]
Initially, we consider the question of whether moral turpitude exists solely by virtue of the
petitioner's conviction. Conviction of some crimes establishes moral turpitude on its face.
These include crimes that necessarily involve an intent to defraud or intentional dishonesty
for the purpose of personal gain. In re Fahey, 505 P.2d 1369, 1373 (Cal. 1973). No intent to
defraud need be established to sustain a conviction for violation of 26 U.S.C. 7203. United
States v. McCorkle, 511 F.2d 482 (7th Cir.) cert. denied, ___ U.S. ___, 96 S.Ct. 43 (1975);
United States v. Klee, 494 F.2d 394 (9th Cir.) cert. denied 419 U.S. 835 (1974).
[Headnote 3]
Thus respondent is subject to discipline only if his moral turpitude is established by
special circumstances that are not necessarily present whenever the offense is committed. In
re Fahey, supra, at 1373. Our de novo review of the facts reveals that: (1) Cochrane signed
and filed informational partnership tax returns for each year in which he did not file
individual returns; (2) Cochrane intended, at all times, to pay the obligations in full when he
obtained sufficient funds; and (3) Cochrane's financial problems, resulting in an inability to
pay his taxes, stemmed from both marital difficulties and a disabling injury to his partner.
Both misfortunes existed during part, if not all, of the time periods in question.
[Headnote 4]
The Board of Governors points to the fact that the Internal Revenue Service had to contact
Cochrane before any attempts to arrange payment were made. However, it appears from the
record that Cochrane's financial and marital reverses were not at an end when contact
was made and he was still without funds to satisfy his obligations to the federal
government.
record that Cochrane's financial and marital reverses were not at an end when contact was
made and he was still without funds to satisfy his obligations to the federal government.
Cochrane appears to have been totally candid with both the Internal Revenue Service and the
State Bar in their investigations. The facts of this case do not sufficiently support a finding
that Cochrane had an intent to defraud, or was intentionally dishonest for the purpose of
personal gain, and accordingly, we do not deem petitioner's conviction to be one involving
moral turpitude.
[Headnotes 5, 6]
Although not finding moral turpitude, this court in no manner countenances Cochrane's
actions. Unlike the California Supreme Court in In re Fahey, supra, we believe Cochrane's
conduct, even though not involving moral turpitude, warrants disciplinary action. A
conviction under 26 U.S.C. 7203 violates the clear mandate of SCR 204 that: He must also
observe . . . the statute law. This transgression renders petitioner subject to discipline (SCR
99(1) (c)) and the only remaining question is what sanctions are appropriate.
The objective of disciplinary action in such cases is not additional punishment of the
attorney but rather to protect the public from persons unfit to serve as attorneys . . . and to
maintain public confidence in the bar as a whole. In Re Ford's Case, 149 A.2d 863, 864
(N.H. 1959). There is not a scintilla of evidence before us that Cochrane was derelict in any
duties owed to, or performed for, his clients. A suspension or disbarment in such a case
would not serve to protect the public, rather it could only be denominated additional
punishment.
We attempt to attain the above stated objective, first by disciplining Cochrane, which
should help maintain public confidence in the bar as a whole, and second by imposing
sanctions we deem appropriate in this case that will accrue to protect the public from those
unfit to serve as attorneys. Accordingly, in lieu of any suspension a payment of $2,500 shall
be made by Cochrane to the Client's Security Fund, established pursuant to SCR 86.5. In
addition Cochrane is hereby fined $1,000 to be paid to the treasury of the State Bar of Nevada
(SCR 99(2)), and is assessed the costs of these proceedings in the amount of $227.00.
1

____________________

1
The payment of the costs of proceedings shall be made on or before June 1, 1976, and the remaining
obligations shall be discharged by monthly payments in the amount of $500.00 commencing July 1, 1976.
____________
92 Nev. 256, 256 (1976) Hass v. State
WILLIAM ROBERT HASS, Appellant, v. THE
No. 8351
April 29, 1976 548 P.2d 1367
Appeal from judgment of First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Defendant was convicted in the district court of unlawful sale of marijuana, and he
appealed. The Supreme Court held that where defendant was charged under statute relating to
sale of controlled substances by persons 21 years of age and older, establishment of
defendant's age was an essential element of the crime charged, and it had to be proved beyond
a reasonable doubt.
Reversed.
[Rehearing denied July 23, 1976]
Rodlin Goff, State Public Defender, and Michael R. Griffin, Deputy, Carson City, for
Appellant.
Robert List, Attorney General, Carson City; and Michael E. Fondi, District Attorney,
Carson City, for Respondent.
1. Drugs and Narcotics.
In prosecution under statute prescribing penalties for sale of controlled substance by a person 21 years of
age or older, State should be required to prove beyond a reasonable doubt, as an element of the crime
charged, that defendant is 21 years of age or older. NRS 453.321, subd. 2.
2. Criminal Law.
Beyond a reasonable doubt is the measure of persuasion by which the prosecution must convince the
triers of each and all essential elements of guilt.
3. Criminal Law.
Defendant is entitled to acquittal of specific crime charged if, on all the evidence, there is reasonable
doubt whether he was capable in law of committing the crime.
Where defendant was charged with unlawful sale of marijuana under statute applicable to persons 21
years of age or older, it was essential for the State to prove beyond a reasonable doubt that defendant was
at least 21 years of age at the time of sale, and conviction could not be sustained on ground that the missing
fact was contained in post-trial, presentence report. NRS 453.321, subds. 2(a), 3(a).
92 Nev. 256, 257 (1976) Hass v. State
Fundamental due process requires that the State prove beyond a reasonable doubt every necessary
element of crime charged.
OPINION
Per Curiam:
A jury found William Robert Hass guilty of two counts of the unlawful sale of marijuana.
The district judge sentenced him to life imprisonment with possibility of parole on the first
count (the sale being to a person under 21 years of age) and to two years imprisonment on the
second count (the sale being to a person over 21 years of age), the sentences to run
concurrently. NRS 453.321, subsection 2(a).
1

Hass has appealed from his judgment of conviction, asserting several assignments of error,
only one of which we need consider, for it requires a reversal.
During March 1974, two persons went to Hass' home, and each purchased, on separate
occasions, a baggie of marijuana seeds. Both buyers were acting under the direction of the
police authorities, who furnished them the purchase money, searched them prior to the
purchases, and instructed them on methods of procedure.
____________________

1
NRS 453.321, subsection 2(a):
2. Any person 21 years of age or older who sells, exchanges, barters, supplies or gives away a controlled or
counterfeit substance in violation of subsection 1 classified in:
(a) Schedule I or II, to a person who is:
(1) Twenty-one years of age or older shall be punished by imprisonment in the state prison for not less than
1 year nor more than 20 years and may be further punished by a fine of not more than $5,000. For a second or
subsequent offense, such offender shall be punished by imprisonment in the state prison for life, without
possibility of parole, and may be further punished by a fine of not more than $5,000. If the offender has
previously been convicted of any violation of the laws of the United States or any state, territory or district
relating to a controlled substance, the term of imprisonment imposed pursuant to this subsection shall be served
without benefit of probation.
(2) Under 21 years of age shall be punished by imprisonment in the state prison for life with possibility of
parole and may be further punished by a fine of not more than $5,000. Eligibility for parole begins when a
minimum of 7 years has been served. For a second or subsequent offense, such offender shall be punished by
imprisonment in the state prison for life without possibility of parole. If the offender has previously been
convicted of any violation of laws of the United States or any state, territory, or district relating to a controlled
substance, the term of imprisonment imposed pursuant to this subsection shall be served without benefit of
probation.
92 Nev. 256, 258 (1976) Hass v. State
methods of procedure. Following the second sale, Hass was arrested and these proceedings
instituted.
NRS 453.321, subsection 2, supra, provides in part: Any person 21 years of age or older
[emphasis added] who sells, exchanges, barters, supplies or gives away a controlled . . .
substance shall be punished as provided in said statute. While the Information charging Hass
alleges he is a person over the age of 21 years, there was not a scintilla of evidence offered
during his trial by the State to prove that Hass was at least 21 years of age. The missing
evidence to establish this fact was contained in the post-trial, presentencing report prepared
by the Department of Parole and Probation and furnished the court. It was upon the statement
contained in the report that the court below predicated its finding that Hass was in fact 21
years of age or older at the time the sales were made.
[Headnotes 1, 2]
The narrow issue presented for our consideration is whether the State should be required,
in such cases, to prove that the defendant is 21 years of age or older, as an essential element
of the crime charged. We believe the State should be so required. The requirement that guilt
of a criminal charge be established by proof beyond a reasonable doubt dates at least from our
early years as a nation. It is now accepted in common law jurisdictions as the measure of
persuasion by which the prosecution must convince the triers of each and all the essential
elements of guilt. See McCormick's Handbook of the Law of Evidence, 341 at 798-799 (2d
ed. E. Cleary 1972), and 9 J. Wigmore, Evidence 2497 (3d ed. 1940).
[Headnote 3]
As the Supreme Court of the United States said in Davis v. United States, 160 U.S. 469,
484, 493 (1895):
. . . On the contrary, he [the defendant] is entitled to an acquittal of the specific crime
charged if upon all the evidence there is reasonable doubt whether he was capable in law of
committing crime.
. . .
. . . No man should be deprived of his life under the forms of law unless the jurors who
try him are able, upon their consciences, to say that the evidence before them . . . is sufficient
to show beyond a reasonable doubt the existence of every fact necessary to constitute the
crime charged.
[Headnotes 4, 5]
NRS 453.321(2)(a) specifically provides that any person 21 years of age or older who sells
marijuana is subject to heavy punishment {as, in Count 1 in this case, life imprisonment).
92 Nev. 256, 259 (1976) Hass v. State
punishment (as, in Count 1 in this case, life imprisonment). NRS 453.321(3)(a) provides that
if the seller is under 21 years of age the maximum sentence for the same offense is not less
than 1 year nor more than 20 years' imprisonment.
2
We conclude, therefore, that in such
cases establishment of a defendant's age is essential and that it should be alleged and proved.
Fundamental due process requires that the State prove beyond a reasonable doubt every
necessary element of the crime charged. Cf. In re Winship, 397 U.S. 358, 364 (1970);
Mullaney v. Wilbur, 421 U.S. 684 (1975).
We conclude, therefore, that the establishment of a defendant's age is essential and that it
must be alleged and proved.
Reversed.
____________________

2
3. Any person who is under 21 years of age and is convicted:
(a) Of an offense otherwise punishable under subsection 2 shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 20 years, with possibility of probation.
____________
92 Nev. 259, 259 (1976) Dunphy v. Sheehan
FATHER LARRY DUNPHY, RAWSON PRINCE, VAUGHN McDOWELL, MARVIN
SETTELMEYER, and KEITH MACDONALD, Members of the State Ethics Commission of
the State of Nevada, THE STATE ETHICS COMMISSION OF THE STATE OF NEVADA,
ROBERT LIST, Attorney General of the State of Nevada, and GEORGE HOLT, District
Attorney of the County of Clark, State of Nevada, Appellants, v. JOHN J. SHEEHAN, an
Individual, JEROME D. MACK, an Individual, and HARLEY HARMON, an Individual,
Respondents.
No. 8707
April 29, 1976 549 P.2d 332
Appeal from judgment declaring Ethics in Government Law unconstitutional; Eighth
Public officers sought a declaration concerning the constitutionality of the financial
disclosure provisions of the Ethics in Government Law. The district court declared the
provisions unconstitutional and an appeal was taken. The Supreme Court, Thompson, J., held
that the financial disclosure provisions were unconstitutionally vague and, because they were
the heart and soul of the law, the Ethics in Government Law was unconstitutional in its
entirety.
heart and soul of the law, the Ethics in Government Law was unconstitutional in its entirety.
Affirmed on different grounds.
Gunderson, C. J., dissented.
Robert List, Attorney General, Donald Klasic, Deputy Attorney General, George Holt,
District Attorney, and Thomas D. Beatty, Deputy District Attorney, Clark County, for
Appellants.
John J. Sheehan, of Carson City, and Jones, Jones, Bell, LeBaron, Close & Brown, and
Gary R. Goodheart, of Las Vegas, for Respondents.
1. Officers.
Elimination and prevention of conflict of interest is proper state purpose.
2. Criminal Law.
Terms of statute carrying serious sanctions for disobedience must be sufficiently explicit to inform those
who are subject to it what conduct will render them liable to its penalties.
Statute which requires doing of act in terms so vague that men of common intelligence necessarily must
guess at its meaning and differ as to its application violates first essential of due process.
4. Statutes.
Financial disclosure provisions of Ethics in Government Law were unconstitutionally vague and, because
they were heart and soul of law, Ethics in Government Law was unconstitutional in its entirety. NRS
281.410 et seq., 281.650, subd. 2, 281.750.
Doctrine of separation of powers is fundamental to our system of government.
Judicial department may not invade legislative and executive province and neither may legislative and
executive branches of government exercise powers properly belonging to judicial department.
7. Constitutional Law; Judges.
Exclusion of members of judiciary from Ethics in Government Law was constitutionally mandated and
did not violate equal protection. NRS 281.410 et seq.; Const. art. 3, 1.
Function of judicial department is administration of justice.
Judiciary, as coequal branch of government, possesses inherent power to protect itself and to administer
its affairs.
10. Courts.
Promulgation of Code of Judicial Ethics is measure essential to due administration of justice
and within the inherent power of the judicial department of this State.
to due administration of justice and within the inherent power of the judicial department of this State.
11. Constitutional Law; Officers.
Ethics in Government Law was not ex post facto law. NRS 281.410 et seq.; Const. art. 1, 15.
Ex post facto law makes criminal an act which was innocent when done. Const. art. 1, 15.
13. Statutes.
Supreme Court is not authorized to declare entire law invalid unless it may presume that legislature
would not have passed remaining portions of law without provisions declared invalid.
OPINION
Three public officers, John Sheehan, Executive Director of the Department of Taxation,
Jerome Mack, Chairman of the Nevada Tax Commission, and Harley Harmon, a member of
the Nevada State Board of Finance, commenced this action to secure a court declaration of
the constitutionality of the financial disclosure provisions of the Ethics in Government Law
enacted by the Legislature in 1975. It is their contention that such provisions are
unconstitutionally vague and also constitute an over-broad intrusion upon their right of
privacy.
The district court found the Ethics in Government Law to be unconstitutional in its entirety
for reasons other than those asserted by the plaintiffs. In resolving this appeal we choose first
to address the contentions tendered by the plaintiffs, after which we shall consider the reasons
given by the district court for its ruling.
In broad outline, the challenged law concerns conflicts between the private interests of a
public officer or employee and the interests of the general public whom he serves. Its purpose
is to avoid such conflicts in order to enhance the people's faith in the integrity and impartiality
of government. NRS 281.420.
To this end a code of ethical standards is established as a guide for the conduct of public
officers and employees, NRS 281.610, and a State Ethics Commission is created to render
advisory opinions concerning the Code, NRS 281.620. Counties and cities are authorized to
create local ethics committees to complement functions of the State Commission. NRS
281.640. Certain prohibitions are placed upon the conduct of a public officer with regard to
matters in which he has an economic interest.
public officer with regard to matters in which he has an economic interest. NRS 281.700.
Provisions for enforcement and penalty in case of violation are designated. NRS 281.740.
Members of the judicial department of the State are expressly excluded from the Ethics in
Government Law. NRS 281.530; 281.540.
The central aspect of the law, its very heart and soul, is the requirement for an annual
verified financial disclosure statement by each public officer of his economic interests. When
filed, that statement becomes a public record available at reasonable times for inspection by
any member of the public. It is mainly through such forced disclosure that others will become
aware of impermissible conflicts which the law proposes to avoid. It is to this portion of the
law that the plaintiffs have leveled their constitutional challenges.
[Headnote 1]
1. The elimination and prevention of conflict of interest is a proper state purpose. All case
authority so declares.
1
We are not aware of any decision holding otherwise. The law before
us, however, carries criminal penalties for its violation, NRS 281.750, and a public officer
who files a verified disclosure statement which is false is subject to the felony charge of
perjury. NRS 15.010; 199.120.
[Headnotes 2, 3]
Since the Ethics in Government Law carries serious sanctions for disobedience, its terms
must be sufficiently explicit to inform those who are subject to it what conduct will render
them liable to its penalties. In re Laiolo, 83 Nev. 186, 426 P.2d 726 (1967). A statute which
requires the doing of an act in terms so vague that men of common intelligence necessarily
must guess at its meaning and differ as to its application violates the first essential of due
process. Connally v. General Construction Co., 269 U.S. 385 (1926). The public officers
before us assert that the financial disclosure provisions are, indeed, unconstitutionally vague
and must be voided for that reason.
____________________

1
County of Nevada v. MacMillan, 522 P.2d 1345 (Cal. 1974); Carmel-By-The-Sea v. Young, 466 P.2d 225
(Cal. 1970); Fritz v. Gorton, 517 P.2d 911 (Wash. 1974); Illinois State Employees Ass'n v. Walker, 315 N.E.2d
9 (Ill. 1974); Stein v. Howlett, 289 N.E.2d 409 (Ill. 1972); In re Kading, 235 N.W.2d 409 (Wis. 1975);
Montgomery County v. Walsh, 336 A.2d 97 (Ct.App.Md. 1975); Lehrhaupt v. Flynn, 323 A.2d 537
(Super.Ct.N.J. 1974).
The disclosure sections are fully quoted below.
2
In general terms, the verified statement
must disclose the identity of any business entity and description of Nevada real property
(except home and recreational property) in which the public officer, spouse or dependent
child has an interest worth more than $1,000; any employment for which the public officer is
compensated, describing such employment; and, the general source of income, loans or gifts
aggregating more than $250 in value received during the preceding year, including a
statement of the consideration for which the income was received. NRS 281.650(1).
The economic interests just described apparently are deemed to materially affect the public
officer in the performance of his official duties if located within the jurisdiction of the
officer's public agency. NRS 281.650 (3).
____________________

2
NRS 281.650: 1. Each public officer shall file a statement during April of each year containing the
following information:
(a) The name, principal address and general description of the nature of the business activity of any business
entity in which he has, or at any time during the year had, a direct or indirect investment worth more than
$1,000;
(b) A description of any real property in Nevada, except his home or other property owned by him primarily
for personal or recreational purposes, in which he has, or at any time during the year had, a direct or indirect
interest or option to purchase worth more than $1,000;
(c) Each general source of income, loans or gifts, aggregating $250 or more in value received in the
preceding 12 months, including the name, address and general description of the business activity of each
source, a statement of the consideration, if any, for which the income was received; and
(d) Any employment, position or management or office for which he is receiving compensation, held at the
time of filing or at any time during the year by the public officer, and the name, principal address and a general
description of the nature of the business activity of the business entity.
2. The statement required by this section need not disclose any investments, interests or income which could
not be affected materially by any action, failure to act or decision taken by the public officer acting within the
scope of his official duties.
3. For the purposes of this section, an interest in real property, except the property excluded in paragraph (b)
of subsection 1, located within the jurisdiction of the officer's public agency or an investment in a business
entity, a source of income or a position of employment, office or management of any business entity located
within the jurisdiction or doing business within the jurisdiction is an interest which could be affected materially
by the officer in the scope of his official duties.
4. The statement shall be verified in accordance with the provisions of NRS 15.010.
Disclosure applies as well to nonincumbent candidates for office and newly appointed public officers. NRS
281.660.
However, if such economic interests are not located within the jurisdiction of the officer's
public agency, and would not materially affect the officer in the performance of his duties,
disclosure of such interests need not be made. NRS 281.650(2). Apparently, the public officer
must make this decision for himself, and at the risk of being charged with perjury should his
decision later be found erroneous.
[Headnote 4]
The disclosure provisions are unconstitutionally vague, deceptive and uncertain. What is
the jurisdiction of the officer's public agency for the purposes of financial disclosure? By
way of illustration, let us suppose that a city councilman, or his spouse, or his child, owns
extensive economic interests within the county of his residence, but not within the boundaries
of the city which he serves. Must he disclose such interests? They are not within the
jurisdiction of his public agency. He must determine for himself whether to expose such
interest to public scrutiny, and does not know whether a failure to disclose may subject him to
criminal penalty. Examples of this initial jurisdictional determination may be multiplied a
hundredfold, and points to a basic vagueness in the law. The public office holder should not
have to guess regarding his duty to disclose. That duty must be expressed clearly if criminal
sanctions for breach are authorized.
We give no credit to the suggestion that the public officer, if in doubt regarding his duty to
disclose, need only obtain an advisory opinion from the State Ethics Commission. That
Commission can only advise. Its opinion carries no binding force and does not insulate the
public officer from criminal prosecution if a grand jury or other prosecuting authority has a
different view of the matter.
2. The plaintiffs in this case also have asserted that the financial disclosure provisions
unconstitutionally invade their right of privacy. Having found such provisions
unconstitutionally vague, we need not and do not express our view upon the privacy issue.
Proceeding on the assumption, however, that the legislature may elect, at some future time,
to restructure the Ethics Law to correct infirmities, it is useful, perhaps, to note in passing that
the California Supreme Court has, in certain circumstances, recognized that a public officer's
personal financial affairs are private to him and beyond the reach of governmental inquiry.
City of Carmel-By-The-Sea v. Young, 466 P.2d 225 (Cal. 1970). In that case, the statute
required disclosure of the extent of the public officer's investments, as distinguished from
disclosure of the source or identity thereof.
from disclosure of the source or identity thereof. The court found a violation of a right of
privacy and struck down the statute as unconstitutional.
It is not clear whether the financial disclosure provisions of our law require more than the
listing of the source and identity of the economic interests. Subsections (a), (b) and (d) of
NRS 281.650(1) do not. Subsection (c) however may be read to require the public officer to
reveal the extent of his income since a statement of the consideration for which the income
was received must be made. Consequently, one owning stocks and bonds, income from real
property, etc., should disclose what he paid therefor, and to that extent, at least, would expose
to public view the value of his economic interests.
Moreover, we note that a New Jersey court invalidated the requirement that the economic
interests of the officer's spouse and dependent children be disclosed. Lehrhaupt v. Flynn, 323
A.2d 537 (N.J. Superior Ct., 1974). This, also, should be given studied consideration if the
law is to be restructured.
3. At the beginning of this opinion we noted that the district court annulled the Ethics in
Government Law for reasons other than those advanced by the plaintiffs. That court ruled that
the plaintiffs were denied the equal protection of the laws because members of the judicial
department of the State were specifically excluded from the Act. That court also found the
law to be an ex post facto law in violation of our Nevada Constitution. The district court was
in error in each instance.
a. Nev. Const. art. 3, 1, provides for three separate departments of our government, the
Legislative, the Executive, and the Judicial, and mandates that no persons charged with the
exercise of powers properly belonging to one of these departments shall exercise any
functions, appertaining to either of the others. . . .
[Headnotes 5-7]
The doctrine of separation of powers is fundamental to our system of government.
Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967). The judicial department may not
invade the legislative and executive province. State v. District Court, 85 Nev. 485, 457 P.2d
217 (1969). Neither may the legislative and executive branches of government exercise
powers properly belonging to the judicial department. Graves v. State, 82 Nev. 137, 413 P.2d
503 (1966). Out of deference to the doctrine of separation of powers the legislature
specifically excluded members of the judiciary from the Ethics in Government Law. Such
exclusion was constitutionally mandated. In re Kading, 235 N.W.2d 409 (Wis. 1975).
[Headnotes 8-10]
The function of the judicial department is the administration of justice. The judiciary, as a
coequal branch of government, possesses the inherent power to protect itself and to
administer its affairs. Sun Realty v. District Court, 91 Nev. 774, 542 P.2d 1072 (1975). The
promulgation of a Code of Judicial Ethics is a measure essential to the due administration of
justice and within the inherent power of the judicial department of this State. In re Kading,
supra.
For many years the judiciary of Nevada has been governed by Canons of Judicial Ethics.
The most recent revision of the canons became effective October 15, 1965. Supreme Court
Rules 205-241. Among other matters, the canons concern business interests and conflicts,
gifts and favors, personal investments and relationships. A financial disclosure statement is
not required. The advisability of including such a requirement presently is under
consideration and will be determined within the inherent authority of the judicial department
of this State to govern its affairs.
[Headnotes 11, 12]
b. Nev. Const. art. 1, 15, forbids enactment of an ex post facto law. The district court
found the Ethics in Government Law to violate that constitutional command. The court was
in error.
An ex post facto law makes criminal an act which was innocent when done. Eureka Bank
Cases, 35 Nev. 80, 126 P. 655 (1912). It is retrospective in application. The Ethics in
Government Law is prospective in its operation and does not fall within the constitutional
prohibition.
4. Since we have voided the financial disclosure provisions, we now must determine the
impact of our opinion upon the remaining portions of the law. The appellants contended that
the balance of the law is capable of independent life.
[Headnote 13]
We are not authorized to declare the entire law invalid unless we may presume that the
legislature would not have passed the remaining portions of the law without the provisions
for financial disclosure. State v. Westerfield, 23 Nev. 468, 49 P. 119 (1897).
As noted early in this opinion, the provisions for financial disclosure are the heart and soul
of the Act since it is through such forced disclosure that impermissible conflicts in interest
may become known. The legislative purpose appears to have been directed primarily to this
aspect of the law.
Accordingly, we are unable to conclude that the remaining portions would have been
enacted independently.
3
We, therefore, declare the Ethics in Government Law
unconstitutional in its entirety.
Affirmed.
Gunderson, C. J., dissenting:
I must respectfully dissent from this Court's holding, i.e., that the Ethics in Government
Law is void because its provisions concerning financial disclosure are impermissibly vague.
1. Of course, because penal statutes must be strictly construed, any ambiguity in NRS
281.650 necessarily would be resolved in favor of anyone accused of violating its terms. See,
for example: Sheriff v. Hanks, 91 Nev. 57, 530 P.2d 1191 (1975); Labor Comm'r v. Mapes
Hotel Corp., 89 Nev. 21, 505 P.2d 288 (1973); Peck v. Womack, 65 Nev. 184, 192 P.2d 894
(1948); Orr Ditch Co. v. District Ct., 64 Nev. 138, 178 P.2d 558 (1947); Ex Parte Davis, 33
Nev. 309, 110 P. 1131 (1910). Moreover, strictly construing NRS 281.410 et seq., it appears
to me that what the statutes make criminal is not an innocently or mistakenly incorrect
statement, but a willfully false statement. Such an interpretation accords, not just with usual
principles governing construction and interpretation of criminal statutes, but with NRS
193.190 which declares: In every crime or public offense there must exist a union, or joint
operation of act and intention, or criminal negligence.
Thus, I do not believe persons governed by the act are required to guess at what NRS
281.650 requires, at their peril. Since that statute is enforced by criminal sanctions, they may
know that any legitimate doubts about the statute's sweep must be resolved in their favor, and
that, in any event, they are culpable only if they act in bad faith. So viewed, I find NRS
281.650 unobjectionable, and sufficiently comprehensible.
2. I fully agree that the judicial branch of government, through this Court, has the right,
power, and indeed the obligation, to govern its own affairs, without interference from the
legislative and executive branches.
____________________

3
The Ethics in Government Law does not contain a severability clause. The appellants call our attention to
1957 Stats. ch. 2, 6, which states that if any provision of the Nevada Revised Statutes or amendments thereof is
held invalid, such invalidity shall not affect provisions that can be given effect.
We read that provisions to have application only to the Nevada Revised Statutes referred to in 1957 Stats. ch.
2, 1, and amendments thereto. The Ethics in Government Law is neither. It was a new law enacted in 1975.
through this Court, has the right, power, and indeed the obligation, to govern its own affairs,
without interference from the legislative and executive branches. In its new proposed Code of
Judicial Conduct, the American Bar Association has suggested reporting provisions for
judges, only arguably better than those of NRS 281.650; and I would hope that this Court will
adopt those or similar reporting measures in due course, when our committee's final report
concerning the entire Code is received this fall. I agree that the Legislature's decision to
respect judicial autonomy, permitting the judiciary to address its own problems, was
commendable and constitutionally mandated. Hence, in my view, the district court erred in
determining that the Ethics in Government Law was somehow unconstitutional because the
Legislature exercised appropriate restraint, and did not attempt to usurp powers pertaining to
the judiciary. No more are the judiciary's present canonsor the judiciary's contemplated
new Code of Conductvoid because they do not seek to control the Legislature.
I therefore respectfully submit that unconstitutionality of the Ethics in Government Law
has not been demonstrated, by my brethren or by the district court.
____________
92 Nev. 268, 268 (1976) Markoff v. New York Life Ins. Co.
VASIL M. MARKOFF, Appellant, v. NEW YORK LIFE INSURANCE CO.; THEODORE
JACOBS, M.D.; KIRK V. CAMMACK, M.D.; ROBERT BUCKLEY, M.D.; WILLIAM
HARRIS, M.D.; AMERICAN MEDICAL ASSOCIATION; NEVADA STATE MEDICAL
ASSOCIATION; and CLARK COUNTY MEDICAL SOCIETY, Respondents.
No. 8058
April 29, 1976 549 P.2d 330
Appeal from order denying appellant's motion to amend complaint and order granting
summary judgment; Eighth Judicial District Court, Clark County; Howard W. Babcock,
Judge.
Plaintiff brought action against a life insurance company and others for the alleged giving
of false testimony and alleged conspiracy to give false testimony in a previous case in which
plaintiff had been denied insurance benefits. Motions to dismiss were granted by the district
court in favor of some defendants, and summary judgment was granted in favor of others.
Plaintiff appealed. The Supreme Court held that where it was clear that plaintiff had
previously had a fair trial upon merits of his claim for benefits and issues previously decided
and affirmed were predicated upon the same basic issues raised in the instant action, and
where it was clear that the instant action was an attempt to circumvent prior judgments and
relitigate entitlement to insurance benefits, the instant action constituted a collateral attack on
the prior judgment, not countenanced by traditional principles of res adjudicata and collateral
estoppel.
Affirmed.
Daniel M. Markoff, Las Vegas, for Appellant.
Breen, Young, Whitehead & Hoy, Chartered, and David R. Belding, Reno, for
Respondents New York Life Ins. Co. and Cammack.
Beckley, Singleton, DeLanoy, Jemison & Reid, Chartered, Las Vegas, for Respondent
Jacobs.
Paul C. Parraguirre, Las Vegas, for Respondent Buckley.
Smith & O'Brien and Richard Avila, Las Vegas, for Respondents Harris and Clark County
Medical Soc'y.
Hawkins, Rhodes, Sharp & Barbagelata, Reno, for Respondents American Medical Ass'n
and Nevada State Medical Ass'n.
Judgment.
Where it was clear that plaintiff had previously had fair trial upon merits of his claim for disability
insurance benefits and issues previously decided and affirmed were predicated upon same basic issues
raised in subsequent action, and where it was clear that subsequent action for alleged giving of false
testimony or conspiracy to give false testimony was attempt to circumvent prior judgments and relitigate
entitlement to benefits, subsequent action constituted collateral attack on prior judgment, not countenanced
by traditional principles of res adjudicata and collateral estoppel.
OPINION
Per Curiam:
Vasil M. Markoff commenced this action in July 1971 against respondents, alleging they
either gave or conspired to give false testimony in the case of Markoff v. New York Life Ins.
Co., 88 Nev. 319, 497 P.2d 904 (1972). Markoff later amended his complaint to include a
broader allegation that respondents had conspired to defraud him of certain insurance
benefits to which he was entitled under three policies issued by New York Life Insurance
Company {hereinafter NYLIC).
amended his complaint to include a broader allegation that respondents had conspired to
defraud him of certain insurance benefits to which he was entitled under three policies issued
by New York Life Insurance Company (hereinafter NYLIC).
Specifically, Markoff alleges NYLIC conspired with Doctors Cammack and Jacobs to
falsely testify that Markoff was not, in fact, disabled. Subsequent to the initial filing of
appellant's complaint, Respondent Robert Buckley, M.D., was joined as a party defendant,
without leave of court, for allegedly declining to treat Markoff in December 1971.
The American Medical Association (AMA), the Nevada State Medical Association
(NSMA), and the Clark County Medical Society (CCMS) are alleged to have refused or
neglected to investigate the Markoff claim of perjury and malpractice by said doctors. In
addition, by reason of the doctors' voluntary membership in the aforesaid associations, it is
alleged that the associations thereby joined in the conspiracy to defraud Markoff of certain
insurance benefits. Finally, Respondent William Harris, M.D., was included as a defendant,
premised solely on his status as the then President of CCMS.
In response to appellant's complaint, Respondents NYLIC, Cammack, and Harris
answered and filed motions for summary judgment, Respondents Jacobs and CCMS filed
motions to dismiss, and Respondent Buckley filed a motion to quash. All of these motions
were granted. Respondents AMA and NSMA answered the complaint. Subsequently,
appellant filed a motion to amend his complaint as to all defendants. This motion was denied
as to all respondents except AMA and NSMA, who were again ordered to answer. Appellant
then filed a second motion to amend his complaint. On August 8, 1974, appellant's motion to
amend was heard in conjunction with motions for summary judgment by AMA and NSMA.
At the conclusion of this hearing, the trial court granted AMA's and NSMA's motions for
summary judgment and denied appellant's motion for leave to amend his complaint against all
other respondents.
Markoff has appealed, alleging that the trial court erred (a) in not allowing appellant to
further amend his complaint and require the respondents, other than AMA and NSMA, to
answer thereto; (b) in not requiring the respondents, other than AMA and NSMA, to answer
his second amended complaint because they had been previously dismissed from the action;
and (c) in granting summary judgment in favor of AMA and NSMA.
For the reasons expressed below, we find this appeal without merit.
1. The Facts.
In July 1963, Markoff applied for three insurance policies, which were issued by NYLIC
in September 1963. The policies consisted of an income protection policy and two life
insurance policies with provisions for waiver of premiums should the insured become
disabled.
In June 1964, Markoff filed claim for benefits under all three policies, alleging total
disability. The claims were denied, and Markoff filed suit against NYLIC in July 1965. After
extended litigation, including approximately 18 days of trial, the lower court found Markoff
had misrepresented material facts in his application for insurance and was not, in fact,
disabled. The income protection policy was held null and void; however, the two life
insurance policies were not specifically mentioned in the court's decision. Markoff appealed.
We affirmed. Markoff v. New York Life Ins. Co., supra.
In 1971, Markoff filed a virtually identical suit against NYLIC, claiming his total disability
entitled him to a waiver of premiums of the two life insurance policies. The suit was removed
to the United States District Court by Defendant NYLIC. Summary judgment was granted in
favor of NYLIC on the grounds that the issue of disability had been previously decided in the
State district court and affirmed by the Nevada Supreme Court and that Markoff was
collaterally estopped from attacking that judgment. Markoff v. New York Life Ins. Co., 369
F.Supp. 308 (D.Nev. 1973).
Markoff then filed the instant action, again attacking the judgment affirmed in Markoff v.
New York Life Ins. Co., 88 Nev. 319, 497 P.2d 904 (1972). Although couched in terms of a
conspiracy to defraud, Markoff's complaint is an attempt to avoid the prior judgments.
2. Estoppel from Attacking Previously Rendered Judgment.
By this action, Markoff is attempting to circumvent the prior judgments and relitigate his
entitlement to the insurance proceeds. This action constitutes a collateral attack on the prior
judgment, which is not countenanced by the traditional principles of res adjudicata and
collateral estoppel. To hold otherwise would foster endless litigation, and any judgment
would be forever and interminably subject to attack.
In the landmark case of Bernhard v. Bank of America Nat. Trust & Sav. Ass'n, 122 P.2d
892[, 894] (Cal. 1942), Justice Traynor considered this question with regard to the doctrine of
res judicata.
res judicata. He wrote: The doctrine of res judicata precludes parties or their privies from
relitigating a cause of action that has been finally determined by a court of competent
jurisdiction. Any issue necessarily decided in such litigation is conclusively determined as to
the parties or their privies if it is involved in a subsequent lawsuit on a different cause of
action. (Citations) The rule is based upon the sound public policy of limiting litigation by
preventing a party who has had one fair trial on an issue from again drawing it into
controversy. (Citations) The doctrine also serves to protect persons from being twice vexed
for the same cause. lbid. It must, however, conform to the mandate of due process of law that
no person be deprived of personal or property rights by a judgment without notice and an
opportunity to be heard. (Citations)' Paradise Palms Community Ass'n v. Paradise Homes,
89 Nev. 27, 30, 505 P.2d 596, 598 (1973).
In this case, it is abundantly clear that appellant has had a fair trial upon the merits of his
claim for disability insurance benefits. The issues decided and affirmed at 88 Nev. 319 (1972)
are predicated upon the same basic issues raised in the present action.
The order and judgments of the lower court are affirmed in all respects.
____________
92 Nev. 272, 272 (1976) Fish v. State
IRWIN WILLIAM FISH, Appellant, v. THE
No. 7852
May 10, 1976 549 P.2d 338
Appeal from conviction of first-degree murder. Eighth Judicial District Court, Clark
County; Joseph S. Pavlikowski, Judge.
Defendant was convicted before the district court of first-degree murder, and he appealed.
The Supreme Court, Zenoff, J., held that circumstances of activities of alleged coconspirators
constituted prima facie evidence of a conspiracy and thus constituted a sufficient foundation
for admitting extra judicial statements of defendant's coconspirators made during course and
in furtherance of conspiracy; that admission of statements, allegedly constituting hearsay, to
which no objections were interposed was not fundamental error mandating reversal; that in
the absence of evidence that two women were accomplices, court properly rejected proposed
instructions that such women were accomplices whose testimony would require
corroboration; and that evidence which, inter alia, disclosed facts suggesting a close
association among defendant and killers, was sufficient to corroborate testimony of
accomplice.
92 Nev. 272, 273 (1976) Fish v. State
women were accomplices whose testimony would require corroboration; and that evidence
which, inter alia, disclosed facts suggesting a close association among defendant and killers,
was sufficient to corroborate testimony of accomplice.
Affirmed.
Raymond E. Sutton, of Las Vegas, for Appellant.
Robert List, Attorney General; George E. Holt, District Attorney, Dan M. Seaton, Chief
Deputy District Attorney, and Elliott A. Sattler, Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Hearsay statements may be admitted into evidence where the statement is made by a coconspirator of a
party during the course and in furtherance of the conspiracy. NRS 51.035, 51.035, subd. 3(e).
2. Criminal Law.
As a prerequisite to application of the statements of coconspirators exception to hearsay rule, it must be
determined by reference to independent evidence that a conspiracy existed. NRS 51.035, 51.035, subd.
3 (e).
3. Criminal Law.
Within the statements of coconspirators exception to hearsay rule, the amount of independent evidence
necessary to prove the existence of a conspiracy may be slight; it is enough that only prima facie evidence
of the fact is produced.
4. Criminal Law.
Circumstances of activities of alleged coconspirators constituted prima facie evidence of a conspiracy
and thus constituted a sufficient foundation for admitting extra judicial statements of defendant's
coconspirators made during course and in furtherance of conspiracy. NRS 51.035, 51.035, subd. 3(e).
5. Criminal Law.
Testimony of witness, not a coconspirator, to conversations overheard by her between coconspirators was
admissible within statements of coconspirators exception to hearsay rule, even though witness was not a
coconspirator, since statute does not require that witness be a coconspirator but only that the statement in
question be by a coconspirator. NRS 51.035, subd. 3(e).
6. Criminal Law.
Admission of statements, allegedly constituting hearsay, to which no objections were interposed was not
fundamental error mandating reversal.
7. Criminal Law.
Alleged hearsay statements admitted over objection but which were not prejudicial constituted no ground
for reversal.
8. Criminal Law.
In prosecution for first-degree murder, in the absence of evidence that two women were accomplices,
court properly rejected proposed instructions that such women were accomplices whose
testimony would require corroboration.
92 Nev. 272, 274 (1976) Fish v. State
proposed instructions that such women were accomplices whose testimony would require corroboration.
9. Criminal Law.
In murder prosecution, evidence which, inter alia, disclosed facts suggesting a close association among
defendant and killers, was sufficient to corroborate testimony of accomplice.
OPINION
Irwin W. Fish, also known as Bill Fish and Bill Faisch, was convicted by a jury of the
first-degree murder of Abraham Schwartz whose body was discovered in a shallow grave
near Las Vegas in September of 1972.
At trial, it was established that Fish and three accomplices, David Miller, Douglas Webb
and Benny Shoemaker, conspired in the abduction and execution of Schwartz. The critical
evidence produced at trial consisted primarily of the testimony of three witnesses: David
Miller (who testified under a grant of immunity from the state), his wife Constance and the
wife of Douglas Webb, Suzanne.
On appeal, Fish claims (1) that the trial court erroneously permitted David Miller and his
wife Constance to relate certain conversations which occurred outside the presence of Fish;
(2) that the trial court erroneously refused to give certain proposed instructions to the jury;
and (3) that insufficient evidence was produced at trial to corroborate the testimony of David
Miller.
[Headnotes 1, 2]
1. A significant portion of David Miller's testimony consisted of his account of
conversations with and between his fellow conspirators. Such testimony is admittedly
hearsay, was acknowledged as such by the trial court but nevertheless was admitted into
evidence over objection by trial counsel. The trial court correctly observed that the hearsay
statements fell within a well-recognized exception to the hearsay rule. Hearsay statements
may be admitted into evidence where the statement is made by a coconspirator of a party
during the course and in furtherance of the conspiracy. NRS 51.035(3) (e);
1
Goldsmith v.
Sheriff, 85 Nev. 295, 454 P.2d 86 (1969). As a prerequisite to application of the
"statements of coconspirators" exception to the hearsay rule it must be determined by
reference to independent evidence that a conspiracy existed.
____________________

1
NRS 51.035 states as follows: Hearsay' means a statement offered in evidence to prove the truth of the
matter asserted unless:
. . .
3. The statement is offered against a party and is:
. . .
(e) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
92 Nev. 272, 275 (1976) Fish v. State
prerequisite to application of the statements of coconspirators exception to the hearsay rule
it must be determined by reference to independent evidence that a conspiracy existed. Fish
argues that evidence in this regard is lacking.
[Headnote 3]
The amount of independent evidence necessary to prove the existence of a conspiracy may
be slight, it is enough that only prima facie evidence of the fact is produced. Goldsmith v.
Sheriff, supra. The evidence that Webb, Miller, Shoemaker and Fish conspired to kill
Schwartz is substantial. Miller testified that on April 27, 1972, Fish told Miller and Webb
that he was having trouble with Schwartz and that they would have to take care of him. At
that meeting Fish gave Miller and Webb Schwartz's address and a description of his car. They
began to follow and observe Schwartz and checked in with Fish intermittently. Prior to the
killing they stayed in a motel in Las Vegas leased and operated by Fish without paying for
their accommodations. The day before the killing, in the presence of Miller and Webb, Fish
telephoned Schwartz and arranged to meet him the following morning. Before Schwartz
arrived at the designated meeting place, Fish again met with Webb and Miller and outlined in
detail the murder plan and furnished them with knock-out drops, the use of which the plan
required.
[Headnote 4]
The related facts are prima facie evidence of a conspiracy and therefore constituted a
sufficient foundation for admitting the extra judicial statements of Fish's coconspirators made
during the course and in furtherance of the conspiracy.
[Headnote 5]
2. Constance Miller, not a coconspirator, testified to conversations overheard by her
between Miller, Webb, Shoemaker and Fish. The fact that she was not a coconspirator does
not preclude her testimony under NRS 51.035(3)(e) since that statute does not require that the
witness be a coconspirator, only that the statement in question be by a coconspirator. Any
statements made by Miller, Webb, Shoemaker or Fish during the course and in furtherance of
the conspiracy were admissible regardless of who testified as to having heard the statements.
Bingham v. People, 401 P.2d 255 (Colo. 1965); but see also State v. Sanders, 496 P.2d 270
(Utah 1972).
[Headnotes 6, 7]
Constance Miller related many statements overheard by or directed to her by Miller,
Webb, Shoemaker and Fish at various times.
92 Nev. 272, 276 (1976) Fish v. State
directed to her by Miller, Webb, Shoemaker and Fish at various times. Appellant claims that
the admission of these statements was error for the reason that they were not made during the
course or in furtherance of the conspiracy but directs us to no particular statements he
considers prejudicial and cites no authority supporting his position. While several of the
statements related by Mrs. Miller were objectionable on the ground that they were not made
during the course or in furtherance of the conspiracy, trial counsel objected only once on this
ground. Unless the error is fundamental, specific objection must be made thereto at trial in
order to preserve the issue for consideration on appeal.
2
Shepp v. State, 87 Nev. 179, 484
P.2d 563 (1971); Sparkman v. State, 88 Nev. 680, 504 P.2d 8 (1972). In this instance,
admission of the statements to which no objections were interposed was not fundamental
error mandating reversal. The statement which was admitted over objection was not
prejudicial and therefore constitutes no ground for reversal.
It should be noted that many of the statements related by Mrs. Miller were made by Fish or
were made in Fish's presence and therefore were admissible as admissions or adopted
admissions. NRS 51.035(3). Those statements not falling within these exceptions and to
which no objections were made were largely innocuous and, in any event, were
nonprejudicial.
[Headnote 8]
3. Fish proposed several jury instructions with the hope that the jury would be permitted
to find that Mrs. Miller and Mrs. Webb were accomplices whose testimony would require
corroboration. The trial court rejected his proposed instructions on the ground that there was
no evidence suggesting that the two women were accomplices. The record supports that
finding. We find no error in the giving or refusal to give instructions by the trial court.
4. Fish finally contends that there was insufficient evidence to corroborate the testimony
of David Miller. The record indicates otherwise. Fish concedes that he knew Schwartz, that
the body was found and the murder weapon recovered. Independent of Miller's testimony,
Constance Miller and Suzanne Webb stated that David Miller admitted that the murder
weapon was registered to him. They further testified that Webb, Miller and Shoemaker spent
a considerable amount of time with Fish ostensibly under his employ but did no actual work;
that Webb stated to his wife that things did not work out as planned, Schwartz was not
cooperating with Fish and Fish therefore had instructed him to kill Schwartz; that Webb
admitted to them that he did the killing; that Fish was disappointed at the amount of
money Miller and Webb found on Schwartz at the time of his abduction; that Fish stated
that Schwartz was a "cheap Jew" and that "the money taken from him wouldn't make a
dent in what Fish owed"; that on May 22, after the killing, Fish told them not to worry,
Schwartz had several enemies and they would not be looked upon with suspicion; that
after the killing Fish expressed his pleasure that Webb and Miller had followed his
instructions and changed their appearances by dyeing their hair; that Fish promised he
would obtain false identification cards for Miller and Webb; and that Fish had purchased a
cemetery business in Kentucky for "his boys" to operate while they "stayed low."
____________________

2
Appellant's counsel did not represent Fish at the trial, only on this appeal.
92 Nev. 272, 277 (1976) Fish v. State
that Webb stated to his wife that things did not work out as planned, Schwartz was not
cooperating with Fish and Fish therefore had instructed him to kill Schwartz; that Webb
admitted to them that he did the killing; that Fish was disappointed at the amount of money
Miller and Webb found on Schwartz at the time of his abduction; that Fish stated that
Schwartz was a cheap Jew and that the money taken from him wouldn't make a dent in
what Fish owed; that on May 22, after the killing, Fish told them not to worry, Schwartz had
several enemies and they would not be looked upon with suspicion; that after the killing Fish
expressed his pleasure that Webb and Miller had followed his instructions and changed their
appearances by dyeing their hair; that Fish promised he would obtain false identification
cards for Miller and Webb; and that Fish had purchased a cemetery business in Kentucky for
his boys to operate while they stayed low.
Fish's secretary testified that Fish instructed her to send money orders to Webb and Miller
who were at that time in Cumberland Gap, Kentucky.
Don Sure, a salesman from southern California, testified that Fish had done business with
Schwartz and that Fish had told Sure that he was going to kill Schwartz because of an
unsatisfactory business relationship.
Joseph Di Rodeo testified that he overheard Fish threaten Schwartz stating, you're next.
Fish admitted that he had made an appointment with the deceased for 8:30 a.m. on the day of
the murder, just prior to which was the last time Schwartz was seen alive. Fish also admitted
to a detective that he made the statement, I wish I could push a button and destroy
Schwartz.
The record also discloses that Fish's car was used in perpetrating the homicide and that his
accomplices depended upon him for financial support both before and after the killing.
Thus, the record is replete with facts suggesting a close association among Fish and the
killers. The record also clearly suggests that Fish had a motive to kill Schwartz while,
independent from their association with Fish, the actual perpetrators (Miller, Webb and
Shoemaker) did not.
[Headnote 9]
The corroborative evidence presented in this case, under all the rules and principles
announced by this court, is more than ample to support Fish's conviction. For example, see
LaPena v. State, 92 Nev. 1, 544 P.2d 1187 (1976); LaPena v. Sheriff, 91 Nev. 692, 541 P.2d
907 (1975); Eckert v. State, 91 Nev.
92 Nev. 272, 278 (1976) Fish v. State
183, 533 P.2d 468 (1975); Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971); Marquette v.
State, 91 Nev. 696, 541 P.2d 1099 (1975); State v. Hilbish, 59 Nev. 469, 97 P.2d 435 (1940).
Affirmed.
Batjer, Mowbray, and Thompson, JJ., concur.
Gunderson, C. J., concurring:
I concur in the result.
____________
92 Nev. 278, 278 (1976) Bryant v. Private Investigator's Lic. Bd.
IRELENE B. BRYANT, dba TRIGGER BRYANT MERCHANT PATROL AND
SECURITY SERVICES, Appellant, v. PRIVATE INVESTIGATOR'S LICENSING
BOARD, Respondent.
No. 8205
May 13, 1976 549 P.2d 327
Appeal from judgment, First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Private Investigator's Licensing Board found licensee guilty of unprofessional conduct and
unfitness as a licensee and imposed 90-day suspension of her license. Upon review, the
district court affirmed, and licensee appealed. The Supreme Court held that where licensee
failed to report employment of unlicensed investigator and caused her employees to compile
report on client and furnished report to client's former husband, board properly suspended her
license.
Affirmed.
Harvey Dickerson, Las Vegas, for Appellant.
Robert List, Attorney General, Robert A. Groves and Michael Dyer, Deputy Attorneys
General, for Respondent.
1. Administrative Law and Procedure.
In reviewing administrative board's decision, Supreme Court, like district court, is limited to record
presented below and to determination of whether board acted arbitrarily or capriciously.
2. Detectives.
Where licensed private investigator failed to report employment of unlicensed investigator and caused
her employees to compile report on former client which report contained personal derogatory
information on client and then without obtaining client's permission furnished report
to client's former husband, Private Investigator's Licensing Board properly found
licensee guilty of unprofessional conduct and 90-day suspension of license was not
excessive.
derogatory information on client and then without obtaining client's permission furnished report to client's
former husband, Private Investigator's Licensing Board properly found licensee guilty of unprofessional
conduct and 90-day suspension of license was not excessive. NRS 648.140, subd. 2, 648.200.
OPINION
Per Curiam:
The Private Investigator's Licensing Board found Irelene B. Bryant guilty of
unprofessional conduct and unfitness as a licensee and imposed a 90-day suspension of her
license. Upon review, the district court affirmed, and in this appeal Ms. Bryant contends the
record does not support the findings of fact and conclusions of law and the penalty imposed
constitutes an abuse of discretion. We disagree.
[Headnote 1]
In reviewing an administrative board's decision this court, like the district court, is limited
to the record presented below and to the determination of whether the board acted arbitrarily
or capriciously. Lellis v. Archie, 89 Nev. 550, 516 P.2d 469 (1973).
[Headnote 2]
Unchallenged evidence in the record clearly establishes that Ms. Bryant failed to report the
employment of an unlicensed investigator, one James Corbett, Jr., although required to do so
by NRS 648.140(2).
1

Further, the record establishes that after being discharged from an investigation, Ms.
Bryant caused her employees to compile an officers' report on one Iris Saxton, a former
client. This report contained personal derogatory information on Iris Saxton which Ms.
Bryant acquired as a result of the employment relationship.
____________________

1
2. A licensee may employ, in connection with such business, as many unlicensed persons as may be
necessary, but at all times every licensee is accountable for the good conduct of every person employed by him
in connection with such business. Each licensee shall furnish the board with the name, physical description and
photograph of all unlicensed employees, except clerical personnel, and shall notify the board within 10 days
when such employees begin or terminate their employment.
employment relationship. Without obtaining Iris Saxton's permission, Ms. Bryant furnished
the report to Iris Saxton's former husband, contrary to the provisions of NRS 648.200.
2

Substantial evidence exists to support the board's findings and under these circumstances
we do not consider the 90 day suspension excessive. Miller v. Munger, 88 Nev. 405, 498 P.2d
1336 (1972).
Affirmed.
____________________

2
It shall be unlawful for any licensee or any employee, officer or member of any licensee:
1. To divulge to anyone (except as he may be so required by law to do) any information acquired by him
except at the direction of the employer or client for whom the information was obtained.
2. To make a false report to his employer or client.
____________
92 Nev. 280, 280 (1976) Armstrong v. Riggi
TONI ARMSTRONG and HAROLD B. ARMSTRONG, dba Poodle
Parlor, Appellants, v. JOE RIGGI, Respondent.
No. 8114
May 13, 1976 549 P.2d 753
Appeal from judgment denying attorneys' fees; Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
Owner of dogs brought action to recover damages arising out of death of such dogs while
they were in care of defendants, to whom they had been delivered for purpose of being bathed
and groomed. The district court entered judgment for plaintiff for $100, and allowed
defendants their costs but refused to award them attorney fees, and defendants appealed. The
Supreme Court, Thompson, J., held that offer of judgment rule invests trial court with
discretion to allow offeror attorney fees when judgment obtained by offeree is not more
favorable than the offer and that statute governing award of attorney fees to prevailing party
had no application with regard to issue whether defendants, whose offer to allow judgment
was refused, should have been awarded attorney fees when judgment obtained against them
was for an amount less than that which plaintiff would have obtained if he had accepted the
offer.
Cromer, Barker & Michaelson, and Gerald I. Gillock, of Las Vegas, for Appellants.
Martin R. Boyers, of Las Vegas, for Respondent.
1. Costs.
Offer of judgment rule invests trial court with discretion to allow offeror attorney fees when judgment
obtained by offeree is not more favorable than the offer. NRCP 68.
2. Costs.
Statute which allows trial court to award attorney fee to prevailing party under certain circumstances had
no application with regard to issue whether defendants, whose offer to allow judgment was refused, should
have been awarded attorney fees when judgment obtained against them was for an amount less than that
which plaintiff would have obtained if he had accepted the offer. NRS 18.010, subd. 3; NRCP 68.
OPINION
Joe Riggi delivered his two unregistered Pomeranian dogs to the Armstrongs' Poodle
Parlor to be bathed and groomed. The dogs died while in the care of the bailee. Riggi
commenced this action to recover damages alleging that the dogs were worth more than
$10,000.
Before trial the Armstrongs offered to allow judgment to be taken against them for $600
together with costs then accrued. Their offer was not accepted. The cause proceeded to trial.
The court found the value of the dogs to be $100 and entered judgment in Riggi's favor for
that amount. The Armstrongs then moved for costs and attorneys fees. The court allowed
costs but denied fees. It is from the final order denying fees that this appeal is taken.
[Headnote 1]
The offer of judgment rule, NRCP 68, invests the court with discretion to allow such fees
when the judgment obtained by the offeree is not more favorable than the offer.
1

[Headnote 2]
For some reason not articulated, the district court believed that NRS 1S.010{3) precluded
an award of attorneys fees to counsel for the defendants.
____________________

1
Rule 68 in part: If the judgment finally obtained by the offeree is not more favorable than the offer, the
offeree shall not recover costs, nor attorneys' fees, but shall pay the costs and attorneys' fees, if any be allowed,
of the party making the offer from the time of the offer.
that NRS 18.010(3) precluded an award of attorneys fees to counsel for the defendants. That
statute allows the court to award an attorneys fee to the prevailing party in the circumstances
therein mentioned.
2
Insofar as counsel fees for the defendants who lost the case are
concerned, the statute obviously has no application since they did not prevail. The court need
only have concerned itself with Rule 68 in deciding whether to exercise its discretion in favor
of the motion for fees.
Since it is clear that the court did not consider the motion for fees because of its erroneous
view of the scope of NRS 18.010(3), we remand with direction to consider the motion in the
light of relevant circumstances disclosed by the record. Cf. Blaine Fashions, Inc. v. Scheri
Shop, 84 Nev. 339, 342, 440 P.2d 904 (1968).
____________________

2
NRS 18.010(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; or
(b) The counterclaimant as prevailing party when he has not recovered more than $10,000; or
(c) The defendant as prevailing party when the plaintiff has not sought recovery in excess of $10,000.
____________
92 Nev. 282, 282 (1976) Eikelberger v. Rogers
FRED L. EIKELBERGER and MARGARET A. EIKELBERGER,
Appellants, v. EARL W. ROGERS, Respondent.
No. 7962
May 13, 1976 549 P.2d 748
Appeal from judgment n.o.v.; Second Judicial District Court, Washoe County; Llewellyn
A. Young, Judge.
Action was brought against accountant to recover for damages for accounting errors in
statements prepared by accountant. The district court entered judgment for defendant
notwithstanding a jury verdict for plaintiffs, and plaintiffs appealed. The Supreme Court held
that plaintiffs who did not employ accountant and who did not rely upon accounting
statements prepared by accountant for use in litigation involving them and accountant's
clients were not entitled to recover damages for accounting errors.
92 Nev. 282, 283 (1976) Eikelberger v. Rogers
statements prepared by accountant for use in litigation involving them and accountant's
clients were not entitled to recover damages for accounting errors.
Affirmed.
Lohse and Lohse, Chartered, of Reno, for Appellants.
Ellis R. Ferguson, of Reno, J. Rayner Kjeldsen, of Lovelock, and Vargas, Bartlett &
Dixon, of Reno, for Respondent.
Negligence.
Plaintiffs who did not employ accountant and who did not rely upon accounting statements prepared by
accountant for use in litigation involving them and accountant's clients were not entitled to recover
damages for accounting errors in such statements.
OPINION
Per Curiam:
This appeal is from a judgment of the district court entered for the defendant
notwithstanding a jury verdict for the plaintiffs in the total sum of $63,000. That court ruled,
as a matter of law, that the plaintiffs were not entitled to judgment. Dudley v. Prima, 84 Nev.
549, 445 P.2d 31 (1968). We agree with that determination and affirm.
The Eikelbergers commenced this action against Rogers, a certified public accountant, to
recover damages for accounting errors in statements prepared by Rogers for John and Mary
Tolotti for use in litigation between the Eikelbergers and the Tolottis. The Eikelbergers did
not employ Rogers. The Eikelbergers did not rely upon the accounting statements prepared by
Rogers. To the contrary, they challenged those statements in the litigation with the Tolottis.
Absent a professional relationship between the Eikelbergers and Rogers, or a reliance upon
the accounting statements prepared, we perceive no legal basis for damages claimed to have
been incurred by the Eikelbergers.
Affirmed.
____________
92 Nev. 284, 284 (1976) Eikelberger v. Lonergan Corp.
FRED L. EIKELBERGER, MARGARET A. EIKELBERGER, and Y-RANCHO TRAILER
SALES, Appellants, v. LONERGAN CORPORATION, an Indiana Corporation, Respondent.
No. 8160
May 13, 1976 549 P.2d 748
Appeal from order directing satisfaction of judgment from a cash bond posted for stay of
execution. Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
The Supreme Court held that absent a showing of fraud, purchase of judgment for half its
value by party which was creditor of judgment debtors by reason of prior litigation was
permissible.
Affirmed.
Lohse and Lohse, Chartered, of Reno, for Appellants.
Stewart & Horton, Ltd., of Reno, for Respondent.
1. Judgment.
Absent showing of fraud, purchase of judgment for half its value by party which was creditor of judgment
debtors by reason of prior litigation was permissible.
2. Execution.
Trial court has right by statute to direct course of execution of judgment.
OPINION
Per Curiam:
Judgment for $15,970.43, plus attorneys' fees, interest and court costs, was entered against
the Eikelbergers and in favor of Lonergan Corporation on April 22, 1968. There was no
appeal from the uncontested summary judgment. Two years later the parties entered into an
agreement wherein the judgment debtors, the Eikelbergers, stipulated to an orderly
installment liquidation of the judgment. In course of time the Eikelbergers ceased paying.
After proceedings for execution were commenced the original stipulation was reinstated by
the Eikelbergers agreeing to bring the account current and renewing their monthly payments.
However, they again defaulted and full payment of the balance then due was demanded.
During the course of the foregoing period of time the Lonergan Corporation sold and
assigned its judgment to Tolotti who had been often involved in acrimonious litigation with
the Eikelbergers.
92 Nev. 284, 285 (1976) Eikelberger v. Lonergan Corp.
had been often involved in acrimonious litigation with the Eikelbergers. See Eikelberger v.
Tolotti, 90 Nev. 463, 530 P.2d 104 (1974); Eikelberger v. Tolotti, 90 Nev. 465, 530 P.2d 105
(1974); Tolotti v. Eikelberger, 90 Nev. 466, 530 P.2d 106 (1974); Eikelberger v. Rogers, 92
Nev. 282, 549 P.2d 748 (1976). Eikelberger now contends that because Tolotti purchased the
judgment against them for half its value and since he was their judgment debtor by reason of
the previous litigation that he should not get a benefit of a profit against them.
This particular appeal is from an order respecting funds on deposit, that is, an order
adjudicating the amount still due on the Lonergan judgment and directing satisfaction from
the cash bond put up by the Eikelbergers presumably as an appeal from a special order made
after final judgment. NRAP Rule 3A(b)(2). The order was issued after the trial court had first
set aside an execution sale scheduled against the property of the Eikelbergers but required
them to post a $10,000.00 cash bond pending a hearing on their contentions that the Lonergan
judgment was either in fact paid, or mostly paid, or at least that the liquidation agreement
should be reinstated.
After a hearing the court found that $8,936.84 remained due on the Lonergan judgment
and directed that sum to be paid over in favor of Tolotti from the cash bond and the balance
released to the Eikelbergers. The question of offset of the money owed to the Eikelbergers by
Tolotti was one of the matters litigated at the hearing.
The basis of this appeal is Eikelberger's claim that it was manifestly unfair that Tolotti be
permitted to profit on the one judgment while still owing them on the other.
[Headnotes 1, 2]
We see no justiciable issue. The matter of offset and proffered payments was fully litigated
by the trial court and substantial evidence to support its ruling is contained in the record. In
the absence of a showing of fraud, and none is alleged, the purchase by Tolotti of the
Lonergan judgment is permissible. The trial court has the right by statute to direct the course
of the execution. NRS 21.340. There is no merit to the appeal.
Affirmed.
____________
92 Nev. 286, 286 (1976) State ex. rel. Dep't Hwys. v. Tacchino
THE STATE OF NEVADA, On Relation of its Department of Highways, Appellant and
Cross-Respondent, v. A. TACCHINO, also known as ANDREA TACCHINO,
Respondent and Cross-Appellant.
No. 7890
THE STATE OF NEVADA, On Relation of its Department of Highways, Appellant and
Cross-Respondent, v. ANDREA TACCHINO and MARIA TACCHINO, husband and wife,
Respondents and Cross-Appellants.
No. 7891
May 13, 1976 549 P.2d 755
Appeal and cross-appeal from judgments in consolidated condemnation actions; Second
Judicial District Court, Washoe County; John W. Barrett, Judge.
State brought two condemnation actions. After remand, 89 Nev. 150, 508 P.2d 1212
(1973), the district court entered judgments based on jury awards of $557,121.50 and
$253,632.50. State appealed and condemnees cross-appealed. The Supreme Court held that
evidence supported such awards.
Appeal, affirmed. Cross-appeal, affirmed.
Robert List, Attorney General, and Melvin L. Beauchamp, Chief Counsel, Department of
Highways, for Appellant and Cross-Respondent.
Woodburn, Forman, Wedge, Blakey, Folsom and Hug, and Gordon H. DePaoli, of Reno,
for Respondents and Cross-Appellants.
Eminent Domain.
Evidence in two condemnation actions brought by State supported awards of $557,121.50 and
$253,632.50.
OPINION
Per Curiam:
These consolidated condemnation actions have, since 1969, twice been tried and
judgments entered upon jury verdicts. At the conclusion of the first trial the jury returned its
verdict for $396,402.28 in one case, and for $182,976.98 in the other. The Tacchinos
appealed and the judgments were set aside and the causes remanded for another trial.
92 Nev. 286, 287 (1976) State ex. rel. Dep't Hwys. v. Tacchino
the causes remanded for another trial. Tacchino v. State ex rel. Dep't Hwys., 89 Nev. 150, 508
P.2d 1212 (1973). Greater compensation was awarded the Tacchinos by the second jury,
$557,121.50 in one case, and $253,632.50 in the other, an improvement of $231,374.74 in
total amount. Still, neither litigant is satisfied. The State had appealed, asserting prejudicial
error with regard to technical aspects of appraisal testimony submitted on behalf of the
Tacchinos. This is appeal case No. 7890. The Tacchinos have cross-appealed contending that
the jury should have awarded greater compensation and ask that we increase the awards
without remanding for a costly third trial. We find no merit to either the appeal or
cross-appeal, and see no useful purpose, at this juncture, in writing a lengthy opinion
concerning the alleged errors assigned by each party which center upon their divergent
interpretations of our opinion on the first appeal. We are satisfied that the district court
correctly applied the intendment of that opinion to the retrial of the causes.
Moreover, we heretofore have recognized that the valuation of property is an illusory
matter for which there exists no absolute mathematical formula. Nevada Tax Comm'n v.
Southwest Gas Corp., 88 Nev. 309, 497 P.2d 308 (1972). Since the jury awards fall within the
range of the expert testimony received, we shall not disturb them. Dep't of Highways v.
Campbell, 80 Nev. 23, 388 P.2d 733 (1964); St. ex rel. Dept. Highways v. Olsen, 76 Nev.
176, 351 P.2d 186 (1960).
The judgments are affirmed.
____________
92 Nev. 287, 287 (1976) Peterson v. Sheriff
TERRY PETERSON, Appellant, v. SHERIFF,
No. 8788
May 14, 1976 549 P.2d 752
Petitioner under indictment for sale of heroin petitioned for habeas corpus. The district
court denied the petition and petitioner appealed. The Supreme Court held that district court,
at the habeas hearing, was limited to the evidence which was before, and considered by, the
grand jury in testing the sufficiency of probable cause to support an indictment and could
not consider affidavit executed by officer in an effort to bolster the grand jury transcript
after the habeas petition was filed, and that evidence before grand jury was insufficient
to meet probable cause test.
before, and considered by, the grand jury in testing the sufficiency of probable cause to
support an indictment and could not consider affidavit executed by officer in an effort to
bolster the grand jury transcript after the habeas petition was filed, and that evidence before
grand jury was insufficient to meet probable cause test.
Theodore J. Manos, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and
Francis J. Morton, Deputy, Clark County, for Defendant.
1. Habeas Corpus.
The district court, at habeas hearing, is limited to the evidence which was before, and considered by, the
grand jury in testing the sufficiency of probable cause to support an indictment, and could not consider
affidavit filed by officer in an effort to bolster grand jury transcript after the habeas petition was filed.
Evidence before grand jury was insufficient to establish probable cause to believe that defendant
committed sale of heroin. NRS 172.155, subd. 1, 453.161, 453.321.
OPINION
Per Curiam:
The Clark County Grand Jury returned an indictment charging Terry Peterson with sale of
heroin, a controlled substance. (NRS 453.321; 453.161.)
In an effort to avoid trial Peterson timely petitioned for habeas corpus, contending the
charge should be dismissed because the evidence adduced before the grand jury did not meet
the probable cause test delineated in NRS 172.155(1).
1
We agree.
[Headnotes 1, 2]
The record on appeal reveals the grand jury received sufficient evidence from which they
could conclude a sale of heroin was made; however, there is absolutely no testimony which
would implicate Terry Peterson in the sale. An undercover Las Vegas Police {narcotics)
Officer, L. C. Kennedy, was the sole witness appearing before the grand jury.
____________________

1
The grand jury ought to find an indictment when all the evidence before them, taken together, establishes
probable cause to believe that an offense has been committed and that the defendant has committed it.
[Emphasis added.]
Vegas Police (narcotics) Officer, L. C. Kennedy, was the sole witness appearing before the
grand jury. He testified that Jerry Peterson, appellant's brother, was the individual who
consummated the heroin sale. After the habeas petition was filed Officer Kennedy, in an
effort to bolster the grand jury transcript, executed an affidavit which stated he had made a
mistake while testifying, and that he had intended to testify that Terry Peterson was the
individual who had sold the heroin.
2
Cf. Petschauer v. Sheriff, 89 Nev. 328, 512 P.2d 1325
(1973). The affidavit cannot be utilized as evidence of probable cause of Terry Peterson's
involvement in the charged crime. The district court, at the habeas hearing, is limited to the
evidence which was before, and considered by, the grand jury in testing the sufficiency of
probable cause to support an indictment. Azbill v. State, 84 Nev. 345, 347, 440 P.2d 1014,
1015 (1968). Cf. Lamb v. Loveless, 86 Nev. 286, 468 P.2d 24 (1970). See also, Ursino v.
Sheriff, 91 Nev. 409, 537 P.2d 316 (1975).
We therefore reverse and remand, with instructions to grant a writ of habeas corpus as to
the charges in the indictment, without prejudice to institution of another prosecution by
appropriate proceedings.
3

____________________

2
While before the grand jury, undercover agent Kennedy first testified that, at the time and on the occasion in
question, the contraband he had purchased was marijuana. The prosecutor refreshed Kennedy's memory as to
the substance, but not the seller.

3
Additional and other viable charges against Terry Peterson were unsuccessfully challenged in a separate
appeal.
____________
92 Nev. 289, 289 (1976) Barcus v. State
PAUL LEONARD BARCUS, Appellant, v.
No. 8555
May 25, 1976 550 P.2d 411
Appeal from judgment of conviction and sentence; Second Judicial District Court, Washoe
Defendant was convicted in the district court of lewdness with a child under the age of 14,
and he appealed. The Supreme Court held that permitting prosecuting attorney to ask leading
questions of two witnesses who were 8 and 9 years of age at the time of trial was neither
prejudicial nor an abuse of discretion under the circumstances, and that conduct of trial
court in asking a police officer, who had participated in the arrest and confiscation of the
defendant's automobile, what happened to the vehicle and whether any "liquor" was
found neither exhibited prejudice, nor achieved the status of an abuse of discretion,
where a prior witness had testified that, during the time defendant was playing with the
victim, defendant had gone to his automobile and "took a drink of something."
years of age at the time of trial was neither prejudicial nor an abuse of discretion under the
circumstances, and that conduct of trial court in asking a police officer, who had participated
in the arrest and confiscation of the defendant's automobile, what happened to the vehicle and
whether any liquor was found neither exhibited prejudice, nor achieved the status of an
abuse of discretion, where a prior witness had testified that, during the time defendant was
playing with the victim, defendant had gone to his automobile and took a drink of
something.
Affirmed.
William N. Dunseath, Public Defender, and Keith J. Rohrbough, Deputy, Washoe County,
for Appellant.
Kathleen M. Wall, Deputy, Washoe County, for Respondent.
Whether leading questions should be allowed is a matter mostly within discretion of trial court, and any
abuse of rules regarding them is not ordinarily a ground for reversal.
Permitting prosecuting attorney to ask leading questions of two witnesses who were 8 and 9 years of age
at time of trial on charge of lewdness with a child under the age of 14 was neither prejudicial nor an abuse
of discretion under the circumstances. NRS 50.115, subd. 3(a).
3. Criminal Law.
Conduct of trial judge in asking a police officer, who had participated in arrest and confiscation of
defendant's automobile, what happened to vehicle and whether any liquor was found neither exhibited
prejudice nor achieved the status of an abuse of discretion where a prior witness had testified that, during
the time defendant was playing with the victim of the lewd conduct, defendant had gone to his vehicle and
took a drink of something. SCR 220.
4. Criminal Law.
Though defendant had directed a supplemental brief and an in pro per letter to the court in an attempt to
raise or inject new and additional issues, where issues were neither cognizable nor supported by citation of
relevant authority, issues did not warrant discussion and were summarily rejected.
OPINION
Per Curiam:
Paul Leonard Barcus was convicted, by jury verdict, of lewdness with a child under the
age of 14 (NRS 201.230), and sentenced to a term of five (5) years in the Nevada State
Prison.
Seeking to annul the conviction Barcus has appealed, contending we should reverse
because (1) the prosecuting attorney was permitted to ask leading questions of two (2)
witnesses who were 8 and 9 years of age at the time of trial; and, (2) he did not receive a fair
trial because of the trial judge's exhibition of prejudice. Neither contention has merit.
[Headnote 1]
1. Whether leading questions should be allowed is a matter mostly within the discretion
of the trial court, and any abuse of the rules regarding them is not ordinarily a ground for
reversal. Anderson v. Berrum, 36 Nev. 463, 470, 136 P. 973, 976 (1913).
Here appellant's motion in limine, to prohibit leading questions, was deferred, the judge
commenting: . . . we will have to see what the questions are, and we will have to see what
the answers are. I think the general rule is that I can admit leading questions or permit the use
of them under all of the circumstances, so that will be the understanding we have.
[Headnote 2]
During the prosecutor's laborious interrogation of the eight (8) year old victim, the trial
judge stated: you can ask her some leading questions. Under these circumstances we
perceive neither prejudice, nor an abuse of discretion. NRS 50.115(3)(a); Anderson, supra.
2. The thrust of Barcus' contention regarding the prejudice of the trial judge is directed to
two (2) comments the judge made to defense counsel when the victim was being
cross-examined and counsel was endeavoring to elicit the details of the charged crime. The
judge's first comment was: I don't think that is a very fair question. Ask another question,
please. Later, the judge stated: We don't want any more questions like that. . . . Call your
next witness.
Barcus also suggests he did not receive a fair trial because the judge asked a Sparks Police
Officer, who had participated in the arrest and confiscation of Barcus' automobile, what
happened to the car and whether any liquor was found.
[Headnote 3]
A prior witness had testified that, during the time Barcus was playing with the victim,
Barcus had gone to his car and took a drink of something. Another witness had already
testified that Barcus . . . got a drink out of the glove box on the right hand side, and it was in
a paper bag. I don't know what he was drinking. In our view, the quoted conduct of the trial
judge neither exhibits prejudice, nor achieves the status of an abuse of discretion;
furthermore, it was compatible with the Canons of Judicial Ethics.
abuse of discretion; furthermore, it was compatible with the Canons of Judicial Ethics. See
SCR 220.
1
Kinna v. State, 84 Nev. 642, 447 P.2d 32 (1968).
[Headnote 4]
Appellant has directed a supplemental brief and an in pro per letter to the court in an
attempt to raise or inject new and additional issues which are neither cognizable nor
supported by citation of relevant authority. Accordingly, they do not warrant discussion and
are summarily rejected. See Williams v. State, 88 Nev. 164, 494 P.2d 960 (1972).
Affirmed.
____________________

1
Supreme Court Rule 220. Interference in conduct of trial.
1. A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste
of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience or
participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those
who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation
of the cause, or the ascertainment of the truth in respect thereto.
2. Conversation between the judge and the counsel in court is often necessary, but the judge should be
studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its
unjust disposition. In addressing counsel, litigants or witnesses, he should avoid a controversial manner or tone.
. . .
____________
92 Nev. 292, 292 (1976) City of No. Las Vegas v. Daines
CITY OF NORTH LAS VEGAS, ex rel. MAVIS E. ARNDT,
Appellant, v. RAY H. DAINES, Municipal Judge, Respondent.
No. 8166
May 25, 1976 550 P.2d 399
Appeal from final order; Eighth Judicial District Court, Clark County; Llewellyn A.
Young, Judge.
Appeal was taken from a final order of the district court upholding ruling of municipal
court relieving appellant of her duties as Municipal Court Administrator. The Supreme Court,
Thompson, J., held that a municipal court has the inherent power to administer its sphere of
the judicial system just as other courts of the state have such power in their respective
spheres; accordingly, the municipal judge acted within his inherent authority in relieving the
Municipal Court Administrator of her duties and, in absence of a showing that he acted
arbitrarily or capriciously, decision in respect thereto was not subject to being corrected
on review.
inherent authority in relieving the Municipal Court Administrator of her duties and, in
absence of a showing that he acted arbitrarily or capriciously, decision in respect thereto was
not subject to being corrected on review.
Affirmed.
Paul H. Schofield, City Attorney, and Steven F. Stucker, Deputy City Attorney, City of
North Las Vegas, for Appellant.
John A. Greenman and Douglas J. Shoemaker, of Las Vegas, for Respondent.
It is fundamental to our system of government that the separate powers granted the executive, legislative
and judicial departments be exercised without intrusion. Const. art. 3, 1.
The judiciary, as a coequal branch of government, has the inherent power to protect itself and to
administer its affairs. Const. art. 3, 1.
3. Courts.
Though the State Constitution does not itself establish municipal courts, but authorizes the Legislature to
do so, once municipal courts are established, they exist as a coequal branch of local government within the
judicial department of the state, and as a part of the constitutional judicial system of the state. Const. art.
6, 1, 9; NRS 5.010-5.090.
4. Courts.
The functions of the municipal court are as truly judicial in character as those of any other court in the
state. Const. art. 6, 1, 9; NRS 5.010-5.090.
It is equally important for municipal courts to enjoy judicial freedom and independence. Const. art. 6,
1, 9; NRS 5.010-5.090.
6. Constitutional Law; Courts.
The constitutional umbrella of protection extends to all courts of the state in exercising their judicial
functions and it, therefore, follows that a municipal court has the inherent power to administer its sphere of
the judicial system just as other courts of the state have such power in their respective spheres. Const. art.
6, 1, 9; NRS 5.010-5.090.
7. Courts.
An arbitrary exercise of inherent power by a municipal court is subject to judicial review and correction
by a higher court. Const. art. 6, 1, 9; NRS 5.010-5.090.
8. Courts.
The municipal judge acted within his inherent authority in relieving the Municipal Court Administrator of
her duties and his decision in regard thereto was not subject to being corrected in absence of evidence
establishing an arbitrary or capricious exercise of that power.
absence of evidence establishing an arbitrary or capricious exercise of that power. Const. art. 6, 1, 9;
NRS 5.010-5.090.
OPINION
Mavis Arndt was relieved of her duties as Municipal Court Administrator by Municipal
Judge Ray H. Daines. She had been appointed to that position by the City Manager of the
City of North Las Vegas with approval of the City Council. Consequently, she believed that
her allegiance was to the City Manager rather than to the Judge. This led to disagreements
and, ultimately, to her dismissal by the Judge.
1

The district court ruled that the Municipal Judge possessed inherent power to dismiss the
Municipal Court Administrator. This appeal followed.
[Headnote 1]
1. It is fundamental to our system of government that the separate powers granted the
executive, legislative and judicial departments be exercised without intrusion. Galloway v.
Truesdell, 83 Nev. 13, 422 P.2d 237 (1967). In the words of our Constitution, . . . no persons
charged with the exercise of powers properly belonging to one of these departments shall
exercise any functions appertaining to either of the others. . . . Nev. Const. art. 3, 1.
[Headnote 2]
Accordingly, it is clear that the judiciary, as a coequal branch of government, has the
inherent power to protect itself and to administer its affairs. State v. Davis, 26 Nev. 373, 68 P.
689 (1902); Young v. Board of County Comm'rs, 91 Nev. 52, 530 P.2d 1203 (1975); Sun
Realty v. District Court, 91 Nev. 774, 542 P.2d 1072 (1975); Dunphy v. Sheehan, 92 Nev.
259, 549 P.2d 332 (1976).
Although acknowledging the doctrine of separation of powers, as well as prior opinions of
this court touching that subject, the appellant here contends that the doctrine is inapposite
since a municipal court is not constitutionally created, has only those powers conferred
legislatively, and does not enjoy the inherent powers which constitutionally created
courts possess.
____________________

1
The Municipal Court is extremely busy, necessitating night sessions, and overtime work by bailiffs and
warrant officers. The City Manager directed department heads to minimize overtime work. The Court
Administrator sought to follow his directive which disrupted scheduled night sessions and, along with other
matters, caused the Judge to relieve the Administrator of her duties.
powers conferred legislatively, and does not enjoy the inherent powers which constitutionally
created courts possess.
[Headnote 3]
It is, of course, true that our Constitution does not itself establish municipal courts.
2
It
authorizes the Legislature to do so. However, once municipal courts are established, they
exist as a coequal branch of local government within the judicial department of this state,
City of Berkley v. Holmes, 191 N.W.2d 561 (Mich. 1971), and a part of the constitutional
judicial system of this state, People v. Foutz, 162 P.2d 1 (Cal. 1945).
[Headnotes 4-6]
The functions of the municipal court are as truly judicial in character as those of any other
court of this state. It is equally important for municipal courts to enjoy judicial freedom and
independence. The constitutional umbrella of protection extends to all courts of this state in
exercising their judicial functions. Carlson v. State, 220 N.E.2d 532 (Ind. 1966). It follows
that a municipal court has the inherent power to administer its sphere of the judicial system
just as other courts of this state have such power in their respective spheres.
[Headnote 7]
There is no suggestion in the record before us that the Municipal Judge acted arbitrarily or
capriciously in exercising his inherent power to relieve the Court Administrator of her duties.
Indeed, the City does not contend that her dismissal was without cause. To the contrary, the
City contends only that the authority to dismiss her resided in the City Manager and not with
the Judge.
[Headnote 8]
An arbitrary exercise of inherent power by a municipal court is subject to judicial review
and correction by a higher court.
____________________

2
Nev. Const. art. 6, 1. The Judicial power of this State shall be vested in a Supreme Court, District
Courts, and in Justices of the Peace. The Legislature may also establish Courts for municipal purposes only in
incorporated cities and towns.
Nev. Const. art. 6, 9. Provision shall be made by law prescribing the powers, duties and responsibilities of
any Municipal Court that may be established in pursuance of Section One, of this Article; and also fixing by law
the jurisdiction of said Court so as not to conflict with that of the several courts of Record.
NRS 5.010-5.090, enacted pursuant to the mentioned constitutional authorization, designates jurisdiction,
powers, and other relevant matters.
Inherent power may be abused as well as properly used. The present case, however, presents
no such issue. Accordingly, we do not hesitate to affirm the decision of the district court that
the Municipal Judge acted within his inherent authority in dismissing the appellant from her
duties as Court Administrator.
2. Other assigned errors have been considered and possess no merit.
Affirmed.
____________
92 Nev. 296, 296 (1976) Geerlings v. Carmen
PAUL F. GEERLINGS, Appellant, v. FRANK CARMEN, DIRECTOR,
CLARK COUNTY JUVENILE COURT SERVICES, Respondent.
No. 8660
May 25, 1976 549 P.2d 1405
Appeal from order denying petition for writ of habeas corpus, Eighth Judicial District
Court, Clark County; Paul Goldman, Judge.
Father of three minor children filed habeas corpus petition challenging order of the Clark
County Juvenile District Court honoring an ex parte Utah court order to take the children into
custody. The district court denied relief, and petitioner appealed. The Supreme Court held
that Nevada courts were not required to honor the order where although the underlying
petition, as filed by the mother, purportedly was made under the Interstate Compact on
Juveniles, the requisition of the Utah court was neither certified nor authenticated and record
was totally barren of any documentation showing that individual who filed the Requisition
for Runaway Juvenile was, in fact, the guardian of the minors and such petition also was not
verified.
Dean Breeze, Las Vegas, for Appellant.
George E. Holt, District Attorney, and Charles A. Paine, Deputy, Clark County, for
Respondent.

Infants.
Nevada court was not required to honor ex parte order of Utah court to take three minor children into
custody where although the petition, as filed by the mother, purportedly was made under the Interstate
Compact on Juveniles, the requisition of the Utah court was neither certified nor authenticated and record
was totally barren of any documentation showing that the individual who filed the Requisition for
Runaway Juvenile was, in fact, the guardian of the minors and such petition also was not verified.
Interstate Compact on Juveniles, Art. IV, NRS 214.010.
OPINION
Per Curiam:
Appellant, the father of three (3) minor children (age 18, 15 and 13), challenged by habeas
corpus, an order of our Clark County Juvenile District Court. The order honored an ex parte
Utah Court order to take into custody the three children, pursuant to an application filed by
the mother of the children. An unauthenticated copy of what purports to be the Utah judgment
recites the mother of the children had petitioned the Utah Court to place the children in the
custody of the Division of Family Services of the State of Utah.
The sparse record in this case reflects the petition, purporting to be under the Interstate
Compact on Juveniles, was filed in the Utah Court December 5, 1975, the same date the ex
parte order was entered. On January 27, 1976, a Requisition For Runaway Juvenile was
purportedly signed by the Utah Court upon an unverified petition of Donald G. Anderson,
as guardian of the children.
Pursuant to the ex parte order and the requisition from the Utah Court, the Judge of the
Juvenile Court in Clark County, Nevada, on February 9, 1976, ordered the children taken into
custody so they could be transported to Utah.
A petition for habeas corpus was then filed by the father and the order denying habeas
recites, in part: This Court finds that the State of Utah has executed and forwarded to
Nevada documents that request the return to Utah of the above minors, further the court finds
these documents meet the requirements of NRS 214.010, Article IV.
1
[Emphasis added.]
The district
____________________

1
The applicable portion of NRS 214.010, Article IV, provides the petition for requisition to return a juvenile
. . . shall be verified by affidavit . . . and shall be accompanied by two certified copies of the document or
documents on which the petitioner's entitlement to the juvenile's custody is based, such as birth certificates,
letters of guardianship, or custody decrees. [Emphasis added.]
court's order has been stayed, pending this appeal wherein the father contends we are
compelled to reverse. We agree.
The requisition of the Utah Court is neither certified nor authenticated; and, the record is
totally barren of any documentation which would show Donald G. Anderson may be the
guardian of the minors. Furthermore, the Utah petition for requisition is not verified although
the printed form of petition contains the following caveat: It is essential that the above
petition be verified by affidavit' and that certain other things be done in accordance with the
provisions of Article IV . . .
We reverse and instruct the district court to grant the petition for habeas corpus.
2

Remittitur shall issue forthwith.
____________________

2
Compare Turner v. Saka, 90 Nev. 54, 518 P.2d 608 (1974).
____________
92 Nev. 298, 298 (1976) Jolley v. Jolley
JOYCE A. JOLLEY, Appellant, v.
LEE A. JOLLEY, Respondent.
No. 8168
May 25, 1976 549 P.2d 1407
Appeal from a judgment of divorce; Eighth Judicial District Court, Clark County; Joseph
The Supreme Court held that the division of community property being essentially equal,
there was no abuse of discretion by the district court in respect to the property distribution.
Affirmed.
Claiborne, Brown and Quintana, of Las Vegas, for Appellant.
Myron E. Leavitt, of Las Vegas, for Respondent.
Divorce.
Since the community property division in divorce proceeding was essentially equal, there was no abuse of
discretion by the district court in respect to the property distribution. NRS 125.150.
OPINION
Per Curiam:
The district court entered judgment dissolving the parties' marriage and distributing the
community property. Appeal is taken from, inter alia, the property distribution.
92 Nev. 298, 299 (1976) Jolley v. Jolley
taken from, inter alia, the property distribution. Since the division thereof essentially was
equal, we perceive no abuse of discretion. NRS 125.150; Fox v. Fox, 81 Nev. 186, 196, 401
P.2d 53 (1965); Weeks v. Weeks, 75 Nev. 411, 415, 345 P.2d 228 (1959).
Additional grounds of appeal are without merit.
Affirmed.
____________
92 Nev. 299, 299 (1976) Chandler v. State
DAVID LEE CHANDLER II, Appellant, v.
No. 8370
May 26, 1976 550 P.2d 159
Appeal from judgment of conviction for murder; Fifth Judicial District Court, Esmeralda
County; Merlyn H. Hoyt, Judge.
The Supreme Court, Thompson, J., held that harmless error occurred when defendant
made a brief appearance before the jury panel while handcuffed, and that an instruction on
corroboration of accomplice testimony was not necessary where the testimony of the
accomplice was used primarily to rebut that offered by the accused rather than to prove the
crime itself.
Affirmed.
Horace R. Goff, State Public Defender, and Michael R. Griffin, of Carson City, for
Appellant.
Alan R. Harter, Esmeralda County District Attorney, for Respondent.
1. Criminal Law.
Defendant has constitutional right to appear before jury without physical restraints, and only exceptional
circumstances will permit imposition of such physical restraints.
2. Criminal Law.
Although it was error to allow defendant to appear briefly before jury panel while handcuffed, error was
harmless in view of other evidence of defendant's guilt. NRS 177.255.
3. Criminal Law.
Trial court in homicide prosecution did not err in not giving sua sponte instruction on necessity for
corroboration of accomplice's testimony where testimony of accomplice was used primarily to rebut
that offered by accused rather than to prove crime itself.
to rebut that offered by accused rather than to prove crime itself. NRS 175.291, subds. 1, 2.
OPINION
The appellant, convicted of first degree murder and presently serving a life sentence
without the possibility of parole, asks that his conviction be set aside. We summarily reject as
meritless his claims that evidence of his guilt was insufficient, that his confession to an agent
of the FBI was involuntary, and that he was inadequately represented by counsel. The record
may be read to refute these contentions and extended discussion of them is not warranted.
Two assignments of error, however, require comment.
1. As trial was about to commence the appellant was brought into the courtroom wearing
civilian clothes but handcuffed. The entire jury panel witnessed this. His counsel moved for a
mistrial. The court denied that motion, ordered the handcuffs removed and trial proceeded.
The State admits the absence of any necessity to impose physical restraints upon the
accused during the course of his trial. Cf. Illinois v. Allen, 397 U.S. 337 (1970). Indeed,
before trial the district attorney had advised the sheriff to bring the defendant to court in
civilian clothes and without handcuffs. For reasons not disclosed this advice was not heeded.
The appellant contends that his brief appearance before the jury panel handcuffed fatally
infected the fairness of his trial and requires this court to annul his conviction.
[Headnote 1]
A defendant has a constitutional right to appear before the jury without physical restraints.
State v. McKay, 63 Nev. 118, 155, 165 P.2d 389 (1946); Sefton v. State, 72 Nev. 106, 295
P.2d 385 (1956). Only exceptional circumstances will permit the imposition of physical
restraints upon an accused. State v. McKay, supra; Sefton v. State, supra; Illinois v. Allen,
supra. Here, it is admitted that such circumstances did not exist. Thus, we are compelled to
rule that error occurred.
[Headnote 2]
It does not follow, however, that such error was prejudicial rather than harmless. The
integrity of the fact finding process was not necessarily infected by the violation, nor did
the violation in any way affect the reliability of the evidence received during the course of
the trial.
was not necessarily infected by the violation, nor did the violation in any way affect the
reliability of the evidence received during the course of the trial.
Some constitutional errors may, in the setting of a particular case, be so unimportant and
insignificant as to be deemed harmless and not require an automatic reversal of the
conviction. Chapman v. California, 386 U.S. 18, 22 (1967); Guyette v. State, 84 Nev. 160,
166, 438 P.2d 244 (1968).
On the record before us we hold the error to be harmless within the strict federal standard
announced in Fahy v. Connecticut, 375 U.S. 85 (1963), and Chapman v. California, supra.
This error did not affect the substantial rights of the accused. NRS 177.255. He had confessed
his crime not only to the FBI agent, but also by a letter written to the victim's wife. Also,
much other evidence pointed to his guilt.
[Headnote 3]
2. The appellant Chandler and one Curtis Hale were jointly charged with the murder.
Subsequently, the State granted Hale immunity from prosecution. Hale was not used as a
witness during presentation of the State's case in chief. Chandler then testified and, for the
first time, stated that Hale actually had perpetrated the killing. In rebuttal, the State called
Hale as a witness to controvert Chandler's story.
Counsel for Chandler did not request a cautionary instruction concerning the testimony of
an accomplice, nor did the court give such instruction sua sponte. It now is asserted that the
failure to so instruct is prejudicial error.
It is conceded that Hale was an accomplice. NRS 175.291(2). And, of course, a conviction
may not rest upon the testimony of an accomplice unless it is corroborated by other evidence
which in itself, and without the aid of such testimony, tends to connect the defendant with the
commission of the offense. NRS 175.291(1); Austin v. State, 87 Nev. 578, 491 P.2d 724
(1971).
In most cases where accomplice testimony is used, it is offered during the State's case in
chief and the issue for the trial court, and later for this court, is the sufficiency of the
corroborating evidence. Usually, in that situation, an instruction to the effect that the
testimony of an accomplice should be received with caution is given. However, even within
that context where the State relies heavily upon the accomplice's testimony as a part of its
case in chief, the court is not required to give the cautionary instruction sua sponte. Gebert v.
State, 85 Nev. 331, 454 P.2d 897 (1969). A fortiori, such an instruction is not required
where, as here, the testimony of the accomplice was used primarily to rebut that offered
by the accused rather than to prove the crime itself.
not required where, as here, the testimony of the accomplice was used primarily to rebut that
offered by the accused rather than to prove the crime itself.
Affirmed.
____________
92 Nev. 302, 302 (1976) Recanzone v. Nevada Tax Commission
MARIO G. RECANZONE and MARION E. RECANZONE, Husband and Wife, LAUF
CORPORATION, a Nevada Corporation, ERIC C. PALLUDIN and GLENNA PALLUDIN,
Husband and Wife, Appellants, v. NEVADA TAX COMMISSION, NEVADA STATE
BOARD OF EQUALIZATION, CHURCHILL COUNTY BOARD OF EQUALIZATION,
and ROBERT O. BARKLEY, Churchill County Assessor, Respondents.
No. 8233
May 26, 1976 550 P.2d 401
Appeal from judgment dismissing complaint for injunction to enjoin county assessor from
pursuing plan of reappraisal and reassessment of real property. First Judicial District Court,
Churchill County; Joseph O. McDaniel, Judge.
Action was brought to enjoin county assessor from pursuing a cyclical plan of
reappraisal and reassessment of real property. The district court dismissed complaint, and
plaintiffs appealed. The Supreme Court, Zenoff, J., held that although the assessment and
appraisal statute neither specifically permits nor prohibits use of a cyclical plan of reappraisal,
under which plan property is immediately placed on the tax rolls following reappraisal and
reassessment, such method was appropriate in view of legislative intent to secure the
maximum revenue from the property tax structure, that constitutional provisions relating to
equal protection and uniformity are violated only where implementation of a cyclical
reappraisal plan results in intentional discrimination, arbitrary action, constructive fraud or
grossly and relatively unfair assessments and that fact that plaintiffs' property was reappraised
twice in five-year period did not suggest a constitutional violation where plaintiffs had
constructed certain improvements on their property and reappraisal occurred as a matter of
course.
Affirmed.
Diehl, Recanzone, Evans & Smart, of Fallon, for Appellants.
Robert List, Attorney General, and James D. Salo, Deputy Attorney General, Carson City,
for Respondents Nevada Tax Commission, Nevada State Board of Equalization.
John R. McCormick, District Attorney, Churchill County, for Respondents Churchill
County Board of Equalization and Robert O. Barkley, Churchill County Assessor.
1. Taxation.
Purpose of assessment statute, which requires all property to be reappraised at least once every five years,
is to insure that all property within the county is assessed on the basis of appraisals which are as current as
practicable. NRS 361.260.
2. Taxation.
Although assessment statute neither specifically permits nor prohibits use of a cyclical plan of
reappraisal, use of such plan is a permissible method of assessing property since it is in accord with the
general statutory scope of effectively insuring the receipt of maximum revenue through the property tax
structure; assessor is not required to utilize a comprehensive reassessment plan whereby no reappraisals are
reflected on the tax rolls until all property in the county has been reappraised. NRS 361.260.
3. Constitutional Law; Taxation.
Cyclical reappraisal schemes, whereby once the property is reappraised and reassessed it is placed
immediately on the tax roll, do not violate equal protection clause; only where implementation of such a
plan results in intentional discrimination, arbitrary action, constructive fraud, or grossly and relatively
unfair assessments are the constitutional provisions relating to equal protection and uniformity violated.
Const. art. 10, 1.
4. Constitutional Law; Taxation.
Fact that pursuant to cyclical reappraisal scheme the county assessor would reappraise only so much
property each year as his budget and staff would permit was not, alone, sufficient to support a finding of
violation of either constitutional guarantee of equal protection or constitutional requirement of uniformity
of taxation. Const. art. 10, 1.
5. Taxation.
Fact that plaintiffs' property was reappraised twice in five-year period did not establish any constitutional
violation in application of cyclical reassessment scheme where the reappraisals were undertaken as a matter
of course because of construction of certain improvements. NRS 361.260; Const. art. 10, 1.
OPINION
In 1968, Robert O. Barkley became the county assessor of Churchill County, Nevada.
Pursuant to the directives of NRS 361.260, he commenced to reappraise and reassess all real
property located in the county.
property located in the county. Barkley planned to complete this task within a period of five
years. It is conceded that he diligently utilized all resources at his disposal in pursuing his
plan of reappraisal and reassessment and that concomitantly he attempted to obtain additional
manpower and money to expedite completion of the task at the earliest time. Although
unsuccessful in this latter endeavor, Barkley completely reappraised and reassessed all
property within Churchill County within the designated five-year period.
Appellants, residents and taxpayers of Churchill County, object to the method of
reappraisal and reassessment employed by Barkley. Once the property was reappraised and
reassessed it was placed immediately on the tax roll. Appellants claim no reappraisals should
have been reflected on the tax roll until all of the property in the county had been reappraised.
Otherwise, it is urged, the uniformity of taxation requirements of the Nevada and United
States Constitutions as well as certain specific provisions of the Nevada Revised Statutes are
violated.
The issues presented on this appeal may be delineated as follows: (1) Whether NRS
361.260 requires a comprehensive reappraisal of all taxable property in a county before any
reassessment based upon said reappraisal can be imposed? And (2) Whether the particular
plan of reappraisal employed in this case violated the equal protection provisions of the
Federal Constitution or Section 1 of Article X of the Nevada Constitution?
1. The reappraisal scheme employed by Barkley is commonly characterized as cyclical
or continuous in nature. Under such a scheme some property owners will pay property tax
assessments based upon more recent reappraisals than others. From the standpoint of taxing
authorities, a cyclical plan of reappraisal is preferable to a comprehensive plan of reappraisal
which requires a complete reappraisal of all property within a given area before any
reappraisals can constitute a basis for a new assessment. A cyclical plan requires a smaller
investment in money and manpower than would be required to implement a comprehensive
plan which generated a comparable amount of tax revenue. This result follows from the fact
that, under a cyclical plan, increases in appraised value are almost immediately reflected in
increased tax revenue. Under a comprehensive plan there may be a substantial time lag
between a reappraisal and a corresponding increase in tax revenue (assuming that the same
amount of resources are available for the implementation of each plan).
Appellants argue that NRS 361.260, properly construed, prohibits implementation of a
cyclical plan of reappraisal.
prohibits implementation of a cyclical plan of reappraisal. The statute reads as follows:
Method of assessing property for taxation; appraisals and reappraisals.
1. Between July 1 and December 31 in each year, the county assessor, except when
otherwise required by special enactment, shall ascertain by diligent inquiry and examination
all real and personal property in his county subject to taxation, and also the names of all
persons, corporations, associations, companies or firms owning the same. He shall then
determine the full cash value of all such property and he shall then list and assess the same at
35 percent of its full cash value to the person, firm, corporation, association or company
owning it.
2. In arriving at the value of all public utilities of an intracounty nature, the intangible or
franchise element shall be considered as an addition to the physical value and a portion of the
full cash value.
3. In addition to the inquiry and examination required in subsection 1, the county
assessor shall appraise property using standards approved by the Nevada tax commission, and
reappraise all property at least once every 5 years thereafter using the same standards. Such
appraisals and reappraisals at 5-year intervals shall be accepted as the examination required
under subsection 1, for the intervening 4 years.
The precise language of the statute neither specifically permits nor prohibits the
application of a cyclical plan of reappraisal. If the language [of a statute] is capable of two
constructions, one of which is consistent and the other is inconsistent with the evident object
of the legislature in passing the law, that construction must be adopted which harmonizes
with the intention. State of Nevada v. Cal. M. Co., 13 Nev. 203, 217 (1878). See also,
Thomas v. State, 88 Nev. 382, 498 P.2d 1314 (1972); Welfare Div. v. Washoe Co. Welfare
Dep't, 88 Nev. 635, 503 P.2d 457 (1972); State Gen. Obligation Bond v. Koontz, 84 Nev.
130, 437 P.2d 72 (1968).
[Headnote 1]
The purpose of NRS 361.260 was to insure that all property within a county be assessed on
the basis of appraisals which are as current as practicable. Real property values tend to
increase with the passage of time. NRS 361.260 effectively insures that maximum revenue is
obtained through the property tax structure. Of the two constructions offered by the parties
hereto, that which most closely harmonizes with the apparent legislative object is that offered
by respondent. The plan which appellants favor would result in a substantial lapse between
the time the property is reappraised and the time it is placed on the tax roll at a value
reflecting the reappraisals.
the property is reappraised and the time it is placed on the tax roll at a value reflecting the
reappraisals. Under such a plan all of the property in the county would have to be reappraised
before any property could be reassessed on the basis of the reappraisal.
[Headnote 2]
It is apparent that more revenue would be generated from the first plan than from the
second with a much smaller investment in terms of money and manpower. Thus, it would
appear that the legislature seeking maximum tax revenue would prefer a continuous
reappraisal plan and since the statute is susceptible to such a construction it should be so
construed.
2. Article X, Section 1 of the Nevada Constitution, provides:
The legislature shall provide by law for a uniform and equal rate of assessment and
taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all
property. . . .
Appellants concede that there is no practical distinction between Section 1 of Article X
and the equal protection clause of the United States Constitution. [W]hat violates the one
will contravene the other. Hamilton v. Adkins, 35 So.2d 183, 189 (Ala. 1948), cert. denied,
335 U.S. 861 (1948).
[Headnote 3]
Almost uniformly, the courts have upheld cyclical reappraisal programs against equal
protection attacks. See, e.g., Apex Motor Fuel Co. v. Barrett, 169 N.E.2d 769 (Ill. 1960);
Skinner v. New Mexico Tax Comm'n, 345 P.2d 750 (N.M. 1959); Carkonen v. Williams, 458
P.2d 280 (Wash. 1969); Perkins v. County of Albemarle, 200 S.E.2d 566 (Va. 1973). See
also, Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350 (1918). Only where the
implementation of a cyclical reappraisal plan results in intentional discrimination, arbitrary
action, constructive fraud, or grossly and relatively unfair assessments are the constitutional
provisions relating to equal protection and uniformity violated.
[Headnotes 4, 5]
Here, the trial court concluded that Barkley's plan was systematic, was not arbitrary, and
that it resulted in no intentional discrimination or fraud. The record supports this finding.
While it is true that Barkley testified that he would reappraise only so much property each
year as his budget and staff would permit, such circumstances alone are not sufficient to
support a finding of constitutional violation.
of constitutional violation. See Skinner v. New Mexico Tax Comm'n, supra; Cardonen v.
Williams, supra. Nor does the fact that appellants' property was reappraised twice between
1969 and 1974 suggest a constitutional violation. The record indicates that appellants
constructed certain improvements on their properties and that under such circumstances
reappraisal occurred as a matter of course.
Affirmed.
___________
92 Nev. 307, 307 (1976) State v. Bonds
CHARLES BONDS, Respondent.
No. 8814
May 26, 1976 550 P.2d 409
Appeal from order granting a motion to suppress evidence, First Judicial District Court,
Carson City; Frank B. Gregory, Judge.
Defendant, charged with selling a controlled substance, moved to suppress police officer's
testimony concerning incriminating conversation between defendant and a police informant.
The district court ruled that conversation overheard by police officer by means of transmitter
type listening device would be suppressed, and the state appealed. The Supreme Court held
that where conversation between defendant and police informant, which was overheard by
police officer by means of transmitter type listening device attached to informant's shirt, was
not a wire communication within statutory definition; that even though conversation took
place in defendant's home, conversation was not an oral communication within statutory
definition; that where conversation was neither a communication nor an oral
communication, interception of conversation was not unlawful under wiretap statutes,
even though there had been no order authorizing the police officer to intercept the
conversation.
Reversed.
Robert List, Attorney General, Michael E. Fondi, District Attorney, and Terry A.
Friedman, Deputy, Carson City, for Appellant.
92 Nev. 307, 308 (1976) State v. Bonds
Carl F. Martillaro and Arthur J. Bayer, Jr., Carson City, for Respondent.
1. Criminal Law.
Where conversation between police informant and defendant, which conversation was overheard by
police officer by means of transmitter type listening device attached to informant's shirt, constituted neither
a wire communication nor an oral communication as defined by statute, fact that there had been no
order authorizing police officer to intercept conversation did not render conversation inadmissible under
the wiretap statutes. NRS 179.410 et seq., 179.440, 179.455, 179.510; 18 U.S.C.A. 2510 et seq.
2. Telecommunications.
Where conversation between defendant and police informant was neither transmitted by the aid of wire,
cable or other like connection between point of origin and point of reception and where no facilities were
furnished or operated by any person engaged as a common carrier, even though conversation was
overheard by police officer by means of transmitter type listening device attached to informant's shirt,
conversation did not constitute a wire communication within statutory definition. NRS 179.455.
3. Telecommunications.
Even though conversation between defendant and police informant took place in defendant's home and
even though police officer overheard conversation by means of a transmitter type listening device attached
to informant's shirt, where conversation established that defendant sold a controlled substance to informant,
conversation did not constitute an oral communication within statutory definition. NRS 179.440,
453.321.
OPINION
Per Curiam:
A transmitter type listening device, attached to a police informant's shirt, permitted a
police officer to intercept an incriminating conversation between Charles Bonds and an
informant. The conversation established that Bonds sold a controlled substance (opium) to
the informant and led to a felony charge being filed against Bonds under NRS 453.321.
Bonds timely moved to suppress the police officer's testimony.
1

In support of the motion Bonds argued the interception was unlawful because there had
been no order authorizing the police officer to intercept the conversation, as required by
the "wiretap statutes," NRS 179.410 et seq.2 The district judge agreed, ruling that all
conversation "[o]verheard over the bugging device is out."
____________________

1
Under NRS 179.505 an aggrieved person . . . may move to suppress the contents of any intercepted wire or
oral communication, or evidence derived therefrom, on the grounds that: (a) The communication was unlawfully
intercepted; . . .
92 Nev. 307, 309 (1976) State v. Bonds
police officer to intercept the conversation, as required by the wiretap statutes, NRS
179.410 et seq.
2
The district judge agreed, ruling that all conversation [o]verheard over the
bugging device is out.
[Headnote 1]
In this appeal the thrust of the state's contention is that, in the instant factual situation, the
wiretap statutes are inapplicable; therefore, no order was required and we are compelled
to reverse.
3
We agree.
[Headnote 2]
1. The district judge's reliance on the wiretap statutes was misplaced. The conversation
between Bonds and the informant was neither transmitted by the aid of wire, cable or other
like connection between the point of origin and the point of reception; nor, were any facilities
furnished or operated by any person engaged as a common carrier. Accordingly, the
conversation was not a communication within the ambit of NRS 179.455.
4
Compare: United
States v. Harpel, 493 F.2d 346 (10th Cir. 1974); United States v. Hall, 488 F.2d 193 (9th Cir.
1973); and, People v. Santos, 102 Cal.Rptr. 678 (Cal.App. 1972).
[Headnote 3]
2. Furthermore, we find no evidence of an oral communication, as that term is defined by
NRS 179.440.
5
Here, although the conversation took place in Bonds' home ". . . the
eavesdropping had not been accomplished by means of an unauthorized physical
encroachment within a constitutionally protected area."
____________________

2
These statutes, patterned on the federal wiretap statutes, 18 U.S.C. 2510 et seq., were adopted by Nevada
in 1973, and require, inter alia, an application to, and order from, a supreme court justice or district court judge,
authorizing the interception of oral or wire communications, prior to the interception.

3
This appeal from the interlocutory order is authorized by NRS 179.510, which reads, in part: In addition to
any other right to appeal the state may appeal from an order granting a motion to suppress . . .

4
NRS 179.455 reads: Wire communication' means any communication made in whole or in part through
the use of facilities for the transmission of communications by the aid of wire, cable or other like connection
between the point of origin and the point of reception furnished or operated by any person engaged as a common
carrier in providing or operating such facilities for the transmission of intrastate, interstate or foreign
communications.

5
179.440 Oral communication' defined. Oral communication' means any verbal message uttered by a
person exhibiting an expectation that such communication is not subject to interception, under circumstances
justifying such expectation.
Compare United States v. Pui Kan Lam, 483 F.2d 1202, 1206 (2nd Cir. 1973), cert. denied 415 U.S. 984 (1974),
where the court, in construing a statute virtually identical to NRS 179.440, held: . . . the conversation . . . did
not occur in a factual setting which legally justified
92 Nev. 307, 310 (1976) State v. Bonds
although the conversation took place in Bonds' home . . . the eavesdropping had not been
accomplished by means of an unauthorized physical encroachment within a constitutionally
protected area. Silverman v. United States, 365 U.S. 505, 510 (1961). See also, On Lee v.
United States, 343 U.S. 747 (1952). In a factually analogous situation the High Court said:
Inescapably, one contemplating illegal activities must realize and risk that his companions
may be reporting to the police. United States v. White, 401 U.S. 745, 752 (1971).
The order granting the motion to suppress is reversed.
____________________
any subjective expectation of privacy . . . As a result it was neither an oral communication' within the meaning
of the statute, 18 U.S.C. 2510(2), nor entitled to constitutional protection against the uninvited ear.'
____________
92 Nev. 310, 310 (1976) Charmicor, Inc. v. Bradshaw Finance Co.
CHARMICOR, INC., Appellant, v. BRADSHAW FINANCE COMPANY, UNITED
SECURITY COMPANY, UNITED MORTGAGE COMPANY, DAVID P. BOYER,
HAROLD H. WEISS, Trustee for DOROTHY WEISS, and JOHN ROE I, II, III and IV, and
PAUL HORN, Respondents.
No. 8051
May 26, 1976 550 P.2d 413
Appeal from judgment denying application for appointment of a receiver and denial of
motion for summary judgment. Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
Purchaser who defaulted on note brought suit to enjoin trustee's sale under deed of trust on
ground that the scheme of nonjudicial foreclosure violated principles of due process and
equal protection. The district court denied purchaser's motions for the appointment of a
receiver and motion for summary judgment and purchaser appealed. The Supreme Court,
Zenoff, J., held that order denying motion for summary judgment was not appealable; and
that as all legal interests of purchaser in the property had been terminated by the trustee's sale
at time purchaser moved for appointment of the receiver, and the only interest which
remained vested in the purchaser was a contingent equitable interest which hinged on the
outcome of the constitutional attack on the nonjudicial foreclosure statutes, trial court did
not abuse its discretion in determining that it was not probable that purchaser had a right
to or interest in the property.
the constitutional attack on the nonjudicial foreclosure statutes, trial court did not abuse its
discretion in determining that it was not probable that purchaser had a right to or interest in
the property.
Dismissed in part and affirmed in part.
Charles L. Kellar, of Las Vegas, for Appellant.
Brown & Deaner, of Las Vegas, for Respondents.
Order denying motion for summary judgment is not appealable; the aggrieved party's recourse is to
complete the proceedings pending in the district court and to appeal that judgment if it be adverse.
Reviewing court would not rule on the constitutionality of nonjudicial foreclosure statute without a
concise factual foundation. NRS 107.080.
Purchaser who appealed from denial of motion for summary judgment seeking declaration that statutory
scheme of nonjudicial foreclosure was unconstitutional failed to properly preserve the constitutional issues
where notice of appeal specified that exception was taken to denial of motion for appointment of the
receiver but did not mention that exception was taken to the denial of motion for summary judgment.
NRAP 3(c); NRS 32.010.
4. Mortgages.
Trial court's determination, in denying motion for appointment of receiver by purchaser who sought to
enjoin foreclosure sale under deed of trust on theory that scheme of nonjudicial foreclosure violated
principles of due process and equal protection, that it was not probable that purchaser had right to or
interest in the property, was not an abuse of discretion. NRS 107.080.
Judgment is presumed valid if it is regular on its face.
Error must be shown affirmatively before an order or judgment will be reversed.
OPINION
Charmicor, Inc., purchased several parcels of realty in Las Vegas giving as part payment a
promissory note secured by a deed of trust. Ultimately, default occurred and the trustee was
instructed to dispose of the property pursuant to the provisions of NRS 107.0S0.
instructed to dispose of the property pursuant to the provisions of NRS 107.080.
Charmicor commenced these proceedings in an attempt to enjoin the trustee's sale on
grounds which included the allegation that Nevada's scheme of nonjudicial foreclosure
violated principles of due process and equal protection. A temporary restraining order was
obtained and expired without an extension or an attempt to obtain a preliminary injunction.
The trustee's sale was held and the property disposed of in full compliance with the
provisions of NRS 107.080. Appellant later moved for a preliminary injunction which motion
was denied on the grounds of mootness.
Thereafter, appellant filed motions which are the subject of this appeal: A motion for the
appointment of a receiver and a motion for summary judgment seeking, inter alia, a
declaration that NRS 107.080 was unconstitutional. Both motions were denied.
After petitioning this court for a writ of mandamus, which we denied, appellant brought
this appeal from the order that denied both of the aforementioned motions.
[Headnote 1]
1. We are without jurisdiction to entertain appellant's appeal from the district court's
denial of its motion for summary judgment. NRAP Rule 3A(b) (5) is explicit.
No appeal may be taken from an order of a district court denying a motion for summary
judgment; however such an order may be reviewed by the Supreme Court in an original
proceeding in mandamus when from the record it appears that it is the duty of the district
court to enter summary judgment.
Appellant's recourse is to complete the proceedings pending in the district court and to
appeal that judgment if it be adverse.
[Headnote 2]
Many issues of fact remain to be resolved in this case. We would be remiss if we chose to
rule on the constitutionality of Nevada's nonjudicial foreclosure statute (as appellant urges)
without a concise factual foundation.
[Headnote 3]
Furthermore, appellant has failed to properly present the constitutional issues to us. Its
notice of appeal specifies that exception is taken to the district court's denial of the motion for
appointment of a receiver but nowhere mentions that exception is also taken to the denial of
the motion for summary judgment. NRAP Rule 3(c) states: "The notice of appeal shall
specify the party or parties taking the appeal; shall designate the judgment, order or part
thereof appealed from; and shall name the court to which the appeal is taken."
The notice of appeal shall specify the party or parties taking the appeal; shall designate
the judgment, order or part thereof appealed from; and shall name the court to which the
appeal is taken.
Only those parts of the judgment which are included in the notice of appeal will be
considered on appeal. Reno Newspapers v. Bibb, 76 Nev. 332, 335, 353 P.2d 458, 459
(1960). See also, Manzonie v. State ex rel. DeRicco, 81 Nev. 53, 398 P.2d 694 (1965).
2. Appellant also maintains that the denial of a receiver was error. NRS 32.010 provides
in pertinent part:
A receiver may be appointed by the court . . . on application of any party whose right to
or interest in the property . . . is probable. . . . (Emphasis added.)
[Headnote 4]
At the time appellant moved for the appointment of a receiver, all legal interest of
appellant in the property had been terminated by the trustee's sale. The only interest which
remained vested in the appellant was a very contingent equitable interest which hinged on the
outcome of appellant's constitutional attack on Nevada's nonjudicial foreclosure statute.
Under circumstances apparent to the district court, Charmicor's prospects for success were
considered too slight to warrant the appointment of a receiver. In terms of the relevant statute,
it was not probable that Charmicor had a right to or interest in the property. We are not
satisfied from an examination of the record on appeal that this determination by the trial court
was the result of an abuse of discretion. See Bowler v. Leonard, 70 Nev. 370, 269 P.2d 833
(1954); Peri-Gil Corp. v. Sutton, 84 Nev. 406, 442 P.2d 35 (1968).
[Headnotes 5, 6]
Although appellant alludes to many facts in its brief which suggest that the property in
question is suffering from waste, those facts are substantiated nowhere in the record before
us. The record is void of any evidentiary matter proffered to the court below in support of
appellant's motion for the appointment of a receiver. See Voorheis-Trindle Co. v. Boyd, 84
Nev. 654, 447 P.2d 36 (1968). We must therefore honor the presumption that a judgment is
valid if it is regular on its face. Moore v. Cherry, 90 Nev. 390, 528 P.2d 1018 (1974). Error
must be shown affirmatively before an order or judgment will be reversed. See, e.g., Schwartz
v. Stock, 26 Nev. 128, 65 P. 351 (1901).
The order denying the appointment of a receiver is affirmed and the purported appeal on
the issue of the constitutionality of Nevada's nonjudicial foreclosure statute is dismissed.
and the purported appeal on the issue of the constitutionality of Nevada's nonjudicial
foreclosure statute is dismissed.
Dismissed in part and affirmed in part.
____________
92 Nev. 314, 314 (1976) Hellman v. Capurro
DANIEL HELLMAN and AIMEE HELLMAN, Appellants, v. JOSEPH CAPURRO,
HERBERT CAPURRO and GEORGE CAPURRO, Respondents.
No. 7978
May 26, 1976 549 P.2d 750
Appeal by trustors from a judgment awarding fire insurance proceeds to beneficiary of
deed of trust. Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
Trustors of deed appealed a judgment of the district court awarding proceeds of a fire
insurance policy covering the deeded premises to the beneficiary of the deed of trust. The
Supreme Court, Zenoff, J., held that the trial court's ruling that the beneficiaries were not
entitled to deficiency judgment after purchasing the property at trustee's sale following default
implicitly ruled that the trustors' obligation to the beneficiaries had been satisfied and that the
insurance proceeds rightfully should have been awarded to the trustors.
Reversed.
[Reporter's note: Opinion filed December 30, 1975, 91 Nev., Advance Opinion 259, was
vacated.]
William M. O'Mara, of Reno, for Appellants.
Petersen & Petersen, of Reno, for Respondents.
1. Mortgages.
Finding that no action for deficiency judgment will lie for reason that deed of trust beneficiary purchased
property and obtained value in excess of indebtedness is equivalent to finding that trustor's debt has been
extinguished.
2. Mortgages.
Mortgagee or beneficiary to deed of trust is entitled to only one satisfaction of his debt.
3. Mortgages.
Where trust deed beneficiaries' right to proceeds from fire insurance policy covering deeded
premises was contingent upon existence of underlying unsatisfied obligation running
from trustors of deed to beneficiaries, and where, following fire which totally
destroyed premises, but before payment of any proceeds under fire policy was made,
trustors defaulted on promissory note secured by trust deed and trustee sold
property to beneficiaries for amount less than remaining encumbrance, trial court's
ruling that beneficiaries were entitled to no deficiency judgment implicitly ruled that
trustors' obligation to beneficiaries had been satisfied and, thus, insurance proceeds
should have been awarded to trustors.
insurance policy covering deeded premises was contingent upon existence of underlying unsatisfied
obligation running from trustors of deed to beneficiaries, and where, following fire which totally destroyed
premises, but before payment of any proceeds under fire policy was made, trustors defaulted on promissory
note secured by trust deed and trustee sold property to beneficiaries for amount less than remaining
encumbrance, trial court's ruling that beneficiaries were entitled to no deficiency judgment implicitly ruled
that trustors' obligation to beneficiaries had been satisfied and, thus, insurance proceeds should have been
awarded to trustors.
Deed trustors' assignment of error, that memorandum of costs and disbursements filed by beneficiaries set
forth excessive amount, was inappropriately raised on appeal by trustors from judgment ruling that
beneficiaries were not entitled to deficiency judgment but awarding beneficiaries proceeds of fire insurance
policy covering premises. NRS 18.110.
OPINION
In 1963, Aimee Hellman purchased a parcel of property located adjacent to Pyramid Lake
from Joseph Capurro and his two sons, Herbert and George, for $176,000.00. The bulk of the
purchase price, $156,000.00, was represented by a promissory note secured by a deed of trust
which contained the usual provisions requiring that the trustor provide adequate fire insurace
payable upon the occurrence of the contingency to the trustor and the beneficiary as their
respective interests may appear. The improvements to the property consisted of a
combination bar and restaurant and a residence.
Several years later, the Hellmans experienced a deteriorating financial situation and
permitted the policy of fire insurance to lapse. Accordingly, to protect their interest, the
Capurros procured a policy in the amount of $35,000.00.
In January of 1969, the Hellmans leased the premise to Condor Chemical Company for a
period of 99 years. At that time, the Capurros were reimbursed for the sums they expended
for the insurance policy plus interest. The policy was then transferred to Aimee Hellman
listing the Capurros as the loss payable mortgagees.
In March of 1969, the bar-restaurant and residence were totally destroyed by fire.
Thereafter, a law suit was instituted by the Hellmans seeking a determination as to which
party was entitled to the insurance proceeds. Prior to the resolution of that suit, the Hellmans
defaulted on the promissory note and the Capurros compelled the trustee to sell the
property.
the Capurros compelled the trustee to sell the property. The property, subject to their
encumbrance in the approximate amount of $65,400.00, was purchased by the Capurros for
$20,000.00. They subsequently commenced a suit for the deficiency which was consolidated
with the earlier suit filed by the Hellmans.
For the reason that the property was valued well in excess of the encumbrance, the trial
court ruled that no action for a deficiency judgment could lie. See NRS 40.459. Two M.A.I.
appraisers testified at trial as to the valuation they placed on the property as of the date of the
trustee's sale. The appraiser retained by the Capurros valued the property at $117,600.00,
nearly double the amount of the Hellmans' indebtedness. The court-appointed appraiser
valued the property at $250,000.00.
As to the insurance proceeds, the court ruled that the Capurros' right thereto had vested on
the day of the fire and was not divested by the foreclosure proceedings or by the fact that no
action for a deficiency judgment could lie.
[Headnotes 1-3]
1. This latter ruling was erroneous. Finding that no action for a deficiency judgment will
lie for the reason that the deed of trust beneficiary purchased the property and obtained value
in excess of the indebtedness is equivalent to finding that the trustor's debt has been
extinguished. Rosenbaum v. Funcannon, 308 F.2d 680 (9th Cir. 1962); Whitestone Savings &
Loan Ass'n v. Allstate Ins. Co., 270 N.E.2d 694 (N.Y. 1971); Northwestern National Ins. Co.
v. Mildenberger, 359 S.W.2d 380 (Mo.App. 1962). A mortgagee or a beneficiary to a deed of
trust is entitled to only one satisfaction of his debt. Holloway v. Barrett, 87 Nev. 385, 487
P.2d 501 (1971). Here, in addition to receiving approximately $110,600.00 plus interest from
the date the property was sold, the Capurros received value of at least $52,000.00 over and
above the outstanding indebtedness on the promissory note. It cannot in fairness be asserted
that the Hellmans' obligation to the Capurros remains unsatisfied or that the Capurros were
injured from the events which culminated in the surrender of the property to them.
On the date of the fire, the Capurros possessed a right to the insurance proceeds as their
interest appeared. That right was contingent upon the existence of an underlying unsatisfied
obligation running from the Hellmans to the Capurros. Upon satisfaction of that obligation,
the right was extinguished. The trial court, by ruling that the Capurros were entitled to no
deficiency judgment implicitly ruled that the Heilmans' obligation to the Capurros had been
satisfied.
to the Capurros had been satisfied. Thus, the insurance proceeds rightfully should have been
awarded to the Hellmans.
2. Absent an election to rebuild on the Hellmans' part, the Capurros may have had an
absolutevested, as they style itright to have the policy proceeds applied in reduction of
their $65,000 claim. They did not, however, enforce that right before causing foreclosure sale
of the Hellmans' property to collect their unreduced claim. Had they done so, both the
Hellmans' position at the trustee's sale, and their own, would have been materially different.
Particularly, we note that had the Capurros' apparent bidding power at the sale been
reduced to some $30,000, through application of the $35,000 policy proceeds to the
Hellmans' $65,000 debt, the Hellmas could have sought to protect their property by raising
only that smaller amount to bid. They might, at least, have sought to salvage some of their
equity, by encouraging potential buyers to appear and to bid above the reduced $30-odd
thousand figure necessary to satisfy the Capurros. Indeed, they might well have found a
lender who would have provided refinancing of their reduced debt to the Capurros and
thereby have prevented the sale altogether.
The Capurros, however, elected not to cause the $35,000 to be applied to their claim
before the sale. Not having done so, and having through the sale received real property more
than equal in value to their unreduced debt, it seems clear that the $35,000 insurance proceeds
must be regarded as the Hellmans' property, free from the Capurros' extinguished claim.
Accordingly, the Hellmans are awarded the principal sum. No interest shall be allowed.
NRAP Rule 37.
[Headnote 4]
3. The Hellmans' second assignment of error, that the memorandum of costs and
disbursements filed by the Capurros sets forth an excessive amount, is inappropriately raised
at this juncture in the proceedings. NRS 18.110; Reno Electrical Works, Inc. v. Ward, 53
Nev. 1, 290 P. 1024 (1930).
Reversed.
____________
92 Nev. 318, 318 (1976) Allan v. State
GEORGE L. ALLAN, Appellant, v. THE
No. 7831
May 28, 1976 549 P.2d 1402
Appeal from judgment of the Eighth Judicial District Court, Clark County; Clarence
Sundean, Judge.
Defendant was convicted in the district court of the infamous crime against nature, and he
appealed. The Supreme Court, Mowbray, J., held that where defendant was charged with
single act of fellatio, evidence of other acts of fellatio with two boys on the same occasion
and of masturbating in the presence of the boys was admissible as part of the res gestae; and
that testimony of two other minors that on separate occasions defendant had shown them the
pornographic movie he was alleged to have shown the boys on the occasion of the offense
and had fondled one of them was admissible to show proof of motive or common plan or
scheme.
Affirmed.
Morgan Harris, Public Defender, and Gary White and Stephen L. Huffaker, Deputy Public
Defenders, Clark County, for Appellant.
Leon Simon and Rimantas A. Rukstele, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Though defendant was charged only with one act of fellatio committed on one boy, evidence of
additional acts of fellatio with that boy and another as well as act of masturbation in the presence of three
boys on the same occasion was admissible as part of the res gestae of the crime charged since all of the acts
were part of the same transaction committed by the defendant on the evening in question.
2. Criminal Law.
Where two boys testified that defendant, after showing a pornographic movie to the boys, committed acts
of fellatio with them, and defendant, though admitting ownership of the movie, denied any wrongful acts
and produced evidence of his good character in relation to children, rebuttal testimony of two other minors,
one of them a girl, that on separate occasions defendant had shown them the pornographic movie in
question and had fondled the girl's thighs, though improper character witness rebuttal, was admissible as
tending to show proof of motive or common plan or scheme.
92 Nev. 318, 319 (1976) Allan v. State
as tending to show proof of motive or common plan or scheme. NRS 48.045, subd. 2.
OPINION
A jury found the appellant, George L. Allan, guilty of the infamous crime against nature
committed upon the person of one under the age of 18 years. In accordance with the
mandatory sentencing provision of NRS 201.190, subsection 1(a),
1
Allan was sentenced to
life imprisonment in the state penitentiary with possibility of parole. He has appealed from
his judgment of conviction, asserting several assignments of error.
On the evening of September 14, 1973, three minor boys, aged 16, 15, and 14, went to
Allan's house trailer. Allan showed the boys a pornographic movie. During the movie, Allan
made advances toward the two older minors. After the movie, he committed acts of fellatio
upon each of the older boys and asked them to commit said act upon him. They complied,
and at the conclusion Allan masturbated in their presence. Allan was charged and found
guilty of one crime only, i.e., the infamous act against nature, committed upon the oldest boy.
At trial, both the older boys testified regarding the above-mentioned events. Alan took the
stand. He agreed that the three boys had come to his house trailer late in the evening; that he
admitted them, told them he was tired; and that he retired to his bedroom while they watched
television. In the morning, Allan said, he found the three boys asleep in various parts of the
trailer; he fixed them a breakfast, and they left. While Allan stated that he owned the
pornographic movie that the boys claim he showed them, he claims that he never showed it to
them. He flatly denied ever molesting the children at any time. Other defense witnesses
testified as to his good character traits and that they would be willing to entrust their children
in his care. In rebuttal, the State called a minor boy, aged 13 years, who testified that he had
seen pornographic movies at Allan's home.
____________________

1
1. Except as provided in subsection 2, every person of full age who commits the infamous crime against
nature shall be punished:
(a) Where physical force or the immediate threat of such force is used by the defendant to compel another
person to participate in such offense, or where such offense is committed upon the person of one who is under
the age of 18 years, by imprisonment in the state prison for life with possibility of parole, eligibility for which
begins, unless further restricted by subsection 3, when a minimum of 5 years has been served.
92 Nev. 318, 320 (1976) Allan v. State
years, who testified that he had seen pornographic movies at Allan's home. A minor girl, aged
12, testified that Allan had shown her the same movie he had shown the three boys on the
evening of September 14, 1973, and that Allan had then kissed her and fondled her thighs.
Allan's principal complaint on appeal is that the trial court committed prejudicial error by
admitting into evidence acts other than the sole crime with which he was charged in the
Information.
Allan first objects that it was error for the court to permit the boys to testify to the acts of
fellatio committed by Allan on the boys, and such acts committed by them on him, except the
sole act with which he was charged. He also contends that it was error to permit the boys to
testify that he masturbated in their presence after the other sexual acts were completed, as
such conduct is evidence of another crime, i.e., lewdness with a minor.
[Headnote 1]
We do not agree. The testimony regarding the additional acts of fellatio, as well as the act
of masturbation, was admissible as part of the res gestae of the crime charged. Testimony
regarding such acts is admissible because the acts complete the story of the crime charged by
proving the immediate context of happenings near in time and place. Such evidence has been
characterized as the same transaction or the res gestae.
2

In California, the court ruled in People v. Thomas, 83 Cal. Rptr. 879, 882 (Cal.App. 1970),
a case where the appellant was tried and convicted of eight different criminal counts,
including rape and sodomy, that evidence concerning an additional sodomitical act not
charged in the indictment but committed immediately after the offenses charged was
properly received in evidence.
____________________

2
See State v. Villavicencio, 388 P.2d 245 (Ariz. 1964) (sales of narcotics to A and B at same time and place;
evidence of sale to A admissible in prosecution for the sale to B; the court said, at 246, This principle that the
complete story of the crime may be shown even though it reveals other crimes has often been termed res gestae'
. . . . [W]e choose to refer to this as the complete story' principle . . .); State v. Klotter, 142 N.W.2d 568
(Minn. 1966) (burglary of sporting goods store; evidence of burglary of home of friend of defendant's family, 5
miles away on same night admissible, where guns from both burglaries found in defendant's possession); State v.
Hendrix, 310 S.W.2d 852 (Mo. 1958) (prosecution of convict for damaging penitentiary building by sawing bars
on window; evidence of attempted escape of defendant and others, which was the purpose of the sawing,
admissible as circumstantial evidence of guilt); State v. Salgado, 38 Nev. 64, 145 P. 919 (1914), rev'd on
other grounds, 38 Nev. 413, 150 P. 764 (1915) (in a prosecution for killing by stabbing, evidence that the
defendant stabbed another man during a fight over the deceased a few minutes before he stabbed the deceased
was admissible in that it was a contemporaneous crime, the circumstances of which were inseparable from the
crime charged).
92 Nev. 318, 321 (1976) Allan v. State
was tried and convicted of eight different criminal counts, including rape and sodomy, that
evidence concerning an additional sodomitical act not charged in the indictment but
committed immediately after the offenses charged was properly received in evidence. The
court, in affirming previous authority, held that when several crimes are intermixed or
blended with one another, or connected such that they form an indivisible criminal
transaction, and when full proof by testimony, whether direct or circumstantial, of any one of
them cannot be given without showing the others, evidence of any or all of them is admissible
against a defendant on trial for any offense which is itself a detail of the whole criminal
scheme.
We conclude, therefore, that, under the res gestae rule, testimony concerning the acts of
fellatio, climaxed by Allan's final act of masturbation, were all admissible as part of the
same transaction committed by Allan on the evening in question.
[Headnote 2]
We turn to consider the testimony of the minors called in rebuttal by the State. Allan flatly
denied any wrongful acts with the three boys. Although he admitted ownership of the
pornographic film, he said that he had never shown the movie to the minor boys. He claimed
to be a virtuous man with great interest in children. He said he served as a Scout leader.
Witnesses called in his behalf testified that they would be willing to leave their children in his
care. In rebuttal, two minors testified that they had been invited into his motor home, and they
had seen pornographic movies. The minor girl testified that, after the showing of the very film
shown the boy upon whom the crime charged was committed, Allan kissed her and fondled
her thighs. Though improper character witness rebuttal, this evidence was nevertheless
admissible under subsection 2 of NRS 48.045,
3
as tending to show proof of a motive or a
common plan or scheme wherein minors were lured to appellant's quarters and, after being
conditioned by the showing of his pornographic movies, subjected to his sexual desires.
4
Remaining assignments of error have been considered, and we find them meritless.
____________________

3
NRS 48.045, subsection 2:
2. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

4
See Gregg, Other Acts of Sexual Misbehavior and Perversion as Evidence in Prosecutions for Sexual
Offenses, 6 Ariz. L. Rev. 212, 229-230 (1965), states:
. . . The other offenses offered in evidence tend to establish a very
92 Nev. 318, 322 (1976) Allan v. State
Remaining assignments of error have been considered, and we find them meritless.
Therefore, we affirm the judgment of the lower court.
Batjer, Zenoff, and Thompson, JJ., concur.
Although I can concur in the result reached by my brethren, I suggest we should not
re-institute use of the term res gestae, which I believe the Nevada Evidence Code renders
obsolete, and which I believe lacks utility. See: I J. Wigmore, Evidence, 218 at 720-721
(3rd ed. 1940).
Moreover, while the error may be deemed harmless upon the record of this case, I cannot
agree that testimony of a different kind of sexual misconduct, with a child of a different sex,
on a different day, can properly be admitted to show motive or a common plan or scheme.
____________________
distinctive modus operandi, and there are often a number of different witnesses who can testify to similar
offenses against themselves. A typical case is State v. McDaniel [, 80 Ariz. 381, 298 P.2d 798 (1956)]. In this
case, prior acts of fellatio alleged to have been committed within a month of the offense for which defendant was
standing trial were admitted into evidence. There were three other witnesses. Each told of experiences, which if
believed, indicated a very distinctive pattern of luring boys and inducing them to cooperate in performing the
acts. The court upheld admission of this evidence on the ground that it tended to show a scheme or plan.
[Footnote omitted.] The court said,
In the instant case the testimony of these three other boysas to the manner of meeting defendant, the
inducements offered and the temptations flaunted before them, the insidious modus operandi on the part of
defendant of an unnatural and lascivious natureall tends to suggest a scheme of seduction in many respects
identical with that practiced in the instance for which defendant is here tried . . . . [M]any courts recognize a
limited exception in the area of sex crimes to prove the nature of the accused's specific emotional propensity . . .
. Of course, this exception would be subject to the limitation of relevant nearness in time, and would not apply to
mere criminal tendencies in general as distinguished from specific sexual inclinations. [State v. McDaniel, 80
Ariz. 381, 387-388, 298 P.2d 798, 802-803 (1956).]'
____________
92 Nev. 322, 322 (1976) Strickland v. Griz Corp.
STEPHEN STRICKLAND, Appellant, v. GRIZ CORP., a Nevada Corporation, doing
business as AL GASPER MOTORS, Respondent.
No. 8826
May 28, 1976 549 P.2d 1406
Appeal from order granting preliminary injunction, First Judicial District Court, Carson
City; Frank B. Gregory, Judge.
92 Nev. 322, 323 (1976) Strickland v. Griz Corp.
The Supreme Court held that it was error to issue preliminary injunction without providing
for or requiring bond to be posted.
Reversed.
Kenneth J. Jordan, Carson City, for Appellant.
David Mathews, Reno, for Respondent.
Injunction.
It was error for trial court to issue preliminary injunction without providing for or requiring bond to be
posted. NRCP 65(c).
OPINION
Per Curiam:
On November 18, 1974, the First Judicial District Court entered an order issuing a
preliminary injunction against Stephen Strickland, without providing for, or requiring, a bond
to be posted.
Strickland has appealed, contending Nevada law compels us to reverse. We agree.
NRCP 65(c) provides, in part, that [n]o restraining order or preliminary injunction shall
issue except upon the giving of security by the applicant, . . .
Where a bond is required by statute before the issuance of an injunction, it must be
exacted or the order will be absolutely void. Shelton v. District Court, 64 Nev. 487, 494, 185
P.2d 320, 323-324 (1947).
Reversed.
1

____________________

1
Mr. Justice Mowbray did not participate in the consideration and resolution of this appeal.
____________
92 Nev. 323, 323 (1976) County of Clark v. City of Las Vegas
COUNTY OF CLARK, a Legal Subdivision, and LEGISLATIVE COMMISSION OF THE
STATE OF NEVADA, Appellants, v. CITY OF LAS VEGAS, a Municipal Corporation, and
GEORGE E. FRANKLIN, Respondents.
No. 8719
June 7, 1976 550 P.2d 779
Appeal from judgment declaring unconstitutional the Metropolitan Cities Incorporation
Law and the Urban County Law; Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
The Supreme Court, Gunderson, C. J., held, inter alia, that Sections 163-168 of Chapter
648, 1975 Statutes of Nevada, which apply specifically to Clark County and to no other
county in the state and which deal with, inter alia, the division of Clark County into seven
commissioner districts, from which a total of eleven commissioners would be elected,
constitutes special legislation violative of the Nevada Constitution; that in respect to Section
163, it was constitutionally impermissible to base an initial apportionment for the new
commissioner districts on admittedly outdated and inaccurate population estimates, when
more recent and accurate estimates were just as readily available; that the constitutionally
objectionable portions of Chapter 648 were not severable; and that under the scheme set forth
in Chapter 648, the voting strength of persons outside Las Vegas is diluted and the political
machinery is structured so that the Las Vegas county-city commissioners may readily take
unconscionable advantage of the other commissioners and their constituents.
Affirmed.
Bruce L. Woodbury, of Las Vegas, for Appellant County of Clark.
Frank Daykin, of Carson City, for Appellant Legislative Commission of the State of
Nevada.
Carl E. Lovell, City Attorney, and John Foley, of Las Vegas, for Respondent City of Las
Vegas.
George E. Franklin, of Las Vegas, on Behalf of Himself, et al.
1. Statutes.
Sections 163-168 of Chapter 648, 1975 Statutes of Nevada, which apply specifically to Clark County and
to no other county in the state and which deal with, inter alia, the division of Clark County into seven
commissioner districts, from which a total of eleven commissioners would be elected, constitutes special
legislation violative of the Nevada Constitution; furthermore, no emergency existed, much less one of
sufficient magnitude to justify special legislation so pervasive as Sections 163-168. Stats. Nev. 1975, ch.
648, 163-168; Const. art. 4, 20, 21.
2. Statutes.
Laws establishing county governments or purporting to regulate internal affairs of such governments must
be general in nature and must apply uniformly through the state to all counties similarly situated. Const.
art. 4, 20, 21.
3. Constitutional Law; Counties.
The one man, one vote concept implicit in the Nevada and United States Constitutions was violated by
statutory provision which would divide Clark County into seven commissioner districts, from which a total
of eleven commissioners would be elected, eight county-city commissioners and three county
commissioners, since the new commissioner districts were created in 1975 by reference to existing
assembly districts, previously established on the basis of 1970 census figures. Stats. Nev. 1975, ch. 648,
163; Const. art. 1, 13; U.S.C.A.Const. Amend. 14.
If a basis of apportionment or reapportionment is adopted which does not reasonably assure adequate
protection of the integrity of the individual's vote, the one man, one vote concept is violated. Const. art.
1, 13; U.S.C.A.Const. Amend. 14.
The Nevada and United States Constitutions require strict compliance with the one man, one vote
concept whenever possible. Const. art. 1, 13; U.S.C.A.Const. Amend. 14.
While a periodic reapportionment scheme based on the federal decennial census is a reasonable means of
safeguarding the integrity of the individual's vote from degradation resulting from malapportionment,
nevertheless, periodic reapportionment must be distinguished from initial apportionment. Const. art. 1,
13; U.S.C.A.Const. Amend. 14.
While it may be true that reapportionment every ten years based on population changes is reasonable as
that term is necessarily defined by the courts, it does not follow that initial apportionment based on
outdated population data is reasonable; in the former situation, the data is accurate at the time of
apportionment, whereas in the latter, the data may be quite stale. Const. art. 1, 13; U.S.C.A.Const.
Amend. 14.
8. Municipal Corporations.
To require reapportionment more frequently than every ten years might impose on the government
burdens unreasonable in relation to the benefits achieved, but in the context of a plan for initial
apportionment, such a burden does not necessarily exist. Const. art. 1, 13; U.S.C.A.Const. Amend.
14.
9. Counties.
An initial apportionment based on an outdated census, resulting in significant malapportionment, cannot
be justified when admittedly more accurate figures are available which will result in no significant
malapportionment. Const. art. 1, 13; U.S.C.A.Const. Amend. 14.
10. Counties.
In respect to statutory provision dividing Clark County into seven commissioner districts, from which a
total of eleven commissioners would be elected, it was constitutionally impermissible to base an initial
apportionment for the new commissioner districts on admittedly outdated and inaccurate population
estimates, when more recent and accurate estimates were just as readily available.
Const. art. 1, 13; U.S.C.A.Const. Amend. 14; Stats. Nev. 1975, ch. 648, 163.
11. Constitutional Law; Counties.
Fact that statutory provision would create new county-city commissioner districts through reference to
existing assembly districts, rather than conforming such districts to the Las Vegas city limits, offended the
one man, one vote concept in that more than 12,500 residents in the City of Las Vegas residing in
proposed districts E and F would be voting merely for a county commissioner rather than a county-city
commissioner and would thus be totally divested of any voting franchise whatever as to the selection of
the county-city commissioners who would ostensibly represent them in municipal affairs. Const. art. 1,
13; U.S.C.A.Const. Amend. 14; Stats. Nev. 1975, ch. 648, 163.
12. Statutes.
The constitutionally objectionable portions of Chapter 648, 1975 Statutes of Nevada, to wit, Sections
163-168, were not severable from the remainder of Chapter 648, since, with Sections 163-168 excised, it
did not appear that, standing alone, legal effect could be given to the remainder of Chapter 648 consistently
with established law and legal principles, and since the legislative proponents of Chapter 648 clearly
drafted it with the intent that Clark County would be governed as provided in Section 163, and not by
Sections 13 and 126, either in their original form or as the Supreme Court would have to restructure them
to meet one man, one vote objections. Stats. Nev. 1975, ch. 648, 13, 126, 163-168.
13. Statutes.
A boiler-plate severability clause in a statute neither divests the courts of the power, nor relieves them
of the duty, to determine whether indeed the remainder of the statute can stand independently of an
unconstitutional provision, and whether the Legislature as a body would intend that it should do so.
14. Statutes.
All that severability clauses properly do is to replace the commonly recognized presumption of
nonseverability with one of severability which is at best slight and entitled to little weight.
15. Statutes.
A statutory provision, inherently unobjectionable, cannot be deemed separable unless it appears both that,
standing alone, legal effect can be given to it and that the Legislature intended the provision to stand, in
case others included in the act and held bad should fall.
There is no absolute constitutional prohibition against consolidating city and county offices.
17. Elections.
Right to vote is fundamental in a free democratic society.
18. Elections.
Every citizen has an unalienable right to full, effective participation in the political process.
19. Elections.
A voter has the constitutional right to have his vote given as much weight as any other vote and
not to have his vote denied, debased, or diluted in any manner.
much weight as any other vote and not to have his vote denied, debased, or diluted in any manner.
20. Elections.
Principles that the right to vote is fundamental in a free democratic society, that every citizen has an
unalienable right to full and effective participation in the political process, and that the voter has the right
to have his vote given as much weight as any other vote and not to have it denied, debased or diluted are
applicable to the local government process.
21. Elections.
Any alleged infringement of a voter's constitutional right to have his vote given as much weight as any
other vote must be carefully and meticulously scrutinized.
Equal apportionment is merely the starting point of any consideration as to whether the one man, one
vote principle has been violated.
Population, itself, does not possess any talismanic quality in fair representation cases.
Even an equally apportioned scheme can be objectionable where it operates to cancel, minimize or dilute
the voting strength of a political interest group.
Access to the political process is the barometer of dilution of voting strength.
26. Elections.
Where one group's political rights are left insecure, and another group is empowered to trample those
rights at will, it is no answer, from a constitutional standpoint, to say that the former should not complain
but should have trust in their fellow men and women.
While local government may need many innovations to meet changing urban conditions and there is
nothing to prevent experimentation to achieve the best result, still, equality of voting rights cannot be
debased or diluted.
28. Counties.
Under the scheme set forth in Chapter 648, 1975 Statutes of Nevada, the voting strength of persons
outside Las Vegas is diluted and the political machinery is structured so that the Las Vegas county-city
commissioners may readily take unconscionable advantage of the other commissioners and their
constituents and, accordingly, the chapter is constitutionally infirm since there exists a built-in bias tending
to favor particular political interests. Stats. Nev. 1975, ch. 648, 1 et seq.
29. Officers.
Public policy demands that an office holder discharge his duties with undivided loyalty.
30. Counties.
Permitting city commissioners to sit on the county board would deprive electors of both the city
and county of undivided allegiance to their interests.
would deprive electors of both the city and county of undivided allegiance to their interests.
OPINION
By Chapter 648, 1975 Statutes of Nevada, our Legislature adopted the Metropolitan
Cities Incorporation Law and the Urban County Law. The former is Sections 2 through
110.6 of Chapter 648; the latter is Sections 111 through 136.
1
Together, these provisions
endeavor to allow the City of Las Vegas and certain conjacent areas of Clark County to
achieve a substantial consolidation of governmental functions and services, while Clark
County, Las Vegas, and certain smaller cities within the county remain distinct governmental
entities.
Soon after Chapter 648's passage, heated public debate arose concerning its
constitutionality. Responding to an inquiry restricted to the most obvious constitutional
questions presented thereby, Nevada's Attorney General declared it unconstitutional in part.
2
Disputes multiplied, and on November 7, the City of Las Vegas filed a complaint against
Clark County, purporting to seek a declaratory judgment as to the constitutionality of selected
provisions.
3
On December 8, George E.
____________________

1
The entire chapter has 172 sections. Sections 137 through 158 undertook to amend portions of the Nevada
Revised Statutes affected by the Metropolitan Cities Incorporation Law or the Urban County Law. Sections 159
through 162 sought to organize the City of Las Vegas under the Metropolitan Cities Incorporation Law. Sections
163 through 169 are the focal point of this appeal and are summarized herein. Finally, Sections 170 through 172
are miscellaneous provisions not greatly pertinent to issues raised herein.

2
See: AGO No. 194 (1975).

3
Some question exists whether the action brought by the City of Las Vegas tenders a bona fide case or
controversy. According to one local newspaper, In reality, both city and county commissioners want to see the
merger put into effect, but its constitutionality must be tested by the Nevada Supreme Court before they are
willing to throw themselves wholeheartedly into the effort. See: Las Vegas Review-Journal, Feb. 2, 1976, at 2.
In somewhat analogous circumstances, in Muskrat v. United States, 219 U.S. 346 (1911), the United States
Supreme Court ordered certain actions dismissed for want of jurisdiction, saying:
. . . The whole purpose . . . is to determine the constitutional validity of this class of legislation, in a suit not
arising between parties concerning a property right necessarily involved in the decision in question, but in a
proceeding against the Government in its sovereign capacity, and concerning which the only judgment required
is to settle the doubtful character of the legislation in question. Such judgment will not conclude private parties,
when actual litigation brings to the court the question of the constitutionality of such legislation. Id. at 361-362.
Franklin, in his capacity as a citizen, voter and taxpayer of Las Vegas and Clark County, filed
a separate action for declaratory relief, joining both City and County, and seeking an
adjudication that Chapter 648 is totally unconstitutional, and void in its entirety.
4
Through a
stipulation approved by the district court, the two lawsuits were consolidated, and the
Legislative Commission of the State of Nevada was permitted to intervene as an additional
defendant. From a judgment declaring the entire Chapter unconstitutional, Clark County and
the Legislative Commission have appealed.
The district court determined that Chapter 648, in crucial respects, violated provisions of
our state and federal constitutions, and that with unconstitutional sections excised, the
legislative intent was thwarted, thereby rendering the entire Chapter void. We affirm the
district court's judgment, for the reasons it articulated, and for further reasons.
I
Special Legislation Question
[Headnote 1]
First, the district court found Sections 163-168 of Chapter 648 to be special legislation,
violative of Article IV, Sections 20 and 21, of the Nevada Constitution.
5
As all members of
the Nevada Supreme Court agree, this determination was correct.
Section 163 would divide Clark County into seven commissioner districts, from which a
total of eleven commissioners would be elected: eight county-city commissioners and three
county commissioners. The composition of each district is specified by reference to the
assembly districts established by Chapter 21S of NRS.6 Section 164 concerns elections to
be held in Clark County in 1976 and 197S, to elect the eight "county-city commissioners"
and the three "county commissioners."
____________________

4
Inasmuch as Mr. Franklin's action distinctly presents a bona fide dispute, we need not determine whether the
City's action against the County constitutes a true case or controversy.

5
The Nevada Constitution, Article IV, Section 20, provides in material part:
The Legislature shall not pass local or special laws in any of the following enumerated casesthat is to say:
. . .
Regulating county and township business;
Regulating the election of county and township officers;
. . .
Providing for opening and conducting elections of state, county, or township officers, and designating the
places of voting;
. . .
The Nevada Constitution, Article IV, Section 21, provides:
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.
Chapter 218 of NRS.
6
Section 164 concerns elections to be held in Clark County in 1976
and 1978, to elect the eight county-city commissioners and the three county
commissioners. Section 165 provides for the creation in Clark County of citizens' advisory
councils, two in each of the four two-seat county-city commissioner districts, and one in
each of the three one-seat county commissioner districts. Section 166 would create a
special local government consolidation committee composed of the present seven members
of the Clark County Board of Commissioners (in office on the Act's effective date), and the
mayor and four members of the Las Vegas Board of City Commissioners (in office on the
first Monday in July, 1975). Section 167 enumerates governmental services and functions to
be performed individually or jointly by each entity.
____________________

6
Sec. 163. 1. Notwithstanding the provisions of subsections 4 to 6, inclusive, of section 126 of this act, for
the purpose of electing the 11 members of the board of county commissioners of Clark County and the eight
members of the board of commissioners of the city of Las Vegas, there are hereby created seven commissioner
districts as follows:
(a) Commissioner district A shall be composed of assembly districts Nos. 1, 2, 5 and 13, from which there
shall be elected two county-city commissioners.
(b) Commissioner district B shall be composed of assembly districts Nos. 3, 4, 6 and 8, from which there
(c) Commissioner district C shall be composed of assembly districts Nos. 9, 11, 14 and 20, from which there
(d) Commissioner district D shall be composed of assembly districts Nos. 10, 12, 15 and 16, from which
there shall be elected two county-city commissioners.
(e) Commissioner district E shall be composed of assembly districts Nos. 7 and 17, from which there shall be
elected one county commissioner.
(f) Commissioner district F shall be composed of assembly districts Nos. 18 and 19, from which there shall
be elected one county commissioner.
(g) Commissioner district G shall be composed of assembly districts Nos. 21 and 22, from which there shall
be elected one county commissioner.
2. Assembly districts,' as used in subsection 1, refer to and have the meaning conferred by the appropriate
provisions of chapter 218 of NRS.
3. The commissioner districts created by subsection 1 shall not be expanded upon, altered or abolished
except by act of the legislature or pursuant to an order of a court of competent jurisdiction, in which event the
board of county commissioners of Clark County shall apportion itself in the manner prescribed in subsections 4
to 10, inclusive, of section 126 of this act.
entity. Section 168 requires that the labor negotiating representatives of both Las Vegas and
Clark County participate jointly in labor negotiations with any employee organizations.
The appellants, while conceding that the sections just mentioned constitute local or special
legislation, contend they have only temporary application, and therefore do not offend the
constitutional prohibition. A review of the cases cited in support of this proposition is
unpersuasive. See: Cauble v. Beemer, 64 Nev. 77, 177 P.2d 677 (1947); Conservation
District v. Beemer, 56 Nev. 104, 45 P.2d 779 (1935); State v. Ruhe, 24 Nev. 251, 52 P. 274
(1898); State of Nevada v. Swift, 11 Nev. 128 (1876); State of Nevada v. Irwin, 5 Nev. 111
(1869).
Appellants also urge that Sections 163 through 168 do not violate Nevada's constitution
for the reason that emergency circumstances existed, necessitating legislative interference
with county government by special legislation, ostensibly because no general laws sufficiently
addressed the supposed emergency. See Quilici v. Strosnider, 34 Nev. 9, 115 P. 177 (1911).
However, we note that Chapter 648, exclusive of Sections 163 through 168, contains
provisions for the election of county officers which ostensibly apply uniformly throughout the
state. (See Section 126 of Chapter 648.) Chapter 648 therefore itself constitutes persuasive
evidence that a general law can be made applicable as contemplated by Article IV, Section
21 of the Nevada Constitution. Thus, there exists no apparent need for special legislation in
this field; and in any event, we perceive no emergency here, much less one of sufficient
magnitude to justify special legislation so pervasive as Sections 163 through 168.
[Headnote 2]
Laws establishing county governments or purporting to regulate internal affairs of such
governments must be general in nature and must apply uniformly through the state to all
counties similarly situated. Nothing less satisfies the mandate of Article IV, Sections 20 and
21 of the Nevada Constitution. State v. Malone, 68 Nev. 36, 231 P.2d 599 (1951); McDonald
v. Beemer, 67 Nev. 419, 220 P.2d 217 (1950). In McDonald v. Beemer, this Court noted the
evils which attend legislation directed at one locality:
[Such legislation] is invariably referred to the local members and passed without scrutiny
from the other representatives and without any feeling of responsibility on their part, thus
often leading to improper combinations among the members and even to vicious
legislation that would not be permitted were it to affect the whole state."
often leading to improper combinations among the members and even to vicious legislation
that would not be permitted were it to affect the whole state. 67 Nev. at 426, 220 P.2d at
220.
Therefore, because Sections 163 through 168 apply specifically to Clark County, and to no
other county in the state, they must be declared void.
II
Malapportionment One Man, One Vote Questions
[Headnote 3]
1. Moreover, as all members of the Nevada Supreme Court agree, Section 163 offends the
one man, one vote concept implicit in the Nevada and U.S. Constitutions. See: Nevada
Constitution, Article I, Section 13; U.S. Constitution, Amend. 14. This is so, we think,
because the new commissioner districts were created in 1975 by reference to existing
assembly districts, previously established on the basis of 1970 census figures.
Section 163 divides Clark County into seven commission districts. Two county-city
commissioners are to be elected from each of the four commissioner districts, which are each
composed of four established assembly districts; one county commissioner is to be elected
from each of the remaining three districts, all composed of two established assembly districts.
The population of Clark County was apportioned into the various assembly districts on the
basis of the 1970 Federal Decennial Census, and all parties agree that changes in population
since 1970 have caused significant malapportionment between the various assembly districts.
Thus, utilizing the existing assembly districts to form commission districts would
immediately occasion significant malapportionment in the latter.
7
All parties seemingly
further agree that more recent and accurate population estimates are available upon which a
districting plan could be based.
[Headnotes 4-6]
Unquestionably, if a basis of apportionment or reapportionment is adopted which does not
reasonably assure adequate protection of the integrity of the individual's vote, the one man,
one vote concept is violated. Gaffney v. Cummings, 412 U.S. 735 {1973); Abate v. Mundt,
403 U.S. 1S2 {1971).
____________________

7
If the plan were implemented, the disparity in population between the commission districts would range
from 20.2 percent to 25.2 percent of norm.
U.S. 735 (1973); Abate v. Mundt, 403 U.S. 182 (1971). Clearly, the Nevada and United
States Constitutions require strict compliance with the one man, one vote concept whenever
possible. It has, of course, been held that a periodic reapportionment scheme based on the
Federal Decennial Census is a reasonable means of safeguarding the integrity of the
individual's vote from degradation resulting from malapportionment, although at times some
measure of malapportionment might exist. Silver v. Reagan, 432 P.2d 26 (Cal. 1967). Still,
we think, periodic reapportionment must be distinguished from initial apportionment. The
authorities appellants cite, approving use of the decennial census, do so in the context of the
former. None are cited that approve use of an antiquated census which admittedly would
result in significant malapportionment in an initial plan of apportionment.
[Headnotes 7, 8]
It may be true that reapportionment every ten years based on population changes is
reasonable as that term is necessarily defined by the courts. See Silver v. Reagan, cited
above. Still, it does not follow that initial apportionment based on outdated population data is
reasonable. In the former situation, the data is accurate at the time of apportionment; in the
latter, as here, the data may be quite stale. It is recognized that to require reapportionment
more frequently than every ten years might impose on government burdens unreasonable in
relation to the benefits achieved. See Gaffney v. Cummings, cited above. However, in the
context of a plan for initial apportionment, such a burden does not necessarily exist.
[Headnotes 9, 10]
How does one justify an initial apportionment based on an outdated census, resulting in
significant malapportionment, when admittedly more accurate figures are available which
will result in no significant malapportionment? Here, this question has compelling
constitutional significance, since no justification whatever, in support of using the older
population figures, is offered or can be perceived. See Groh v. Egan, 526 P.2d 863 (Alaska
1974); Calderon v. City of Los Angeles, 481 P.2d 489 (Cal. 1971). Thus, we hold that it was
constitutionally impermissible to base an initial apportionment for the new commissioner
districts on admittedly outdated and inaccurate population estimates, when more recent and
accurate estimates were just as readily available. See Silver v. Reagan, cited above; see also,
Avery v. Midland County, 390 U.S. 474 (1968); Reynolds v. Sims, 377 U.S. 533 (1964).
[Headnote 11]
2. Also, as the district court saw, the fact that Section 163 would create the new
county-city commissioner districts through reference to existing assembly districts, rather
than conforming such districts to the Las Vegas city limits, offends the one man, one vote
concept in yet other ways.
8
Notably, more than 12,500 residents of the City of Las Vegas
residing in proposed Districts E and F would be voting merely for a county commissioner
rather than a county-city commissioner. In other words, these Las Vegas residents would be
totally divested of any voting franchise whatever, as to selection of the county-city
commissioners who would ostensibly represent them in municipal affairs. Moreover, more
than 7,500 persons who are not Las Vegas residents, but who live in Districts A, B or C,
would vote for a county-city commissioner, rather than for a mere county commissioner.
9
Thus, the votes of over 7,500 non-residents would dilute the voting franchise of those Las
Vegans who were not totally divested of all elective privileges as to city representatives.
In our view, as the United States District Court for the District of Nevada has heretofore
declared:
Where votes of citizens are watered-down' solely because of their residence in one
political subdivision rather than another, such difference in weight of vote is an invidious
discrimination against the least favored voter, and unconstitutional because violative of the
Equal Protection Clause, as well as the Fifteenth and Nineteenth Amendments, which require,
stated in shorthand, 'one man, one vote.'" Dungan v. Sawyer, 250 F.Supp. 4S0, 4S7
{D.Nev. 1965).
____________________

8
As hereinafter discussed in Point IV of this opinion, we also believe Chapter 648 offends the one man, one
vote concept in still another, somewhat less obvious, but equally unacceptable way not noticed by the district
court.

9
According to the Clark County Regional Planning Council's population estimates, 1,431 of these favored
non-residents of Las Vegas reside in North Las Vegas. Thus, they would not only be allowed to vote for a
county-city commissioner, with a voice in Las Vegas city affairs, but also could participate in elections held
for the North Las Vegas city council. Also among the 7,500-plus non-residents who would vote for Las Vegas
county-city commissioners, while 9,500-plus Las Vegans could not do so, would be some 2,000-plus persons in
such distant communities as Indian Springs, Mount Charleston, Blue Diamond, Red Rock, and Mountain
Springs.
Indeed, the Regional Planning Council's figures reflect that six of the eight Las Vegas county-city
commissioners could themselves be non-residents of Las Vegas, residing either in uniquely favored portions of
North Las Vegas, or in unincorporated areas of Clark County as much as 45 miles away.
stated in shorthand, one man, one vote.' Dungan v. Sawyer, 250 F.Supp. 480, 487 (D.Nev.
1965).
Clearly, therefore, the district court correctly determined that the one man, one vote
concept was offended by the scheme just mentioned; and it is no answer to suggest that the
legislature might, if it wished, determine to have municipal affairs governed by an appointive
board. As a general rule, 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 equal opportunity to
participate in that election. Hadley v. Junior College District, 397 U.S. 50, 56 (1970)
III
Severability Question
[Headnote 12]
Appellants urge that, even though Sections 163 through 168 of the Act may be
unconstitutional and void, we should hold those sections to be severable and sanction
implementation of the remainder through agreements between the local governmental
entities, and through edicts of this court. For reasons now to be stated, we consider such
action legally inappropriate.
It is true that the Legislature's draftsmen included in Chapter 648 a so-called severability
clause, which recites: If any portion of this act is held to be unconstitutional or invalid for
any reason by the decision of any court of competent jurisdiction, such decision shall not
affect the validity of the remaining portion of this act. The Legislature hereby declares that it
would have passed this act and each portion thereof, irrespective of the portion which may be
deemed unconstitutional or otherwise invalid.
[Headnote 13]
However, upon both the highest authority and the weight of authority, it seems well settled
that this kind of scriveners' boiler-plate neither divests courts of the power, nor relieves
them of the duty, to determine whether indeed the remainder can stand independently, and
whether the Legislature as a body would intend that it should do so. See, for example: Dorchy
v. Kansas, 264 U.S. 286 (1924); Carter v. Carter Coal Co., 298 U.S. 238, 312-313 (1935);
Santa Barbara School District v. Superior Court, 530 P.2d 605, 617-618 (Cal. 1975); Lynden
Transport, Inc. v. State, 532 P.2d 700, 711-713 {Alaska 1975); American Waterways
Operators, Inc. v.
711-713 (Alaska 1975); American Waterways Operators, Inc. v. Askew, 335 F.Supp. 1241,
1250 (M.D.Fla. 1971; 3-judge panel); Whitehill v Elkins, 287 F.Supp. 61, 64-65 (D.Md.
1968; 3-judge panel); City of Baltimore v. A. S. Abell Co., 145 A.2d 111, 120 (Md. 1958);
Burton v. City of Hartford, 127 A.2d 251, 255-256 (Conn. 1956). In accord: 2 Sutherland,
Statutory Construction, 182, 184, 185 (3rd ed.).
[Headnote 14]
All such clauses properly do, according to the authorities and scholars, is to replace the
commonly recognized presumption of non-severability with one of severability which, it has
been noted, is at best slight and entitled to little weight. See, for example, Lynden
Transport, Inc. v. State, cited above, at 712. In words often quoted, Professor Sutherland has
observed: Separability clauses should be given reasonable consideration, but should not, at
least under present usage, be paid undue homage. P. 185.
[Headnote 15]
The United States Supreme Court has adhered to the prevailing view just mentioned, even
when faced with a statutory provision reciting a conclusive presumption that each provision
was severable from all others. Speaking through the eminent Mr. Justice Brandeis, the High
Court said in a unanimous opinion:
But a provision, inherently unobjectionable, cannot be deemed separable unless it appears
both that, standing alone, legal effect can be given to it and that the legislature intended the
provision to stand, in case others included in the act and held bad should fall. . . . [A
severability clause] provides a rule of construction which may sometimes aid in determining
that intent. But it is an aid merely; not an inexorable command. Dorchy v. Kansas, cited
above, at 290.
The United States Supreme Court's two-pronged test of severability is in accord with the
other authorities, cited above. For example, in our sister state California, the Supreme Court
recently said: The final determination depends on whether the remainder is [1] . . . complete
in itself and [2] would have been adopted by the legislative body had the latter foreseen the
partial invalidation of the statute.' Santa Barbara School District v. Superior Court, cited
above, at 618. Again, quoting Mr. Justice Brandeis, the Alaska Supreme Court held last year:
The test for determining the severability of a statute is twofold. A provision will not be
deemed severable unless it appears both that, standing alone, legal effect can be given to it
and that the legislature intended the provision to stand, in case others included in the act
and held bad should fall.'" Lynden Transport, Inc. v.
it and that the legislature intended the provision to stand, in case others included in the act
and held bad should fall.' Lynden Transport, Inc. v. State, cited above, at 713. Any
suggestion that when a severability clause is present, the test of severability in practical
effect is reduced to one element, simply is contrary to prevailing legal authority. We
therefore feel constrained to reject any suggestion that this court should sustain the remainder
of Chapter 648, merely because that remainder might be mechanically severed from
obviously objectionable portions, and thereafter somehow implemented through intervention
of this court and of local authorities. Accordingly we turn to consider the question of
severability under the recognized test, which we endorse.
1. First, we note that with Sections 163 through 168 excised, it does not appear that,
standing alone, legal effect can be given to the remainder of Chapter 648 consistently with
established law and legal principles. Instead, implementation would at best require
Procrustean restructuring of the law by this court and by local authorities in order to comport
with constitutional principles, which may not be possible at all.
In this regard, we notice that, although stated in ostensibly general terms, Section 126 like
Section 163 requires a board of county commissioners consisting of 11 members. Again, as
special counsel for the county acknowledges in his brief, Section 126 contemplates four
two-commissioner districts, which is explicit in Section 163 and implicit in Section 126
(seven districts for the election of eleven commissioners). These requirements, which
obviously can be attributed only to visions of what should occur in Clark County, seek to
implement an improper districting plan clearly unconstitutional under Section 163, and less
obviously but equally so as set forth in Section 126. The latter, ostensibly general districting
provision declares: Those members of the board of county commissioners elected from the
county commissioner districts situate within or substantially within the corporate boundaries
of a city organized under the Metropolitan Cities Incorporation Law shall be concurrently
elected as the members of the board of commissioners of the city. Section 126(2); emphasis
added. Section 13(2) contains identical language. Thus, Sections 13(2) and 126(2), like
Section 163, would contemplate that depending upon whether or not they were assigned to a
district substantially within the corporate boundaries non-residents might vote, and
residents might not be allowed to vote, for county-city commissioners.
Thus, we think, Sections 13 and 126 are not only patterned upon Section 163, but
contemplate a districting plan with identical constitutional faults.
upon Section 163, but contemplate a districting plan with identical constitutional faults.
Obviously, to save Sections 13 and 126, we would therefore not only have to sever them and
the rest of Chapter 648 from Sections 163-168, but then would be obliged to restructure 13
and 126 also. Only by imposing requirements clearly contrary to the legislative intent upon
them, i.e., requirements that county-city commissioner districts be wholly within the
metropolitan city, and that county commissioner districts be entirely outside, could we
begin to save the ostensibly general districting provision from the same manifest
unconstitutionality with which Section 163 is afflicted.
Moreover, even were we willing to take this step, still in Clark County it might be
impossible to utilize Section 126 to achieve the Legislature's plan for that area as originally
expressed, to-wit: that eight county-city commissioners from the four large districts should
govern the metropolitan area. Application of the one man, one vote concept might well
require that some of the eight county-city commissioner seats be downgraded to county
commissioner seats, and elected solely by voters from outside Las Vegas. See, Point II,
above.
Furthermore, of course, even were this court to restructure Sections 13 and 126 to
eliminate the above concerns, we note it would not now be possible for this court to order
either a redistricting which would comply with Section 126(4),
10
or an election which would
comply with section 99.
11
As Nevada's Attorney General pointed out in his written opinion
dated October 8, 1975, it was essential to any possible compliance with Section 126(4) that
the county adopt a constitutional districting plan no later than April 22, 1976.12 This case
was not even submitted to us until April 27, and were we now to order redistricting and
an election pursuant thereto, we would thereby have to accede to violation of the express
time limitation specified in Section 126{4) itself, and accept the prospect of ignoring
numerous other time limitations referred to by Section 99.
____________________

10
4. The board of county commissioners existing at the time a city therein becomes organized under the
Metropolitan Cities Incorporation Law, subject to the prior approval of the existing governing body of such city,
shall, not less than 90 days next preceding the last day for filing an affidavit of candidacy for the next general
election following such organization, adopt an ordinance dividing the county into seven county commissioner
districts.

11
Sec. 99. 1. All elections held under this chapter shall be governed by the provisions of the election laws
of the state, so far as such laws can be made applicable and are not inconsistent with this chapter.
2. The conduct of all municipal elections shall be under the control of the board of commissioners: The
board of commissioners shall adopt by ordinance all regulations which it considers desirable and consistent with
law and this chapter for the holding and conduct of municipal elections, for the prevention of fraud therein, and
for the recount of ballots in cases of doubt or fraud.
districting plan no later than April 22, 1976.
12
This case was not even submitted to us until
April 27, and were we now to order redistricting and an election pursuant thereto, we would
thereby have to accede to violation of the express time limitation specified in Section 126(4)
itself, and accept the prospect of ignoring numerous other time limitations referred to by
Section 99. See, for example: NRS 293.176; 293.177(1); 293.180(1); 293.183; 293.187;
293.200(5); 293.200(9); 293.205; 293.309(1); 293.560; 293.563.
For these reasons, therefore, and several others, we do not believe that Chapter 648 can be
implemented through the ostensibly general provisions of Section 126, consistently with our
law and constitutional principles. The first phase of the established two-pronged test of
severability is, therefore, not satisfied. Even so, we turn to consideration of the second phase
of that test.
2. As the district court saw, the Legislative proponents of Chapter 648 clearly drafted it
with intent that Clark County would be governed as provided in Section 163, and not by
Sections 13 and 126, either in their original form or as this court would have to restructure
them to meet the one man, one vote objections heretofore discussed. Thus, we think the
district court made the proper inquiry, and thereupon took the action contemplated by the
decisions heretofore cited.
13
If
____________________

12
Attorney General List expressly noted:
The city should complete its action to organize under the Metropolitan Cities Incorporation Law in
sufficient time to enable the county commissioners to adopt a districting ordinance by no later than April 22,
1976. This would comply with the requirements of Section 126(4) of Chapter 648 that a districting ordinance be
enacted by the county commissioners no later than 90 days before the last day for filing affidavits of candidacy
for the next general election following the organization of the city. The last day for filing affidavits of candidacy
for the next election is the third Wednesday in July, or July 21, 1976. NRS 293.177 and 293.200. AGO No.
194, p. 6, n. 2 (1975).
Thus, while the Attorney General thought portions of Chapter 648 could be implemented, he recognized
implementation would have to conform to Nevada law, which is not now possible.

13
It appears to us that the district judge predicated his ruling upon a number of sound considerations,
including that articulated by Mr. Justice Sutherland of the United States Supreme Court. In his written decision,
Judge Wendell noted:
The Court finds that the heart of SB 601 is found in Sections 163 through 167. They were enacted by the
legislature with full knowledge that corresponding sections appeared in the general law, Sections 126, 129 and
135, which could govern and would govern any other city and
the total Legislature had become aware of all the various constitutional infirmities already
discussed hereinso that a motion had been made and passed to strike the manifestly
unconstitutional portions of Sections 163 through 168, and of Sections 13 and 126we do
not believe the Legislature would thereupon have been willing to pass the remainder without
restructuring something better.
14
Nor are we at all persuaded that our Governor would, under
such circumstances, have signed Chapter 648 into law.
Therefore, also under the second phase of the two-pronged test generally recognized, we
hold that constitutionally objectionable portions of Chapter 648 are not severable from the
unconstitutional provisions hereinbefore discussed.
____________________
county coming within the act. The legislature chose to provide that Sections 163 through 167 would govern in
Las Vegas and Clark County notwithstanding these other Sections.
The Court further finds that it is apparent that the legislature did not intend for Clark County to district
itself, conduct an election, and after the election, at the option of the city commissioners and the county
commissioners, decide the manner of dividing services and functions within the county.
The Court finds that if the legislature had intended the provisions of the general act to apply in Clark
County they would not have enacted Sections 163 through 168.
The Court further finds that the legislature would not have enacted SB 601 without Sections 163 or through
Sections 168, nor would it now be satisfied with the Act with those sections stricken. The Court further finds that
the legislature would not have enacted SB 605 or SB 620 without SB 601.
Thus, Judge Wendell's last words echo those of Mr. Justice Sutherland: Perhaps a fair approach to a
solution of the problem is to suppose that while the bill was pending in Congress a motion to strike out the labor
provisions had prevailed, and to inquire whether, in that event, the statute should be so construed as to justify the
conclusion that Congress, notwithstanding, probably would not have passed the price-fixing provisions of the
code. Carter v. Carter Coal Co., cited above, at 313.

14
We note that the record affirmatively shows a number of legislators and their constituents were
apprehensive of Chapter 648, and acceded to it only after one of its chief legislative proponents assured them
that this bill has only application in the situation that has developed in the metropolitan areas of Clark County,
and that the committee sees no application of this bill in any other part of the State in the foreseeable future.
Certainly, this fact alone provides substantial reason to believe concerned legislators would not have voted for
the scheme, of which they admittedly were apprehensive, if it had been presented in a more general and
therefore more menacing form. See again, McDonald v. Beemer, cited above, in Point I.
IV
Built-In Bias Question
We turn next to another subtler, but equally serious constitutional infirmity which it is
argued would result regardless of whether governmental consolidation in Clark County be
implemented under Sections 13 and 126, rather than 163.
Now, we will consider whether those sections, which likewise contemplate that Las Vegas
residents will elect a predominant number of county-city commissioners to serve on both
city and county governing boards, are constitutionally sound; or whether, to the contrary, such
a scheme of local government violates constitutional principles by denying disfavored
residents of North Las Vegas, Henderson, and Boulder City, and unincorporated areas of
Clark County, equal access to the political system. As Nevada's able new Legislative Counsel
acknowledges, all of Chapter 648 must fall if, in the context of this case, its provisions for
two types of commissioners, of whom a minority are granted lesser perquisites than the
majority, constitute an invidious discrimination against citizens who can vote only for one of
the less potent commissioners. As the Legislative Counsel perceives, there is no possibility
that these fundamental provisions could be severed from Chapter 648 as a whole.
[Headnote 16]
At the outset, we note that there of course is no absolute constitutional prohibition against
consolidating city and county offices. (See, for example, State of Nevada v. Swift, 11 Nev.
128 (1876), which concerned legislation initially incorporating Carson City, and empowering
the Sheriff of Ormsby County to act as ex-officio marshal of Carson City.)
15
However, this
does not foreclose the prospect of an inherent constitutional infirmity.
At the outset, we also reject any suggestion that a plan comparable to the one contemplated
here was considered and approved by the High Court in Abate v. Mundt, 403 U.S. 1S2
{1971).
____________________

15
In the Swift case, this court noted: The duties imposed upon them as city officers are of the same character
as those which they are respectively required to perform as county officers, and there is no constitutional
inhibition against the exercise of the duties of a municipal office by a person holding a county office, when the
duties of each are of the same character. 11 Nev. at 139.
The instant legislation mixes duties which are inherently of a different nature. Swift involved executive and
ministerial duties, whereas the NRS Chapter 648 in reality lumps the legislative function of the county with that
of its major city.
approved by the High Court in Abate v. Mundt, 403 U.S. 182 (1971). The reapportionment
plan approved in Abate was based on population figures. There an 18-person county
legislature was chosen from five districts. Each district contained one of the five towns within
the county. The only mention of a dual board was under the previously existing plan. Under
that plan, the town supervisors from all towns, which encompassed the entire county, were
also county supervisors.
In its decision, the High Court stated: We emphasize that our decision is based on the
long tradition of overlapping functions and dual personnel in Rockland County government
and on the fact that the plan before us does not contain a built-in bias tending to favor
particular political interests or geographic areas. And nothing we say today should be taken to
imply that even these factors could justify substantially greater deviations from population
equality. But we are not prepared to hold that the Rockland County reapportionment plan
violates the Constitution, and, therefore, we affirm. 403 U.S. at 187.
No long tradition of overlapping functions and dual personnel exists in Clark County.
Further, as will be hereinafter discussed, and as the Legislative Counsel has virtually
acknowledged, the county-city commissioner system of NRS Chapter 648 contains a
built-in bias tending to favor particular political interests. This in mind, we turn to consider
the plan at hand.
[Headnotes 17-21]
It is, of course, well established that the right to vote is fundamental in a free democratic
society. Every citizen has an unalienable right to full, effective participation in the political
process. Whitcomb v. Chavis, 403 U.S. 124 (1971); Reynolds v. Sims, 377 U.S. 533 (1964).
Thus, a voter has the constitutional right to have his vote given as much weight as any other
vote and not to have his vote denied, debased, or diluted in any manner. Hadley v. Junior
College District, 397 U.S. 50, 52 (1970). These principles are applicable to the local
government process. Avery v. Midland County, 390 U.S. 474 (1968). Any alleged
infringement of this right must be carefully and meticulously scrutinized. Reynolds v. Sims,
cited above.
[Headnotes 22-24]
Appellants apparently believe that if the commissioner districts were somehow
apportioned with equal population, the one man, one vote principle would be satisfied. We
believe, however, that any such mechanical treatment of fundamental rights is
unsatisfactory.
rights is unsatisfactory. Equal apportionment is merely the starting point of any consideration.
Reynolds v. Sims, cited above. Population, itself, does not possess any talismanic quality in
fair representation cases. Indeed, to rely upon population statistics, to the exclusion of all
other factors, is to give these statistics greater sanctity than that which the law permits or
requires. Zimmer v. McKeithen, 485 F.2d 1297, 1303 (5 Cir. 1973). Even an equally
apportioned scheme can be objectionable where it operates to cancel, minimize, or dilute the
voting strength of a political interest group. Whitcomb v. Chavis, cited above at 143; Zimmer
v. McKeithen, cited above. We must, therefore, look behind the equal apportionment aspect
and ascertain whether Chapter 648 would cancel, minimize, or dilute the voting strength of
residents outside the corporate limits of Las Vegas.
The scheme of local government set forth in Chapter 648 does not require complete
consolidation of city and county government, but, instead, provides for two different
governing boards, one for each entity. The city board consists of commissioners elected from
districts within the municipal boundariesor, as Section 126 originally was written,
substantially within such boundaries. In addition, these same individuals also serve on the
county board. Thus, a voter within one of these districts is electing a representative who will
be serving his or her interests on two different boards. In contrast, a voter residing in a district
outside the major city would elect a representative who serves his or her interests only on the
county board.
Las Vegas provides a splendid example of how dilution of one's voting strength will occur.
There, a majority of the commissioners (originally specified as eight in number) would be
elected to govern the city. That same majority also would sit on the eleven-man county board.
At a city board meeting, the majority could decide to take action deemed in the best interest
of the city constituency, without thought to detriment that might result to the balance of the
county. They then could switch hats and go to the county board meeting to affirm their
previous action, purporting to act in the best interests of the entire county.
In these circumstances, the possible incursion of bad faith surely is a disturbing prospect;
however, even though the county-city commissioners might attempt to act in total good faith,
decisions or compromises reached at city board meetings would inevitably tend to restrict
meaningful discussion and compromise at later meetings of the county board. Once the Las
Vegas county-city commissioners determined the destinies of both the city and the county
at a city commission meeting, the subsequent county commission meeting would be a
matter of form, in many if not in all cases.
Las Vegas county-city commissioners determined the destinies of both the city and the county
at a city commission meeting, the subsequent county commission meeting would be a matter
of form, in many if not in all cases. Later efforts by the minority county commissioners, to
change earlier decisions, would at worst be totally foreclosed whenever the county-city
commissioners had arrived at firm understandings, express or tacit, in reaching their
consensus. At best, efforts to gain a reconsideration would likely be hampered because
individual county-city commissioners, having already considered the issue, would already
have made up their minds. In short, under the dual commissioner system structured in
Chapter 648, the county-city commissioners would effectively control the development and
growth of the major city, of the county, and of other cities within the countypaying little or
no heed to the mere county commissioners, just as they might choose. As compared to
county-city commissioners, the county commissioners, therefore, would have a severely
diminished capacity to represent their constituents' interests.
[Headnote 25]
Access to the political process is the barometer of dilution of voting strength. Zimmer v.
McKeithen, cited above. Can it be said that a voter in North Las Vegas, Henderson, Boulder
City or the unincorporated county areas has access to the political process merely because he
or she can participate in the election of a representative, when the statutory scheme denies
that representative an effective voice in governmental affairs? Manifestly, it cannot. This is
not the situation where an interest group has found itself outvoted and is thus without
representation. See Whitcomb v. Chavis, cited above. On the contrary, while residents outside
Las Vegas would elect representatives, those representatives would be without effective
political power to protect county interests conflicting with policies established by the
county-city commissioners acting in a vacuum on the city board. These lesser, second-class
commissioners could not provide representation responsive to the needs of the county. This
dilutes the votes of all those not favored by the plan, Zimmer v. McKeithen, cited above, and
we believe the dilution of one's vote merely because he or she resides outside Las Vegas
impairs basic constitutional rights just as much as invidious discrimination based on such
factors as race or economic status. Reynolds v. Sims, cited above.
During oral argument, Mr. Daykin, the Legislative Counsel, admitted that the
"county-city commissioners" could take unconscionable advantage of the "county
commissioners.
admitted that the county-city commissioners could take unconscionable advantage of the
county commissioners.
16
However, as apologia, Mr. Daykin suggested: (1) that we must
have faith in our elected officials; and (2) that the possibility of unconscionable action exists
even with independent boards.
[Headnote 26]
To the contrary, we believe that our constitutional form of government does not proceed
upon gratuitous assumptions of good faith. Instead, fundamental to our government is the
checks and balance system inherent in separation of power. Our Constitution, as its preamble
recites, is intended to secure the Blessings of Liberty to ourselves and our Posterity. Where
one group's political rights are left insecure, and another group is empowered to trample those
rights at will, we believe that it is no answer, from a Constitutional standpoint, to say the
former should not complain but should have trust in their fellow men and women.
Of course, it is true that the possibility of unconscionable action also exists even with
independent boards, just as unconscionable action is possible in most governmental affairs.
However, the scheme envisioned by Chapter 648 facilitates, almost mandates, the
commissioners representing the county's largest city to take unconscionable advantage, to
resolve matters among themselves, to become insensitive to the views of mere county
commissioners. Under Chapter 648, effective debate on a city issue affecting the county can
be foreclosed by a city meeting held prior to the county meeting. With independent boards,
the same decision might well be made at a city meeting. However, the city officials who
decided that issue would not be voting at the county meeting. Unconscionable or insensitive
predetermined action could still occur, but only through the bad faith actions of separate
individuals.
____________________

16
Gunderson: You would agree, would you not, that arguably, this places the commissioners of the City of
Las Vegasthe City-County Commissioners of Las Vegasin a position of tremendous advantage. Arguably, it
does, doesn't it?
Daykin: There are circumstances under which it might.
Gunderson: You would agree, would you not, that if the City-County seats for the City of Las Vegas were
occupied by men who wanted to take an unconscionable advantage over their fellow County Commissioners,
that they would be in a position to do so, would they not?
Daykin: I think that is true.
[Headnotes 27, 28]
While local government may need many innovations to meet changing urban conditions
and there is nothing to prevent experimentation to achieve the best result, still. the equality of
the voting rights cannot be debased or diluted. Hadley v. Junior College District, cited above.
Under the scheme set forth in Chapter 648, the voting strength of persons outside Las Vegas
is diluted and the political machinery is structured so that the Las Vegas county-city
commissioners may readily take unconscionable advantage of the other commissioners and
their constituents. Indeed, not only is Chapter 648 structured so that the county-city
commissioners can routinely decide issues without concern for the lesser county
commissioners, but they would be paid extra while doing so. See Sec. 13(5). Accordingly,
we believe that there exists a built-in bias tending to favor particular political interests.
In our view, in the instant case it is no answer to say that unfairness might also occur in a
system where built-in bias was absent. Certainly the manifest unfairness of a poll-tax could
not be justified by comparable meansi.e., by noting that, even absent the poll-tax, those
unfairly advantaged might successfully utilize other means to keep constitutionally-intended
Blessings of Liberty from all.
[Headnotes 29, 30]
The foregoing brings into focus related principles, concerning the propriety of having city
commissioners also serve on the county board, as here structured. Public policy demands that
an office holder discharge his duties with undivided loyalty. Kaufman v. Pannuccio, 295 A.2d
639 (N.J.App. 1972). By permitting city commissioners to sit on the county board, the
electors of both the city and county are deprived of undivided allegiance to their interests. See
People v. Bagshaw, 130 P.2d 243 (Cal.App. 1942). As noted in McDonough v. Roach, 171
A.2d 307 (N.J. 1961) at 309 and 310: [T]he county board is bound to consider the interests
of all of its citizens while the local governing body has a like obligation to the citizenry of the
municipality alone. No man, much less a public fiduciary, can sit on both sides of a
bargaining table. He cannot in one capacity pass with undivided loyalty upon proposals he
advances in his other role. * * * It is no answer to say that the conflict in duties . . . may
never in fact arise. It is enough that it may in the regular operation of the statutory plan.' V
V
V
Conclusion
In summary, then, we hold that commendable as governmental economy undoubtedly is as
a goal, and desirable as consolidation of governmental services in the City of Las Vegas and
conjacent areas may indeed therefore be, nonetheless Chapter 648 of the 1975 Statutes of
Nevada, as adopted, violates fundamental provisions and precepts of our state and federal
constitutions. Moreover, consistently with established law and legal principles, we deem it
neither proper nor possible to sever the constitutionally objectionable portions of Chapter
648, and thereafter to sanction and participate in belated local efforts to restructure and
implement the defective legislative scheme. Instead, we feel compelled to affirm the district
court, which held Chapter 648 void in its entirety. Thus, we trust, if consolidation
ultimately comes in Clark County, it will be benefited rather than burdened by well
intentioned efforts of the past.
In this opinion, we have addressed only the most obvious and egregious constitutional
defects in the statutory scheme now under consideration. By refraining to discuss other
contentions, we do not, however, necessarily indicate belief that the same lack merit.
Batjer, Mowbray, Thompson, and Zenoff, JJ., concur.
____________
92 Nev. 347, 347 (1976) Bartlett v. Board of Trustees
ROBERT BARTLETT, et al., Appellants, v. THE BOARD OF TRUSTEES OF THE WHITE
PINE COUNTY SCHOOL DISTRICT, Respondent.
No. 8434
June 7, 1976 550 P.2d 416
Appeal from judgment; Seventh Judicial District Court, White Pine County; Joseph O.
McDaniel, Judge.
Appeal was taken from a judgment of the district court refusing to enjoin decision of the
White Pine County School Board to close Lund High School with approximately 30 students,
and to bus them 40 miles to the White Pine High School in Ely where 700 to S00 students
are enrolled. The Supreme Court, Thompson, J., held that the information before the
School Board could not reasonably be viewed to support the closure of Lund High.
School in Ely where 700 to 800 students are enrolled. The Supreme Court, Thompson, J.,
held that the information before the School Board could not reasonably be viewed to support
the closure of Lund High.
Reversed.
Hilbrecht, Jones, Schreck & Bybee, of Las Vegas, for Appellants.
Julian C. Smith, Jr., of Carson City, for Respondent.
When a school board's exercise of conferred power is challenged through a court proceeding, court
inquiry is limited to the record of information presented to the Board, and the court's purpose is to ascertain
whether, upon such information, the Board acted arbitrarily, capriciously, and abused its discretion. NRS
386.350, 392.300, 393.080, 393.150.
1960 study of the White Pine County Schools prepared by consultants from the University of Nevada,
which study suggested that the school administration consider closing Lund High and transporting its
students to Ely, was not relevant to the circumstances facing the School Board in 1975.
Information before School Board, which voted to close Lund High School with approximately 30
students and bus them 40 miles to the White Pine High School in Ely where 700 to 800 students were
enrolled, could not reasonably be viewed to support the closure of Lund High, considering, inter alia, that
the achievement test comparison between the students of the two schools was not accurate and of no value
for educational comparison purposes, and that expert testimony indicated that bussing of the students 80
miles per day would have a negative effect upon their achievement, reduce the quality of education
provided for them, and reduce their participation in school activities. NRS 386.350, 392.300,
393.080, 393.150.
OPINION
This appeal is from a judgment of the district court refusing to enjoin the decision of the
White Pine County School Board to close Lund High School with approximately 30 students,
and to bus them 40 miles to the White Pine High School in Ely where 700 to 800 students are
enrolled. The Board consists of 7 members. The vote for closure was 4 to 3. It was contended
below, and now in this court, that the information before the Board which prompted a
majority to favor closure was erroneous and the decision, therefore, arbitrary and
capricious.
below, and now in this court, that the information before the Board which prompted a
majority to favor closure was erroneous and the decision, therefore, arbitrary and capricious.
Lund High School had been in existence for more than 50 years serving the Lund, Preston
and White River Valley communities as an educational, cultural and social center. The area is
primarily agricultural in character. Although the curriculum at Lund High was less broad than
that offered at White Pine High, it was specially structured to meet the needs of an
agricultural area in that it offered a vocational-agricultural course (home economics for girls;
mechanics, stock raising and farming for boys) not offered at White Pine. Every student at
Lund High took that course.
The teacher-pupil ratio at Lund was approximately 1 to 9, and at White Pine, 1 to 17. It
costs about twice as much to educate a student at Lund as it does at White Pine.
The matter of closing Lund High first was presented to the Board at executive session by
Arthur Anderson, a new member. One month later, at a regular meeting of the Board, Mr.
Anderson moved to close Lund High. His motion was based solely upon his personal study of
the financial condition of the White Pine School District. His study projected a $75,000
deficit for the 1975-76 school year which he proposed to eliminate by closing Lund High. His
motion was seconded, but action thereon deferred until March 10, 1975, the next regular
meeting of the Board. Insofar as the record reveals, the Superintendent of the School District
had not recommended the closure of Lund High at any time.
The March 10 public meeting was well attended. Approximately 32 citizens and 3 board
members spoke in favor of keeping Lund High open. Two board members spoke for closure.
When the meeting concluded, the Board voted 4 to 3 for closure.
The White Pine County Grand Jury, the County Commissioners and the three dissenting
board members requested reconsideration. Their request was accommodated and another
hearing was held on April 10. Notwithstanding the apparent public sentiment to keep Lund
High viable, the vote of the members of the School Board did not change. This litigation
followed.
The Board of School Trustees is given the power . . . as may be requisite to attain the end
for which the public schools are established and to promote the welfare of school children
including the establishment and operation of schools deemed necessary and desirable. NRS
386.350. Moreover, the Board specifically is invested with authority to change the location
of schools, NRS 393.0S0, and school-house sites, NRS 393.150, and to furnish
transportation for pupils, NRS 392.300.
specifically is invested with authority to change the location of schools, NRS 393.080, and
school-house sites, NRS 393.150, and to furnish transportation for pupils, NRS 392.300.
[Headnote 1]
When the Board's exercise of conferred power is challenged through a court proceeding,
court inquiry is limited to the record of information presented to the Board, and the court's
purpose is to ascertain whether, upon such information, the Board acted arbitrarily,
capriciously, and abused its discretion. Urban Renewal Agcy. v. Iacometti, 79 Nev. 113, 118,
379 P.2d 466 (1963).
The district court found that the Board had acted within permissible limits of its discretion.
The key to its ruling is the finding that the information before the Board of Trustees as to the
achievement test comparison between Lund High School and White Pine High School was
not accurate, and that the amount of savings originally alleged by Trustee Anderson was not
correct. However, the fact that it costs twice as much to educate a high school student at Lund
as it does at White Pine, and that there is a broader curriculum with counselors at White Pine
and a more challenging educational and social environment resulting from the bussing of the
Lund High School students to Ely, has not been refuted and was relied upon by the four
members of the Board of Trustees to close the Lund High School.
We also have reviewed the record of information presented to the Board. The single item
which motivated Trustee Anderson originally to move for the closure of Lund High was his
bona fide belief that such closure would be of assistance in meeting a financial crisis. His
belief rested upon misinformation and was grossly in error. We agree with the district court
that the amount of savings originally alleged by Trustee Anderson was not correct.
Moreover, we are in accord with the district court that the achievement test comparison
between the students of the two schools was not accurate and of no value for educational
comparison purposes. It also is clear from the record that it costs approximately twice as
much to educate a high school student at Lund as it does at White Pine. This, however,
inevitably is true whenever a per-pupil cost comparison is made between a rural and an urban
school. Consequently, we do not, as did the majority of the trustees and the district court,
attribute persuasive force to this statistic. To do so would place the continued existence of
rural high schools in extreme jeopardy.
We, therefore, do not consider that finding supportive of closure.
Finally, as above noted, the district court found that a majority of the Board voted to close
Lund High because of the broader curriculum at White Pine and a more challenging
educational and social environment.
The curriculum at White Pine is broader in scope than that offered at Lund. Like the
per-pupil cost comparison, this also may be an inevitable difference between a rural and an
urban school. However, it does not necessarily follow from this alone that the quality of
education is superior at White Pine when other relevant factors are considered.
On this point, which we deem to be the central issue within the context of this case, the
Board was advised by an expert that the bussing of high school students 80 miles a day has a
negative effect upon their achievement, reduces the quality of education provided for them,
and reduces their participation in school activities. He noted especially the adverse effect of
transferring Lund students out of a small class size situation into a larger class size situation.
He concluded as follows: It is my opinion that the students and community of Lund will lose
a great deal by the closure of its high school. While the school may not have the latest of
equipment and the finest of facilities, the community setting, the community's respect and
involvement in school activities and the student's opportunity to attend small classes cannot
be ignored. The community of Lund has something very precious to American Education
which has been deteriorating in larger communities, and that is the close relationship of the
home and the school. These are two very powerful influences which shape the life of future
citizens. The positive result when these two influences work hand in hand is obvious. That
situation presently exists in the Lund community and the Lund High School.
[Headnote 2]
The quoted statement finds support in much of the other information supplied to the
Board. Indeed, we find nothing otherwise in the record except a 1960 study of the White Pine
County Schools prepared by consultants from the University of Nevada. That ancient study
suggested that the school administration consider closing Lund High and transporting its
students to Ely. That suggestion was not followed by the administration or the Board. We
deny the relevancy of the 1960 study to the circumstances facing the Board in 1975, and
conclude that it was offered as an excuse rather than a reason for its action.
conclude that it was offered as an excuse rather than a reason for its action.
[Headnote 3]
For the reasons expressed we do not believe that the information before the Board
reasonably may be viewed to support the closure of Lund High. Henderson v. Henderson
Auto, 77 Nev. 118, 122, 359 P.2d 743 (1961). Therefore, we annul that action and direct that
Lund High School be reopened commencing with the 1976-77 school year.
Reversed.
____________
92 Nev. 352, 352 (1976) Ursino v. State
RENE MARY URSINO and STEVEN DONALD HEIAR, Appellants,
v. THE STATE OF NEVADA, Respondent.
No. 8545
June 7, 1976 550 P.2d 411
Appeals from judgments of conviction; Second Judicial District Court, Washoe County;
William N. Forman, Judge.
Defendants were convicted in the district court of certain drug offenses, and they appealed.
The Supreme Court held that where refused instructions were fully explained by other
instructions which court gave to jury, refusal was not error; and that rebuttal testimony given
by police officer concerning conversation with first defendant prior to administering
polygraph examination was not a relating of results of polygraph test, and thus was properly
admitted.
Affirmed.
Phillip Bartlett, Deputy Public Defender, Washoe County, for Appellants.
Larry R. Hicks, District Attorney, and Kathleen M. Wall, Assistant Chief Deputy District
Attorney, Washoe County, for Respondent.
1. Criminal Law.
Where refused instructions at trial of defendants for certain drug offenses, one concerning entrapment,
and other regarding lesser included offense, were fully explained by other instructions
which court gave to jury, refusal to give instructions was not error.
92 Nev. 352, 353 (1976) Ursino v. State
lesser included offense, were fully explained by other instructions which court gave to jury, refusal to give
instructions was not error.
2. Criminal Law.
Rebuttal testimony given by police officer concerning conversation with first defendant charged with
drug offenses prior to administering polygraph examination was not a relating of results of polygraph test,
and thus was properly admitted.
OPINION
Per Curiam:
The appellants request this court to set aside their convictions for drug offenses contending
that the trial court erred in refusing to give certain instructions to the jury and in receiving
certain rebuttal testimony. Neither contention has merit.
[Headnotes 1, 2]
The refused instructions, one concerning entrapment, and the other regarding a lesser
included offense, were fully explained by other instructions which the court gave to the jury.
Ricci v. State, 91 Nev. 373, 536 P.2d 79 (1975). The rebuttal testimony was given by a police
officer concerning a conversation with Appellant Heiar prior to administering a polygraph
examination. The testimony was properly admitted. Gardner v. State, 91 Nev. 443, 537 P.2d
469 (1975). The conversation which the officer related was not the result of the polygraph
test. Cf. Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974).
The convictions are affirmed.
____________
92 Nev. 353, 353 (1976) Privette v. Faulkner
ALVAN L. PRIVETTE, Jr., Appellant, v. GUY FAULKNER, Special Administrator of the
Estate of EVERETT A. BURKE, Deceased, Respondent.
No. 7992
June 7, 1976 550 P.2d 404
Appeal from jury verdict for defendant and judgment entered thereon and from order
denying plaintiff's motion for judgment notwithstanding the verdict or for a new trial. Second
Judicial District Court, Washoe County; Thomas O. Craven, Judge.
Action was brought against automobile owner for injuries sustained in automobile
accident. The Supreme Court, Zenoff, J., held that refusal to instruct jury that owner of
vehicle, absent direct evidence, is presumed to be driver if he is riding in vehicle at time of
accident required reversal.
sustained in automobile accident. The Supreme Court, Zenoff, J., held that refusal to instruct
jury that owner of vehicle, absent direct evidence, is presumed to be driver if he is riding in
vehicle at time of accident required reversal.
Reversed and remanded for new trial.
Gunderson, C. J., and Mowbray, J., dissented.
Erickson, Thorpe & Swainston, of Reno, for Appellant.
Echeverria & Osborne, of Reno, for Respondent.
1. Evidence.
Direct evidence is evidence which, if believed, proves fact in issue without aid of an inference.
2. Automobiles.
Fact that legislature did not include presumption that, absent direct evidence, vehicle owner is presumed
to be driver if he is riding in vehicle at time of accident in statute which lists disputable presumptions did
not preclude its existence as presumption since list is illustrative, not exclusive. NRS 47.250.
3. Automobiles.
Absent direct evidence, owner of vehicle is presumed to be driver if he is riding in vehicle at time of
accident.
In action brought against automobile owner for injuries sustained in automobile accident, refusal to
instruct jury that owner of vehicle is presumed to be driver if he is riding in vehicle at time of accident
required reversal where there was substantial conflict in record as to who was driving automobile at time of
accident, there was no direct evidence bearing on identity of driver, and there was no way to ascertain
whether plaintiff was denied recovery at trial because jury would not speculate as to who was driving car or
whether he was denied recovery because it was found that he was contributorily negligent or that he
assumed the risk. NRS 47.180, 47.200.
OPINION
On October 16, 1971, braced with several sips from a bottle of brandy, Alvan L. Privette,
Jr., Everett Burke and Luke Aluevich, all of Reno, embarked upon a hunting trip to eastern
Nevada. Burke, owner of the vehicle, began the driving chores and was known to be the
driver until the party reached Fernley, Nevada. After passing through Fernley, neither Burke
nor Privette remembered anything including the identity of the driver of Burke's automobile
until after the tragic accident which took the life of Luke Aluevich.
Twenty miles east of Lovelock, Nevada, the Burke vehicle narrowly passed a vehicle
driven by Mathias Meehan, swerved in front of a semi-truck and trailer in the right lane, hit a
roadside sign, swung back into the highway separation dividing the lanes of the expressway,
struck Meehan's automobile, careened into a ditch, became airborne for approximately 80 feet
and then flipped end over end until it came to rest. All three men were thrown from the
vehicle. Aluevich was killed almost immediately and Privette and Burke were badly injured.
At trial, Meehan testified that he was traveling approximately 75 miles per hour when he was
overtaken by the Burke vehicle whose speed he estimated to be approximately 90 miles per
hour.
Privette commenced an action for his injuries against Burke who later died from causes
not related directly to the accident. The suit was continued against the Special Administrator
of Burke's estate and culminated in a jury verdict in favor of the defendant.
On appeal, we are presented with the following issues:
1. Did the trial court err in refusing to instruct the jury that, absent direct evidence, there
exists a presumption that the owner of a vehicle is the driver if he is riding in it at the time of
an accident?
2. Was it error for the trial court to permit counsel to tell the jury in closing argument that
contributory negligence in any degree would preclude recovery?
3. Was error committed when the trial court gave a jury instruction reciting verbatim a
criminal statute defining principals to a crime?
4. In view of the nature and character of the evidence produced at trial, was it error for the
trial court to instruct the jury on the defense of assumption of risk?
At trial, the circumstantial evidence establishing the identity of the driver at the time of the
accident was conflicting. Burke, owner of the nearly new automobile, was known to be
driving from the time it was loaded with supplies to the time the hunting party drove through
Fernley. The party had scheduled no stops until reaching Lovelock. Privette remembers that
he was in the back seat, Aluevich in the front passenger's seat and that Burke was driving.
Burke's physical injuries arguably suggested that he struck the steering wheel upon exiting the
vehicle. However, neither Privette nor Burke could remember who was driving at the time of
the mishap nor any of the details.
Evidence consisting of the position of the bodies after the accident, the nature of their
respective injuries, past experience of others on prior hunting and fishing trips with Privette
and Burke where Privette had taken over the driving chores when he felt Burke was too
intoxicated to drive and other evidence indicating that Burke habitually would turn over
the driving duties to other companions on such trips contradicted the positive evidence
that he was the driver.
of others on prior hunting and fishing trips with Privette and Burke where Privette had taken
over the driving chores when he felt Burke was too intoxicated to drive and other evidence
indicating that Burke habitually would turn over the driving duties to other companions on
such trips contradicted the positive evidence that he was the driver.
[Headnote 1]
That Privette may have been driving the car at the time of the accident obviously is of
great importance in determining the issue of Burke's negligence. None of the evidence
presented at trial could be characterized as direct evidence bearing on the issue as to the
identity of the driver. Direct evidence is evidence which, if believed, proves the fact in issue
without the aid of an inference. Berger v. People, 224 P.2d 228 (Colo. 1950); Sullivan v.
Mountain States Power Co., 9 P.2d 1038 (Ore. 1932). Thus, if the law of this state embraces
the owner-driver presumption, the jury should have been instructed accordingly. See NRS
47.200.
Presumptions are no more than rules of evidence predicated on probability and general
experience, which, in the present context, is to say that experience has shown that the owner
of a vehicle if present in the vehicle is likely to be its driver. This experience translates into
an identical probability which, together, form the foundation for the owner-driver
presumption. See Thayer, A Preliminary Treatise on Evidence at the Common Law, 314
(1898).
[Headnote 2]
Because the legislature did not include the owner-driver presumption in NRS 47.250
1
which lists disputable presumptions of that type, does not preclude its existence.
____________________

1
NRS 47.250 Disputable presumptions. All other presumptions are disputable. The following are of that
kind:
1. That an unlawful act was done with an unlawful intent.
2. That a person intends the ordinary consequences of his voluntary act.
3. That evidence willfully suppressed would be adverse if produced.
4. That higher evidence would be adverse from inferior being produced.
5. That money paid by one to another was due to the latter.
6. That a thing delivered by one to another belonged to the latter.
7. That things which a person possesses are owned by him.
8. That a person is the owner of property from exercising acts of ownership over it, or from common
reputation of his ownership.
9. That official duty has been regularly performed.
10. That a court or judge, acting as such, whether in this state or any other state or country, was acting in the
lawful exercise of his jurisdiction.
of that type, does not preclude its existence. The list is illustrative, not exclusive. See People
v. Agnew, 107 P.2d 601, 604-05 (Cal. 1940).
[Headnote 3]
The weight of authority, it appears, favors the owner-driver presumption. Brayman v.
National State Bank of Boulder, 505 P.2d 11 (Colo. 1973); Sprader v. Mueller, 121 N.W.2d
176 (Minn. 1963); Moore v. Watkins, 293 S.W.2d 185 (Tenn. App. 1956); cf. Rocky Mt.
Produce v. Johnson, 78 Nev. 44, 369 P.2d 198 (1962), and Zimmerman v. District Court, 74
Nev. 344, 332 P.2d 654 (1958); contra, Fidelity & Casualty Co. of N.Y. v. Western Cas. & S.
Co., 337 S.W.2d 566 (Mo. App. 1960), but compare Campbell v. Fry, 439 S.W.2d 545
(Mo.App. 1969). The rationale supporting the majority view is persuasive and we now
formally acknowledge the existence of such a presumption as embodied within the law of this
state.
[Headnote 4]
As previously stated, there is substantial conflict in the record as to who was driving the
car at the time of the accident. At this juncture in the proceedings, we have no way of
ascertaining whether Privette was denied recovery at trial because the jury would not
speculate as to who was driving the car or whether he was denied recovery because it was
found that he was contributorily negligent or that he assumed the risk. However, an
examination of the record does not obviate the possibility that the jury, heeding the court's
admonition against speculation, denied recovery to Privette because the circumstantial
evidence presented by both sides was too equivocal and so hopelessly conflicting as to
support anything but speculation.
____________________
11. That a judicial record, when not conclusive, does still correctly determine or set forth the rights of the
parties.
12. That a writing is truly dated.
13. That a letter duly directed and mailed was received in the regular course of the mail.
14. That a person not heard from in 7 years is dead.
15. That a child born in lawful wedlock is legitimate.
16. That the law has been obeyed.
17. That a trustee or other person, whose duty it was to convey real property to a particular person, has
actually conveyed to him, when such presumption is necessary to perfect the title of such person or his successor
in interest.
18. In situations not governed by the Uniform Commercial Code:
(a) That an obligation delivered up to the debtor has been paid.
(b) That private transactions have been fair and regular.
(c) That the ordinary course of business has been followed.
(d) That there was good and sufficient consideration for a written contract.
so hopelessly conflicting as to support anything but speculation. Had the instruction on the
owner-driver presumption been given as requested, the burden of proof would have shifted to
the defendant to counter the presumption and the result, very likely, would have been
different. NRS 47.180.
2

Because reversal for a new trial is warranted, further discussion of additional purported
errors is unnecessary. However, we note some merit in the issues advanced which can be
avoided at retrial.
Batjer and Thompson, JJ., concur.
Gunderson, C. J., dissenting:
I respectfully dissent.
The majority here reverse a jury's solemn verdict, made after assessing all the evidence in
the light of their combined wisdom, because the district court declined to instruct the jury to
accord special and continuing weight to one item of evidence, i.e., ownership of the vehicle
all the travelers were using.
Concerning this, my brethren say that the weight of authority recognizes the existence of
a presumption that the owner of the vehicle was driving, if such vehicle was involved in an
accident. However, while I note that although the majority cite a total of seven cases, only
three of those cases even colorably support their position,
1
and of those three at least one is
based upon an express statute.
2
Two of the remaining cases hold against any owner-driver
presumption whatever,
3
and the others are not even remotely in point.
4
My very limited
____________________

2
NRS 47.180 Presumptions generally: Effect; direct evidence.
1. A presumption, other than a presumption against the accused in a criminal action, imposes on the party
against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable
than its existence.
2. As applied to presumptions, direct evidence means evidence which tends to establish the existence or
nonexistence of the presumed fact independently of the basic facts.

1
Brayman v. National State Bank of Boulder, 505 P.2d 11 (Colo. 1973); Sprader v. Mueller, 121 N.W.2d
176 (Minn. 1963); Moore v. Watkins, 293 S.W.2d 185 (Tenn.App. 1956).

2
Moore v. Watkins, cited note 1.

3
Fidelity & Casualty Co. of N.Y. v. Western Gas & S. Co., 337 S.W.2d 566 (Mo.App. 1960); Campbell v.
Fry, 439 S.W.2d 545 (Mo. App. 1969).

4
Rocky Mt. Product v. Johnson, 78 Nev. 44, 369 P.2d 198 (1962); Zimmerman v. District Court, 74 Nev.
344, 332 P.2d 654 (1958).
research has revealed at least five cases wherein the existence of any owner-driver
presumption was rejected.
5
Thus, if adding up the decisions for and against my brethren's
position is significant, I am not at all sure they gain support from the exercise.
Moreover, I note that at least some states which recognize an owner-driver presumption
do so only in the context of another rule, which recognizes that such presumption
evaporates when any contrary evidence is adduced.
6
That is the case in two, if not all three,
of the states upon whose decisions my brethren rely.
7
However, it would not be the case in
Nevada, for in Nevada, when a true presumption is recognized, it not only fixes the burden of
going forward with evidence, but shifts the burden of proof.
8

In the instant case, there was evidence that Privette, rather than Burke, was driving.
9
Thus, in Tennessee and Colorado, upon whose decisions my brethren rely, Privette would not
be entitled to an instruction concerning an owner-driver presumption, because such
presumption would have evaporated as soon as Burke met his burden of going forward with
evidence. However, under the Nevada mutation of the Tennessee-Colorado rule, which my
brethren here adopt, the case is otherwise; and as my brethren candidly state, despite Burke's
evidence, allowing Privette such an owner-driver presumption, the result, very likely, would
have been different. (If my brethren adopted an evaporating presumption, like that
recognized by the decisions they cite, the result would not be affected at all, of course.)
The Missouri Supreme Court has said: The recognition of such a presumption goes too
far and so interferes with the plaintiff's burden of proof as to make its adoption unwise.
____________________

5
Fidelity & Casualty Co. of N.Y. v. Western Gas & S. Co., cited note 3; Cambell [Campbell] v. Fry, cited
note 3; Morris v. Bigham, 170 S.E.2d 534 (N.C.App. 1969); Greene v. Nichols, 161 S.E.2d 521 (N.C. 1968);
Parker v. Wilson, 100 S.E.2d 258 (N.C. 1957).

6
Brayman v. National State Bank of Boulder, cited note 1, in connection with American Ins. Co. v. Naylor,
70 P.2d 349 (Colo. 1937); Lawing v. Johnson, 355 S.W.2d 465 (Tenn.App. 1961); Rodney v. Staman, 89 A.2d
313 (Pa. 1952), in connection with Waters v. New Amsterdam Casualty Company, 144 A.2d 354 (Pa. 1958).

7
Moore v. Watkins, cited note 1; Brayman v. National State Bank of Boulder, cited note 1, in connection
with American Ins. Co. v. Naylor, cited note 6.

8
NRS 47.180(1) and NRS 47.200(3).

9
Privette testified that Burke frequently turned the driving over to him when drinking. Carl Reese and Mrs.
Burke testified similarly. Injuries sustained by Burke and Privette arguably might sustain a finding that Burke
was not driving.
such a presumption goes too far and so interferes with the plaintiff's burden of proof as to
make its adoption unwise. In addition, the recognition of such a far-reaching proposition
properly belongs to the legislature, rather than to the judicial branch of our state government.
10
Indeed, one even may question whether such a presumption is constitutional, or, rather, is
so lacking in rational basis as to offend due process.
11

Rationally, Burke's ownership of the vehicle these travelers were using was but one piece
of evidence, having slight significance compared to other evidentiary matters considered by
the jury. They obviously saw this, and accorded his ownership no more significance than it
was worth, considered in the light of all other known facts. My brethren, however, would
undo the jury's work, exalt the fact of Burke's ownership above all other facts, holding it
significant not only as evidence, but sufficient in and of itself to shift, permanently, from
plaintiff to defendant, the burden of proving who was driving, when the vehicle occupied by
all left the road.
Mowbray, J., concurs.
____________________

10
Fidelity v. Casualty Co. of N.Y. v. Western Gas & S. Co., 337 S.W.2d 566, 572.

11
See for example: Western & Atl. R. Co. v. Henderson 279 U.S. 639 (1929), striking a presumption which
affected the burden of persuasion.
____________
92 Nev. 360, 360 (1976) Wheby v. Warden
EARL M. WHEBY, Jr., Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 8825
EARL MELVIN WHEBY, Appellant, v. THE STATE
No. 8824
June 7, 1976 550 P.2d 419
Appeals from (1) order which vacated sentence but denied petition to withdraw guilty
plea; and, (2) order resentencing; Second Judicial District Court, Washoe County. Roy L.
Torvinen and Peter I. Breen, Judges.
The Supreme Court held that having offered no reasonable explanation for his failure to
present issues which were raised in post-conviction relief application but which might
properly have been raised on direct appeal, petitioner would not now be heard to
complain of the alleged errors that existed at the time his appeal was in progress, the
pursuit of which he voluntarily abandoned.
have been raised on direct appeal, petitioner would not now be heard to complain of the
alleged errors that existed at the time his appeal was in progress, the pursuit of which he
voluntarily abandoned.
Both orders vacated, original sentence reinstated.
Earl Melvin Wheby, Jr., In pro per, Carson City.
Robert List, Attorney General, Carson City; Larry Hicks, District Attorney, Washoe
Criminal Law.
Having offered no reasonable explanation for his failure to present issues which were raised in
post-conviction relief application but which might properly have been raised on direct appeal, petitioner
would not now be heard to complain of the alleged errors that existed at the time his appeal was in
progress, the pursuit of which he voluntarily abandoned. NRS 177.375, subd. 2(b).
OPINION
Per Curiam:
Earl Melvin Wheby, Jr., entered a plea of guilty to the charge of attempted murder and, on
August 28, 1975, was sentenced to an eight (8) year term in the Nevada State Prison. On
September 4, 1975, he timely filed an in pro per notice of appeal. The appeal was voluntarily
dismissed November 26, 1975, pursuant to a stipulation of counsel, which was personally
signed and approved by Wheby.
On October 22, 1975, while the direct appeal was pending, Wheby filed an in pro per
petition for post-conviction relief in the district court, contending inter alia, he should be
permitted to withdraw his guilty plea. This contention was available to him in his direct
appeal. The district judge refused to permit Wheby to withdraw the guilty plea; however, he
vacated the eight (8) year sentence and referred the matter to another district judge for
resentencing. Wheby filed an in pro per appeal from the portion of the order which refused to
permit him to withdraw his guilty plea. (Wheby v. Warden, Nevada State Prison, No. 8825.)
Shortly after the original eight (8) year sentence was vacated, another district judge
resentenced Wheby to an eight (8) year term in the Nevada State Prison. Wheby has also
perfected an in pro per appeal from the resentencing. (Wheby v. State of Nevada, No. 8824.)
The two appeals are hereby consolidated.
In the procedural posture of these two appeals we need not, and do not, consider their
merit, if any.
When the post-conviction petition was initiated, Wheby's direct appeal was in progress. He
could haveand should havepursued the appeal. See NRS 177.375(2)(b). In Sanchez v.
Warden, 89 Nev. 273, 275, 510 P.2d 1362, 1363 (1973), where, as here, a defendant's direct
appeal had been dismissed at his own request, we said: A post-conviction proceeding is not
a method of obtaining a retrial of the case or a consideration of questions which might have
been raised on appeal.' See also, Johnson v. Warden, 89 Nev. 476, 477, 515 P.2d 63, 64
(1973), where we ruled . . . that this court will consider as waived those issues raised in a
post-conviction relief application which might properly have been raised on direct appeal,
where no reasonable explanation is offered for petitioner's failure to present such issues.
Wheby, having offered no such explanation, will not now be heard to complain of alleged
errors, which existed at the time the appeal was in progress, the pursuit of which he
voluntarily abandoned.
Accordingly, and under these circumstances, neither appointment of counsel nor briefing
is warranted. Wheby's contention in the in pro per petition for post-conviction relief was not
cognizable below; therefore, both the order vacating the original sentence and the order
resentencing Wheby are null and void and are hereby, sua sponte, vacated. The original
sentence imposed on Wheby is reinstated.
____________
92 Nev. 362, 362 (1976) Tripp v. City of Sparks
RICHARD GEORGE TRIPP, Appellant, v.
THE CITY OF SPARKS, Respondent.
No. 8851
June 7, 1976 550 P.2d 419
Appeal from judgment of Second Judicial District Court, Washoe County; James J.
Guinan, Judge.
Defendant was convicted in the Municipal Court, City of Sparks, of driving under the
influence of intoxicating liquor. He lodged an unsuccessful appeal to the district court.
Defendant assumed to appeal to the Supreme Court. The Suprerne Court held that the district
court had final appellate jurisdiction over the municipal court conviction, which was not
subject to further review by appeal to the Supreme Court.
Appeal dismissed.
92 Nev. 362, 363 (1976) Tripp v. City of Sparks
Brown & Albright, Chartered and Harold G. Albright, Reno, for Appellant.
Paul W. Freitag, City Attorney, Sparks, for Respondent.
Municipal Corporations.
District court had final appellate jurisdiction over municipal court conviction, which was not subject to
further review by appeal to Supreme Court. NRS 3.190, subd. 2, 266.595; Const. art. 6, 6.
OPINION
Per Curiam:
An amended criminal complaint, filed in the Municipal Court of the City of Sparks,
charged Richard George Tripp with violating 10.44.010 of the Sparks Municipal Code
(driving under the influence of intoxicating liquor).
After being adjudicated guilty of the charged offense in the municipal court, Tripp lodged
an unsuccessful appeal to the Washoe County District Court; and, he has now attempted a
further appeal to this court.
Tripp's municipal court conviction is not subject to further review by appeal to this court.
District courts have final appellate jurisdiction in cases arising in municipal courts. Nevada
Constitution, Art. 6, 6; NRS 3.190(2). Compare: City of Las Vegas v. Carver, 92 Nev. 198,
547 P.2d 688 (1976). See also, NRS 266.595; Waugh v. Casazza, 85 Nev. 520, 458 P.2d 359
(1969). Accordingly, we
ORDER the appeal dismissed.
____________
92 Nev. 363, 363 (1976) First Commercial Title v. Holmes
FIRST COMMERCIAL TlTLE, INC., a Nevada Corporation, Appellant, v. ALVALETTA Z.
HOLMES and MARION H. PARSONS, Respondent.
No. 8202
June 17, 1976 550 P.2d 1271
Appeal from summary judgment enforcing due-on-sale clause in favor of beneficiary of
deed of trust. Second Judicial District Court, Washoe County; James J. Guinan, Judge.
Property owner brought action to enjoin sale by trustees under deed of trust. The district
court found due-on-sale clause in deed of trust valid and enforceable, and owner appealed.
The Supreme Court, Zenoff, J., held that such clause did not constitute an unreasonable
restraint on alienation and was not inequitable or violative of public policy, but that an
award of attorney fees to trustees was not justified.
in deed of trust valid and enforceable, and owner appealed. The Supreme Court, Zenoff, J.,
held that such clause did not constitute an unreasonable restraint on alienation and was not
inequitable or violative of public policy, but that an award of attorney fees to trustees was not
justified.
Streeter, Sala & McAuliffe and Gary Nelson, of Reno, for Appellant.
Breen, Young, Whitehead & Hoy, of Reno, for Respondents.
1. Mortgages; Perpetuities.
Due-on-sale clause in deed of trust did not constitute an unreasonable restraint on alienation and was
not inequitable or violative of public policy.
2. Mortgages.
Due-on-sale clause in deed of trust is entitled to automatic enforcement where there is an outright sale
by trustor-vendor.
3. Mortgages.
Due-on-sale clause in a deed of trust is not absolute and may be vulnerable to certain defenses such as
waiver, but trustor has burden of establishing grounds for unenforceability.
4. Mortgages.
Award of attorney fees to trustees under deed of trust in property owner's action to enjoin sale by trustees
was not justified, though promissory note, which was secured by deed of trust, provided that attorney fees
could be recovered in case any suit or legal or equitable action is instituted to collect any amounts owed
on note. NRS 18.010, subd. 1.
OPINION
We are asked to reject a due-on-sale clause in a deed of trust as an unreasonable restraint
on alienation. The clause in question appears in a deed of trust executed in conjunction with
the sale of certain real property located in Reno, Nevada. It provides:
In the event that Trustor shall sell or contract to sell the parcel of land hereby encumbered
without first obtaining the written consent of Beneficiary, the balance of principal and interest
that shall then remain unpaid on the obligation secured by this Deed of Trust shall forthwith
become due and payable although the time of maturity as expressed therein shall not have
arrived.
[Headnote 1]
Prior to the conveyance which precipitated this lawsuit, the encumbered property changed
ownership several times. On each occasion, the trustor sought and was granted authorization
by the beneficiaries to transfer the property and to allow the new purchaser to assume the
obligation secured by the deed of trust. As the result of apparent neglect on the part of the
escrow agent, appellant herein, respondents' consent to the last conveyance was never
secured. Consequently, default was declared and this action was commenced to enjoin the
impending trustee's sale. Ruling on opposing motions for summary judgment, the trial court
declared the due-on-sale clause valid and enforceable. We are in agreement with the lower
court that such a clause does not constitute an unreasonable restraint on alienation and
otherwise reject the claim that, on its face, it is inequitable or violative of public policy.
[Headnote 2]
1. While most jurisdictions uphold the validity of the due-on-sale clause, some divergence
of opinion exists as to its practical application. We adopt the view that the clause is entitled to
automatic enforcement where there is an outright sale by the trustor-vendor.
1
Coast Bank v.
Minderhout, 392 P.2d 265 (Cal. 1964); La Sala v. American Savings & Loan Ass'n., 489 P.2d
1113 (Cal. 1971); Cherry v. Home Savings & Loan Ass'n., 81 Cal.Rptr. 135 (Cal.App. 1969);
People's Savings Ass'n. v. Standard Industries, Inc., 257 N.E.2d 406 (Ohio App. 1970); Shalit
v. Investors Savings & Loan Ass'n., 244 A.2d 151 (N.J. Super.Ct. 1968); Stith v. Hudson City
Savings Institution, 313 N.Y.S.2d 804 (Sup.Ct. 1970); Gunther v. White, 489 S.W.2d 529
(Tenn. 1973). In so holding, we do not suggest that the clause is absolutely enforceable
without regard to surrounding circumstances. We would merely attach the same reverence to
the due-on-sale clause as is accorded to any other provision which may appear in a contract.
[Headnote 3]
Although enforceability of the clause is automatic, it is not absolute and may be vulnerable
to certain defenses (i.e., waiver). However, we reject the view that imposes upon the
beneficiary the burden of establishing justification for enforcement of the clause. See
Baltimore Life Insurance Co. v. Harn, 486 P.2d 190 (Ariz.App. 1971); Tucker v. Pulaski
Federal Savings & Loan Ass'n, 4S1 S.W.2d 725 {Ark.
____________________

1
We express no opinion with regard to the case where the trustorvendor has entered into an installment land
contract. See Tucker v. Lassen Savings & Loan Ass'n., 526 P.2d 1169 (Cal. 1974).
Savings & Loan Ass'n, 481 S.W.2d 725 (Ark. 1972); Clark v. Lachenmeier, 237 So.2d 583
(F1a.App. 1970); Sanders v. Hicks, 317 So.2d 61 (Miss. 1975). Instead, we would burden the
trustor with the responsibility of establishing grounds for unenforceability. If the trustor feels
that enforcement of the clause is unreasonable, he may seek a judicial determination to that
effect. A lender has the right to be assured in his own mind of the safety of his security
without the burden of showing at each transfer that his security is being impaired. Malouff v.
Midland Federal Savings & Loan Ass'n., 509 P.2d 1240 (Colo. 1973); Baker v. Loves Park
Savings & Loan Ass'n., 333 N.E.2d 1 (Ill. 1975); Mutual Federal Savings & Loan Ass'n. v.
Wisconsin Wire Works, 205 N.W.2d 762 (Wis. 1973); Mutual Federal Savings & Loan
Ass'n. v. American Medical Services, Inc., 223 N.W.2d 921 (Wis. 1973).
[Headnote 4]
2. Appellant protests the award of $1,500.00 by the trial court to respondents for attorneys'
feeswe think justifiably so. Respondents direct our attention to language in the promissory
note secured by the subject deed of trust which provides that attorneys' fees may be recovered
in case any suit or legal or equitable action is instituted to collect any amounts owed on the
note. This action, of course, was not instituted by respondent for the purpose of collecting on
the note but was instituted by appellant to enjoin the trustee's sale. Thus, there exists no
agreement, express or implied, as contemplated by NRS 18.010(1) which would permit an
award of attorneys' fees in this case. There being no agreement and no other statutory
authorization for an award of attorneys' fees, we cannot condone such an award by the trial
court. See City of Las Vegas v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970). We
therefore must modify the judgment accordingly.
____________
92 Nev. 367, 367 (1976) Weber v. State
RICHARD WILLIAM WEBER, Appellant, v.
No. 8531
June 17, 1976 550 P.2d 779
Defendant was convicted before the district court of rape, battery with use of a deadly
weapon, and infamous crime against nature, and he appealed. The Supreme Court held that
action of defense attorney in making certain vague statements in presence of jury regarding
withdrawal from case did not amount to ineffective assistance of counsel.
Affirmed.
Alan B. Andrews, Las Vegas, for Appellant.
George E. Holt, District Attorney, Las Vegas, for Respondent.
Criminal Law.
In prosecution for rape, battery with use of a deadly weapon, and infamous crime against nature, action of
defense attorney in making certain vague statements in presence of jury regarding withdrawal from case did
not amount to ineffective assistance of counsel.
OPINION
Per Curiam:
Convicted by jury of rape, battery with use of a deadly weapon, and two counts of
infamous crime against nature, appellant contends he was denied a fair trial due to ineffective
assistance of counsel. This contention is without merit.
After each side had rested their case, appellant's attorney made certain vague statements in
the presence of the jury regarding withdrawal from the case. While we do not approve such
conduct, the record fails to disclose that this action either prejudiced appellant or amounted to
ineffective assistance of counsel. See: Jackson v. Warden, 91 Nev. 430, 537 P.2d 473 (1975);
Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974); Founts v. Warden, 89 Nev. 280, 511
P.2d 111 (1973); Bean v. State, 86 Nev. 80, 465 P.2d 133 (1970).
1

Affirmed.
____________________

1
Appellant was not represented by present counsel at trial.
____________
92 Nev. 368, 368 (1976) Yeoman v. State
KENNETH GENE YEOMAN, Appellant, v.
No. 8270
STEVEN ROBERT SIMPSON, Appellant, v.
No. 8334
June 17, 1976 550 P.2d 1273
Appeals from judgments of conviction; Eighth Judicial District Court, Clark County; J.
Charles Thompson, Judge.
Defendants were convicted before the district court of second degree kidnapping, robbery
with use of a deadly weapon and battery, and they appealed. The Supreme Court held that
officers' seizure of knife from dashboard of station wagon during legitimate intrusion into
such vehicle was lawful, in light of fact that knife was in plain view; and that even if officers'
search of contents of duffle bag was invalid, evidence resulting from seizure of victim's
military records from within bag was admissible.
Affirmed.
Morgan D. Harris, Public Defender, and Stephen L. Huffaker, Deputy Public Defender,
Clark County, for Appellant Yeoman.
Monte J. Morris, of Las Vegas, for Appellant Simpson.
Respondent State.
Police are justified in conductimg an inventory on impounding a vehicle.
2. Searches and Seizues.
Officers' seizure of knife from dashboard of station wagon during legitimate intrusion into such vehicle
was lawful, in light of fact that knife was in plain view. U.S.C.A.Const. Amend. 4.
3. Criminal Law.
Even if officers' search of contents of duffle bag, which had kidnapping and robbery victim's surmame
stenciled on it, was invalid, evidence resulting from seizure of victim's military records from within bag
was adinissible, in light of fact that the information revealed by investigation of the records could have
been obtained merely through an investigation of such surname.
been obtained merely through an investigation of such surname. U.S.C.A.Const. Amend. 4.
OPINION
Per Curiam:
Appellants, Kenneth Yeoman and Steven Simpson, stand convicted of second degree
kidnapping, robbery with the use of a deadly weapon and battery. In this appeal they contend
their convictions rest upon evidence illegally seized in violation of their Fourth Amendment
rights. We disagree.
An Idaho sheriff found Yeoman and Simpson asleep in the back of their station wagon.
They were promptly arrested for violation of the Idaho Youth Rehabilitation Act; and, their
vehicle was impounded.
At the sheriff's office a detective observed a military duffel bag in the rear of the station
wagon with the name Martinez boldly stenciled thereon. Martinez's military records were
obtained from the bag; and, upon checking these records, the sheriff's office learned that two
men matching appellants' description were wanted in Nevada for charges stemming from the
knife-point kidnapping and robbery of one John Martinez.
Upon returning to the vehicle, the Idaho sheriff seized a knife from the dashboard.
Following advisement and waiver of their Miranda rights, appellants admitted the knife
was used in the Nevada crimes.
At trial, appellants were identified by both the victim and other witnesses to the crime. The
knife and appellants' inculpatory statements were also admitted.
The thrust of appellants' contention is that the knife and military records were illegally
seized, and all evidence resulting from their seizure should have been excluded.
[Headnote 1]
The State argues that the seized evidence resulted from a valid inventory search. Certainly,
upon impound of a vehicle the police are justified in conducting an inventory. Shepp v. State,
87 Nev. 179, 484 P.2d 563 (1971). Based on the testimony of the Idaho officers some
question exists whether the seizure of this evidence was pursuant to a valid inventory.
However, we need not determine whether the seizure was a valid inventory search since: (1)
the knife was in plain view; and, (2) the evidence obtained from the military records could
also have been obtained from an investigation of the name Martinez in plain view on the
duffel bag.
[Headnote 2]
1. The officers' initial intrusion into the vehicle was legitimate. The seizure of evidence
falling into plain view was lawful. Ennis v. State, 91 Nev. 530, 539 P.2d 114 (1975).
Therefore, the knife was properly admitted.
[Headnote 3]
2. The courts have held that evidence obtained as a result of information derived from an
unlawful search or other illegal police conduct is not inadmissible under the fruit of the
poisonous tree doctrine where the normal course of police investigation would, in any case,
even absent the illicit conduct, have inevitably led to such evidence. People v. Fitzpatrick,
300 N.E.2d 139, 141 (N.Y. 1973). The name Martinez appeared clearly and freshly
stenciled on the duffel bag. The arresting officer knew this name had no relation to
appellants. Even were we to assume the initial intrusion invalid, had the officer investigated
from the name alone, he would have obtained the same information that an investigation of
the military records provided. The search of the bag merely accelerated discovery of the
Martinez crime and appellants' involvement. See also: United States v. Seohlein, 423 F.2d
1051 (4th Cir. 1970), cert. den. 399 U.S. 913 (1970).
Affirmed.
____________
92 Nev. 370, 370 (1976) State ex rel. Dep't Hwys. v. Nev. Aggregates
THE STATE OF NEVADA, on Relation of its DEPARTMENT OF HIGHWAYS, Appellant,
v. NEVADA AGGREGATES AND ASPHALT COMPANY, et al., Respondents.
No. 7981
June 23, 1976 551 P.2d 1095
Appeal from judgment in condemnation action. Second Judicial District Court, Washoe
County; James J. Guinan, Judge.
State appealed an order of the district court entering judgment on a jury verdict awarding a
landowner damages of $1,858,100 in connection with condemnation of certain land. The
Supreme Court, Zenoff, J., held that the rule prohibiting consideration of intended use in
reaching an estimate of fair market value did not apply in the case since the plan or intended
use was in effect at the time of condemnation and income was being realized as a result of
it; that the trial court did not err prejudicially in denying the State's motion to strike
appraisal testimony of the landowner's expert witness; and that the trial court did not err
in granting the landowner's motion in limine to exclude evidence pertaining to the value
assigned to the subject property for depletion tax purposes at the time it was acquired six
years prior to commencement of the condemnation proceedings.
income was being realized as a result of it; that the trial court did not err prejudicially in
denying the State's motion to strike appraisal testimony of the landowner's expert witness;
and that the trial court did not err in granting the landowner's motion in limine to exclude
evidence pertaining to the value assigned to the subject property for depletion tax purposes at
the time it was acquired six years prior to commencement of the condemnation proceedings.
Affirmed.
Robert List, Attorney General, and Melvin L. Beauchamp, Deputy Attorney General,
Carson City, for Appellant.
Robert L. VanWagoner, Reno City Attorney, Vargas, Bartlett & Dixon, and James S.
Beasley, of Reno, for Respondents.
1. Eminent Domain.
In absence of evidence that land being condemned is suitable or naturally adopted for use or uses other
than that to which it was applied at time of taking, damages based upon amount of prospective income
owner allegedly has been deprived of through denial of such use are considered too speculative to provide
reasonable guide for ascertainment of present fair market value.
2. Eminent Domain.
Rationale behind rule prohibiting consideration of intended use in connection with determining fair
market value of land being condemned did not apply where landowner's plan or intended use of land was in
effect at time of condemnation and income was being realized as result of such plan.
3. Eminent Domain.
Although it is recognized that fair estimation of value of mineable property being condemned cannot be
reached simply by multiplying unit market price of given mineral by estimated quantity thereof contained
in condemned land, where product of such price-unit formula is considered only as one of several factors,
no prejudicial error results.
4. Eminent Domain.
Trial court, in condemnation award dispute, did not err prejudicially by denying State's motion to strike
testimony of landowner's expert appraisal witness on grounds that witness stated during cross-examination
that, in estimating fair market value of property in question, he employed price-unit formula, where witness
also testified that in reaching his appraisal he considered such factors as location of property, transportation
facilities, ability to provide large quantities of aggregate on short notice, variety of aggregate found at site,
capital investment necessary to provide broad spectrum of products, and historical performance and quality
of product, and where there was no indication that jury ignored court's admonition not to compute fair
market value of property solely on price-unit formula.
5. Appeal and Error; Evidence.
Trial court is vested with broad discretion in determining admissibility of evidence and exercise of such
discretion will not be interfered with on appeal in absence of showing of palpable abuse.
6. Trial.
Trial court, in condemnation award dispute, did not abuse discretion by granting landowner's motion in
limine to exclude evidence pertaining to value assigned to subject property for depletion tax purposes at
time it was acquired by landowner six years prior to commencement of condemnation proceeding where all
other evidence presented related to present value of property; value placed on property six years previously
could not possibly constitute relevant evidence admissible for purposes of impeachment.
OPINION
In pursuance of a plan to widen and extend certain streets and highways in Washoe
County, Nevada, the State of Nevada Department of Highways instituted a condemnation
action against Nevada Aggregates and Asphalt Company in August of 1972. Nevada
Aggregates owned a parcel of land consisting of 157.1 acres of land, a portion of which was
situated in the path of the proposed improvements. Approximately 25 acres of the land were
condemned in fee simple and a slope easement was condemned across an additional six acres.
The bulk of the condemned property and the only portion which concerned us here was used
for mining sand and gravel.
At trial, each party presented expert testimony calculated to assist the jury in arriving at a
fair valuation of the condemned land. Estimates of the value of the mineable property ranged
from $140,640.00 to $1,417,966.00. Final appraisals of the value of the condemned property
as a whole ranged from $686,000.00 to $2,203,175.00.
1
The jury ultimately returned a
verdict of $1,858,100.00 and judgment was entered accordingly. This appeal followed.
1. It has been held that, when there is no evidence in the record that the land in question is
suitable or naturally adapted for use, or uses, other than that to which it was applied at the
time of the taking, an owner may not present evidence that he intended to put property to
some specific use which would have produced a certain amount of income and that as a result
of the condemnation, he has been damaged in the amount of the prospective income he
allegedly has been deprived; and, under such circumstances, that a jury may not consider,
as a basis for awarding damages, the fact that the owner has been prohibited from
putting his property to some intended use by reason of its condemnation. See, e.g., State
v. Tibbles, 123 N.E.2d 170 {Ind.
____________________

1
The appraisals referred to here are only those that were prepared by MAI appraisers. A representative of
Nevada Aggregates, testifying as an owner of the property, valued it at $2,488,590.00.
the condemnation, he has been damaged in the amount of the prospective income he allegedly
has been deprived; and, under such circumstances, that a jury may not consider, as a basis for
awarding damages, the fact that the owner has been prohibited from putting his property to
some intended use by reason of its condemnation. See, e.g., State v. Tibbles, 123 N.E.2d 170
(Ind. 1954).
[Headnote 1]
Quite understandably, in the absence of such evidence, such damages are considered too
speculative to provide a reasonable guide for the ascertainment of present fair market value.
Empire Dist. Electric Co. v. Johnston, 268 S.W.2d 78 (Mo. App. 1954). Cf. Tacchino v. State
ex rel. Dep't of Hwys., 89 Nev. 150, 508 P.2d 1212 (1975).
Here, the evidence presented at trial included a plan by Nevada Aggregates to mine its
property in three phases. The property was divided into three sections, each to be mined in
turn. Before proceeding from one section to another, all of the minerals which could be
economically extracted were to be removed from the former section. Prior to the
commencement of these proceedings, Nevada Aggregates implemented this plan and by
August of 1972 (when the complaint was filed) the company was fully engaged in the task of
extracting the minerals from the first designated area. It so happened that the area first to be
mined was also the area condemned by the state.
The state contends that one of respondent's expert witnesses improperly considered the
plan and based his appraisal of the fair market value of the property thereon. Concomitantly,
it is claimed that the jury should not have been permitted to consider the appraisal.
Appellant's primary objection to the plan was that it envisioned only a 5 1/2 years supply of
minerals within the condemned area at the rate it presently was being mined. The state
contended that all of respondent's mineable property should have been included in calculating
the depletion period irrespective of any plan that Nevada Aggregates may have been
following. If the 11 to 17 years depletion period advocated by the state had been employed
instead of the 5 1/2 years period, a lower value would have been attributed to the minerals
within the condemned area.
[Headnote 2]
There is a significant distinction between the cases referred to by appellant which
condemn the practice of considering damages resulting from frustration of intended use and
the instant case.
instant case. Contrary to the existent circumstances in the cases relied upon by appellant, we
are not here concerned with a plan or intended use which had not yet been developed to
fruition. Here, the plan was in effect at the time of the condemnation and income was being
realized as a result of it. Respondent had determined to mine the area later condemned by the
state before mining other areas of its property and had committed the necessary resources to
implement that decision. The plan was not a fantasy of the landowner which had not been
reduced to tangible returns but was a reality. There was no need to speculate as to the amount
of income the plan would produce. Under such circumstances, the rationale behind the rule
prohibiting consideration of intended use obviously does not apply. Cf. United States ex rel.
Tennessee Valley Authority v. Powelson, 138 F.2d 343 (4th Cir. 1943); State v. Goodwyn,
133 So.2d 375 (Ala. 1961); In Re Ford, 263 N.Y.S.2d 831 (Sup.Ct.App.Div. 1965).
2. Jack McDonald was president of Centex Aggregates which was a general partner in the
Nevada Aggregates operation. At trial, he was permitted to testify as an owner of the property
and to present the jury with his appraisal of the value thereof. Dep't of Hwys. v. Wells Cargo,
Inc., 82 Nev. 82, 85, 411 P.2d 120, 122 (1966). During cross-examination, he stated that his
appraisal was reached by multiplying the estimated number of tons of aggregate in the
condemned area by a specific price per ton.
2
Appellant argues that McDonald employed the
forbidden price-unit formula in estimating the fair market value of the mineable property
and that the subsequent denial by the trial court of its motion to strike McDonald's appraisal
constituted prejudicial error.
[Headnote 3]
Uniformly, the courts have condemned the price-unit formula as a basis for determining
fair market value of condemned property. See, e.g., United States ex rel. Tennessee Valley
Authority v. Indian Creek Marble Co.,
____________________

2
The following colloquy constitutes the extent of the objectionable testimony:
Q. [Respondent's trial counsel] Now, I don't recall whether you gave us a royalty breakout which you
considered in your valuation of the tonnage.
A. [Jack McDonald] If I didn't I consider the cash value of thirty-one cents a ton.
Q. Thirty-one cents a ton?
A. As of August, 1972.
Q. All right. Did you multiply your total tonnage in the State take by thirty-one cents a ton to arrive at your
opinion of value?
A. Yes, I did.
Valley Authority v. Indian Creek Marble Co., 40 F.Supp. 811 (E.D. Tenn. 1941). It is
recognized that a fair estimation of value cannot be reached simply by multiplying the unit
market price of a given mineral by the estimated quantity thereof contained in the condemned
land. Many other factors need be considered before fair value can be attached to the mineral
bearing property. But, where the product of the price-unit formula is considered only as one
of such factors, no prejudicial error results. State v. Nunes, 379 P.2d 579 (Ore. 1963). Where
other factors are not considered and the valuation placed on the property is simply a product
of the price-unit formula and nothing more, a persuasive argument for prejudicial error can be
made. Such is not the case here.
The valuation placed on the property by McDonald was not simply a product of the
price-unit formula. In arriving at his appraisal, McDonald testified that he considered such
factors as: (1) Location of the property, (2) transportation facilities, (3) ability to provide large
quantities of aggregate on short notice and within a concentrated time frame, (4) variety of
aggregate found at the site, (5) capital investment necessary to provide a broad spectrum of
products, and (6) historical performance and quality of the product.
[Headnote 4]
Because these many factors were considered by McDonald in computing his appraisal of
the value of the mineable property, his appraisal did not offend the principle set forth in the
cases relied upon by appellant. United States v. Land in Dry Bed of Rosamond Lake, Cal.,
143 F.Supp. 314 (S.D. Cal. 1956); Comstock v. Iowa State Highway Comm'n., 121 N.W.2d
205 (Iowa 1963); State v. Mottman Mercantile Co., 321 P.2d 912 (Wash. 1958).
Moreover, the ultimate question is not whether McDonald applied an improper formula
but whether the jury did. See Townsend v. Mid-America Pipeline Co., 168 N.W.2d 30 (Iowa
1969). In this regard, it is observed that the members of the jury were specifically instructed
not to utilize the price-unit formula in calculating the fair market value of the property. There
is no indication that the jury ignored the admonition which stated as follows:
You are not to attempt to compute the fair market value of the mineable property by
multiplying any volume figures of material in place testified to in this case by any unit price
per ton. The quantity and quality of such gravel can be considered by you only in relation to
the value, if any, that the presence of such deposits contribute to the fair market value of
the land as a whole."
of such deposits contribute to the fair market value of the land as a whole.
3. As a final assignment of error, appellant contends that the trial court improperly granted
respondent's motion in limine to exclude evidence pertaining to the value assigned to the
subject property for depletion tax purposes at the time it was acquired six years prior to the
commencement of these proceedings. The trial court ruled the evidence irrelevant as being
too remote in time and granted the motion. We affirm that ruling.
[Headnotes 5, 6]
The trial court is vested with broad discretion in determining the admissibility of evidence.
Tucker v. Lower, 434 P.2d 320 (Kan. 1967); Carter v. Moberly, 501 P.2d 1276 (Ore. 1972).
The exercise of such discretion will not be interfered with on appeal in the absence of a
showing of palpable abuse. Carpenson v. Najarian, 62 Cal.Rptr. 687 (Cal.App. 1967). The
court's determination in the instant case finds strong support in the case law and will not be
upset here. El Paso Electric Co. v. Landers, 479 P.2d 769 (N.M. 1971); State Highway
Comm'n. v. Jones, 391 P.2d 625 (Ore. 1964); State Road Comm'n. v. Hopkins, 506 P.2d 57
(Utah 1973).
Not at all are we persuaded by appellant's argument that the evidence was admissible as an
admission against interest or for purposes of impeachment. The claim that the evidence
constituted an admission may circumvent the proscription of the hearsay rule but does not
cure its irrelevancy. As to the claim that the evidence was admissible for impeachment
purposes, nowhere in the record does it appear that Nevada Aggregates assigned any greater
or lesser value to the property in 1966 than that which appellant sought to have admitted into
evidence. The inquiry below was directed at ascertaining the present value of the property,
not its value six years previously. In short, since all of the evidence presented below related to
the present value of the property, a value placed on the property six years previously could
not possibly constitute impeachment evidence.
For the foregoing reasons, we affirm the judgment of the lower court.
Affirmed.
____________
92 Nev. 377, 377 (1976) Reese v. Utter
OSCAR REESE, Appellant, v. CHESTER
C. UTTER, Respondent.
No. 8254
June 23, 1976 551 P.2d 1099
Appeal from judgment awarding commission to real estate broker. Second Judicial District
Court, Washoe County; John W. Barrett, Judge.
Real estate broker brought action against vendor of ranch to compel payment of a 5%
commission. The district court entered judgment for broker, and vendor appealed. The
Supreme Court held that offer to purchase submitted by broker differed materially from terms
of listing agreement and, thus, vendor could reject offer without incurring liability for
brokerage commission; and that broker had not been procuring cause of subsequent sale of
ranch so as to be entitled to recover commission.
Reversed and remanded with direction to enter judgment for appellant.
Walther, Key & Maupin, of Reno, for Appellant.
Paul A. Richards, of Reno, for Respondent.
1. Brokers.
Where broker seeks to recover commission based on theory that he acted in accordance with provisions
of listing agreement by procuring buyer ready, willing and able to consummate a purchase, broker must
establish that prior to expiration of listing period, he submitted offer which complied substantially with
terms called for in listing agreement and which was rejected fraudulently or in bad faith, or that, within
same period, purchaser and vendor entered into binding contract for purchase of subject property on terms
other than those specified in listing agreement but otherwise acceptable to vendor.
2. Brokers.
Offer to purchase ranch, exclusive of livestock, for $160,000 differed materially from terms of listing
agreement which specified a sales price of $300,000 for ranch and livestock; thus, owner could reject such
offer, which real estate broker submitted, without incurring liability for brokerage commission.
3. Brokers.
Where, though real estate broker had submitted purchaser's offer to purchase ranch for $160,000,
exclusive of livestock, broker had no further contact with purchaser and vendor after offer was rejected,
broker's listing agreement with vendor expired and he abandoned all effort to negotiate sale, broker had not
been procuring cause of sale of ranch a year later to such purchaser for $2S5,000,
inclusive of livestock, so as to be entitled to recover brokerage commission.
92 Nev. 377, 378 (1976) Reese v. Utter
procuring cause of sale of ranch a year later to such purchaser for $285,000, inclusive of livestock, so as to
be entitled to recover brokerage commission.
4. Brokers.
Obligation to pay brokerage commission will not be imposed simply by reason of fact that at one time a
broker unsuccessfully submitted an offer on behalf of eventual purchaser.
OPINION
Per Curiam:
The Grass Valley Ranch, owned in corporate form by Molly Knudtsen, adjoins the
Callahan Ranch. At the time of the occurrence of the events which culminated in this appeal,
the Callahan Ranch was owned by Oscar Reese, appellant. In 1967 or 1968, Reese casually
expressed to Knudtsen his desire to sell the ranch; Knudtsen expressed no corresponding
desire to purchase at that time. In 1969, however, circumstances changed and Knudtsen
developed a keen interest in acquiring Reese's property. For the purpose of negotiating a
purchase of the ranch, she contacted Chester C. Utter, a family friend and licensed real estate
broker.
After preliminary discussions between Utter and Reese, Reese prepared and submitted to
Utter a listing agreement which (1) employed Utter for a period of 30 days for the purpose of
procuring a purchaser ready, willing and able to buy said property at the price and terms...
authorized by me and (2) provided that Utter would receive a full commission if, after the
expiration of the 30-day period, the property was sold to a purchaser procured by Utter.
At the time the listing agreement was executed, the relationship between Knudtsen and
Reese had become somewhat strained. Apparently Knudtsen had constructed a fence which
bisected a meadow long used by Reese. When tendered an offer to purchase by Utter in late
March of 1969, Reese flatly rejected it when he learned it was made on behalf of Knudtsen.
Thereafter, Utter made no further effort to sell Reese's property to Knudtsen or anyone else.
In December of 1969, Reese approached another real estate broker, Elmer Weishaupt, with
whom he had entered into a listing agreement which had expired several months previously.
Reese requested that Weishaupt contact Knudtsen as a possible purchaser for his ranch. A
contract for sale of the ranch was consummated between Knudtsen and Reese through
Weishaupt in March of 1970. The purchase price for the ranch, including livestock and
equipment, was $285,000.00.
92 Nev. 377, 379 (1976) Reese v. Utter
Learning of the sale, Utter commenced an action against Reese to compel payment of a 5%
commission. His efforts were rewarded by a trial court judgment in his favor in the amount of
$14,250.00.
On this appeal, we are presented with the following questions: (1) Whether Utter procured
a buyer ready, willing and able to purchase the Callahan Ranch within the period prescribed
by the listing agreement? And (2) whether Utter was the procuring cause of the sale of the
ranch to Molly Knudtsen?
1. Although the listing agreement between Reese and Utter specified a sales price of
$300,000.00 (which included livestock), it also provided that Utter would be entitled to a
commission if the ranch could be sold at any price and on any terms authorized by Reese. The
offer submitted by Utter was for $160,000.00 exclusive of livestock. Utter never produced a
buyer for the livestock who was prepared to meet Reese's terms. The $160,000.00 offer,
therefore, differed materially from the terms of the listing agreement.
[Headnotes 1, 2]
Where a broker seeks to recover a commission based upon the theory that he acted in
accordance with the provisions of a listing agreement by procuring a buyer ready, willing and
able to consummate a purchase, he must establish that prior to the expiration of the listing
period, he submitted an offer which complied substantially with the terms called for in the
listing agreement which was rejected fraudulently or in bad faith or that, within the same
period, the buyer and seller entered into a binding contract for the purchase of the subject
property on terms other than those specified in the listing agreement but otherwise acceptable
to the seller. Nollner v. Thomas, 91 Nev. 67, 533 P.2d 478 (1975); Diamond v. Haydis, 356
P.2d 643 (Ariz. 1960); Postal Union Life Ins. Co. v. Hensley, 186 P.2d 802 (Okl. 1947).
Unless the terms of the offer were in accord with the terms of the listing agreement, Reese
had the right to reject it without incurring liability for a brokerage commission. Knudtsen was
not a ready, willing and able buyer as would entitle Utter to a commission for the offer he
tendered because the offer differed materially from the terms provided in the listing
agreement.
[Headnotes 3, 4]
2. The question remains whether Utter was the procuring cause of the sale. We are of the
opinion that he was not. The listing agreement between himself and Reese had expired. The
last contact Utter had with either Knudtsen or Reese was March 2S, 1969, when he
submitted the offer that was rejected.
92 Nev. 377, 380 (1976) Reese v. Utter
last contact Utter had with either Knudtsen or Reese was March 28, 1969, when he submitted
the offer that was rejected. The sale of the ranch a year later to Knudtsen was accomplished
without Utter's assistance or participation. His listing agreement had expired and he had
abandoned all efforts at negotiating a sale of the property. If Utter had continued his efforts to
sell the Callahan Ranch or if there was a hint of fraud or bad faith on the part of Knudtsen or
Reese, a contrary result might be justified. Otherwise, an obligation to pay a brokerage
commission will not be imposed simply by reason of the fact that at one time a broker
unsuccessfully submitted an offer on behalf of the eventual purchaser. Baird v. Madson, 134
P.2d 885 (Cal.App. 1943); Offutt v. Phillis, 285 P.2d 382 (Okl. 1955). See also, Bartsas
Realty, Inc. v. Leverton, 82 Nev. 6, 409 P.2d 627 (1966); Ivanhoe, Inc. v. Strout Realty, 90
Nev. 380, 528 P.2d 700 (1974).
Other assignments of error need not be considered. The foregoing is dispositive of this
appeal.
Reversed and remanded with direction to enter judgment for appellant.
____________
92 Nev. 380, 380 (1976) Jarstad v. National Farmers Union
DAVID ALAN JARSTAD, a Minor By and Through His Guardian Ad Litem, Hazel Jarstad,
Appellant, v. NATIONAL FARMERS UNION PROPERTY AND CASUALTY
COMPANY, Respondent.
No. 8196
June 23, 1976 552 P.2d 49
Appeal from order quashing service of process; Second Judicial District Court, Washoe
County; William N. Forman, Judge.
Insured brought action against insurer to recover under uninsured motorist provisions of
policy. The district court quashed their responses and insured appealed. The Supreme Court,
Thompson, J., held that no appeal lay from order quashing service of process but that such
order could be challenged by petition for writ of mandamus; that service of process had not
been made under long-arm statute; that the Unauthorized Insurance Act, under which service
had been attempted, was applicable only in suits by or on behalf of the state; but that service
of process under the long-arm statute, if effected, would be proper as against foreign
insurer which, although not authorized to do business in Nevada, had accepted premium
payments sent by its insured from Nevada and had then renewed the automobile policy by
sending a declaration page specifying that the insured's address was in Nevada and that
her automobile would be garaged in Nevada.
if effected, would be proper as against foreign insurer which, although not authorized to do
business in Nevada, had accepted premium payments sent by its insured from Nevada and
had then renewed the automobile policy by sending a declaration page specifying that the
insured's address was in Nevada and that her automobile would be garaged in Nevada.
Appeal treated as petition for mandamus, and denied.
Hibbs & Newton, and Margo Piscevich, of Reno, for Appellant.
Vargas, Bartlett & Dixon and Peter D. Durney, of Reno, for Respondent.
1. Insurance.
Purpose of uninsured motorist coverage is to guarantee that the injured insured will be in the same
position in the event of injury attributable to negligence of an uninsured motorist as the insured would be if
he were injured through the negligence of a motorist carrying liability insurance.
2. Appeal and Error; Mandamus.
Order quashing service of process is not appealable but may be challenged by petition in the Supreme
Court for writ of mandamus to compel the district court to accept jurisdiction. NRAP 3A (a), (b).
3. Insurance.
Where copy of summons and complaint was not delivered in foreign jurisdiction to president or other
head of corporation, jurisdiction of Nevada court over foreign insurer could not be predicated on basis of
statute dealing with service on a foreign corporation not qualified to do business in Nevada but alleged to
have transacted business in Nevada. NRS 14.065.
4. Insurance.
Statutes dealing with unauthorized insurers and providing for service of process upon them may be
utilized only in suits by or on behalf of the state; statutes could not be used by individual insured who
sought to recover under uninsured motorist coverage of policy issued by a foreign insurer which was not
authorized to do business in Nevada. NRS 685B.010, 685B.030, subd. 3.
5. Insurance.
Purpose of the Unauthorized Insurance Act is to subject certain persons and insurer to the jurisdiction of
the Commissioner of Insurance and the courts of Nevada in suits by or on behalf of the state. NRS
685B.010 et seq.
Where trial court had properly ruled that plaintiffs did not avail themselves of particular service of
process provision but where it appeared that service of process would, following the Supreme Court's
decision, be attempted under another statute, court would resolve question of whether the circumstances of
the case placed the defendant within the reach of the other statute.
7. Courts.
Nevada long-arm statute was intended to reach the outer limits of federal constitutional due process.
NRS 14.065.
8. Courts.
In order for court to exercise in personam jurisdiction over an out-of-state defendant based upon a single
act within the forum state, the defendant must have purposely availed itself of the privilege of acting in the
forum state or of causing important consequences in that state, the cause of action must arise from the
consequences in the forum state, and the defendant's actions must have a substantial connection with the
forum state. NRS 14.065.
9. Courts.
Insurer which accepted premiums sent by its insured from Nevada and which then renewed existing
automobile policy by sending a declaration page specifying that insured's address was in Nevada and that
her automobile would be garaged there was subject to long-arm jurisdiction of the State of Nevada with
respect to insured's claim against the insurer under the uninsured motorist coverage of the policy;
reasonableness of exercise of jurisdiction over the insurer was established by fact that insurer had obligated
itself to defend any action against its insured in Nevada or elsewhere. NRS 14.065, 14.065, subd. 2(d).
OPINION
This appeal is from an order quashing service of process upon an unauthorized insurer.
National Farmers Union Property and Casualty Company has its principal place of
business in Denver, Colorado, and apparently is authorized to do business in Wisconsin. It is
not authorized or certified to do business in Nevada.
[Headnote 1]
National issued a policy of automobile insurance to Hazel Jarstad containing uninsured
motorist coverage. The purpose of such coverage is to guarantee that the injured insured will
be in the same position in the event of injury attributable to the negligence of an uninsured
motorist as that insured would be if he were injured through the negligence of a motorist
carrying liability insurance.
Hazel Jarstad was a resident of Hixton, Wisconsin. David, her son and a resident of her
household, also was insured under the policy.
Hazel and David came to Reno to visit Hazel's sister. While here, David, driving his
mother's car, was injured as the result of a collision with an uninsured motorist. This
happened on August 29, 1971.
August 29, 1971. On July 14, 1971, National sent a renewal premium due notice to Hazel at
Hixton, Wisconsin, to cover the period August 3, 1971, to February 3, 1972. That notice was
forwarded to Hazel in Reno. Hazel sent the premium payment to National together with a
request to change her mailing address to 983 Wilkinson Avenue, Reno, Nevada, 89502. The
premium payment was received by National on August 13, 1971, and deposited.
National then sent to Hazel at the Reno address a declaration page. Among other things,
it stated: The described automobile will be principally garaged in the said town, county and
state, unless otherwise stated herein. The address typed in was: Hazel E. Jarstad, 983
Wilkinson Drive, Reno, Nevada, 89502.
After the accident happened, correspondence between National and Hazel took place, the
purpose of which was to ascertain whether Hazel's change of address was permanent or
temporary. Hazel advised National that it was temporary. Had the change of residence been
permanent, National would have cancelled the policy since it was not authorized to do
business in Nevada.
The automobile collision precipitated litigation which culminated in a judgment against
the uninsured motorist. National was notified of that litigation and of the judgment obtained
but refuses to pay to the extent of its liability therefor. Consequently, this action was
commenced to compel payment. National does not deny coverage or that the policy was in
effect when the accident occurred. It contends only that it is not amenable to suit in Nevada.
Therefore, it moved to quash service of process.
Before addressing the merits we first must resolve a procedural issue regarding the
appealability of an order quashing service of process.
1. An appeal from a judgment or order in a civil action may be taken only as prescribed
by these rules, and not otherwise. NRAP 3A(a). An order quashing service of process is not
among the appealable orders listed. NRAP 3A(b). Neither is such an appeal authorized by
statute. We heretofore have ruled that an appeal may not be taken unless authorized by rule or
statute. Bates v. Nevada Savings & Loan Ass'n, 85 Nev. 441, 456 P.2d 450 (1969); Nev.
Gaming Comm. v. Byrens, 76 Nev. 374, 355 P.2d 176 (1960).
However, in years past, this court has entertained appeals from orders quashing service.
Tiedemann v. Tiedemann, 35 Nev. 259, 129 P. 313 (1912). See also State v. Moore, 46 Nev.
65, 207 P.
Nev. 65, 207 P. 75 (1922); cf. LaGue v. District Court, 68 Nev. 125, 227 P.2d 436 (1951),
and, on rehearing, 68 Nev. 131, 229 P.2d 162 (1951), where mandamus issued to compel the
district court to accept jurisdiction.
[Headnote 2]
Since our case law is somewhat confusing on the point, it is best that we attempt
clarification. We, therefore, now rule that an order quashing service of process is not
appealable. It may, however, be challenged by petition in this court for a writ of mandamus to
compel the district court to accept jurisdiction. In so far as this case is concerned we shall
treat this appeal as a petition for mandamus. It would be unfair to do otherwise in the light of
confusing case precedent.
[Headnote 3]
2. Service of process upon National was effected pursuant to NRS 685B.050.
1
Although
appellant claims also to have utilized NRS 14.065, she did not do so. Under that statute,
service upon a foreign corporation not qualified to do business in Nevada, but alleged to have
transacted business here, must be made by delivering a copy of the summons and complaint
in the foreign jurisdiction to the president or other head of the corporation, secretary, cashier,
managing agent, or resident agent thereof. Certain-Teed Prods. v. District Court, 87 Nev. 18,
479 P.2d 781 (1971). This did not occur.
National contends that service upon it pursuant to NRS 685B.050 is ineffective because
the circumstances related do not constitute the transaction of an insurance business in Nevada
within the contemplation of the Unauthorized Insurance Act.
____________________

1
NRS 685B.050: 1. Any act of transacting an insurance business as set forth in NRS 685B.030 by any
unauthorized insurer is equivalent to and shall constitute an irrevocable appointment by such insurer, binding
upon him, his executor or administrator, or successor in interest if a corporation, of the commissioner or his
successor in office, to be the true and lawful attorney of such insurer upon whom may be served all lawful
process in any action, suit or proceeding in any court by the commissioner or by the state and upon whom may
be served any notice, order, pleading or process in any proceeding before the commissioner and which arises out
of transacting an insurance business in this state by such insurer. Any act of transacting an insurance business in
this state by any unauthorized insurer shall be signification of its agreement that any such lawful process in such
court action, suit or proceeding and any such notice, order, pleading or process in such administrative
proceeding before the commissioner so served shall be of the same legal force and validity as personal service or
process in this state upon such insurer.
2. Service of process in such action shall be made by delivering to
[Headnote 4]
NRS 685B.030(3) specifies acts in Nevada by an unauthorized insurer which are deemed
to constitute the transaction of an insurance business in this state. However, we need not
decide whether the circumstances here present fall within the statute since it is evident that
chap. 685B regarding unauthorized insurers and providing for the service of process upon
them, may be utilized only in suits by or on behalf of the state. This is not such a suit.
[Headnote 5]
The purpose of the Unauthorized Insurance Act is expressed by NRS 685B.010.
2
It is to
subject certain persons and insurers to the jurisdiction of the commissioner and the courts
of this state in suits by or on behalf of the state.
____________________
and leaving with the commissioner, or some person in apparent charge of his office, two copies thereof and by
payment to the commissioner of the fee prescribed by law. Service upon the commissioner as such attorney shall
be service upon the principal.
3. The commissioner shall forthwith forward by certified mail one of the copies of such process or such
notice, order, pleading or process in proceedings before the commissioner to the defendant in such court
proceeding or to whom the notice, order, pleading or process in such administrative proceeding is addressed or
directed at its last-known principal place of business and shall keep a record of all process so served on him
which shall show the day and hour of service. Such service is sufficient, provided:
(a) Notice of such service and a copy of the court process or the notice, order, pleading or process in such
administrative proceeding are sent within 10 days thereafter by certified mail by the plaintiff or the plaintiff's
attorney in the court proceeding or by the commissioner in the administrative proceeding to the defendant in the
court proceeding or to whom the notice, order, pleading or process in such administrative proceeding is
addressed or directed at the last-known principal place of business of the defendant in the court or administrative
proceeding.
(b) The defendant's receipt or receipts issued by the post office with which the letter is certified, showing the
name of the sender of the letter and the name and address of the person or insurer to whom the letter is
addressed, and an affidavit of the plaintiff or the plaintiff's attorney in court proceeding or of the commissioner
in administrative proceeding, showing compliance therewith are filed with the clerk of the court in which such
action, suit or proceeding is pending or with the commissioner in administrative proceedings, on or before the
date the defendant in the court or administrative proceedings is required to appear or respond thereto, or within
such further time as the court or commissioner may allow.

2
NRS 685B.010: The purpose of this chapter is to subject certain persons and insurers to the jurisdiction of
the commissioner and the courts of this state in suits by or on behalf of the state. The legislature declares that it
is concerned with the protection of residents of this state against acts by insurers not authorized to do an
insurance business in this state, by the maintenance of fair and honest insurance markets, by protecting
authorized insurers which are subject to regulation from
to the jurisdiction of the commissioner and the courts of this state in suits by or on behalf of
the state. (Emphasis supplied.) Indeed, the provision of the Act for service of process which
the plaintiff-appellant here seeks to utilize, explicitly refers only to any action, suit or
proceeding in any court by the commissioner or by the state. . . . NRS 685B.050.
[Headnote 6]
The district court ruled correctly. The plaintiff-appellant may not avail herself of the
service of process provision of the Unauthorized Insurers Act. We presume, however, that
service of process will now be attempted under NRS 14.065 [Certain-Teed Prods. v. District
Court, 87 Nev. 18, 479 P.2d 781 (1971)], and we turn to resolve whether the circumstances of
this case place National within the reach of the long-arm of that statute.
3
[Headnotes 7, S]
____________________
unfair competition by unauthorized insurers, and by protecting against the evasion of the insurance regulatory
laws of this state. In furtherance of such state interest, the legislature provides methods in this chapter for
substituted service of process upon such insurers in any proceeding, suit or action in any court and substituted
service of any notice, order, pleading or process upon such insurers in any proceeding by the commissioner to
enforce or effect full compliance with the insurance laws of this state. In so doing, the state exercises its powers
to protect residents of this state and to define what constitutes transacting an insurance business in this state, and
also exercises powers and privileges available to this state by virtue of Public Law 79-15, (1945), 79th Congress
of the United States, Chapter 20, lst Sess., S. 340, 59 Stat. 33; 15 U.S.C. 1011 to 1015, inclusive, as
amended, which declares that the business of insurance and every person engaged therein shall be subject to the
laws of the several states.

3
NRS 14.065, in pertinent part, reads: 1. Personal service of summons upon a party outside this state is
sufficient to confer upon a court of this state jurisdiction of the person of the party so served if: (a) Such service
is made by delivering a copy of the summons, together with a copy of the complaint, to the party served in the
manner provided by statute or rule of court for service upon a person of like kind within this state; and (b) Such
party has submitted himself to the jurisdiction of the courts of this state in a manner provided by this section.
2. Any person who . . . does any of the acts enumerated in this subsection thereby submits himself . . . to the
jurisdiction of the courts of this state as to any cause of action which arises from the doing of such acts:
(a) Transacting any business . . . within this state;
(b) . . . .
(c) . . . .
(d) Contracting to insure any person, property or risk located within this state at the time of contracting.
[Headnotes 7, 8]
3. Heretofore we have considered 14.065 in a different factual setting. Certain-Teed
Prods. v. District Court, supra. We there noted that the broad language used in the statute
discloses a legislative intention to reach the outer limits of federal constitutional due process.
The criteria for in personam jurisdiction over an out-of-state defendant based upon a single
act within the forum state was delineated. The defendant must purposefully avail himself of
the privilege of acting in the forum state or of causing important consequences in that state.
The cause of action must arise from the consequences in the forum state of the defendant's
activities, and those activities, or the consequences thereof, must have a substantial enough
connection with the forum state to make the exercise of jurisdiction over the defendant
reasonable.
[Headnote 9]
Applying such criteria to the facts before us, we find that National is amenable to process
under 14.065 and if proper service upon it is made under that statute, the court below will
acquire jurisdiction to decide this controversy. In addition to the landmark case of McGee v.
International Life Ins. Co., 355 U.S. 220 (1957), we believe that the underlying rationale of
the following cases support our conclusion. Wolfman v. Modern Life Ins. Co., 225 N.E.2d
598 (Mass. 1967); Zacharakis v. Bunker Hill Mutual Ins. Co., 120 N.Y.S.2d 418 (N.Y.App.
Div. 1953); Aero Associates Inc. v. La Metropolitana, 183 F.Supp. 357 (D.C. N.Y. 1960);
Ross v. American Income Life Ins. Co., 102 S.E.2d 743 (S.C. 1958).
When National accepted the premium payment sent by its insured from Nevada, and then
renewed the existing policy by sending a declaration page specifying the insured's address to
be in this state and that her automobile would be garaged here, it contracted to insure a
person or risk located within this state within the contemplation of 14.065(2)(d). The
renewal was intentionally and purposefully accomplished with the insured in Nevada. When
accomplished, National knew of the contingent possibility that a claim against the policy
would arise because of an occurrence within this state. The exercise of jurisdiction over
National is reasonable. This, we think, is established by the mere fact that National had
obligated itself to defend any action against its insured, in Nevada or elsewhere, under the
liability coverage provisions of its policy. It was willing to assume that obligation as a
matter of contract.
was willing to assume that obligation as a matter of contract. Surely, the burden upon it is no
greater when the insured makes claim to the benefits of uninsured motorist coverage.
This appeal, which we have treated as a petition for mandamus, is denied.
____________
92 Nev. 388, 388 (1976) Peot v. Peot
PATRICIA ETHEL PEOT, Appellant, v. WILLIAM
FORREST PEOT, Respondent.
No. 8231
June 24, 1976 551 P.2d 242
Appeal from an order denying motion for judgment, Eighth Judicial District Court, Clark
County; Michael J. Wendell, Judge.
After a divorce decree was entered under which the father was to pay $100 per month for
support of the couple's minor child, and after a district judge, acting in a suit brought by the
mother under the Uniform Reciprocal Enforcement of Support Act, ordered the father to pay
the sum of $50 per month for the support of the child, the mother filed a motion for judgment
for arrearages due under the original decree. The district court held that the order entered
under the Uniform Act modified the support provisions of the original decree, and that no
arrearages had therefore accrued, and the mother appealed. The Supreme Court, Peter I.
Breen, D. J., held that the original support provisions had not been modified.
R. Paul Sorenson, Las Vegas, for Appellant.
Keefer, Clark & O'Reilly, Las Vegas, for Respondent.
1. Divorce.
Where, after divorce was granted and mother was awarded $100 per month child support, mother brought
suit under Uniform Reciprocal Enforcement of Support Act for arrearages under decree and obtained court
order requiring father to pay $50 per month for support of child, such order did not have effect
of modifying original decree and mother was entitled to recover arrearages
thereunder. NRS 130.010 et seq., 130.030, 130.050, 130.2S0.
92 Nev. 388, 389 (1976) Peot v. Peot
support of child, such order did not have effect of modifying original decree and mother was entitled to
recover arrearages thereunder. NRS 130.010 et seq., 130.030, 130.050, 130.280.
2. Divorce.
Where, in action for child support arrearages, father failed to raise claims of laches and running of statute
of limitations in trial court, such contentions could not be asserted on appeal.
OPINION
By the Court, Breen, D. J.:
1

On November 15, 1962, William and Patricia Peot were divorced in the Eighth Judicial
District Court. A provision of the decree ordered William to pay to Patricia $100.00 per
month for the support of their minor child.
Patricia subsequently moved to Wisconsin, where she filed a petition under the Uniform
Reciprocal Enforcement of Support Act [URESA], (see Stats. of Nev. 1955, ch. 44, pp.
60-65, codified as NRS ch. 130), for arrearages due under the decree. Thereafter, on
September 26, 1963, Justice Mowbray, then a district judge, ordered William to pay Patricia
the sum of $50.00 per month for the support of their child, commencing October 1, 1963, and
continuing until the child reached the age of eighteen years or until further order of the court.
On March 8, 1974, Patricia filed a motion for judgment for arrearages due under the
original decree. She also asked that William be held in contempt, an issue not pursued below.
When the motion came on for hearing the parties stipulated that William had paid all sums
due under the 1963 URESA order and whatever might be ordered to be paid under the
original decree was a matter of computation. The controversy was submitted on briefs and in
an order filed September 30, 1974, Judge Wendell concluded that the 1963 URESA order
modified the support provisions of the original decree and, therefore, no arrearages had
accrued thereon. Patricia has appealed.
The purposes of the URESA, as stated in NRS 130.030, are . . . to improve and extend
. . . the enforcement of duties of support."
____________________

1
The Governor, pursuant to Article VI, 4 of the Constitution, designated the Honorable Peter I. Breen,
Judge of the Second Judicial District, to sit in place of the Honorable John C. Mowbray, who voluntarily
disqualified himself in this case.
92 Nev. 388, 390 (1976) Peot v. Peot
duties of support. NRS 130.050 emphasizes the remedies provided in the act . . . are in
addition to and not in substitution for any other remedies.
William argues we should affirm because, under the holding in State of Illinois v. Sterling,
80 N.W.2d 13 (Minn. 1956), a reciprocal support order issued by a responding court
automatically modifies a divorce decree. Sterling merely holds that in an appropriate case, on
an appropriate motion, the court may do so. (Our emphasis.)
[Headnote 1]
Since 1969 a URESA order, entered by a Nevada court, may permit a modification, if it is
specifically provided for in the reciprocal support order. See Stats. of Nev. 1969, ch. 346, p.
600 et seq. The reciprocal support order issued on September 26, 1963, evidenced no
intention by the district court to modify or supersede the support provisions of the original
decree. Furthermore, Stats. of Nev. 1955, ch. 44, 28, p. 65, in effect at that time, clearly
stated that a URESA order . . . shall not supersede any previous order of support . . . Thus,
any rationale pertaining to the 1969 amendment is not pertinent to this case. Accordingly, we
hold the statute (Stats. of Nev. 1955, ch. 44, 28) means exactly what it says. Where the
meaning of a statute is clear and unambiguous, there is no room for construction and the
court's duty is simply to enforce the statute. In Re Walters' Estate, 60 Nev. 172, 104 P.2d 968
(1940).
[Headnote 2]
William also asserts that our statute of limitations bars recovery of any payments accrued
prior to six years of the filing of Patricia's motion; and, that her claim is barred by laches.
William failed to raise either of these contentions below and he is, therefore, precluded from
asserting them on appeal. Gibbons v. Martin, 91 Nev. 269, 534 P.2d 915 (1975).
The lower court erroneously concluded that the same parties and the same subject matter
were before the court which justified a modification of a former divorce decree. Actually, the
circumstances surrounding the two proceedings are quite different. For example, one seeking
support under URESA is not usually present in the responding state, and relies upon the
prosecuting attorney of the various states in which the obligor is found. In a reciprocal
proceeding, the court is not bound by the changed circumstances doctrine and is primarily
concerned with enforcement of support. On the facts of this case, it is doubtful that Patricia
had due notice and opportunity to be heard concerning the effect of the reciprocal
support hearing now imposed by the lower court.
92 Nev. 388, 391 (1976) Peot v. Peot
of this case, it is doubtful that Patricia had due notice and opportunity to be heard concerning
the effect of the reciprocal support hearing now imposed by the lower court.
The order of the lower court is reversed. However, since that court did not consider its
discretionary powers under NRS 125.140, this case is remanded to permit consideration and
resolution of the motion for arrearages, in light of this opinion.
____________
92 Nev. 391, 391 (1976) Leslie v. Jones Chemical Co.
RUTH LESLIE and DORIS GOOD, Appellants and Cross-Respondents, v. JONES
CHEMICAL CO., INC., a New York Corporation; JONES CHEMICALS, INC., a New York
Corporation; JONES CHEMICALS, INC., Western Division, a California Corporation; and
JONES CHEMICAL CO., INC., Western Division, a California Corporation, Respondents
and Cross-Appellants.
No. 8003
June 24, 1976 551 P.2d 234
Appeal from conditional order granting a new trial; Eighth Judicial District Court, Clark
Action was brought for injuries sustained through inhalation of chlorine gas after cylinder
of that gas exploded spewing compressed chlorine over swimming pool and patio area. The
district court granted defendants' motion for new trial unless each plaintiff accepted $85,000
remittitur of $125,000 punitive damages that had been awarded to each plaintiff along with
compensatory awards of $35,000 and $150,000 respectively, and plaintiffs appealed and
defendants cross-appealed. The Supreme Court, Thompson, J., held that conditional order of
remittitur was not abuse of discretion.
Appeal affirmed; Cross-appeal dismissed.
Gunderson, C. J., and Zenoff and Batjer, JJ., concurred in part and dissented in part.
Galatz, Earl & Biggar, of Las Vegas, for Appellants and Cross-respondents.
Beckley, Singleton, DeLanoy & Jemison, Chartered, of Las Vegas, for Respondents and
Cross-appellants.
1. Gas.
Evidence in action for injuries sustained through inhalation of chlorine gas after cylinder of that gas
exploded spewing compressed chlorine over swimming pool and patio area was sufficient to support award
of punitive damages in some amount. (Per Thompson, J., with one Justice concurring and the Chief Justice
and one Justice specially concurring.) NRS 42.010.
2. New Trial.
Since malice in fact had to be inferred from disregard of known safety procedures by defendants, and in
view of subjective nature of punitive damages, absence of workable standards with which to evaluate
propriety of amount of punitive damages, and arguable conflict of evidence regarding malice in fact,
granting conditional motion for new trial unless each plaintiff would accept $85,000 remittitur of $125,000
punitive damages that had been awarded each plaintiff along with compensatory awards of $35,000 and
$150,000 respectively was not abuse of discretion in action for injuries sustained when plaintiffs inhaled
chlorime gas after cylinder of that gas exploded spewing compressed chlorine over swimmimg pool and
patio area. (Per Thompson, J., with one Justice concurring and one Justice specially concurring.) NRS
42.010; NRCP 59(a)(6).
OPINION
In this personal injury action the defendants admitted liability. Following trial, the jury
awarded compensatory and punitive damages to each plaintiff. The verdict favoring plaintiff
Leslie was for $150,000 compensatory and $125,000 punitive damages. The verdict for
plaintiff Good was for $35,000 compensatory and $125,000 punitive damages. Believing that
the punitive damage awards totalling $250,000 were the result of passion and prejudice, the
district court granted the defendants' motion for a new trial unless each plaintiff would accept
a remittitur of punitive damages in the amount of $85,000 for a total of $170,000. The
compensatory damage awards were not touched. The plaintiffs have appealed from this
discretionary ruling, asserting an abuse of discretion. The defendants have cross-appealed
contending that the evidence does not support punitive damages, but that if it may be read to
do so, the remittitur fell within the court's discretion.
[Headnote 1]
1. The personal injury to each plaintiff resulted from the inhalation of chlorine gas which,
in turn, caused permanent damage to their respiratory systems. The chlorine gas was used as a
water purification agent in the operation of the swimming pool of the Sahara Hotel in Las
Vegas. A cylinder of that gas exploded spewing approximately 150 pounds of compressed
chlorine over the swimming pool and patio areas. The plaintiffs and others were there present
when the explosion occurred.
The district court found that the jury reasonably could conclude that the defendants
consciously and deliberately disregarded known safety procedures regarding the handling of
chlorine cylinders in reckless disregard of possible results, and that such evidence sufficiently
established malice in fact to allow punitive damages. NRS 42.010; Nevada Cement Company
v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973). Consequently, that court allowed punitive
damages but reduced the awards thereof. We also believe that the record may be read to
support punitive damages in some amount and, therefore, deny the cross-appeal. We turn to
consider the propriety of the remittitur.
[Headnote 2]
2. The trial court possessed the power to enter the order here challenged. NRCP 59(a)(6);
Harris v. Zee, 87 Nev. 309, 486 P.2d 490 (1971); Hotel Riviera, Inc. v. Short, 80 Nev. 505,
396 P.2d 855 (1964). When a remittitur damnum is ordered and we are asked to review, the
test is whether the court abused its discretionary power. Harris v. Zee, supra. Admittedly, the
standard is somewhat elusive. As noted in Harris v. Zee: We must accord deference to the
point of view of the trial judge since he had the opportunity to weigh evidence and evaluate
the credibility of witnessesan opportunity foreclosed to this court. To this extent, the appeal
is weighted in favor of the order entered, and where there is a material conflict of evidence as
to the extent of damage, a challenge to the court's exercise of discretion is substantially
repelled. Id. at 311, 312.
In that case we reinstated the jury award of compensatory damages since the evidence
regarding the personal injury incurred and the claimant's pain and suffering was not in
conflict. In the matter before us we are not concerned with the compensatory damage awards.
We here are dealing with a remittitur of punitive damages where the evidence regarding the
presence or absence of malice in fact on the part of the defendants is conflicting.
defendants is conflicting. In line with the expression in Harris v. Zee, supra, we must accord
deference to the view of the trial judge.
As noted by the trial judge there was no evidence to indicate that the defendants acted
deliberately to hurt anyone. The malice in fact, if any existed at all, had to be inferred from a
disregard of known safety procedures by management personnel of defendants. Realizing the
subjective nature of punitive damages, Caple v. Raynel Campers, Inc., 90 Nev. 341, 344, 526
P.2d 334 (1974), the absence of workable standards with which to evaluate the propriety of
the amount of such an award, Miller v. Schnitzer, 78 Nev. 301, 310, 371 P.2d 824 (1962),
and the arguable conflict of evidence regarding malice in fact, we are wholly unable to find
an abuse of discretion by the trial judge in entering the conditional order in issue. His order
may not be characterized as one which no reasonable judge would make. Roy v. Levy, 79
A.2d 847, 851 (N.H. 1951).
The conditional order is affirmed; the cross-appeal is dismissed.
Mowbray, J., concurs.
Gunderson, C. J., and Zenoff, J., concurring and dissenting:
Together with our brothers Thompson and Mowbray, we believe the trial court properly
instructed the jury to consider an award of punitive damages. However, we think the trial
court later erred in substituting its own views concerning the amount of punitive damages, in
place of the views of the eight citizens who composed the jury.
Of course, whether the record contains sufficient evidence to justify an award of punitive
damages is a question of law, and for the court to decide. U.S. Fidelity v. Peterson, 91 Nev.
617, 540 P.2d 1070 (1975). However, where the requisite factual basis for punitive damages
exists, the amount of the award rests in the sound discretion of the trier of facts, which in this
case was not the trial judge but the jury. Cf. Caple v. Raynel Campers, Inc., 90 Nev. 341, 526
P.2d 334 (1974). It is possible, of course, that some persons may view some kinds of
consciously wanton conduct as less culpable than others. Still, where the record justifies the
jury's finding of requisite intention or willingness to injure, we believe a reduction of punitive
damages may not be justified by the trial judge's personal thoughts about the relative social
acceptability of different kinds of willfully wrongul conduct. Our brethren cite no authority
supporting the idea that a trial judge has superadded discretion to reduce punitive
damages whenever there is no evidence the particular injury inflicted was "deliberate,"
but "merely" evidence that in order to operate their business at a higher profit "the
defendants consciously and deliberately disregarded known safety procedures regarding
the handling of chlorine cylinders in reckless disregard of possible results. . . ."
cite no authority supporting the idea that a trial judge has superadded discretion to reduce
punitive damages whenever there is no evidence the particular injury inflicted was
deliberate, but merely evidence that in order to operate their business at a higher profit
the defendants consciously and deliberately disregarded known safety procedures regarding
the handling of chlorine cylinders in reckless disregard of possible results. . . .
Of course, where a punitive damage award is so large, as compared to a wrongdoer's total
assets, that it will not merely punish but will destroy, then it is proper for the court to
intervene. Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962). Likewise, the court may
intervene when there is some sound basis for saying the award shocks the judicial
conscience. Caple v. Raynel Campers, Inc., cited above; General Electric v. Bush, 88 Nev.
360, 498 P.2d 366 (1972). Here, however, our brothers Thompson and Mowbray seemingly
do not suggest that either these, or any other recognized basis for judicial interference,
appears of record. Rather, they seem to be saying that a trial judge has unbridled discretion to
reassess punitive damages, not because some defined legal standard impels or allows it, but
simply because he has a pervasive power in the premises. In sum, they apparently would view
a jury's verdict concerning punitive damages as advisory only.
With that aspect of Justice Thompson and Justice Mowbray's views, we cannot concur,
and as we understand him, Justice Batjer does not concur with them either. Instead, as we
understand him, Justice Batjer merely concurs in reduction of the punitive damages out of
belief that the record does not support any award of punitive damages.
We think evidence to support punitive damages is ample, and the jury's award offends no
standard heretofore recognized for punitive damages. It should, therefore, be affirmed.
Batjer, J., dissenting in part and concurring in part:
I respectfully dissent from the holding of the majority that, . . . [T]he record may be read
to support punitive damages in some amount. However, as a result of that determination I
concur in the affirmance of the district court's conditional order for a new trial and join
Thompson, J., and Mowbray, J., in holding that we are wholly unable to find an abuse of
discretion by the trial judge in entering the conditional order.
Shortly after trial began some of the defendants offered to admit liability. Appellants and
cross-respondents, hereinafter referred to as plaintiffs or Leslie and Good, objected.
referred to as plaintiffs or Leslie and Good, objected. The trial judge asked counsel for
plaintiffs if they were seeking punitive damages, and he was advised that they were not.
Subsequently all parties entered into a written stipulation agreeing to dismiss with prejudice
the action against American Fire and Safety, Inc., and Sahara-Nevada Corporation, d/b/a
Hotel Sahara.
After examination of the first witness had commenced the respondents and
cross-appellants, hereinafter referred to as defendants or Jones Chemical, admitted liability
without objection from plaintiffs. At that juncture in the trial, Leslie and Good moved to
amend their complaints to include a claim for punitive damages and the motion was granted.
Following trial, the jury awarded compensatory and punitive damages to each plaintiff.
Believing that the punitive damage awards totalling $250,000 were the result of passion and
prejudice, the district court granted the defendants' motion for a new trial unless each plaintiff
would accept a remittitur of punitive damages in the amount of $85,000 for a total of
$170,000. The compensatory damage awards were not altered. In its order conditionally
granting a new trial, the district court reaffirmed its conclusion that the defendants had
consciously and deliberately disregarded known safety procedures regarding the handling of
chlorine cylinders in reckless disregard of possible results and that the evidence sufficiently
established malice in fact to allow the jury to assess punitive damages.
Leslie and Good have appealed from this ruling, asserting an abuse of discretion. Jones
Chemical cross-appealed contending that the evidence does not support punitive damages,
but that if it may be read to do so, the remittitur fell within the district court's discretion. The
record does not support punitive damages; consequently, I would reverse that part of the
judgment awarding punitive damages.
At the time of the accident Jones Chemical was engaged in the manufacture and sale of
compressed chlorine gas for use in commercial swimming pools. Such gas was used as a
water purification agent in the operation of the swimming pool at the Sahara Hotel in Las
Vegas, Nevada. A cylinder of chlorine gas furnished by defendants exploded, spewing
compressed chlorine over the hotel swimming pool and patio areas. The plaintiffs and others
were in the vicinity when the explosion occurred. Each plaintiff claimed permanent damage
to their respiratory systems from the inhalation of chlorine gas.
Every cylinder used to transport chlorine gas has a tare weight (empty weight) stamped on
it. Each time a cylinder is filled it is supposed to be weighed in an empty condition and the
weight of the empty cylinder compared with the tare weight. The purpose of this test is to
determine if the cylinder has lost some of its original weight as a result of corrosion. If the
cylinder loses a certain part of its original weight, it is supposed to be condemned (at the time
of the accident the standard was 10% of the original weight; at the time of trial the standard
was 5% of the original weight).
Apparently the cylinder had suffered from internal corrosion and had lost some 21% of its
original weight. The corroded condition of the cylinder may have resulted in it being filled
beyond its capacity. While sitting in the sun the chlorine gas expanded and the cylinder in its
weakened condition ruptured.
Safety in the handling of the chlorine gas depends upon the prevention and detection of
internal corrosion in a cylinder. Several procedures are to be followed in the proper
prevention and detection. Precautions are to be taken to prevent the introduction of water into
a cylinder, and tests are to be conducted to determine if corrosion has taken place. The two
principal tests are a visual inspection conducted by dropping a light into the tank and
weighing of the empty cylinder to determine if there has been a loss of its original weight.
It can be inferred that these safeguards were not properly taken with respect to the ruptured
cylinder and this failure contributed to the accident. This conduct subjected the defendants to
compensatory damages but not necessarily to an assessment of punitive damages.
At trial only Wendell O'Dell Sinyard, a truck driver for Jones Chemical, testified about the
handling of the defective cylinder. He was the person who delivered the cylinder to the
Sahara Hotel. He testified that he had placed it in an open uncovered area at the request of an
employee of the hotel. Although the pool manager testified that he did not request its
placement in the open area and did not know of any other employee making such a request,
the fact that Sinyard delivered three cylinders to the hotel and placed one or two of them in
the covered area lends some credence to his testimony.
Sinyard had worked for Jones Chemical for approximately four years, and he testified very
generally that some empty cylinders without valves may have been left in an uncovered area
of the plant. He was unable to give any specific testimony about the handling of the defective
cylinder or the handling of any other cylinders at the Jones Chemical plant in Henderson,
Nevada.
any other cylinders at the Jones Chemical plant in Henderson, Nevada.
James E. Kendell, a laborer employed by Jones Chemical for two months during the
summer of 1970, testified that he had helped weigh and fill some cylinders with chlorine gas
and had never observed anyone remove valves from the cylinders or inspect them. There was
no testimony from this witness indicating whether he helped fill and weigh the subject
cylinder or even if he was employed by the defendants at the time of the accident.
Edward Kubiak was manager of the Jones Chemical plant at Henderson at the time the
faulty cylinder was filled and dispatched. He was the only managerial employee who was
familiar with the actual operation of the plant. He was never deposed, and his death prior to
trial precluded his testifying.
The employee who actually weighed and filled the defective cylinder was never called as a
witness. The general manager of the Henderson plant testified that he knew nothing of the
plant operation because his responsibilities were in the selling of the product and contacting
customers and prospective customers. He testified to delivering the engineering department of
the Sahara Hotel an instruction bulletin, referred to in the testimony as a sign, designed to
advise on the handling of chlorine gas. Included in the bulletin was an admonition against
leaving a cylinder in the sun.
The pool manager for the Sahara Hotel testified that . . . [W]e were given the instructions
after the explosion. They brought in the sign for us to post. There is no clarification who
they were. It cannot be discerned from the record whether he was referring to employees of
Jones Chemical or to persons from the Sahara Hotel engineering office.
The practice of awarding punitive damages seems to have originated in the English courts
in the eighteenth century as a means of justifying awards of damages in excess of the
plaintiff's tangible harm. Note, Exemplary Damages in the Law of Torts, 70 Harv.L.Rev.
517, 518 (1957). Punitive damages are awarded primarily to punish the offender and to deter
others. These are the same objectives which motivate the criminal law; however, in a criminal
case the conduct which gives rise to the imposition of punishment must be clearly defined.
That is not so when the question is whether the conduct of the defendant can be characterized
as wanton, willful or intentional, and done in reckless disregard of its possible results because
such conduct shades imperceptibility into simple negligence.
In a criminal case the fine imposed goes to the state, but in a civil case the extraction of
punitive damages becomes a windfall for the plaintiff. The maximum and minimum amounts
of the fine imposed by way of punishment and deterrence in a criminal case are fixed by
statute. In the civil case, however, in awarding punitive damages the jury is generally left to
take from the defendant and deliver to the plaintiff such amount as it sees fit. See
Mattyasovszky v. West Towns Bus Company, 330 N.E.2d 509 (Ill. 1975).
The justifications for the imposition of punitive damages are sharply diminished in those
cases in which liability is imposed vicariously. Mattyasovszky v. West Towns Bus Company,
supra. See Restatement (Second) of Torts, 909 (Tent. Draft No. 19, 1973); Prosser, Law of
Torts 12 (4th ed. 1971). Compare Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2nd
Cir. 1967), with Toole v. Richardson-Merrell, Inc., 60 Cal.Rptr. 398 (Cal.App. 1967).
Punitive damages can properly be awarded against a master or other principal because of
an act by an agent if, but only if; (a) the principal authorized the doing and the manner of the
act, or (b) the agent was unfit and the principal was reckless in employing him, or (c) the
agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.
Restatement (Second) of Agency 217C (1958). Serious questions concerning the reasonable
effectiveness of punitive damages inevitably arise in a case like the present, where the
employees whose conduct was primarily responsible for the injury were never joined as
parties.
Although the district court in its decision and order conditionally granting a new trial
concluded that the jury could reasonably find that the defendants consciously and
deliberately disregarded known safety procedures regarding the handling of chlorine cylinders
in reckless disregard of possible results, there is no evidence that Jones Chemical, through
its managerial staff, authorized the doing or manner of the acts which led to the injury. As a
matter of fact, the contrary is true because there were certain written instructions available to
the employees that cautioned them in the handling of chlorine gas. Likewise, there is no
evidence that the employees were unfit for their particular jobs or that Jones Chemical was
reckless in employing them. None of the employees that handled the ruptured cylinder were
acting in a managerial capacity, and although plaintiffs conclude in their statement of fact
set forth in their opening brief that the management of Jones Chemical ratified and
approved the negligent conduct of the employees who handled the cylinder on the day it
ruptured, there is no evidence in the record to support that conclusion.
set forth in their opening brief that the management of Jones Chemical ratified and approved
the negligent conduct of the employees who handled the cylinder on the day it ruptured, there
is no evidence in the record to support that conclusion.
In Nevada an award of damages for punishment is controlled by NRS 42.010
1
which
authorizes such an award against a tortfeasor who has been guilty of oppression, fraud or
malice, expressed and implied.
In Village Development Co. v. Filice, 90 Nev. 305, 315, 526 P.2d 83 (1974), we said:
The record contains evidence to show negligence and unconscionable irresponsibility. Still,
after careful consideration and extensive debate, we find insufficient evidence to support a
finding of oppression, fraud or malice, express or implied.' NRS 42.010. Much the same
situation exists in the case before us. Jones Chemical has admitted negligence and the record
reveals irresponsibility on the part of some of its employees; however, there is really no
evidence to support a finding of oppression, fraud or malice, express or implied.
The evil motive factor of malice, which would have justified an award of punitive
damages in this case, called upon the district court to assess the state of mind of the
defendant's management at the Henderson plant before granting the plaintiffs' motion to
amend to ask for punitive damages. Such an assessment is not satisfied by merely
characterizing its conduct as consciously deliberate. On the other hand, substantial evidence
of a conscious disregard of safety is an appropriate description of the animus malus which
may justify an award of punitive damages when a nondeliberate injury occurs.
2
There is no
evidence to establish that any of the chemical company's agents or employees intended to
injure either plaintiff.
____________________

1
NRS 42.010: In an action for a 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.

2
See Gilman Paper Co. v. James, 219 S.E.2d 447, 450 (Ga. 1975), where the Georgia Supreme Court said:
To authorize the imposition of punitive damages there must be evidence of wilful misconduct, malice, fraud,
wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious
indifference to consequences. The latter expression relates to an intentional disregard of the rights of another,
knowingly or wilfully disregarding such rights. But cf. Moore v. Jewell Tea Company, 253 N.E.2d 636
(Ill.App. 1969), aff'd, 263 N.E.2d 103 (Ill. 1970), where the Illinois court admitting, It is difficult, it not
impossible, to lay down a short and simple governing rule in this subject [punitive damages], and relying upon
Toole v. Richardson-Merrell, Inc., supra, without regard to Roginsky v.
There is no evidence to establish that any of the chemical company's agents or employees
intended to injure either plaintiff. They were not sued as principals. None of them acted with
such a conscious disregard of plaintiffs' safety that they would have been subject to an
assessment of punitive damages had they been joined as parties. See American Fidelity Co. v.
Farmer, 48 S.E.2d 122 (Ga.App. 1948).
Malice in fact sufficient to justify an award of punitive damages must be supported by
substantial evidence that the wrong was committed willfully or with a design to injure, or that
the tortfeasor acted in conscious disregard of the injured plaintiffs' safety. Caple v. Raynel
Campers, Inc., 90 Nev. 341, 526 P.2d 334 (1974); Village Development Co. v. Felice, supra;
Nevada Credit Rating Bureau, Inc. v. Williams, 88 Nev. 601, 503 P.2d 9, 56 A.L.R.3d 483
(1972). See G. D. Searle & Co. v. Superior Court, Cty. of Sacramento, 122 Cal.Rptr. 218
(Cal.App. 1975). A plaintiff is never entitled to punitive damages as a matter of right. Caple
v. Raynel Campers, Inc., supra; Nevada Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180
(1973).
In every case decided by this court since the enactment of NRS 42.010,
3
with the
exception of Village Development, the records revealed substantial evidence of deliberate,
willful and intentional overt acts which meet the demand for evil motive
____________________
Richardson-Merrell, Inc., supra, upheld an award of punitive damages in the amount of $10,000 against Drackett
Products Company and the Drackett Company after one of their cans of Drano exploded and blinded the
plaintiff. Illinois has no statutory limitations such as NRS 42.010 on the award of punitive damages, and it is
well established in Illinois that where there is evidence of willful and wanton conduct punitive damages may be
allowed. Madison v. Wigal, 153 N.E.2d 90 (Ill.App. 1958). In Moore, no distinction was made between
deliberate and nondeliberate torts. Evidence of gross failure to exercise care for the safety of others was
apparently deemed to be willful and wanton conduct.

3
In addition to Caple v. Raynel Campers, Inc., supra; Nevada Cement Co. v. Lemler, supra, and Nevada
Credit Rating Bureau, Inc. v. Williams, supra, we have decided Midwest Supply, Inc. v. Waters, 89 Nev. 210,
510 P.2d 876 (1973); Alper v. Western Motels, Inc., 84 Nev. 472, 443 P.2d 557 (1968). Although neither was
decided with reference to NRS 42.010, there was evidence in both records of deliberate acts supplying the evil
motive factor of malice. Cf. United States Fidelity Guaranty Company v. Peterson, 91 Nev. 617, 540 P.2d 1070
(1975), where without reference to NRS 42.010, we approved the trial court's which is the heart of our
refusal to entertain Peterson's request that the jury be instructed on punitive damages, because the necessary
requisites to support punitive damages are not present. Necessary requisites were neither delineated nor
defined.
which is the heart of our punitive damage statute. In those cases the intent of that statute
would have been violated if an award for punitive damages had been found only upon
reckless disregard. See Ebaugh v. Rabkin, 99 Cal.Rptr. 706 (Cal.App. 1972); Gombos v.
Ashe, 322 P.2d 933 (Cal. 1958).
In Davis v. Hearst, 116 P. 530 (Cal. 1911), the fountainhead of California case law on
exemplary damages, that court said: [I]t is only upon some showing regarded by the law as
adequate to establish the presence of malice in fact (that is, the motive and willingness to vex,
harass, annoy or injure) that punitive damages have ever been awarded. 116 P. at 539.
[T]he animus malus must be shown to exist in every case before an award in punitive
damages may be made against a defendant, since the evil motive is the controlling and
essential factor which justifies such an award. . . . 116 P. at 540.
Consistent adherence to our formulations in Nevada Credit, Caples and Nevada Cement is
not difficult when the substantial evidence shows a deliberate tort. However, when faced with
a nondeliberate tort there must be evidence of a conscious disregard of the safety of others on
the part of those responsible. See G. D. Searle & Co. v. Superior Court, Cty. of Sacramento,
supra. Here the conduct of the employees of Jones Chemical is imperceptible from negligence
and there is no evidence of conscious managerial disregard for the safety of others.
I believe the district court erred in submitting to the jury the question of punitive damages.
That part of the judgment awarding punitive damages should be reversed.
____________
92 Nev. 402, 402 (1976) Moore v. City of Las Vegas
SIMMIE MOORE, as an Individual and as Guardian ad Litem of JOE MOORE, JANICE
MOORE, SAMMIE MOORE, VANESSA MOORE, KENNY MOORE, DARROW MOORE
and JAMES MOORE, Appellants, v. CITY OF LAS VEGAS, Respondent.
No. 8260
June 25, 1976 551 P.2d 244
Appeal from summary judgment dismissing complaint for wrongful death. Eighth Judicial
District Court, Clark County; Keith C. Hayes, Judge.
The Supreme Court held that where, during period between filings of first and second
motion for rehearing, first judge to whom case originally was assigned lost his bid for
reelection, second judge, to whom case was subsequently assigned, had discretion to
determine whether to grant second motion for rehearing after denial of motion for summary
judgment; and that where only feature which distinguished second motion for rehearing from
first motion was citation of additional authorities for proposition of law already set forth,
motion was superfluous, and it was abuse of discretion for second judge to grant it.
Reversed and remanded for further proceedings.
Charles L. Kellar, of Las Vegas, for Appellants.
Cromer, Barker & Michaelson, of Las Vegas, for Respondent.
1. Judges.
District court rule providing that same application or motion shall not be again made to same or another
district judge except upon consent of judge to whom application was first made was intended to prevent
judge shopping and to preclude litigants from attempting to have unfavorable determination by one
distrct judge overruled by another. DCR 27.
2. Judges.
District court rule providing that same application or motion shall not be again made to same or another
district judge except upon consent of judge to whom application or motion was first made would not be
violated where case becomes assigned to another judge by reason of some fortuitous event, such as death or
elective process, and not by reason of any action initiated by or within control of parties. DCR 27.
3. Judges.
Where, during period between filings of first and second motion for rehearing on motion for summary
judgment in wrongfull death action, first judge to whom case originally was assigned lost his bid for
reelection, second judge, to whom case was subsequently assigned, had discretion to determine whether to
grant second motion for rehearing. DCR 27.
4. Judges.
Where only feature which distinguished second motion for rehearing in wrongful death action from
previous motions for summary judgment and for rehearing which had been denied by first judge to whom
case was assigned was citation of additional authorities for proposition of law already set forth and
adequately supported by reference to relevant authorities in earlier motion, second motion was superfluous
and it was abuse of discretion for second judge, to whom case had been subsequently assigned, to grant
said motion. DCR 27.
5. Motions.
Only in very rare instances in which new issues of fact or law are raised supporting ruling contrary to
ruling already reached should motion for rehearing be granted. DCR 27.
OPINION
Per Curiam:
Two issues are presented for our consideration on this appeal from an order granting
summary judgment dismissing a wrongful death action against the City of Las Vegas: (1)
whether a district court judge is empowered to rehear a motion once denied by a judge who
no longer holds office, and (2) whether summary judgment was appropriate as a matter of
law.
Maude Jackson Moore, survived by a husband and seven children, was killed by an
automobile at the intersection of Miller and La Salle Streets in Las Vegas on the evening of
January 1, 1972. At the time of the accident, she was kneeling in the middle of the unlighted
intersection tending to her injured dog which had just been struck by a passing motorist.
The City first moved for summary judgment a short time after the suit was commenced in
1972. That motion and a subsequent motion for rehearing were denied. In March 1975, a
second motion for rehearing was filed which cited authorities that previously had been
overlooked by the City. During the period between the filings of the first and second motions
for rehearing, the judge to whom the case originally was assigned lost his bid for re-election.
As a result, the case was assigned to another judge. The second motion for rehearing was
granted and summary judgment followed.
District Court Rule 27 provides:
When an application or petition for any writ or order shall have been made to a district
judge and is pending or has been denied by such judge, the same application or motion shall
not again be made to the same or another district judge, except upon the consent in writing of
the judge to whom the application or motion was first made.
[Headnotes 1-3]
District Court Rule 27 is intended to prevent judge shopping once a motion is granted or
denied. Its purpose is to preclude litigants from attempting to have an unfavorable
determination by one district judge overruled by another. A deceased judge or a judge no
longer in office is not available to give written consent for another district judge to hear
motions once granted or denied by him.
motions once granted or denied by him. The animus of the rule is not offended where, as
here, the case becomes assigned to another judge by reason of some fortuitous event such as
death or the elective process and not by reason of any action initiated by or within the control
of the parties. Thus, the question whether to grant the second motion for rehearing was within
the sound discretion of the district court. Cf. Estabrook v. J. C. Penney Co., 464 P.2d 325
(Ariz. 1970); Jiminez v. Sears Roebuck & Co., 482 P.2d 681 (Cal. 1971); Annau v. Schutte,
535 P.2d 1095 (Idaho 1975).
[Headnotes 4, 5]
From the record we note that the first judge to whom the case was assigned denied the
original motion for summary judgment and the first motion for rehearing for the reason that
he perceived certain triable issues of fact. The only feature which distinguishes the second
motion for rehearing from the two previous motions is the citation of additional authorities
for a proposition of law already set forth and adequately supported by reference to relevant
authorities in the earlier motions. We note particularly that the second motion for rehearing
raised no new issues of law and made reference to no new or additional facts. Under such
circumstances the motion was superfluous and, in our view, it was an abuse of discretion for
the district court to entertain it. Only in very rare instances in which new issues of fact or law
are raised supporting a ruling contrary to the ruling already reached should a motion for
rehearing be granted. This is not such a case.
We decline to address other purported issues raised on this appeal. Williams v. Zellhoefer,
89 Nev. 579, 517 P.2d 789 (1973); Solar, Inc. v. Electric Smith Constr., 88 Nev. 457, 499
P.2d 649 (1972).
____________
92 Nev. 405, 405 (1976) Johnson v. State
JOE EDWARD JOHNSON, Appellant, v. THE
No. 8449
June 25, 1976 551 P.2d 241
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; James
A. Brennan, Judge.
The district court found defendant guilty of first and second degree murder, and he
appealed. The Supreme Court held, inter alia, that even assuming a Miranda violation,
defendant's statement to the police was admissible for impeachment purposes; furthermore,
any error of the trial court in failing to give an instruction limiting its use to impeachment was
harmless, since defendant actually requested that such an instruction not be given and since
the evidence of guilt was overwhelming.
Affirmed.
Wiener, Goldwater, Galatz & Waldman, Ltd., Las Vegas, for Appellant.
Robert List, Attorney General, and George E. Holt, District Attorney, Las Vegas, for
Respondent.
Even assuming a Miranda violation, defendant's statement to the police was admissible for impeachment
purposes; furthermore, any error of the trial court in failing to give an instruction limiting its use to
impeachment was harmless, since defendant actually requested that such an instruction not be given and
since the evidence of guilt was overwhelming.
2. Homicide.
Trial court's instruction The right of self-defense is not available to a person who has sought a quarrel
with the design to force a deadly issue and thus through his fraud, contrivance or fault, to create a real or
apparent necessity for making a felonious assault did nothing more than properly state the abstract
principle that self-defense is not available to one who seeks a quarrel with the fraudulent intent to force a
deadly issue and thus to create a real or apparent necessity for his own assault.
OPINION
Per Curiam:
Convicted by jury of first and second degree murder, appellant contends the district court
erred (1) by admitting a statement appellant made prior to receiving Miranda warnings, (2) by
not giving an instruction limiting the statement's use to impeachment, and (3) by instructing
that self-defense may not be contrived. These contentions are without merit.
Arriving at the scene of a shooting, where they observed appellant fire two shots into one
of the victims, police officers asked appellant why he had shot the two victims.
asked appellant why he had shot the two victims. Appellant replied that he had shot them
because they had beat up his son. Upon receiving this explanation, the officers ceased
questioning appellant, arrested him, and gave him the Miranda warnings.
At trial, the State did not offer appellant's statement in its case-in-chief. However, when
appellant testified that he had acted in self-defense, the State proposed to cross-examine him
regarding his contrary statement. The district court permitted this without instructing the jury
that the statement could be considered only for impeachment purposes.
1. Appellant argues that his statement was the product of a custodial interrogation and
thus inadmissible by reason of Miranda v. Arizona, 384 U.S. 436 (1966). Due to the
investigative and non-coercive nature of the questioning, it may be questioned whether the
statement was the product of a custodial interrogation. See: Schnepp v. State, 84 Nev. 120,
437 P.2d 84 (1968); State v. Billings, 84 Nev. 55, 436 P.2d 212 (1968); State v. Lopez, 442
P.2d 594 (N.M. 1968). However, we need not make this determination.
[Headnote 1]
2. Even assuming a Miranda violation, appellant's statement was nonetheless admissible
for impeachment purposes. Harris v. New York, 401 U.S. 222 (1971). Still, appellant
contends the district court should have given an instruction limiting its use to impeachment.
However, because appellant actually requested that such an instruction not be given, and
because evidence of guilt is overwhelming, we deem any error in failing to give such a
limiting instruction harmless. See: Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975); Harris
v. State, 90 Nev. 172, 521 P.2d 367 (1974); Grimaldi v. State, 90 Nev. 83, 518 P.2d 615
(1974).
[Headnote 2]
3. Finally, appellant contends the district court erred by instructing: The right of
self-defense is not available to a person who has sought a quarrel with the design to force a
deadly issue and thus through his fraud, contrivance or fault, to create a real or apparent
necessity for making a felonious assault. This instruction does nothing more than properly
state the abstract principle that self-defense is not available to one who seeks a quarrel with
the fraudulent intent to force a deadly issue and thus to create a real or apparent necessity for
his own assault.
for his own assault. See: People v. Garnier, 213 P.2d 111 (Cal.App. 1950); 1 Witkin,
California Crimes 158 at 152 (1963).
Affirmed.
____________
92 Nev. 408, 408 (1976) Young v. Sheriff
JEFFREY BRUCE YOUNG, Appellant, v. SHERIFF,
No. 8892
June 25, 1976 551 P.2d 425
The Supreme Court held that 1975 enactment, under which a conspiracy to commit a
crime other than certain specified crimes is punishable as a gross misdemeanor, encompassed
a comprehensive plan for regulating punishment of all conspiracies and thus superseded 1971
statute making offense of conspiracy to sell a controlled substance punishable as a felony;
thus, it was impermissible to charge defendant with conspiracy to sell a controlled substance
as a felony.
Reversed, without prejudice to other proceedings.
Alan B. Andrews, Las Vegas, for Appellant.
J. Cremen, Deputy, Clark County, for Respondent.
1. Statutes.
A statute establishing a comprehensive plan for regulating a particular subject matter repeals, by
necessary implication, an earlier law dealing with but a small part of the same subject.
2. Conspiracy.
1975 enactment, under which a conspiracy to commit a crime other than certain specified crimes is
punishable as a gross misdemeanor, encompassed a comprehensive plan for regulating punishment of all
conspiracies and thus superseded 1971 statute making offense of conspiracy to sell a controlled substance
punishable as a felony; thus, it was impermissible to charge defendant with conspiracy to sell a
controlled substance as a felony.
with conspiracy to sell a controlled substance as a felony. NRS 199.480, 453.401, subd. 5, 453.421.
OPINION
Per Curiam:
The Clark County Grand Jury returned an indictment charging Jeffrey Bruce Young with
conspiracy to sell a controlled substance. NRS 453.401(5). The offense is punishable as a
felony under NRS 453.421, which statute was enacted May 6, 1971, and became effective
July 1, 1971. See Stats. of Nev. 1971, ch. 667, 75, p. 2023.
NRS 199.480, enacted by Stats. of Nev. 1975, ch. 363, 1, p. 509, provides that such
conspiracy be punished as a gross misdemeanor.
A timely filed petition in habeas corpus contended, inter alia, Young could not be charged
with the felony because the 1975 enactment repealed, by implication, NRS 453.421.
1
The
district judge rejected the contention, denied habeas and, in this appeal, Young reurges the
same contention.
[Headnote 1]
This court has heretofore recognized that a statute establishing a comprehensive plan for
regulating a particular subject matter, repeals, by necessary implication, an earlier law dealing
with but a small part of the same subject. City of Carson v. County Commissioners, 47 Nev.
415, 224 P. 615; State v. Economy, 61 Nev. 394, 130 P.2d 264. So. Nev. Tel. Co. v.
Christoffersen, 77 Nev. 322, 326, 363 P.2d 96, 98 (1961).
[Headnote 2]
In our view, the 1975 enactment encompasses a comprehensive plan for regulating
punishment of all conspiracies and it, therefore, supersedes the 1971 statute. It is
impermissible to charge Young with a felony; accordingly, the district court's order
denying habeas corpus is reversed, without prejudice to the prosecutor's right to timely
initiate an appropriate charge.
____________________

1
The applicable portion of the newer statute, NRS 199.480, reads:
1. Whenever two or more persons conspire to commit murder, robbery, forcible rape, kidnaping [sic] in the
first or second degree, or arson in the first or second degree, every such person shall be punished by
imprisonment in the state prison for not less than 1 year nor more than 6 years.
2. Whenever two or more persons conspire:
(a) To commit any crime other than those set forth in subsection 1; . . .
every such person is guilty of a gross misdemeanor. (Our emphasis.)
to charge Young with a felony; accordingly, the district court's order denying habeas corpus is
reversed, without prejudice to the prosecutor's right to timely initiate an appropriate charge.
____________
92 Nev. 410, 410 (1976) McLemore v. Welfare Division
CURTIS and INA BELL McLEMORE, Appellants, v. WELFARE DIVISION OF THE
DEPARTMENT OF HUMAN RESOURCES and THE STATE WELFARE BOARD,
Respondents.
No. 8235
June 30, 1976 551 P.2d 1101
Appeal from summary judgment; Eighth Judicial District Court, Clark County; Michael J.
Wendell, Judge.
The district court rendered summary judgment, affirming decision of Welfare Division to
terminate assistance for dependent child living with great-uncle, and great-uncle appealed.
The Supreme Court, Thompson, J., held that since State provided aid under Aid to Dependent
Children Act to dependent children living with first cousins, equal protection considerations
required that dependent child living with great-uncle be afforded aid, since both first cousin
and great-uncle are in fourth degree of kinship.
Reversed and remanded with direction to enter judgment for appellants.
James G. McGuire and Richard E. Donaldson, Clark County Legal Services, for
Appellants.
Robert List, Attorney General, and Marilyn Romanelli, Deputy Attorney General, for
Respondents.
1. Social Security and Public Welfare.
Absent clear indication that Congress meant coverage to be optional, state participating in aid to
dependent children program may not deny aid to persons who come within federal standard of eligibility.
Social Security Act, 406, 42 U.S.C.A. 606.
2. Social Security and Public Welfare.
Purpose of federal Aid to Dependent Children Act, as well as conforming state statute, is to provide
assistance to dependent children who are living with relatives within specified degree of kinship. Social
Security Act, 406, 42 U.S.C.A. 606; NRS 425.010 et seq.
Where State provided aid under Aid to Dependent Children Act to dependents living with first cousins,
equal protection considerations required that dependent child living with great-uncle be afforded such aid,
since both first cousin and great-uncle are in fourth degree of kinship. U.S.C.A.Const. Amend. 14; Social
Security Act, 406, 42 U.S.C.A. 606; NRS 134.150, 425.030, subd. 5 (a).
OPINION
This appeal is from a summary judgment for the Welfare Division. That judgment
affirmed a decision by the Welfare Division to terminate assistance for a dependent child
living with his great-uncle. In sustaining termination of assistance the district court found that
the dependent child was not living with a relative specified for eligibility by either statute,
NRS 425.030(5)(a), or Welfare Division regulation 202.17. An issue of material fact does not
exist. The propriety of the decision of the Welfare Division, and of the district court upon
review thereof, tenders only questions of law.
The McLemores have been residents of Nevada since 1940. In 1958 they assumed the care
of a newborn infant, Calvin Tellis. Curtis McLemore is the great-uncle of Calvin. The
McLemores, senior citizens of limited means, have continuously cared for Calvin since 1958.
On or about September 9, 1974, they received notice that assistance would terminate on
September 30, 1974, for the reason that a great-uncle was not a relative of a specified
degree within Section 202.17 of the Nevada State Welfare Division Manual. That regulation
had been changed as of June 14, 1974, to delete great-uncles from the eligibility list. The
McLemores' petition for court review later was filed [NRS 425.120] with the result heretofore
mentioned.
[Headnote 1]
1. Absent a clear indication that Congress meant coverage to be optional, a participating
state may not deny aid to persons who come within the federal standard of eligibility. King v.
Smith, 392 U.S. 309 (1968); Townsend v. Swank, 404 U.S. 282 (1971); Carleson v.
Remillard, 406 U.S. 598 (1972).
Under the federal Social Security Act a dependent child is one who has been deprived of
parental support or care for specified reasons, and is living with a designated relative in
that relative's home.1 A great-uncle is not one of the relatives designated.
specified reasons, and is living with a designated relative in that relative's home.
1
A
great-uncle is not one of the relatives designated. However, the regulation promulgated by the
Department of Health, Education and Welfare provides that a dependent child may be
considered to meet the requirement of living with one of the relatives specified in the Social
Security Act if his home is with a great-uncle.
2
Thus, if our state statute and regulation
employed identical language, it is clear that the McLemores would be entitled to the aid
which they here claim.
Our Nevada Aid to Dependent Children Act, NRS ch. 425, conforms to 42 U.S.C.A. 606
in defining a dependent child. However, Nevada State Welfare Division Regulation 202.17
which was changed as of June 14, 1974, provides that a dependent child meets the eligibility
requirement of living with a relative of specified degree if the relative is a (a) father, mother,
sister, brother, grandfather, grandmother (b) stepfather, stepmother, stepbrother, stepsister (c)
uncle, aunt, first cousin, nephew, niece.
It is the contention of the Welfare Division that coverage of a dependent child living with
his great-uncle is optional with the state by reason of the words may be in 45 C.F.R.
233.90(c)(i)(v), and the aforementioned Supreme Court decisions in King, Townsend, and
Carleson, and the more recent decision of Burns v. Alcala, 420 U.S. 575 (1975). Moreover,
that the Welfare Division of this state opted against covering a dependent child living with his
great-uncle when it promulgated Regulation 202.17 in its present form. The district court
agreed with the Welfare Division. We do not, and turn to state why.
2. NRS 134.150 states: The degrees of kindred shall be computed according to the rules
of the civil law. As already noted, the federal act defines a dependent child as one who is
living with, among other relatives, his first cousin.
____________________

1
42 U.S.C.A. 606: When used in this part(a) The term dependent child means a needy child (1) who
has been deprived of parental support or care by reason of the death, continued absence from the home, or
physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother,
brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew or niece, in a
place of residence maintained by one or more of such relatives as his or their own home. . . .

2
45 C.F.R. 233.90(c)(i)(v): . . . A child may be considered to meet the requirement of living with one of the
relatives specified in the Act if his home is with a parent or a person in one of the following groups: (1) Any
blood relative, including those of half-blood, and including first cousins, nephews or nieces, and persons of
preceding generations as denoted by prefixes of grand, great, or great-great.
noted, the federal act defines a dependent child as one who is living with, among other
relatives, his first cousin. Nevada's Aid to Dependent Children Act is identical in this respect.
NRS 425.030(5)(a). It is established law that a participating state must provide benefits to all
persons eligible under federal standards. King v. Smith, supra; Townsend v. Swank, supra;
Carleson v. Remillard, supra. It also is true that under the rules of the civil law a first cousin
and a great-uncle each is within the fourth degree of kinship. Nolan's Universal Chart
Showing Relationships and Degrees of Kinship According to Civil, Cannon and Common
Laws, seventh printing, 1965.
[Headnote 2]
It is clear to us that the purpose of the federal act, and of our conforming state statute, is to
provide assistance to dependent children who are living with relatives within a specified
degree of kinship. Otherwise, serious equal protection problems might arise if the said acts
were applied to include some relatives within a specified degree of kinship and to exclude
others within the same degree.
[Headnote 3]
With the above in mind, the conclusion is compelled that the State is obliged to render aid
to a dependent child living in a place of residence maintained by his great-uncle. We so
construe 42 U.S.C.A. 606 and our own NRS 425.030 (5)(a).
Burns v. Alcala, 420 U.S. 575 (1974), so heavily relied upon by the respondents and the
court below, in denying relief to the claimants, is not apposite to the precise issue we have
tendered in this case. In Burns, the court, as a matter of statutory construction, held that the
Social Security Act would not support a conclusion that the legislative definition of
dependent child includes unborn children, since Congress used the word child to refer to
an individual already born with an existence separate from its mother. Here, we are not
concerned with that problem. Rather, our concern is whether, as a matter of statutory
construction, we may conclude that Congress and the Nevada Legislature intended assistance
for a dependent child living with a kindred within the fourth degree. We have concluded that
such was the intention since aid is expressly mandated for a dependent child living in the
residence of his first cousin.
The judgment below is reversed, and this case is remanded with direction to enter
judgment for appellants for all aid to which they have been entitled under The Nevada Aid
to Dependent Children Act.
which they have been entitled under The Nevada Aid to Dependent Children Act.
____________
92 Nev. 414, 414 (1976) Bader Enterprises v. Olsen
BADER ENTERPRISES, INC., a Delaware Corporation, Appellant, v. ARTHUR OLSEN,
HELEN L. ROW, Also Known as HELEN L. OLSEN, PAUL N. MELTZER and HELEN
MELTZER, Respondents.
No. 8749
June 30, 1976 551 P.2d 424
Appeal from judgment, Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
The district court entered judgment that plaintiff take nothing by way of its complaint, and
plaintiff appealed. The Supreme Court held that where respondents neither filed their
answering brief within prescribed time nor offered any explanation for their failure to do so,
the Supreme Court would, sua sponte, elect to treat respondents' unexcused and unexplained
dereliction as confession of error.
Stanley W. Pierce, Las Vegas, for Appellant.
Paul V. Carelli, III, Las Vegas, for Respondents.
Appeal and Error.
Where respondents neither filed their answering brief within prescribed time nor offered any explamation
for their failure to do so, the Supreme Court, on appeal, would, sua sponte, elect to treat respondents'
unexcused and unexplained dereliction as confession of error. NRAP 31(a).
OPINION
Per Curiam:
This appeal, which is in progress, is from a judgment decreeing that appellant (plaintiff
below) takes nothing by way of its complaint.
92 Nev. 414, 415 (1976) Bader Enterprises v. Olsen
Respondents have neither filed their answering brief within the time prescribed by NRAP
31(a), nor have they offered any explanation for their failure to do so.
Under these circumstances, and for the same reasons stated in, and on the authority of,
Kitchen Factors, Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975), we, sua sponte, elect to
treat respondents' unexcused and unexplained dereliction as a confession of error.
Accordingly, we reverse and remand for further proceedings. In accord with NRS 18.060
appellant will be allowed its costs on appeal, upon the proper filing of a cost bill.
____________
92 Nev. 415, 415 (1976) Busam v. Sheriff
LEONARD IGNATIUS BUSAM, Jr., Appellant, v.
SHERIFF, ELKO COUNTY, NEVADA, Respondent.
No. 8781
June 30, 1976 551 P.2d 246
Appeal from order denying a pre-trial petition for habeas corpus, Fourth Judicial District
Court, Elko County; Joseph O. McDaniel, Judge.
Affirmed in part; reversed in part.
Ames and Corn, Ltd., Elko, for Appellant.
Robert List, Attorney General, Carson City; Robert C. Manley, District Attorney, and Gary
E. DiGrazia, Deputy District Attorney, Elko, for Respondent.
OPINION
Per Curiam:
A five count indictment, returned by the Elko County Grand Jury, charged Leonard
Ignatius Busam, Jr., with: I. Embezzlement (NRS 205.300); II. Forgery (NRS 205.095); III.
Burglary (NRS 205.060); IV. Embezzlement (NRS 205.300); and V. Embezzlement (NRS
205.300). Busam timely filed a petition for habeas corpus, which was granted as to count V;
and, he now appeals from the order denying his habeas challenge to the first four counts.
In asking us to reverse, Busam contends the charges cannot stand because: (1) the Elko
County District Attorney violated a plea bargain agreement; {2) he is being subjected to
double jeopardy; and, {3) the evidence was insufficient to establish probable cause that
he committed the charged offenses.
92 Nev. 415, 416 (1976) Busam v. Sheriff
violated a plea bargain agreement; (2) he is being subjected to double jeopardy; and, (3) the
evidence was insufficient to establish probable cause that he committed the charged offenses.
The district judge considered and rejected each of these contentions and the record before us
can be read to support that determination, except as to count II.
Count II charges Busam with forgery; however, there is no evidence of record to support
that charge. See NRS 205.095 and United States v. Morse, 161 F. 429 (C.C.N.Y. 1908).
Accordingly, the order of the trial court denying habeas corpus is reversed as to count II; as to
counts I, III and IV, it is affirmed.
____________
92 Nev. 416, 416 (1976) Elkins v. Hartle
SHIRLEY ELKINS and NORVAL ELKINS, dba SH-VAL DRAPERIES & CARPET,
Appellants, v. DONALD HARTLE and CHERYL HARTLE, Husband and Wife,
Respondents.
No. 8403
June 30, 1976 551 P.2d 424
Appeal from summary judgment, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
Appeal was taken from an order of the district court granting summary judgment for
defendants in action on contract for design and installation of custom made draperies. The
Supreme Court held that absent allegation and proof of a defect in workmanship or
installation of draperies purchased under contract under which workmanship and installation
of draperies were guaranteed for two years, summary judgment for defendants was improper.
James L. Buchanan, II, Las Vegas, for Appellants.
Jones, Jones, Bell, LeBaron & Close, and Michael E. Buckley, Las Vegas, for
Respondents.
Judgment.
Absent allegation and proof of a defect in workmanship or installation of custom made draperies
purchased under contract under which workmanship and installation of draperies were
guaranteed for two years, summary judgment for defendants in action on contract
was improper.
92 Nev. 416, 417 (1976) Elkins v. Hartle
under which workmanship and installation of draperies were guaranteed for two years, summary judgment
for defendants in action on contract was improper. NRCP 56(e).
OPINION
Per Curiam:
In this appeal, Norval and Shirley Elkins, doing business as Sh-Val Draperies & Carpet,
contend that the district court erred in granting summary judgment in favor of respondents.
We agree.
The complaint filed in the trial court contended that a contract existed for the design and
installation of custom made draperies and that all workmanship and installation was
guaranteed for two (2) years.
The affidavit in support of the motion for summary judgment, executed by respondents'
attorney, affirmatively shows that he had no personal knowledge of any defects in either
workmanship or installation. Absent such verification and evidence, the granting of
summary judgment was improper. NRCP 56(e); Daugherty v. Wabash Life Ins. Co., 87 Nev.
32, 482 P.2d 814 (1971).
____________
92 Nev. 417, 417 (1976) McIntosh v. Burroughs
JAY McINTOSH and VIRGINIA McINTOSH, Appellants, v. H. WAYNE BURROUGHS,
also Known as HARRY WAYNE BURROUGHS, also Known as HARRY W.
BURROUGHS, and VOHNDELL E. BURROUGHS, His Wife, Respondents.
No. 7622
June 30, 1976 551 P.2d 1104
Appeal from judgment, Second Judicial District Court, Washoe County; John E. Gabrielli,
Judge.
Appeal was taken from a judgment of the district court quieting title to property. The
Supreme Court held that where cotenants to property derived their interest from different
conveyances, reconveyance of one cotenant's interest to him by county treasurer after
payment of delinquent taxes gave the other cotenant no interest in that cotenant's share.
by county treasurer after payment of delinquent taxes gave the other cotenant no interest in
that cotenant's share.
Affirmed.
James W. Johnson, Jr., Hale and Belford, Reno, for Appellants.
Rice and Goedert, Reno, for Respondents.
1. Taxation.
Where there was no fiduciary relationship or expectation of trust or reliance between cotenants to tract of
property, and cotenants had obtained their interests in different conveyances, second cotenant received no
interest in first cotenant's share of such property when first cotenant's share was reconveyed to him by
county treasurer after payment of delinquent property taxes, and title in first cotenant's property would
therefore be quieted. NRS 361.570, 361.585, 361.585, subd. 3, 361.590, subd. 1.
2. Tender.
Tender commonly requires actual payment to court or proffer of money owed to tenderee.
OPINION
Per Curiam:
This appeal follows a district court judgment quieting title to certain real property.
Appellants contend the court erred in not recognizing their interest in the property. We
disagree.
The land in question is a one-half acre parcel in Washoe County. In 1951, respondent
Wayne Burroughs and his then wife Virgie bought the land as joint-tenants. In 1966, Virgie
Burroughs by gift deed conveyed her one-half interest to her daughter, Vicky Quilici. In 1967,
a trustee in bankruptcy sold Wayne Burroughs' original one-half interest to one Samuel
Bailey. In January of 1970, Bailey deeded his interest in the property to appellants. Also in
January of 1970, Vicky Quilici deeded her interest to her father, Wayne Burroughs and his
new wife, Vohndell (respondents).
Except for a very short period of time when Samuel Bailey used a portion of the property,
no one but the Burroughs family has ever occupied the property or paid taxes thereon. At all
times relevant to this dispute, the persons assessed as owners of the property for tax purposes
have been the Burroughs family.
Some time after the 1967-68 tax assessments were made, the property taxes fell
delinquent. Accordingly, pursuant to NRS 361.570, the county tax receiver issued a
certificate to the Washoe County Treasurer authorizing the county to hold the land for the
two-year redemption period.
1
Since the property was not redeemed during the two-year
statutory period, a tax deed pursuant to NRS 361.590(1) was issued to the Washoe County
Treasurer as trustee for the State and county.
2
On January 19, 1971, upon payment of all
delinquent taxes, interest and assessments, the Washoe County Treasurer issued a deed of
reconveyance to respondents pursuant to NRS 361.585(3).
At all times relevant to this dispute, NRS 361.585(3) provided: Notwithstanding the
provisions of NRS 361.595 or 361.603, at any time during the 90-day period specified in NRS
361.603, or prior to the public notice of sale by a county treasurer, pursuant to NRS
361.595, of any property held in trust by him by virtue of any deed made pursuant to the
provisions of this chapter, any person who was the owner, beneficiary under a deed of
trust or mortgagee under a mortgage of such property, or to whom such property was
assessed, or who held a contract to purchase such property, prior to being so conveyed to
the county treasurer, or the successor in interest of any such person, shall have the right
to have such property reconveyed to him upon paying the county treasurer an amount
equal to the taxes accrued, together with any costs, penalties and interest legally
chargeable against such property."3
[Headnote 1]
____________________

1
1. Pursuant to the notice given as provided in NRS 361.565 and at the time so noticed the tax receiver shall
make out his certificate authorizing the county treasurer as trustee for the state and county to hold the property
described therein for the period of 2 years after the date thereof, unless sooner redeemed.
2. The certificate should specify:
(a) The amount of delinquency, including the amount and year of assessment; and
(b) The taxes and the penalties and costs added thereto, and that interest thereon will be added at the rate of
10 percent per annum from the date due until paid; and
(c) The name of the owner or taxpayer, if known.
3. The certificate shall state, and it is hereby provided:
(a) That the property may be redeemed within 2 years from its date; and
(b) That if not redeemed, the title to the property shall vest in the county for the benefit of the state and
county.
4. Until the expiration of the period of redemption, the property held pursuant to the certificate shall be
assessed annually to the county treasurer as trustee, and before the owner or his successor shall redeem such
property he shall also pay the county treasurer holding the certificate any additional taxes assessed and accrued
against the property after the date of the certificate, together with the interest thereon at the rate of 10 percent per
annum from the date due until paid.
5. It shall be the county treasurer's duty to take certificates issued to him under the provisions of this
section.

2
If the property is not redeemed within the time allowed by law for its redemption, the tax receiver or his
successor in office must make to the county treasurer as trustee for the state and county a deed of the property,
reciting in the deed substantially the matters contained in the certificate of sale and that no person has redeemed
the property during the time allowed for its redemption.
NRS 361.603, or prior to the public notice of sale by a county treasurer, pursuant to NRS
361.595, of any property held in trust by him by virtue of any deed made pursuant to the
provisions of this chapter, any person who was the owner, beneficiary under a deed of trust or
mortgagee under a mortgage of such property, or to whom such property was assessed, or
who held a contract to purchase such property, prior to being so conveyed to the county
treasurer, or the successor in interest of any such person, shall have the right to have such
property reconveyed to him upon paying the county treasurer an amount equal to the taxes
accrued, together with any costs, penalties and interest legally chargeable against such
property.
3

[Headnote 1]
Specifically, appellants contend that because of a cotenancy relationship between the
parties, NRS 361.585(3), in its form at that time, must be construed to contemplate that one
owner accepts a reconveyance on behalf of all owners. Under the circumstances here
presented, we cannot agree; nor do we deem extensive interpretation of the statute necessary.
Appellants cite authority for the proposition that one co-tenant who pays delinquencies,
does so for the benefit of all co-tenants. However, the authorities cited involved statutory
schemes differing from NRS 361.585(3). See for example: Lomax v. Gindell, 7 N.E. 483 (Ill.
1886).
The relationship of the present parties involved neither a fiduciary relationship, nor even
circumstances from which any expectation of trust or reliance might arise. As appellants
stated in their opening brief before this court: Burroughs and McIntosh were naked tenants
in common. They took under separate conveyances. They had no connection or relation with
each other. They were strangers who happened to co-own property. Appellants apparently
received their interest in the property in return for the issuance of certain bail bonds
necessitated by Sam Bailey's unsuccessful criminal endeavors. The district court's decision
reflects that in early January, 1971, Wayne Burroughs called on Jay McIntosh at his Reno
office. Burroughs' purpose was to discuss the tax situation and possibly purchase appellant's
interest in the property. The taxes were not actually discussed. McIntosh indicated he was
merely holding the property for Sam Bailey until Bailey got out of prison and that Bailey
"could steal enough in one night to pay him back."
____________________

3
NRS 361.585 was significantly amended by the 1973 session of the Nevada Legislature.
out of prison and that Bailey could steal enough in one night to pay him back. The record
amply supports these factual determinations. Thus, they cannot be disturbed. Western Indus.,
Inc. v. General Ins. Co., 91 Nev. 222, 533 P.2d 473 (1975).
[Headnote 2]
Under these circumstances, we believe the district court correctly determined that
respondents bore appellants no obligation, fiduciary or otherwise, in regard to the property,
and correctly determined that respondents were entitled to a decree quieting title thereto.
4

Affirmed.
____________________

4
We note in passing that appellants neither pleaded nor proved any allegations of fraudulent conduct. Also,
we note that appellant has never actually tendered a pro rata share of the delinquencies. In their answer to the
complaint, appellant indicated an ability and willingness to tender. However, tender commonly requires an
actual payment to the court or proffer of money owed to the tenderee. Kammert Bros. Enterprises v. Tanque
Verde Plaza Co., 420 P.2d 592 (Ariz.App. 1966).
____________
92 Nev. 421, 421 (1976) Petit v. Ratner
KATHIE J. PETIT, Appellant, v. MARK
RATNER, Respondent.
No. 8437
June 30, 1976 551 P.2d 426
Appeal from an order denying modification of a judgment for child support, Eighth
Judicial District Court, Clark County; Carl J. Christensen, Judge.
After a putative father signed a stipulation recognizing an illegitimate child as his own, the
mother moved for an increase in child support above the $50 per month level set out in the
stipulation. The district court denied the motion, and the mother appealed. The Supreme
Court held that child support could be modified if such modification was warranted by
changed circumstances.
Robert K. Dorsey, Las Vegas, for Appellant.
Rogers, Monsey, Lea, Woodbury, & Sheehan, Las Vegas, for Respondent.
92 Nev. 421, 422 (1976) Petit v. Ratner
Bastards.
Despite fact that putative father of illegitimate child, by stipulation, had agreed that child was his own
and had undertaken to pay child support in amount of $50 per month, child support was subject to
modification on showing of changed circumstances. NRS 126.280.
OPINION
Per Curiam:
Appellant Kathie Petit here attacks the district court's decision that NRS 126.280 bars her
motion for an increase in child support.
1
Petit originally sued respondent Ratner upon a
paternity complaint in September, 1974. The case ended in a judgment pursuant to a
Stipulation signed only by Petit's counsel.
That stipulation, which recognized Ratner as the father, provided for child support of $50
per month, and for medical expenses of $596.70. Ratner contends such stipulation was an
agreement pursuant to NRS 126.280. Thus, he urges, the court correctly determined that he
had bought his peace through a court approved agreement, and accordingly no modification
of child support could be had. We disagree.
Neither the stipulation, nor the court's initial action approving it, reflects any intent to
achieve a final compromise of all rights, including rights to a modification if one should
become warranted through changed circumstances. Nor does it appear that the stipulation
was, as NRS 126.280 requires, fully secured by payment or otherwise. See Cady v. Beech,
318 N.Y.S.2d 867 (Family Ct. 1971). Thus, it appears to us that the stipulation neither
satisfied our statute, nor contained the elements of compromise agreements recognized
elsewhere.
2

____________________

1
1. An agreement or compromise made by the mother or child or by some authorized person on their behalf
with the father concerning the support of the child shall be binding upon the mother and child only when
adequate provision is fully secured by payment or otherwise and when approved by a court having jurisdiction to
compel support of the child.
2. The performance of the agreement or compromise, when so approved, shall bar other remedies of the
mother or child for the support of the child.

2
See, for example, Roe v. Doe, 51 Misc.2d 875, 274 N.Y.S.2d 501 (Family Ct. 1966); In Re Devine's Estate,
123 N.W.2d 898 (Iowa 1963); Plunkett v. Atkins, 371 P.2d 727 (Okl. 1962).
____________
92 Nev. 423, 423 (1976) Lemkuil v. Lemkuil
MILDRED A. LEMKUIL, Appellant, v.
NORMAN H. LEMKUIL, Respondent.
Nos. 7931 and 8037
June 30, 1976 551 P.2d 427
Appeal from judgments of Second Judicial District Court, Washoe County; William N.
Forman and Grant L. Bowen, Judges.
Subsequent to 1966 separation agreement entered into by parties which provided for
division of property and for support of wife and minor daughter of parties, husband brought
divorce action and wife filed separate action seeking arrearages under such agreement. The
district court respectively dismissed wife's action for arrearages and granted divorce, adopting
provisions of separation agreement except those relating to support of wife and minor child
and refused to order husband to pay agreement arrearages that accumulated after pendente lite
order, and wife appealed. The Supreme Court, Mowbray, J., held that trial court was without
discretion to, in effect, modify arrearages for support due under separation agreement that had
accrued to time court made its own support order when divorce decree is entered; and that
wife's collateral action for arrearages under separation agreement was properly dismissed.
Affirmed as to the action for arrearages, Case No. 7931; reversed, with instructions,
as to the divorce case, No. 8037.
Gunderson, C. J., and Batjer, J., concurred in part, dissented in part.
Charles M. Murphy, Reno, for Appellant.
Hawkins, Rhodes, Sharp & Barbagelata, Reno, for Respondent.
1. Divorce.
Trial court is without discretion to, in effect, modify arrearages for support that have accrued pursuant to
property settlement agreement entered into by parties that have accrued to time court makes its own
support order when divorce decree is entered.
2. Courts.
Once court of competent jurisdiction assumes jurisdiction over particular subject matter, no other court of
coordinate jurisdiction may interfere.
3. Courts.
Where divorce pleadings in suit for divorce brought by husband put into issue validity of 1966 separation
agreement between parties, wife's subsequent collateral action
parties, wife's subsequent collateral action for arrearages due under 1966 separation agreement was
properly dismissed on ground that divorce court had exclusive jurisdiction.
OPINION
This is a consolidated appeal arising from two actions filed in the Second Judicial District
Court that relate to a divorce and a property settlement agreement between the appellant,
Mildred A. Lemkuil, hereinafter referred to as Mildred, and respondent, Norman H. Lemkuil,
hereinafter referred to as Norman.
Mildred and Norman were married on July 22, 1944, at York, South Carolina. Throughout
the marriage, Norman had been employed as an operating engineer in the United States
Maritime Service, earning about $10,000 per year.
In 1966, because of increased marital difficulties, the parties separated. On November 18
of that year, they agreed on a property settlement that provided for a division of the property
and for the support of Mildred and the minor daughter of the parties. The agreement provided
for the monthly payment by Norman of the sum of $400 for child support and alimony, with
said sum to be reduced by $100 per month upon the death, majority, or emancipation of the
child, who was then 6 years of age.
Norman continued payments called for by the agreement until September 15, 1971. At that
time, he terminated his employment with the Merchant Marine and moved his residence to
Nevada. On November 18, 1971, he initiated the instant divorce proceedings, Case No. 7931,
in the district court. Mildred answered and counterclaimed, seeking enforcement of the
aforementioned agreement. On March 7, 1972, the district judge entered an order in the
divorce action, directing the payment of a pendent lite allowance wherein the support
payments to Mildred and the child were reduced to $200 per month.
On October 27, 1972, Mildred filed a separate, independent action in another department
of the Second Judicial District Court, seeking arrearages under the agreement of November
18, 1966. That complaint was heard on September 20, 1973, before Judge William Forman,
who dismissed the action on the ground that the divorce court in another department of the
Second Judicial District had exclusive jurisdiction over the subject matter of the second suit.
The divorce trial was heard before Judge Grant Bowen on July 19, 1974. Both Norman
and Mildred testified. The divorce court found that the agreement should not be set aside for
fraud, duress, or undue influence, as urged by Norman. The divorce court adopted the
provisions of the agreement in toto, except those relating to the support of Mildred and the
minor child.
1
In this connection, the court ordered Norman to pay Mildred $100 per month
alimony for 6 months and ordered payment of $100 per month for the support of the minor
child. The divorce court did order Norman to pay Mildred all the arrearages accumulated
under the agreement prior to the court's pendente lite order of March 7, 1972 (in the sum of
$1,200), but the court refused to order Norman to pay such arrearages that accumulated after
the pendente lite order.
2

Mildred contends on appeal that it was error for the divorce court to enforce the agreement
only as to those arrearages that accrued prior to the entry of the pendente lite support order on
March 7, 1972.
[Headnote 1]
Counsel for both sides have agreed that the divorce court in its own discretion, regardless
of the prior agreements of the parties, may enter its own order for future support and that the
court is not in any way bound by prior agreement of the parties. Lewis v. Lewis, 53 Nev. 398,
2 P.2d 131 (1931). The precise issue on this appeal, however, is whether the court has any
discretionary power to refuse enforcement of installments of support already accrued
under an agreement that the court concludes at trial was validly entered into by the
parties when they executed it.
____________________

1
The court in its conclusions of law ruled:
III
That the Separation Agreement of November 18, 1966, should not be set aside for fraud, duress or undue
infiuence, or unfairness of its terms, and the provisions thereof relating to real and personal property should be
adopted and the real and personal property disposed of pursuant to the terms of said agreement should remain so
disposed, and that the provisions of the separation agreement of November 18, 1966, relating to child support
and alimony should not be adopted.

2
The court in its conclusions of law ruled:
VIII
That this Court in exercising its discretionary power chooses to adopt the provisions of said separation
agreement relating to alimony and child support for that period of time prior to the pendente lite order of March
7, 1972, and not to adopt such provisions for any period of time subsequent to the pendente lite order of March
7, 1972; that Plainiff should therefore pay Defendant alimony and child support due prior to the March 7, 1972,
pendente lite order as and for arrearages under said separation agreement in the sum of $1,200.00 without offset
and no further or other arrearages subsequent to the March 7, 1972, pendente lite order.
precise issue on this appeal, however, is whether the court has any discretionary power to
refuse enforcement of installments of support already accrued under an agreement that the
court concludes at trial was validly entered into by the parties when they executed it. We
believe that in such instances the court is without discretion to, in effect, modify those
arrearages for support that have accrued to the time the court makes its own support order
when the divorce decree is entered. Therefore, we must reverse and remand the divorce case,
No. 8037, with instructions to the court below to enter an appropriate order awarding Mildred
a judgment for all arrearages accrued under the agreement to the date of the divorce decree.
[Headnotes 2, 3]
Mildred's collateral action, Case No. 7931, for arrearages under the separation agreement
was properly dismissed. In Nevada, once a court of competent jurisdiction assumes
jurisdiction over a particular subject matter, no other court of coordinate jurisdiction may
interfere. Metcalfe v. District Court, 51 Nev. 253, 274 P. 5 (1929). This rule obtains in every
effective judicial system, in order to avoid multiplicity of litigation and to insure uniformity
of result. The divorce pleadings in the instant case put into issue the validity of the 1966
separation agreement. The divorce court undertook to adjudicate this issue and clearly had
authority to do so. Since Mildred could have obtained all the relief asked for in the divorce
suit, and therefore was not without a plain, speedy, and adequate remedy, her collateral action
for arrearages due under the 1966 separation agreement was properly dismissed. The
judgment of dismissal in Case No. 7931 is affirmed.
Zenoff and Thompson, JJ., concur.
Gunderson, C. J., with whom Batjer, J., agrees, concurring and dissenting:
I agree that Judge Bowen, in the divorce action, had jurisdiction of appellant's claim for
support monies allegedly due under the parties' settlement agreement. Thus, inasmuch as
Judge Bowen's decree disposed of that claim, I perceive no prejudicial error in Judge
Forman's dismissal of appellant's separate suit to enforce the agreement.
However, so far as I can see, Judge Bowen proceeded to treat the parties' rights under the
settlement agreement in a way totally consistent with his discretionary powers. Although my
brethren in the majority hold otherwise, they cite no legal authority for their position. I
therefore respectfully dissent from the majority opinion insofar as it holds that Judge
Bowen was obliged to award arrearages under the settlement agreement up to the date
of the final decree.
the majority opinion insofar as it holds that Judge Bowen was obliged to award arrearages
under the settlement agreement up to the date of the final decree.
Like the respected trial judge, I have not heretofore understood that a contractual claim for
support monies, based on a settlement agreement, is different from, and superior to, all of the
various other types of personal and property rights which a district court may adjust when
entering a final decree. See: NRS 125.150.
While I of course respect my brethren's views, I need something beyond a bare statement
of their beliefs before I can say Judge Bowen erred in this regard.
____________
92 Nev. 427, 427 (1976) Colton v. District Court
STANTON B. COLTON, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, DEPARTMENT
NO. I; ROBERT N. BROADBENT, DAVID B. CANTER, THALIA M. DONDERO, JACK
R. PETITTI, RICHARD J. RONZONE, THOMAS WIESNER, and AARON WILLIAMS,
Individually and as the Board of Commissioners of Clark County, Nevada, Respondents.
No. 8902
STANTON B. COLTON, Appellant, v. JAMES M. BIXLER; ROBERT N. BROADBENT,
THALIA M. DONDERO, JACK R. PETITTI, RICHARD J. RONZONE, TOM WIESNER
and AARON WILLIAMS, Individually and as the Board of Commissioners of Clark County,
Nevada, Respondents.
No. 8906
July 2, 1976 552 P.2d 44
Petition for Writ of Certiorari (Case No. 8902); appeal and cross-appeal from judgment of
the Eigth Judicial District Court, Clark County; J. Charles Thompson, Judge (Case No. 8906).
Candidate brought action for mandamus. From a judgment of the district court denying
mandamus, the Registrar of Voters appealed, the candidate cross-appealed, and there was a
petition for certiorari. The Supreme Court, Gunderson, C. J., held that statute attempting to
govern elections solely in Clark County is unconstitutional and that the de facto existence
of present board of commissioners would cease upon the decision becoming final and the
replacements would be appointed by Governor who would serve until their successors
could be elected at large in the coming general election.
C. J., held that statute attempting to govern elections solely in Clark County is
unconstitutional and that the de facto existence of present board of commissioners would
cease upon the decision becoming final and the replacements would be appointed by
Governor who would serve until their successors could be elected at large in the coming
general election.
Petition dismissed; on appeal and cross-appeal, affirmed in part and reversed in
part; remanded with instructions.
George E. Holt, Clark County District Attorney, and James M. Bartley, Deputy District
Attorney, for Petitioner and Apellant Stanton B. Colton.
George E. Franklin, Las Vegas, for Respondent and Cross-Appellant James M. Bixler.
George F. Ogilvie, Las Vegas, for added Respondents Robert N. Broadbent, David B.
Canter, Thalia M. Dondero, Jack R. Petitti, Richard J. Ronzone, Tom Wiesner and Aaron
Williams.
1. Mandamus.
Mandamus was proper remedy to test right of prospective candidate to run on an at large basis for Board
of County Commissioners contrary to allegedly unconstitutional statute. NRS 244.017; Const. art. 4,
20, 21.
2. Statutes.
Statute endeavoring to govern elections solely in Clark County is unconstitutional. NRS 244.017;
Const. art. 4, 20, 21.
3. Statutes.
Since Legislature defeated its own primary intent in enacting an unconstitutional statute to govern
elections solely in one county, task of court was to devise what Legislature's alternative intent would be.
4. Counties.
Supreme Court after declaring the unconstitutionality of statute which sought to goverm elections solely
in Clark County determined that the alternative intent of Legislature was that board of commissioners
governing counties of 200,000 and over should be seven in number; de facto existence of present Clark
County board of commissioners would cease when decision became final whereupon Governor would be
obligated to appoint seven qualified persons to serve as county commissioners until successors could be
elected in at large elections in the coming general election and qualify. NRS 244.010, 244.011,
244.013, 244.014, 244.017, 244.033.
OPINION
The two matters before us, consolidated for argument and decision, address the same
questions, to-wit: whether NRS 244.017, which our Legislature adopted in 1971, violates
Sections 20 and 21 of Article IV, of Nevada's Constitution, because that statute expressly
endeavors to govern elections solely in Clark County;1 and {2) if so, whether under other
proper and prevailing law the Registrar
244.017, which our Legislature adopted in 1971, violates Sections 20 and 21 of Article IV, of
Nevada's Constitution, because that statute expressly endeavors to govern elections solely in
Clark County;
1
and (2) if so, whether under other proper and prevailing law the Registrar
of Voters is obligated to conduct an election in Clark County, in which all qualified persons
may seek the office of county commissioner.
____________________

1
NRS 244.017 appears in our statutes as follows:
244.017 Clark County: Commissioner districts; number of commissioners; election; terms. [Effective until
January 3, 1977.]
1. In Clark County seven county commissioner districts are hereby created as follows:
(a) District A shall be composed of assembly districts Nos. 16, 21 and 22 and enumeration districts Nos.
228A, 228B and 236 in assembly district No. 13.
(b) District B shall be composed of assembly districts Nos. 17 and 20; enumeration districts Nos. 45, 46B and
48 in assembly district No. 11 and enumeration districts Nos. 250, 253, 266, 267, 268, 269, 270, 271, 272, 273,
274, 275 and 276 in assembly district No. 19.
(c) District C shall be composed of assembly districts Nos. 6, 7 and 18.
(d) District D shall be composed of assembly district No. 9; enumeration districts Nos. 110, 111, 112, 113,
114, 115, 116, 117, 118, 119, 120, 121, 123, 126, 127, 128, 129, 165A and 166 in assembly district No. 8;
enumeration districts Nos. 35, 41, 42, 46A, 47, 52, 53 and 55 in assembly district No. 11; enumeration districts
Nos. 57, 58, 130, 131, 132, 135, 137, 138, 139, 140, 141, 142, 143, 145 and 159 in assembly district No. 12.
(e) District E shall be composed of assembly districts Nos. 2, 3 and 4 and enumeration districts Nos. 85, 87,
108 and 147 in assembly district No. 8.
(f) District F shall be composed of assembly districts Nos. 1 and 5; enumeration districts Nos. 176A, 176B,
176C, 176D, 177, 178A, 178D and 235 in assembly district No. 10 and enumeration districts Nos. 99B, 178B,
178C, 180, 181, 182, 195, 201, 227, 229, 230, 231, 232, 237B and 238A in assembly district No. 13.
(g) District G shall be composed of assembly districts Nos. 14 and 15; enumeration districts Nos. 165B, 173A,
175A, 175B, 175C, 175D and 175E in assembly district No. 10; enumeration districts Nos. 51B, 54 and 56 in
assembly district No. 11; enumeration district 164A in assembly district No. 12; enumeration districts Nos. 167,
168, 169, 172, 179, 184 and 185 in assembly district No. 13 and enumeration district No. 287 in assembly
district No. 19.
2. Assembly districts and enumeration districts, as used in subsection 1, refer to and have the meaning
conferred by the appropriate provisions of chapter 218 of NRS.
3. At the general election in 1972 and every 4 years thereafter there shall be elected one commissioner from
district A, one commissioner from district B, one commissioner from district C and one commissioner from
district E, for terms of 4 years.
4. At the general election in 1974 and every 4 years thereafter there shall be elected one commissioner from
district D, one commissioner from district F and one commissioner from district G, for terms of 4 years.
5. The members of the boards of county commissioners covered by the provisions of this section, as
constituted on June 1, 1972, shall continue to hold office for the terrns for which they were elected.
proper and prevailing law the Registrar of Voters is obligated to conduct an election in Clark
County, in which all qualified persons may seek the office of county commissioner. Both
questions must be answered in the affirmative.
James Bixler, respondent and cross-appellant in one of the matters before us, sought to file
a declaration of candidacy with Stanton Colton, Clark County's Registrar of Voters, seeking
to run at-large for the office of county commissioner. Rebuffed by Colton, on grounds that the
governing statute, NRSS 244.017, does not contemplate Bixler's filing for such office in such
manner, Bixler sought a writ of mandamus in district court. Athough the district court agreed
NRS 244.017 is unconstitutional, it held NRS 244.013 and 244.033 would govern 1976
elections in Clark County.
2
Thus, since Bixler sought to run at-large, and since no at-large
seat would be available this year under the latter statutes, the district court denied mandamus.
____________________

2
NRS 244.013 and NRS 244.033 appear in the following form:
244.013 Number of county commissioners in counties having a population of 100,000 or more but less than
200,000; manner of election. [Effective until January 3, 1977.]
1. In each county having a population of 100,000 or more but less than 200,000, 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 in the manner provided in this section and NRS 244.033.
2. Two county commissioners shall be elected from among the residents of the incorporated city within the
county at which the county seat is located by the residents of such city.
3. One county commissioner shall be elected from among the residents of the other incorporated cities in the
county by the residents of such cities.
4. One county commissioner shall be elected from among the residents of the unincorporated areas of the
county by the residents of such areas.
5. One county commissioner shall be elected at large within the county.
244.033 Term of office in counties having 100,000 or more but less than 200,000 population. [Effective until
January 3, 1977.]
1. Terms of county commissioners in counties having a population of 100,000 or more but less than 200,000
as determined by the last preceding national census of the Bureau of the Census of the United States Department
of Commerce shall be as provided in this section.
2. At the general election in 1960 there shall be elected:
(a) One person who resides at the county seat and one person who resides in an unincorporated area of the
county for terms of 2 years.
(b) One person who resides at the county seat and one person who
From these determinations, the Registrar of Voters, Colton, has appealed; Bixler has
cross-appealed.
3

We reverse and remand Bixler's case to district court, with instructions to grant a writ of
mandamus, in accord with this opinion. The certiorari proceedings also before us, we hereby
dismiss, it being evident that all necessary relief is afforded the parties through our
disposition of the appeal and cross-appeal.
[Headnote 1]
1. Contrary to contentions appellant Colton proffered to the district court, which
seemingly he has abandoned on appeal, the respondent and cross-appellant James M. Bixler
correctly utilized mandamus to test his right to run on an atlarge basis for the Board of
County Commissioners. See, for example: State v. Malone, 68 Nev. 32, 226 P.2d 277 (1951);
McDonald v. Beemer, 67 Nev. 419, 220 P.2d 217 (1950). Upon facts indistinguishable from
those before us, this court has said mandamus is the proper remedy. McDonald v. Beemer,
id., 67 Nev. at 421.
[Headnote 2]
2. Contrary to contentions appellant proffers now for the first time on appeal, it is equally
well settled that special laws like NRS 244.017, which endeavor to govern elections in a
single, designated county, violate Sections 20 and 21, Article IV, of the Nevada Constitution,
and thus are void. See, State v. Malone and McDonald v. Beemer, cited above; County of
Clark v. City of Las Vegas, 92 Nev. 323, 550 P.2d 779 (1976), and cases cited therein.
[Headnote 3]
Since the Legislature has defeated its own primary intent, our task now is to divine, as best
we can, in other statutes and in the remnants of the statute enacting NRS 244.017, what the
Legislature's alternative intent would be. See: County of Clark v. City of Las Vegas, cited
above.
____________________
resides in an incorporated city which is not the county seat for terms of 4 years.
3. At the general election in 1962 there shall be elected one person who resides at the county seat, one
person who resides in an unincorporated area of the county and one person at large within the county for terms
of 4 years.
4. Thereafter, at each general election, the office of the county commissioner shall be filled for terms of 4
years in the order in which the terms of office expire.

3
The incumbent county commissioners have been joined as parties; the Attorney General has been notified of
these proceedings.
The conclusions we reach through this effort, by the undertaking's very nature, may be
subject to some doubt and debate; for such alternative intent may only be inferred, and of
course is unclear. Still, in these circumstances, courts can only fill the legal interstices as best
they are able.
3. One point, at least, is clear. Contrary to Bixler's contentions, it would certainly be
inconsistent with discernible, valid legislative intent to declare that an election in a county of
100,000 or more should be governed by the provisions of either NRS 244.010 or NRS
244.011.
4
Quite intentionally, the Legislature removed larger counties from the purview of
NRS 244.010 in 1960, by an Act general in form. See: Chapter 85, Stats. of 1960. Then, by a
general act passed in 1973, adopting NRS 244.011, the Legislature again indicated that only
the small counties were to be governed by that statute and by NRS 244.010. See: Chapter
274, Stats. of 1973.
____________________

4
NRS 244.010 and NRS 244.011 appear in the Nevada Revised Statutes as follows:
244.010 Number of county commissioners in counties having less than 100,000 population. [Effective
January 1, 1976, for purposes of 1976 elections, otherwise effective January 3, 1977.] Except as provided in
NRS 244.011, 244.014 and 244A.040, each board of county commissioners of the several counties shall consist
of three members; and not more than three county commissioners shall be elected or appointed to such office in
any county.
244.011 Additional county commissioners in counties having less than 100,000 population.
1. In each county having a population of less than 100,000, as determined by the last preceding national
census of the Bureau of the Census of the United States Department of Commerce, the board of county
commissioners may, by ordinance, provide that the board of county commissioners shall consist of five
members. Upon enactment of such ordinance, the board of county commissioners shall submit the ordinance to
the registered voters of the county at the next primary or general election. The voters at such election shall vote
on the question, Shall the board of county commissioners be increased to five members. If a majority of votes
cast approve the question, the ordinance shall become effective upon certification of the vote by the county
clerk, otherwise, the ordinance shall not become effective.
2. If such an ordinance is enacted, the two additional members shall be elected at the next general election.
One member shall be elected to an initial 2-year term and the other member shall be elected to an initial 4-year
term. The county clerk shall, on or before the lst Monday in June of the year in which such election is to be held,
designate which new position on the board will consist of a 2-year term and which will consist of a 4-year term.
When the initial terms expire, subsequent terms for each new position will be for 4 years.
3. A board of county commissioners increased to five members pursuant to this section shall not be
decreased except by action of the legislature.
4. Clearly also, we think, it would be improper to govern the election and tenure of
commissioners, in large counties of 200,000 population or more, either by the provisions of
NRS 244.013 and NRS 244.033, as the district court held should be done, or by NRS
244.014.
5

In 1971, the Legislature expressly limited the purview of NRS 244.013 and NRS 244.033,
to counties of less than 200,000. To be sure, this amendment came as Part of Chapter 649,
1971 Statutes of Nevada, which was the same Act that purported to adopt NRS 244.017.
Thus, although the provisions simultaneously amending NRS 244.013 and NRS 244.033
appear acceptably general if considered by themselves, the district judge reasoned that they
were not severable from the unconstitutional provisions of Chapter 649 because the
Legislature would not have adopted them alone. Cf. County of Clark v. City of Las Vegas,
cited above. Thus, the district judge reasoned further: (1) that a five rather than a seven
commissioner board should exist in Clark County; and (2) that despite the present seven
commissioner board's unlawful election and composition, Mr. Bixler may not run to replace
any of its unlawfully seated members because, as the judge said, neither of those two seats
[up for election under NRS 244.013 and 244.033] are at-large seats."
____________________

5
NRS 244.013 and NRS 244.033 are cited forth in footnote 2, above.
NRS 244.014 now appears as follows in the Nevada Revised Statutes:
244.014 Number, terms of county commissioners in counties having a population of 100,000 or more but
less than 200,000; manner of election. [Effective January 1, 1976, for purposes of 1976 elections, otherwise
effective January 3, 1977.] In each county having a population of 100,000 or more but less than 200,000 as
determined by the last preceding national census of the Bureau of the Census of the United States Department of
Commerce:
1. At the general election in 1976, and every 4 years thereafter, two county commissioners shall be elected
respectively from two of the county commissioner election districts established pursuant to this section.
2. At the general election in 1978, and every 4 years thereafter, three county commissioners shall be elected
respectively from three of the county commissioner election districts established pursuant to this section.
3. The board of county commissioners shall establish five county commissioner election districts which shall
be as nearly equal in population as practicable. If the county comprises no partial assembly districts and a
number of whole assembly districts that is evenly divisible by the number of county commissioners, each county
commissioner election district shall be composed of a number of contiguous and undivided assembly districts
equal to this quotient.
Assembly district, as used in this subsection, means one of the districts, identified by number, established by
NRS 218.080.
those two seats [up for election under NRS 244.013 and 244.033] are at-large seats. We
disapprove this reasoning.
In the first place, by virtue of another enactment passed in the 1975 Legislative session,
NRS 244.013 and 244.033 will not govern elections in any county this yearnot even
elections in any counties numerically within their former express purview. By Chapter 467,
1975 Statutes of Nevada, a law suitably general in its terms, the Legislature declared the
repeal of both NRS 244.013 and NRS 244.033, declaring that this act shall become effective
January 1, 1976, for the purpose of electing county commissioners at the general election in
1976. Moreover, the parties seemingly recognize that application of NRS 244.013 and
244.033 in Clark County would not satisfy the one man, one vote concept.
6
Thus, we
think, the district court clearly erred in its conclusion that the election this year in Clark
County should somehow be controlled by those statutes.
[Headnote 4]
5. We believe that NRS 244.014 (a part of Chapter 467, 1975 Statutes of Nevada), which
was a sufficiently general statute, constituted a proper legislative declaration in 1975 that
five-member boards shall exist, and be elected, only in counties of less than 200,000
population. And while NRS 244.014 does not expressly state what number of commissioners
should govern in counties of 200,000 and more, we are satisfied that the Legislature
contemplated a larger board in larger counties, not a smaller one. In deliberative bodies,
boards of odd rather than even numbers are usual, and seven is the odd integer next above
five. Thus, for this and other reasons, quite aside from expressions in the unconstitutional
1971 Act, we find substantial reason to believe that the 1975 Legislature intended that the
board of commissioners governing counties of 200,000 and over should be seven in
number. Cf. Kelly v. Reed, 76 Nev. 3S9, 393
____________________

6
In the district court, Mr. Bixler's counsel expressed his belief that the apportionment envisioned by NRS
244.013 and NRS 244.033 would result in an unconstitutional disparity in apportionment. In their brief, the
respondent commissioners express themselves to like effect, as follows:
NRS 244.013 cannot constitutionally govern the composition of the Board of County Commissioners of
Clark County for still another reason. The legislature, in adopting this section in 1960, must have relied upon the
population figures generated by the 1950 decennial census in establishing the county commissioner districts
provided for therein. To order an election based upon such districting plan would, of necessity, require the use of
antiquated population data, a practice which was condemned by this court in County of Clark v. City of Las
Vegas, supra. See also Pagni v. Brown, 88 Nev. 339, 497 P.2d 1364 (1972).
the board of commissioners governing counties of 200,000 and over should be seven in
number. Cf. Kelly v. Reed, 76 Nev. 389, 393-394, 355 P.2d 969, 971 (1960).
6. At such time as our decision in this case becomes final (either upon denial of rehearing,
or upon expiration of the allowed time for petitioning for rehearing, which we hereby limit to
and including July 7, 1976, at 12:00 noon), the de facto existence of the present board of
commissioners will cease. Thereupon, the Governor of Nevada will be obligated to appoint
seven qualified persons to serve as the county commissioners of Clark County, Nevada, until
their successors can be elected at the coming general election, and qualify.
7. It appears to us that re-districting may not now be accomplished in time to permit the
election to proceed in an orderly way. We regret that the parties did not place this dispute
before us at an earlier time. Cf. Beebe v. Koontz, 72 Nev. 247, 302 P.2d 486 (1956). At-large
elections being the only feasible way now legally available, appellant Stanton Colton is
hereby directed to conduct at-large elections for all seven commissioner seats, such seats to
be separately designated A through G. A through C shall be for terms ending the first
Monday in January, 1979, and D through G shall be for terms ending the first Monday in
January, 1981.
Mr. Colton shall accept Mr. Bixler as a candidate for any one of such seats, upon Mr.
Bixler's presentation of nomination papers and filing fee.
Upon remittitur, a writ of mandamus shall issue, in accord with this opinion.
Affirmed in part; reversed in part and remanded.
____________
92 Nev. 436, 436 (1976) Adler v. Sheriff
NAT ADLER, Appellant, v. SHERIFF, CLARK
No. 8490
No. 8491
SHERIFF, CLARK COUNTY, NEVADA, Appellant,
v. NAT ADLER, Respondent.
No. 8492
July 15, 1976 552 P.2d 334
Consolidation of three appeals from orders granting and denying pretrial petitions for writs
of habeas corpus. Eighth Judicial District Court, Clark County; James A. Brennan, Judge. In
Cases No. 8490 and No. 8491 the petitions were denied; in Case No. 8492 the petition was
granted.
County public administrator, who was charged with three separate offenses related to his
official duties, filed habeas corpus petitions alleging existence of various infirmities in each
of the indictments. The district court granted one petition and denied the two others, and
appeals were taken. The Supreme Court held that criminal proceedings based on alleged
failure to file a periodic report with the district court concerning status of estate under
petitioner's administration were fatally defective since proper procedure was not a criminal
action but a statutory procedure for removal or impeachment, that filing of a false claim in a
judicial proceeding can constitute basis for prosecution for attempt to obtain money under
false pretenses and that a public administrator is not required to file a statement of
non-receipt of fees or compensation on a quarterly basis.
Case No. 8490 reversed; Case No. 8491 and Case No. 8492 affirmed.
[Case No. 8491, rehearing denied August 31, 1976]
Claiborne, Brown & Quintana, of Las Vegas, for Nat Adler.
Robert List, Attorney General, Carson City, George E. Holt, District Attorney, and Frank
J. Cremens, Deputy District Attorney, Clark County, for Sheriff, Clark County, Nevada.
1. Officers.
Statutes governing accusations for removal as presented by county grand jury, impeachment and
summary removal provide procedures for removal of all local officials, not just public
administrators; such statutes supersede or at least merge prior statutes in making it
a misdemeanor for a public administrator to fail to file periodic reports concerning
estates under his administration.
procedures for removal of all local officials, not just public administrators; such statutes supersede or at
least merge prior statutes in making it a misdemeanor for a public administrator to fail to file periodic
reports concerning estates under his administration. NRS 253.100, 253.140, 283.140-283.430,
283.440, subds. 1-4; Const. art. 7, 4.
2. Officers.
Laws for removal of public officers are not criminal statutes nor are the proceedings criminal
proceedings; hence, any failure of county public administrator to file periodic report with district court
concerning status of estates under his administration was not a proper subject for criminal prosecution but,
rather, by way of proceeding seeking removal or impeachment. NRS 253.100, 253.140,
283.140-283.430, 283.440, subds. 1-4; Const. art. 7, 4.
3. False Pretenses.
A false pretense may be made by implication.
4. False Pretenses; Indictment and Information.
Indictment charging that county public administrator willfully and feloniously represented that he stored
estate property in a larger area than was required and that he knowingly and falsely represented that the rate
he charged for storage was reasonable was sufficient to allege crime of attempting to obtain money under
false pretenses, as against contention that it set forth no material misrepresentation of fact; plain and
concise statement of defendant's acts constituting the alleged offense were set forth and was definite
enough to prevent prosecutor from changing the theory of the case and it informed defendant of what
accusation he was required to meet. NRS 173.075, 205.380, 208.070.
5. False Pretenses.
Filing of a false claim in a judicial proceeding can constitute a basis for prosecution for an attempt to
obtain money under false pretenses. NRS 205.380, 208.070.
6. Officers.
A public administrator is not required to file periodic financial statements irrespective of whether he
receives any compensation related to his office; statute does not require administrator to file statement of
non-receipt of fees or compensation on a quarterly basis. NRS 253.090.
7. Statutes.
A court may not impose criminal liability under guise of statutory construction where none before
expressly exists.
OPINION
Per Curiam:
On July 31, 1975, the Clark County grand jury returned three indictments against Nat
Adler, public administrator for Clark County. Adler was charged with three separate offenses,
all related to his official duties: (1) failure to file a periodic report with the district court
concerning the status of estates under his administration (NRS 253.100 and NRS 253.140);
{2) attempt to obtain money under false pretenses {NRS 205.3S0 and NRS 20S.070); and
{3) failure to file quarterly financial statements with the board of county commissioners
setting forth the amount of compensation received in his official capacity as public
administrator {NRS 253.090).
(2) attempt to obtain money under false pretenses (NRS 205.380 and NRS 208.070); and (3)
failure to file quarterly financial statements with the board of county commissioners setting
forth the amount of compensation received in his official capacity as public administrator
(NRS 253.090).
Timely petitions for writs of habeas corpus were filed alleging the existence of various
infirmities in each of the indictments. The petitions which were directed against charges (1)
and (2) set forth above were denied. The petition addressing the infirmities in the indictment
charging the third (3) offense was granted. All three of the district court rulings were
appealed and have been consolidated for review by this court.
To obviate confusion and to facilitate a lucid discussion of the legal issues here raised, we
review each of the indictments separately.
Case No. 8490
[Headnotes 1, 2]
In Case No. 8490, Adler appeals from the order of the district court which denied his
petition for writ of habeas corpus claiming defects in the indictment charging him with a
violation of NRS 253.100 and NRS 253.140.
NRS 253.100, in pertinent part, states:
Each public administrator shall, on the 1st Monday in January and July, in each year, and
at the termination of his official duties, make a verified written report to the district judge
having jurisdiction in the premises. . . .
For any willful misdemeanor in office any public administrator may be indicted, tried
and, if found guilty, fined in any sum not exceeding $2,000 and removed from office, but
such fine and removal shall not bar any existing right of civil action upon his official bond.
Adler assigns as error the refusal of the district court to strike the indictment on the
grounds that the allegations therein were insufficient to apprise him of the offenses with
which he was charged.
We find these proceedings to be fatally defective. Article 7, Section 4, of the Nevada
Constitution, states that provision shall be made by law for the removal from office of any
civil officer other than those in this article previously specified for malfeasance or
nonfeasance in the performance of his duties. (The officers other than those in this article
previously specified were state officers.) Previous to 1909, the statutes now known as NRS
253.100 and NRS 253.140 were the only statutes appropriate to the alleged offense that
appears in this case. However, in 1909 the Nevada legislature enacted extensive legislation
providing for the removal of public officers.
legislation providing for the removal of public officers. Today those provisions are compiled
as follows: NRS 283.300-283.430 (accusations for removal presented by county grand jury);
NRS 283.140-283.290 (impeachment); and NRS 283.440, Sections 1-4 (summary removal).
Those statutes provide procedures for removal of all local officials, not just public
administrators.
The appropriate sections of Chapter 283 supersede or at least merge NRS 253.100 and
NRS 253.140 under which the indictment in this case was brought. State v. Economy, 61
Nev. 394, 130 P.2d 264 (1942). On the basis of authorities decided by this court since the
enactment of the recited statutes the proceeding here is improper. The laws for removal of
public officers are not criminal statutes nor are the proceedings criminal proceedings. Gay v.
District Court, 41 Nev. 330, 171 P. 156 (1918); Ex parte Jones and Gregory, 41 Nev. 523,
173 P. 885 (1918); Buckingham v. District Court, 60 Nev. 129, 102 P.2d 632 (1940); Jones v.
District Court, 67 Nev. 404, 219 P.2d 1055 (1950).
The writ of habeas corpus should have been granted.
Case No. 8491
1. Adler claims that the indictment charging him with attempt to obtain money under false
pretenses is defective on two grounds: (1) it sets forth no material misrepresentation of fact
made by appellant; and (2) a claim filed in the course of a judicial proceeding cannot be the
subject of a prosecution for false pretenses.
The indictment alleges that appellant submitted a claim against the estate of James H.
Gillespie. The bulk of that claim consisted of a charge of $11,340.00 for expenses relative to
pick up, transfer and storage of personal property belonging to the Estate. Appellant
represented that the property required 1400 square feet of storage space and that a charge for
such space at the rate of ten cents per square foot per day was reasonable. The property was
stored for the period commencing April 4, 1975, and ending June 23, 1975 (81) days. The
indictment states that appellant willfully and feloniously represented that he stored the
property in a larger area than was required and that he knowingly and falsely represented that
the rate he charged for storage was reasonable.
From the grand jury transcript Adler's conduct indicates probable cause that he attempted,
through the district court, to obtain money under false pretenses from the Gillespie estate. The
falsity of Adler's representation is squarely alleged in the indictment. In an attempt to have the
district court award him a storage fee of $11,340.00 Adler claimed the false fact that 1400
square feet were required to store the personal property of the Gillespie estate and that
the rate of ten cents per square foot per day from April 4, 1975, to June 23, 1975, was
proper.
a storage fee of $11,340.00 Adler claimed the false fact that 1400 square feet were required to
store the personal property of the Gillespie estate and that the rate of ten cents per square foot
per day from April 4, 1975, to June 23, 1975, was proper.
[Headnote 3]
A false pretense may be made by implication. Bright v. Sheriff, 90 Nev. 168, 521 P.2d 371
(1974); People v. Staver, 252 P.2d 700 (Cal.App. 1953); People v. Marks, 163 N.W.2d 506
(Mich.App. 1968); cf. Herrick v. State, 196 A.2d 101 (Me. 1963).
[Headnote 4]
The indictment of Adler alleges a designed and deceitful claim which implies his intention
to perpetrate a fraud on the Gillespie estate through the district court. NRS 173.075 only
requires a plain, concise and definite written statement of the accusatory facts in the
indictment and specifically provides that it need not contain other unnecessary matter. A plain
and concise statement of Adler's acts constituting the alleged offense is set forth in the
indictment and it is (1) definite enough to prevent the prosecutor from changing the theory of
the case, and (2) it informs Adler of what accusation he is required to meet. These are the
mandates of Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972).
[Headnote 5]
2. We reject Adler's contention that the filing of a false claim in a judicial proceeding
cannot constitute a basis for a prosecution for an attempt to obtain money under false
pretenses. People v. Wallace, 178 P.2d 771 (Cal.App. 1947). See also, De Krasner v. State,
187 S.E. 402 (Ga.App.. 1936); People v. Hoffman, 105 N.W. 838 (Mich. 1905).
Case No. 8492
[Headnotes 6, 7]
In Case No. 8492, the district court granted Adler's petition for writ of habeas corpus. The
two-count indictment charged him with failure to file quarterly financial statements with the
board of county commissioners setting forth all fees and compensation he received in his
official capacity as public administrator. During his term in office, prior to the filing of the
indictment, two such financial statements were due, none was filed. The district court granted
the petition on the grounds that the indictment did not allege that appellant had received any
fees or compensation in his official capacity at all. It is the state's position on appeal that a
public administrator is required to file the financial statements irrespective of whether he
receives any compensation related to his office.
state's position on appeal that a public administrator is required to file the financial statements
irrespective of whether he receives any compensation related to his office. The applicable
statute is NRS 253.090:
1. On the 1st Monday of January, April, July and October, public administrators shall
make out and file with the boards of county commissioners of their several counties a full and
correct statement under oath of all fees or compensation, of whatever nature or kind, received
in their official capacities during the preceding 3 months. In the statement they shall set forth
the cause in which, and the services for which, such fees or compensation were received.
. . .
3. Any public administrator who shall violate any of the provisions of this section shall
be fined not more than $1,000.
Notably, the statute is void of any express directive supporting the state's position. In
essence, the state seeks to prosecute a crime by implication. In United States v. Brewer, 139
U.S. 278 (1891), the United States Supreme Court commented in this regard:
. . . Laws which create crime should be so explicit that all men subject to their penalties
may know what acts it is their duty to avoid. [Citations omitted.] Before a man can be
punished, his case must be plainly and unmistakably within the statute. 139 U.S. at 288.
NRS 253.090 clearly does not require a public administrator to file a statement of
non-receipt of fees or compensation on a quarterly basis. It is not for this court to impose
criminal liability in the guise of statutory construction where none before expressly existed.
The ruling of the district court was proper. Ex parte Deidesheimer, 14 Nev. 311 (1879).
Case No. 8490 reversed; Case No. 8491 and Case No. 8492 affirmed.
____________
92 Nev. 441, 441 (1976) Munoz v. State ex rel. Dep't of Hwys.
MIGUEL B. MUNOZ, Appellant, v. STATE OF NEVADA On Relation of Its
DEPARTMENT OF HIGHWAYS and the NEVADA STATE PERSONNEL
ADVISORY COMMISSION, Respondents.
No. 8559
July 15, 1976 552 P.2d 42
Appeal from judgment of Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Former state employee appealed from a judgment of the district court which affirmed a
decision of the Personnel Advisory Commission discharging him. The Supreme Court,
Mowbray, J., held that where State Highway Department employee violated Department rules
by removing certain irreplaceable original highway master files containing vital information
and refused to return those files upon being instructed to do so, his discharge was warranted.
Affirmed.
Roy L. Nelson, II, Las Vegas, for Appellant.
Robert List, Attorney General, and Riley M. Beckett, Special Deputy, Carson City, for
Respondents.
1. Highways.
Where State Highway Department employee violated Department rule by removing certain irreplaceable
original highway master files containing vital information and refused to return those files upon being
ordered to do so by his supervisor, employee's discharge was warranted. NRS 284.155, subd. 1,
284.385.
Where constitutionality of statutes was not raised prior to appeal and was thus not considered by district
court, issue could not be considered on appeal.
OPINION
This is an appeal from a judgment of the district court that affirmed a decision of the
Nevada Personnel Advisory Commission discharging the appellant, Miguel B. Munoz, from
public employment.
1. Munoz was employed by the Nevada State Highway Department. His employment
commenced on March 21, 1960. He was terminated on November 14, 1973. On the afternoon
of the latter date, and before departing on his annual leave, Munoz removed without
permission from Highway's District I Right of Way Office in Las Vegas certain irreplaceable
original Highway master files containing vital information. Munoz's immediate supervisor,
who was present, warned him not to remove the files, and he offered to permit Munoz to
make copies for his personal use. Munoz was aware of Highway's regulation prohibiting the
removal of original files, as he had violated the rule on a previous occasion and had been
warned not to do so again. Nevertheless, Munoz took the files to his home, claiming that he
needed them to prepare for his forthcoming demotion hearing before the Personnel
Advisory Commission.
home, claiming that he needed them to prepare for his forthcoming demotion hearing before
the Personnel Advisory Commission. His supervisor then telephoned Highway's officials in
Carson City and reported Munoz's action. The supervisor was instructed to telephone Munoz
and order him to return the files forthwith. This the supervisor did. Munoz stated that he
would not comply unless he was served with a court order to that effect. Munoz's position
was then relayed by his supervisor to Highway's officials in Carson, and the decision was
made to discharge him.
1
Later, Munoz, on instruction from his counsel, did return the files.
However, Highway refused to reinstate him.
2. Munoz claims that his discharge was not warranted, because there was insufficient
evidence presented to support the specifications of his discharge and even if so supported the
acts complained of did not constitute grounds for discharge. Munoz also asserts that at the
time in question he was suffering from a condition of extreme anxiety-depression, which may
have caused him to act irrationally, and that this factor should be considered in mitigation of
his conduct.
[Headnote 1]
3. NRS 284.385 provides in part that an appointing authority may dismiss or demote any
permanent classified employee when he considers that the good of the public service will be
served thereby.
2
The chief of the State Department of Personnel prescribes, with the
approval of the Personnel Commission, a code of rules and regulations for the classified
service.
____________________

1
The grounds for Munoz's termination were detailed in his discharge as follows:
Rule B-3for removal of Right of Way General Master Files in District I,
Rule B-17Willful disregard of State-wide departmental or office regulations.
Rule D-1Refusal to comply with a reasonable order or instruction from a Supervisor within the employees
[sic] capabilities without undue risk,
Rule F-1Using or unauthorizing [sic] the use of State owned or leased property for other than official use.

2
NRS 284.385:
1. An appointing authority may:
(a) Dismiss or demote any permanent classified employee when he considers that the good of the public
service will be served thereby.
(b) Suspend without pay, for disciplinary purposes, a permanent employee for a period not to exceed 30 days.
2. In case of a dismissal or suspension, the chief [of the personnel division of the department of
administration] shall be furnished with a statement in writing specifically setting forth the reasons for such
dismissal or suspension. A copy of the statement shall be furnished to the employee.
3. No employee in the classified service shall be dismissed for religious or racial reasons.
Personnel prescribes, with the approval of the Personnel Commission, a code of rules and
regulations for the classified service. NRS 284.155, subsection 1.
3
Personnel Administration
Rule XII, subsection D-6, adopted pursuant to NRS 284.155, supra, provides that employees
guilty of willful insubordination or willful disobedience may be appropriately disciplined.
Under Highway's Prohibition and Penalties Suggested Guide on Corrective Disciplinary
Action, both insubordination and willful disregard of statewide regulations are punishable by
termination if the circumstances surrounding the act so warrant.
As to Munoz's claim that there is insufficient evidence in the record to prove the acts
complained of and that even if supportable such acts do not warrant his discharge, we must
disagree.
A reading of the record manifestly supports the charges constituting the predicate for
Munoz's discharge. They were serious acts on Munoz's part. The record shows that the
removed files, if lost, could not be replaced, as the computations contained therein could
never again be precisely duplicated. While Munoz's condition may have been one of
anxiety-depression, there is nothing in the record to suggest he was either insane or mentally
incompetent. As Judge J. Charles Thompson ruled in sustaining the order of dismissal:
. . . [T]he Hearing Officer of the Nevada State Personnel Advisory Commission fully
considered the matter in all respects and his decision is supported by substantial evidence;
and
. . . respondents [Highway and Personnel Advisory Commission] acted within its [sic]
statutory authority and justifiably dismissed petitioner [Munoz] . . .
[Headnote 2]
Finally, Munoz asserts in his brief on appeal that Nevada's statutory scheme for dismissal
of permanent classified personnel is unconstitutional. As the constitutionality of the statutes
challenged was not raised prior to this appeal and was not considered by the district court, the
issue may not be considered on appeal. Tennessee v. Dunlap, 44 U.S.L.W. 4811 (U.S. June
10, 1976). We therefore affirm.
____________________

3
1. The chief shall prescribe a code of rules and regulations for the classified service, which, upon approval
of the commission after public notice and opportunity for public hearing, shall have the force and effect of law.
____________
92 Nev. 445, 445 (1976) Sorenson v. State ex rel. Dep't of Hwys.
R. PAUL SORENSON and LAS VEGAS OUTDOOR ADVERTISNG, Appellants, v. THE
STATE OF NEVADA, On Relation of Its DEPARTMENT OF HIGHWAYS, Respondent.
No. 8155
July 22, 1976 552 P.2d 487
Appeal from condemnation award, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
The Supreme Court, Thompson, J., held that record established that highest and best use of
taken property was industrial, not multiple residential as found by trial court; and that trial
court's failure to value the taken property in light of its highest and best use required reversal
of condemnation award.
Kermitt L. Waters, Las Vegas, for Appellants.
Robert List, Attorney General, and Susan M. Trager, Deputy Attorney General, Carson
City, for Respondent.
1. Eminent Domain.
Record, in condemnation proceeding, established that highest and best use of taken property, which was
officially zoned multiple residential but which was zoned industrial in master plan and was reasonably
subject to rezoning to industrial use, was industrial, not multiple residential as found by trial court.
2. Eminent Domain.
Word just in constitutional provision commanding that private property shall not be taken for public
use without just compensation is used to intensify meaning of word compensation and conveys the idea
that the equivalent to be rendered for property taken be real, substantial, full and ample. Const. art. 1,
8.
3. Eminent Domain.
Property to be condemned must be valued in light of its highest and best use. Const. art. 1, 8.
4. Eminent Domain.
Trial court's failure in condemnation proceeding to value taken property in light of its highest and best
use for industrial purposes required reversal of condemnation award. Const. art. 1, 8.
OPINION
In 1965 appellant Sorenson purchased a 7000 square foot parcel of real estate adjacent to
a proposed freeway routeInterstate 15in Las Vegas.
parcel of real estate adjacent to a proposed freeway routeInterstate 15in Las Vegas. The
following year the state condemned, and purchased for a nominal sum, 42 square feet of the
Sorenson land.
Thereafter, in June 1966, Sorenson negotiated a lease agreement with Las Vegas Outdoor
Adveristing for a billboard type sign to be placed on the freeway frontage portion of the
remaining land. The lease, which was for 15 years with a 5 year option, provided for rental
payments of $500.00 per month, to commence 30 days after the issuance of the appropriate
construction permit and upon the completion of the freeway.
The freeway had neither been completed, nor had the construction permit issued when, in
1972, the state condemned the remainder of Sorenson's 7000 square foot parcel. The record
zoning was then for multiple-residential use. The parties could not agree on the amount of
compensation appellants should receive for the property and this litigation followed.
At trial it was not contested that re-zoning or variancefor billboard usecould routinely
be obtained.
The trial judge, after rejecting the valuation and use testimony presented by appellants,
found that the highest and best use of the property was multiple-residential, as it was then
officially zoned. There was no other proof supporting such use. He also ruled the
Sorenson-Outdoor lease invalid and entered a $4200.00 award for the property.
1
The
monetary award was predicated on testimony by the state's expert witness who assigned the
property a value of $4200.00, an amount substantially less than Sorenson had paid for the
property in 1965.
Although several errors are assigned we need only consider the contention that the trial
judge committed prejudicial error in ruling that the highest and best use of the condemned
land was multiple-residential.
In arriving at the $4200.00 valuation the state's expert witness admitted that he did not take
into account possible zoning changes, and admitted that his testimony of value would have
been higher, had he done so. Neither did the state's expert consider unchallenged evidence
that in the Las Vegas Master Plan the Sorenson property is zoned industrial; nor, the
testimony of David Brown, a Las Vegas City Planner, which established that because of the
Master Plan a change of zoning from R-4 to industrial would be routine.
____________________

1
In view of our disposition of the appeal we need not, and therefore do not, express an opinion as to whether
the executory lease with Las Vegas Outdoor Advertising is compensable.
to industrial would be routine. Furthermore, one of the findings of fact by the trial judge was
that . . . at all times material to this action, said property . . . was reasonably subject to
re-zoning to industrial use. (Our emphasis.)
[Headnotes 1-4]
It is clear from the record that the highest and best use of the property is industrial, not
multiple-residential as found by the trial judge. Our constitution commands that private
property shall not be taken for public use without just compensation. Const. of Nev., Art. I,
8. The word just is used to intensify the meaning of the word compensation and conveys
the idea that the equivalent to be rendered for the property taken shall be real, substantial, full
and ample. Tacchino v. State ex rel. Dep't Hwys., 89 Nev. 150, 508 P.2d 1212 (1973). It is for
this reason that the property to be condemned must be valued in the light of its highest and
best use. The failure to do so cannot be deemed harmless error. Accordingly, we reverse and
remand for another trial.
Batjer, Zenoff, and Mowbray, JJ., and Hayes,
2
D. J., concur.
____________________

2
The Governor, pursuant to Article VI, 4 of the Constitution, designated District Judge Keith C. Hayes to
sit in the place of Mr. Chief Justice Gunderson, who voluntarily disqualified himself and took no part in this
decision.
____________
92 Nev. 447, 447 (1976) Frith v. Harrah South Shore Corp.
CORRY H. FRITH and EVELYN G. FRITH, Appellants, v. HARRAH SOUTH SHORE
CORP., a California Corporation, et al., Respondents.
No. 8028
July 22, 1976 552 P.2d 337
Appeal from judgment on the pleadings, First Judicial District Court, Douglas County;
Frank B. Gregory, Judge.
Employee of construction company who was injured in a fall brought action against the
owners of the property on which he was working at the time of the accident. The district court
dismissed the action with prejudice, and appeal was taken. The Supreme Court, Batjer, J.,
held that whether the injured worker was an employee of the property owner or of the
construction company, the worker was restricted to such compensation as might be awarded
under the Industrial Insurance Act to the exclusion of any common law action for
damages.
compensation as might be awarded under the Industrial Insurance Act to the exclusion of any
common law action for damages.
Affirmed.
[Rehearing denied August 31, 1976]
Breen, Young, Whitehead & Hoy, and Milos Terzich, of Reno, for Appellants.
Hibbs & Newton, and Margo Piscevich, of Reno, for Respondents.
1. Workmen's Compensation.
Regardless of whether construction company which had contracted to build a hotel or owners of property
on which hotel was to be built was in fact the employer of construction worker who was injured in a fall
while working on the property, worker was restricted to such compensation as might be awarded under the
Industrial Insurance Act to the exclusion of any common law action for damages and unaffected by the
Occupational Safety and Health Act. NRS 616.010 et seq., 618.005 et seq.
2. Labor Relations.
Although an owner of real property is required to furnish a safe place of employment and on failure to do
so is subject to certain sanctions, nothing in the language or structure of the Occupational Safety and
Health Act suggests that a civil suit may be brought by an injured employee against such real property
owner, whether or not he is the employer. NRS 618.005 et seq., 618.175, 618.235, 618.235, subd. 3,
618.395, 618.525, 618.545, 618.625.
3. Administrattive Law and Procedure; Labor Relations.
Provisions of Administrative Procedure Act apply to all proceedings and hearings conducted pursuant to
the Occupational Safety and Health Act. NRS 233B.010 et seq., 618.005 et seq.
4. Labor Relations.
Nothing in the language of the Administrative Procedure Act suggests that a civil action may be brought
by an employee injured by reason of unsafe place of employment. NRS 233B.010 et seq.
5. Labor Relations.
Any claim for compensation by an injured employee which arises out of an employer's failure to comply
with the Occupational Safety and Health Act must be considered in light of the Industrial Insurance Act
and the cases interpreting that act. NRS 616.010 et seq., 618.005 et seq.
6. Labor Relations.
Legislature did not intend to create any private civil remedy through the Occupational Safety and Health
Act. NRS 618.365, 618.365, subd. 1.
If owner of property on which construction worker was injured could be deemed the principal contractor
and the principal employer of the injured worker, it would not be excluded from coverage
under the Industrial Insurance Act nor would it lose its insulation from common law
liability just because it was also the owner of the real property where the injury
occurred.
employer of the injured worker, it would not be excluded from coverage under the Industrial Insurance Act
nor would it lose its insulation from common law liability just because it was also the owner of the real
property where the injury occurred. NRS 616.270, 616.370.
If construction company was the bona fide employer of worker who was injured in fall from scaffold,
then both the construction company and the owner of the property on which the employee was injured
would be insulated by the Industrial Insurance Act from any common law liability. NRS 616.270,
616.370, 616.520.
Where facts established by construction worker, in action against owners of real property on which he
was injured, were such as to unquestionably entitle worker to a judgment on the pleadings mandating a
statutory award in a proceeding to secure compensation under the Industrial Insurance Act, such relief was
worker's exclusive remedy. NRS 616.270, 616.370, 616.520.
OPINION
This appeal is taken from a judgment on the pleadings and dismissal of the action with
prejudice.
Appellant Corry H. Frith, hereinafter referred to as Frith, was injured when he fell from a
scaffold while working on property owned by respondents, hereinafter referred to as
respondents or Harrah. At that time Frith was an employee of Campbell Construction
Company which had contracted with Harrah for the construction of a hotel at Stateline,
Nevada. After the accident Frith received benefits under the Nevada Industrial Insurance Act.
1
NRS Chapter 616.
Appellants now claim a right to bring an action for damages against Harrah under the
common law as well as the Nevada Occupational Safety and Health Act, NRS Chapter 618.
[Headnote 1]
The district court in its memorandum of decision concluded that respondents were entitled
to a judgment on the pleadings regardless of whether Harrah or Campbell Construction
Company was in fact Frith's employer, because in either event appellants were restricted to
such compensation as might be awarded under the Nevada Industrial Insurance Act to
the exclusion of any common law action for damages and unaffected by the Nevada
Occupational Safety and Health Act.
____________________

1
The meager record precludes us from deciding whether Frith's acceptance of the Nevada Industrial
Commission's award was of such magnitude and significance as to extinguish any common law rights he might
have had. Stevenson v. Kollsman Mineral & Chem., 91 Nev. 529, 539 P.2d 463 (1975); First Nat'l Bk. v.
District Ct., 75 Nev. 77, 335 P.2d 79 (1959).
appellants were restricted to such compensation as might be awarded under the Nevada
Industrial Insurance Act to the exclusion of any common law action for damages and
unaffected by the Nevada Occupational Safety and Health Act. We agree.
1. Appellants base their claim in part on NRS 618.395 of the Nevada Occupational Safety
and Health Act, which at the time of the accident provided: An employer, owner or lessee of
any real property in this state shall not construct, or cause to be constructed any place of
employment that is not safe. They contend that NRS 618.395 imposes upon the owner of
real property a direct and non-delegable duty to provide a safe place of employment in regard
to construction projects on the real property and that such owner failing to so provide is
subject to an action for damages by an employee injured thereon.
The department of occupational safety and health is directly under the jurisdiction,
supervision and regulation of the Nevada Industrial Commission. NRS 618.175. It is also
required to be administered by the Nevada Industrial Commission which employs its director,
whose decisions are subject to review by that commission. NRS 618.235. Even the cost of
administering the department is to be based on the premium rate charged each employer for
industrial insurance. NRS 618.235(3).
Enforcement of NRS Chapter 618 is accomplished by (1) notice in lieu of citations for de
minimis violations, (2) citation for abatement and (3) assessment of penalty. Furthermore, the
department may prosecute (NRS 618.525), seek injunctive relief (NRS 618.545), and assess
administrative fines (NRS 618.625). Any employee may seek mandamus against a director
who fails to enforce the provisions of the Act. NRS 618.545.
[Headnote 2]
Although an owner of real property is required to furnish a safe place of employment and
upon failure to do so is subject to certain sanctions, there is nothing in the language or
structure of NRS Chapter 618 to suggest a civil suit may be brought by an injured employee
against such owner, whether or not he is the employer.
[Headnotes 3, 4]
The provisions of the Nevada Administrative Procedure Act (NRS Chapter 233B) apply to
all proceedings and hearings conducted pursuant to NRS Chapter 618. Nothing can be found
in the language of that act suggesting a civil action by an employee injured by reason of an
unsafe place of employment.
[Headnote 5]
NRS Chapter 618 is closely aligned to NRS Chapter 616. Therefore, any claim for
compensation by an injured employee arising out of a failure by an employer to comply with
NRS Chapter 618 would of necessity be considered in light of NRS Chapter 616 and the
cases interpreting that chapter.
[Headnote 6]
A fair reading of NRS 618.365(1)
2
supports respondents' contention that the legislature
did not intend to create any private civil remedy through the Occupational Safety and Health
Act. The intent and scope of NRS 618.365 is so clear that further comment is really
unnecessary. However, we note that the Nevada Occupational Safety and Health Act was
modeled after the Federal Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C.
651 et seq., and although the federal act relates only to employers and employees and does
not have a specific provision prohibiting the owner of real property from constructing or
causing to be constructed an unsafe place of employment, the federal court's interpretation is
analogous. They have held that OSHA does not create, either directly or impliedly, a private
civil remedy in favor of employees. To support such finding those courts have relied on 29
U.S.C. 653(b)(4),
3
which is virtually identical to NRS 618.365. Byrd v. Fieldcrest Mills,
Inc., 496 F.2d 1323 (4th Cir. 1974); Russell v. Bartley, 494 F.2d 334 (6th Cir. 1974); Otto v.
Specialties, Inc., 386 F.Supp. 1240 (N.D. Miss. 1974); Hare v. Federal Compress and
Warehouse Co., 359 F.Supp. 214 (N.D. Miss. 1973); Skidmore v. Travelers Insurance Co.,
356 F.Supp. 670 (E.D. La. 1973) aff'd. 483 F.2d 67 (5th Cir. 1973).
2. Appellants further contend that even without the aid of NRS 618.395 Harrah is liable
under the common law for the alleged negligence because it retained some control over the
construction project.
____________________

2
NRS 618.365(1): This chapter does not supersede or in any manner affect the Nevada Industrial Insurance
Act, the Nevada Occupational Diseases Act or enlarge, diminish or affect in any other manner the common law
or statutory rights, duties or liabilities of employers and employees under the laws of this state with respect to
injuries, occupational or other, diseases or death of employees arising out of or in the course of employment.

3
29 U.S.C. 653(b)(4): Nothing in this chapter shall be construed to supersede or in any manner affect any
workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or
statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases,
or death of employees arising out of, or in the course of, employment.
Since the enactment of the Nevada Industrial Insurance Act, Chapter 111, 1913 Statutes of
Nevada, this court has held that compensation by the Nevada Industrial Commission is the
sole remedy exclusive of any rights of a common law action against an employer, where an
employee incurs an injury as a result of an accident which arose out of and in the course of
his employment. NRS 616.270;
4
616.370.
5
See LTR Stage Line v. Nev. Ind. Comm'n, 81
Nev. 626, 408 P.2d 241 (1965);
6
Kennecott Copper Corp. v.
____________________

4
NRS 616.270: 1. Every employer within the provisions of this chapter, and those employers who shall
accept the terms of this chapter and be governed by its provisions, as in this chapter provided, shall provide and
secure compensation according to the terms, conditions and provisions of this chapter for any and all personal
injuries by accident sustained by an employee arising out of and in the course of the employment.
2. Travel for which an employee receives wages shall, for the purpose of this chapter, be deemed in the
course of employment.
3. In such cases the employer shall be relieved from other liability for recovery of damages or other
compensation for such personal injury, unless by the terms of this chapter otherwise provided.

5
NRS 616.370: 1. The rights and remedies provided in this chapter for an employee on account of an
injury by accident sustained arising out of and in the course of the employment shall be exclusive, except as
otherwise provided in this chapter, of all other rights and remedies of the employee, his personal or legal
representatives, dependents or next of kin, at common law or otherwise, on account of such injury.
2. The terms, conditions and provisions of this chapter for the payment of compensation and the amount
thereof for injuries sustained or death resulting from such injuries shall be conclusive, compulsory and
obligatory upon both employers and employees coming within the provisions of this chapter.
3. The exclusive remedy provided by this section to a principal contractor extends, with respect to any
injury by accident sustained by an employee or any contractor in the performance of the contract, to every
architect or engineer who performs services for the contractor or any such beneficially interested person.
4. If an employee receives any compensation or accident benefits under this chapter, the acceptance of such
compensation or benefits shall be in lieu of any other compensation, award or recovery against his employer
under the laws of any other state or jurisdiction and such employee is barred from commencing any action or
proceeding for the enforcement or collection of any benefits or award under the laws of any other state or
jurisdiction.

6
In McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957), and Quicksilver Co. v. Thiers, 62 Nev. 382, 152
P.2d 432 (1944), this court recognized the exclusive remedy of the Nevada Industrial Insurance Act. However,
in Quicksilver the district court judgment was affirmed because the facts of that case took it outside the Act. In
McColl a summary judgment was reversed and the case remanded to determine whether or not the injury arose
out of her employment. Here there is no dispute that Frith's injury arose out of his employment.
Kennecott Copper Corp. v. Reyes, 75 Nev. 212, 337 P.2d 624 (1959). See also, Jackson v.
Southern Pac. Company, 285 F.Supp. 388 (D. Nev. 1968); Howe v. Diversified Builders,
Inc., 69 Cal.Rptr. 56 (Cal.App. 1968).
[Headnotes 7, 8]
If Harrah could be deemed the principal contractor and the principal employer of Frith, it
would not be excluded from coverage under the Nevada Industrial Insurance Act and the
insulation from common law liability just because it was also the owner of the real property
where the injury occurred. Titanium Metals v. District Court, 76 Nev. 72, 349 P.2d 444
(1970),
7
Simon Service v. Mitchell, 73 Nev. 9, 307 P.2d 110 (1957). If Campbell
Construction Company is the bona fide employer of Frith, then both Harrah and Campbell
would be insulated by the Nevada Industrial Insurance Act from any common law liability,
NRS 616.270; 616.370; LTR Stage Line v. Nev. Ind. Comm'n, supra; Kennecott Copper
Corp. v. Reyes, supra.
[Headnote 9]
Had Frith established these same facts in a proceeding to secure compensation under the
Nevada Industrial Insurance Act, he would have unquestionably been entitled to a judgment
on the pleadings mandating a statutory award, and it therefore follows under the decisions of
this court that such relief is exclusive. NRS 616.370; NRS 616.500; Kennecott Copper Corp.
v. Reyes, supra.
If appellants' contentions were to be adopted, no owner of real property in this state would
dare allow a workman upon his property.
Affirmed.
____________________

7
Cf. Weaver v. Shell Oil Co., 91 Nev. 324, 535 P.2d 787 (1975), which is distinguishable on its particular set
of facts.
____________
92 Nev. 454, 454 (1976) Cleland v. District Court
C. R. CLELAND, WENDELL G. WAITE and DAN GRAY, Petitioners, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, In and For the
County of Clark, Department No. v, Respondent.
No. 8817
SHIRLEY HANSELL, City Clerk of the City of North Las Vegas, Nevada, Appellant, v.
ROBERT PEAKE, Respondent.
No. 8829
July 23, 1976 552 P.2d 488
Petition for Writ of Certiorari (No. 8817); appeal from Judgment Issuing a Call for Recall
Election (No. 8829); Eighth Judicial District Court, Clark County; John F. Mendoza, Judge.
Appeal was taken from an order of the district court granting writ of mandamus directing
city clerk to issue a call for a special election and denying a motion to intervene in
proceedings concerning recall petitions. The Supreme Court held that trial court had
jurisdiction to determine sufficiency and validity of recall petitions; that recall petitions which
substantially complied with applicable statutes were properly validated; and that the denial of
an untimely motion to intervene was not an abuse of discretion.
Petition denied; judgment affirmed.
[Rehearing denied August 31, 1976]
George E. Franklin, Las Vegas, for Petitioners.
John B. Squires, North Las Vegas, for Appellant.
George E. Holt, District Attorney, Clark County, for Respondent Eighth Judicial District
Court.
John P. Fadgen, Las Vegas, for Respondent Robert Peake.
1. Officers.
District court had jurisdiction to determine sufficiency and validity of petitions for recall of elected
officials. NRS 306.040, subd. 2.
2. Officers.
Recall statutes should be liberally construed with a view toward promoting purpose for which they are
enacted. NRS 306.010 et seq., 306.040, subd. 2.
3. Officers.
Purpose of recall statutes is to insure that only registered voters are engaged in statutory procedures
culminating in special recall election. NRS 306.010 et seq., 306.040, subd. 2.
4. Officers.
Validation of recall petitions was proper where petitions substantially complied with statutory
requirements for recall petitions. NRS 306.010 et seq.
5. Parties.
Timeliness of a motion to intervene is determination that lies within sound discretion of trial court.
6. Officers.
Denial of untimely motion to intervene in hearings to determine sufficiency and validity of recall
petitions was not an abuse of discretion. NRCP 24.
OPINION
Per Curiam:
Consolidated for review, these cases concerning the recall of elected officials arise from
district court orders 1) granting respondent's petition for writ of mandamus, and 2) denying
petitioners' motion to intervene in proceedings concerning that petition.
Hearings to determine the sufficiency and validity of respondent's petitions for recall were
conducted pursuant to NRS 306.040. Petitioners, Mayor and two Councilmen of the City of
North Las Vegas, moved for and were denied intervention in those hearings. Thereafter, the
district court issued a writ of mandamus directing appellant City Clerk to issue a call for a
special election in accordance with NRS 306.040(2).
Appellant contends the district court 1) lacked jurisdiction to conduct the sufficiency and
validation hearings, and 2) erred by validating the recall petitions and issuing a call for a
special election. Petitioners contend the court exceeded its jurisdiction by denying their
motion to intervene. We find no merit in these contentions.
[Headnotes 1-4]
1. Appellant contends the district court lacked jurisdiction to determine the sufficiency
and validity of the recall petitions. However, we find such jurisdiction is specifically vested in
the district court by NRS 306.040(2). She further contends it was error to validate the
petitions and issue a call for a special election because those petitions did not strictly adhere
to the requirements of NRS 306. We have previously held that recall statutes should be
liberally construed with a view toward promoting the purpose for which they are enacted.
statutes should be liberally construed with a view toward promoting the purpose for which
they are enacted. State v. Scott, 52 Nev. 216, 285 P. 511 (1930). Here, the purpose of the
statutes is impliedly to insure that only registered voters are engaged in the statutory
procedures culminating in a special recall election. See NRS 306. We find the rule of
substantial compliance best furthers this purpose and is apposite to the determination of
sufficiency and validity of petitions here involved. See Springer v. Mount, 86 Nev. 806, 477
P.2d 159 (1970); cf. In Re Rice, 181 N.E.2d 742 (Ill. App. 1962).
[Headnotes 5, 6]
2. Petitioners' motion to intervene was denied on the ground it was not timely, as required
by NRCP 24. Timeliness is a determination that lies within the sound discretion of the trial
court. We find no abuse of that discretion. In Re Marriage of Guinn, 522 P.2d 755 (Colo.
App. 1974).
Numerous other contentions of the parties being without merit, we approve the district
court's orders.
Petition denied; judgment affirmed.
____________
92 Nev. 456, 456 (1976) Crawford v. State
CLYDE DUWAYNE CRAWFORD, GEORGE ROBERT SPARKS, STEVEN KENNETH
ENOS, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 8402
August 4, 1976 552 P.2d 1378
County; J. Charles Thompson, Judge.
Defendants were convicted in the district court of grand larceny and third degree arson and
they appealed. The Supreme Court held that the evidence was sufficient to sustain the
convictions.
Affirmed.
Morgan D. Harris, Public Defender, Clark County, for Appellants.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Clark
92 Nev. 456, 457 (1976) Crawford v. State
1. Criminal Law.
Circumstantial evidence is admissible and conviction may be based solely on circumstantial evidence.
2. Arson; Larceny.
Evidence, inter alia, that automobile had been stolen and stripped of engine, radiator, chrome wheels,
tires, battery and headrests, that defendants were apprehended, in pickup truck, a short distance from
burning vehicle and, engine, radiator, wheels, tires, battery and headrests were in bed of pickup truck, was
sufficient to sustain convictions of three defendants of grand larceny and third degree arson.
OPINION
Per Curiam:
Clyde Duwayne Crawford, George Robert Sparks and Steven Kenneth Enos were
convicted, by jury verdict, of grand larceny and third degree arson. After being sentenced to
concurrent terms in the Nevada State Prison the three men perfected this appeal contending
there was insufficient evidence to sustain the jury verdict.
Evidence adduced at trial established, inter alia, that (1) an automobile had been stolen
and stripped of the engine, radiator, chrome wheels, tires, battery and headrests; (2)
appellants were apprehended, in a pickup truck, a short distance from the burning vehicle;
and, (3) the engine, radiator, wheels, tires, battery and headrests were in the bed of the pickup
truck.
1. On appeal, the issue is not whether this court would have found appellant guilty, but
whether the jury properly could. Anstedt v. State, 89 Nev. 163, 165, 509 P.2d 968, 969
(1973). Where there is substantial evidence to support a verdict in a criminal case, as the
record indicates exists in this case, the reviewing court will not disturb the verdict nor set
aside the judgment. Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974).
[Headnotes 1, 2]
2. Although some of the evidence was circumstantial in nature, such evidence was
admissible. This court has previously, and consistently, upheld convictions based solely on
circumstantial evidence. See, for example, O'Brien v. State, 88 Nev. 488, 500 P.2d 693
(1972), and cases cited therein.
Affirmed.
____________
92 Nev. 458, 458 (1976) Mitchell v. State
CHARLES EDWARD MITCHELL, Appellant, v.
No. 8837
August 4, 1976 552 P.2d 1378
Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant was convicted in the district court of robbery and he appealed. The Supreme
Court held that the evidence was sufficient to sustain the conviction.
Affirmed.
Theodore J. Manos, Las Vegas, for Appellant.
Leon Simon, Chief Deputy, Clark County, for Respondent.
1. Robbery.
Evidence was sufficient to sustain conviction of robbery.
2. Criminal Law.
Circumstantial evidence is admissible and jury is authorized to base its verdict on such evidence.
3. Criminal Law.
Where there is substantial evidence to support verdict in criminal case, reviewing court will neither
disturb verdict, nor set aside judgment.
OPINION
Per Curiam:
The appellant, Charles Edward Mitchell, requests this court to vacate his conviction for
robbery, contending the evidence presented at trial was insufficient to support the jury's
verdict. We reject the contention.
[Headnote 1]
The victim's description of the assailant led to Mitchell's arrest within thirty (30) minutes
after the robbery occurred. The unchallenged search of Mitchell produced several items of the
victim's property. At trial, the victim identified a shirt owned by Mitchell as being the one he
was wearing at the time of the robbery.
Recent, exclusive and unexplained possession of stolen property by an accused person
gives rise to an inference of guilt which may be sufficient to convict in the absence of other
facts and circumstances which leave a reasonable doubt in the minds of the jury."
92 Nev. 458, 459 (1976) Mitchell v. State
facts and circumstances which leave a reasonable doubt in the minds of the jury. Staab v.
State, 90 Nev. 347, 350, 526 P.2d 338, 340 (1974).
[Headnote 2]
Additionally, there was a considerable amount of circumstantial evidence presented
against Mitchell. Such evidence was admissible and the jury was authorized to base its
verdict on such evidence. Bails v. State, 92 Nev. 95, 545 P.2d 1155 (1976); O'Brien v. State,
88 Nev. 488, 500 P.2d 693 (1972).
[Headnote 3]
Where there is substantial evidence to support a verdict in a criminal case, as the record
indicates exists in this case, the reviewing court will neither disturb the verdict, nor set aside
the judgment. Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974).
Affirmed.
____________
92 Nev. 459, 459 (1976) Bartle v. Sheriff
RANDALL SCOTT BARTLE and FREDERICK JAMES NICHOLS, Appellants, v.
SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 8962
August 5, 1976 552 P.2d 1099
After they were ordered to stand trial for robbery and using deadly weapon in commission
of a crime, petitioners sought pretrial habeas corpus. The district court denied the petition. On
appeal the Supreme Court held that probable cause to believe that a deadly weapon had been
used to commit the crime was supplied by the testimony of the victim that, although he did
not actually see a gun, defendants jabbed an object into the back of the driver's neck and
demanded money.
Affirmed.
Morgan D. Harris, Public Defender, and Joseph W. Houston, II, Deputy, Clark County,
for Appellat Bartle.
J. E. Smith, Las Vegas, for Appellant Nichols.
92 Nev. 459, 460 (1976) Bartle v. Sheriff
Criminal Law.
Evidence in preliminary hearing on charges of robbery and using deadly weapon in commission of crime,
to effect that defendants jabbed object into back of victim's neck and demanded money, and that victim
would swear the object was a gun and believed that defendants would shoot him if he did not comply
with their demand, provided probable cause to order defendants to stand trial. NRS 171.206, 193.165,
200.380.
OPINION
Per Curiam:
Randall Scott Bartle and Frederick James Nichols were charged with, and ordered to stand
trial for, (1) robbery (NRS 200.380); and (2), using a deadly weapon in the commission of a
crime (NRS 193.165). Thereafter, they filed a petition for habeas corpus contending the
evidence adduced at the preliminary examination was insufficient to establish probable cause
that a deadly weapon had been used to commit the crime. The district court denied habeas
and the same contention has been brought forward by appeal.
Appellants' sole argument, which we reject, is that since the cabdriver did not testify he
actually saw a gun, they cannot be charged with the deadly weapon count.
The record establishes, inter alia, that appellants, passengers in a taxicab, jabbed an
object into the back of the driver's neck and demanded money. The driver testified he would
swear the object was a gun; and, that he believed appellants' threats that they would shoot
him if he did not comply with their demand. In our view, this testimony meets the probable
cause test delineated in NRS 171.206. See State v. von Brincken, 86 Nev. 769, 476 P.2d 733
(1970).
Affirmed.
____________
92 Nev. 460, 460 (1976) Brackenbrough v. State
KEITH L. BRACKENBROUGH, Appellant, v.
No. 7862
August 6, 1976 553 P.2d 419
Original post-judgment motion for attorney's fee.
Counsel who represented defendant on appeal from conviction, Brackenbrough v. State,
91 Nev. 487, 537 P.2d 1194 (1975), filed motion requesting payment of attorney fees. The
Supreme Court held that statutes which would compel the Supreme Court, in the first
instance, to appoint counsel for indigents on all appeals, approve payment of their fees and
expenses, or determine the dollar value of services performed by such counsel are invalid
attempts by the legislature to impose its will on the court.
Motion denied, without prejudice.
Halley & Halley, Reno, for Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, Washoe
On motion requesting payment of attorney fees, data as to whether defendant was, in fact, an indigent and
counsel was duly appointed to prosecute the appeal, or on what charges defendant was before the court, is
essential. NRS 7.125, subd. 2.
Although the Supreme Court has inherent power to set an attorney fee, it is appropriate that normally
such fees be first processed and resolved in district court before being considered by the Supreme Court.
NRS 7.125, subd. 1, 7.165; Const. art. 6, 4.
Statutes which would compel the Supreme Court, in the first instance, to appoint counsel for indigents on
all appeals, approve payment of their fees and expenses, or determine the dollar value of services
performed by such counsel, are invalid attempts by the legislature to impose its will on the court. NRS
7.125, subd. 1, 7.165.
The Supreme Court will appoint counsel and fix fees whenever such orders appear necessary to the
proper exercise of its appellate function. NRS 7.125, subd. 3(b), 7.145, subd. 1.
OPINION
Per Curiam:
Counsel who represented Keith L. Brackenbrough in this appeal, which was summarily
resolved in July, 1975 (Brackenbrough v. State, 91 Nev. 487, 537 P.2d 1194 (1975)), has now
filed an undocumented motion in this court requesting payment of attorney's fees.
[Headnote 1]
The record in this case was returned to the Second Judicial District Court, Washoe County,
in August, 1975, after remittitur issued; therefore, we are unable to ascertain (1) whether
appellant was, in fact, an indigent and counsel was duly appointed to prosecute this appeal;
or, (2) on what charges appellant was before the court. See NRS 7.125(2). This, and other
data, properly documented, is essential to the motion.
In 1875, our legislature first recognized an obligation to implement a means of
compensating counsel appointed to represent indigents in criminal proceedings. See Stats. of
Nev. 1875, ch. 86, p. 142. In the ensuing century the statute was amended on eight (8)
separate occasions, several of which provided for an increase in the amount of compensation
payable to appointed counsel. The most recent amendment, codified as NRS 7.115-NRS
7.165, places Nevada lawyers who are appointed to represent indigents in the state courts, on
a par, financially, with lawyers appointedand paidby the Federal Courts. The fiscal
portions of the statute (Stats. of Nev. 1975, ch. 612, pp. 1153-56) were patterned, in part, on
the Federal Criminal Justice Act (18 U.S.C. 3006A), first enacted in 1964 and amended by
the Congress in 1970. See 84 Stat. 916 (1970).
In addition to increasing the hourly amount of compensation and designating maximum
amounts recoverable, the new act also provides for the payment of a fee in excess of the
statutory maximum where there are unusual circumstances.
1
Other portions of the new
statute attempt to place both an administrative and fact finding burden on the supreme court
in so far as appointing counsel, processing and approving claims for fees, and evaluating the
value of counsel's services on an appeal are concerned. For example, NRS 7.125(3)(b)
purports to proscribe payment of a fee in excess of the statutory maximum in an appeal where
there are unusual circumstances unless the excess amount is . . . approved by a justice of
the Nevada supreme court. See also, NRS 7.145(1) which provides: Claims for
compensation and expenses shall be made to: . . . (c) the supreme court on any appeal to that
court.
Prior to May 20, 1975, the effective date of the new statute, a request for an attorney's
fee by private counsel who had been appointed pursuant to NRS 171.1SS, was directed to
the district court.
____________________

1
See United States v. Thompson, 361 F.Supp. 879 (D.C. D.C. 1973), and People v. Wilson, 302 N.Y.S.2d
647 (Monroe County Ct. 1969), for comprehensive treatment and discussions of what factors are considered to
constitute unusual circumstances which might warrant a fee in excess of the statutory maximum.
a request for an attorney's fee by private counsel who had been appointed pursuant to NRS
171.188, was directed to the district court. That court considered and evaluated all the claims
(whether they were for services in the trial court, or on an appeal) and, upon approval, issued
counsel a certificate, pursuant to NRS 7.260 (see Stats. of Nev. 1973, ch. 102, p. 168), for
presentment to the appropriate financial officer of the county for payment. Cf. Hancock v.
State, 80 Nev. 581, 584, 397 P.2d 181, 182 (1964). Most other states have followed an
analogous procedure. The United States Code provides that claims for compensation for
similar services in the federal district and appellate courts . . . shall be submitted to the
district court which shall fix the compensation and reimbursement to be paid. 18 U.S.C.
3006A(d)(4).
Historically, both retained and appointed counsel have been selected by a client or
designated by the trial court prior to the time an appeal is taken. Determination of the amount
of remuneration to be paid appointed counselfor the trial and for the appealhas almost
uniformly been determined by the trial courts. See Edmonds v. State, 62 N.W. 199 (Neb.
1895), which held that the trial court must determine the amount of an attorney's fee for
appointed counsel, for the trialand for the appeal. See also, State v. Wentler, 45 N.W. 816
(Wis. 1890); State v. Behrens, 79 N.W. 387 (Iowa 1899); and, De Long v. Board of Sup'rs, 69
N.W. 1115 (Mich. 1897). Cases from many other states, which are in accord, are collected in
Annot., 18 ALR3d 1074 at 1082 et seq. Cf. Washoe Co. v. Humboldt Co., 14 Nev. 123
(1879); Op. Att'y Gen. No. 135 (Apr. 25, 1944).
The wisdom and economy of this procedure and custom is quite evident. Counsel who
handled the trialand is familiar with all aspects of the caseshould, if feasible, also handle
the appeal. Such counsel usually resides inor nearthe area where the trial took place.
Their capacity and availability are usually better known to the trial judge than to members of
the appellate bench. The rules of practice provide that questions relating to, and concerning,
the content and preparation of the record and transcript are ordinarily presented to the trial
court judge. Having presided over pretrial proceedings, over the trial, over post-trial motions,
and over matters concerning preparation of the appellate record, the district court is therefore
usually in a better position than this court to determine expeditiously how much new and
effective effort has truly been devoted to preparation of appellate briefs.
[Headnote 2]
Brown v. Board of County Comm'rs, 85 Nev. 149, 451 P.2d 708 (1969), recognized the
inherent power of this court to set an attorney's fee; however, we deem it appropriate that
normally such fees be first processed and resolved in district court, which is a fact finding
tribunal, before we consider them. See the Const. of Nev., Art. VI 4, which provides, in
part, The supreme court shall have appellate jurisdiction in all cases in equity; also in all
cases at law . . .
[Headnote 3]
Thus, we deem the portions of Stats. of Nev. 1975, ch. 612, pp. 1153-56, which would
compel this court, in the first instance, to appoint counsel for indigents on all appeals,
approve payment of their fees and expenses, or determine the dollar value of services
performed by such counsel, to be invalid attempts by the legislature to impose its will on this
court.
[Headnote 4]
Accordingly, we hold invalid the language in NRS 7.125(1) and NRS 7.165 which refers
to the supreme court or a justice thereof, insofar as it relates to the appointment and
payment of counsel; and, that portion of NRS 7.125(3) (b), which purports to proscribe
payment of a fee in excess of the statutory maximum, unless such excess fee is . . . approved
by a justice of the Nevada supreme court. Equally impermissible and, therefore, void is that
portion of NRS 7.145(1) which provides that Claims for compensation and expenses shall be
made to: . . . (c) the supreme court on any appeal to that court. This court will, of course,
continue to appoint counsel and fix fees whenever such orders appear necessary to the proper
exercise of our proper appellate function.
The instant motion is denied, without prejudice to the right to reurge same in the district
court, in accordance with this opinion.
____________
92 Nev. 464, 464 (1976) Spilsbury v. Spilsbury
JACKLYN SPILSBURY, Appellant, v.
JERALD SPILSBURY, Respondent.
No. 8318
August 25, 1976 553 P.2d 421
Appeal from order granting motion to dismiss, Eighth Judicial District Court, Clark
County; Carl J. Christensen, Judge.
Former wife filed a separate action to vacate property settlement agreement contending
that the agreement was a product of fraud, misrepresentation and mistake as to value of
community assets. The district court entered order granting motion to dismiss and the former
wife appealed. The Supreme Court held that in view of the denial of wife's prior motion to set
aside decree provision confirming property settlement agreement on the same grounds,
doctrine of res judicata barred her from bringing subsequent separate action.
Affirmed.
Albright & McGimsey, Las Vegas, for Appellant.
Rose, Edwards & Hunt, Ltd., Las Vegas, for Respondent.
1. Divorce.
Where former wife unsuccessfully moved to set aside that portion of divorce decree confirming property
settlement agreement on ground that the agreement was a product of fraud, misrepresentation and mistake
as to value of community assets, res judicata barred her from bringing a subsequent separate action to
vacate property settlement agreement on the same grounds. NRCP 60(b).
2. Judgment.
Under doctrine of res judicata, right, question or fact distinctly put in issue and directly determined by
court of competent jurisdiction as ground of recovery cannot be disputed in subsequent suit between the
same parties or their privies, even if second suit is for a different cause of action.
OPINION
Per Curiam:
Jacklyn and Jerald Spilsbury were divorced in April, 1974. A portion of the decree
ratified, affirmed, approved and confirmed a property settlement agreement.
In August, 1974, Jacklyn filed a motion, under NRCP 60(b), to set aside the decree
challenging, inter alia, the property settlement agreement on the basis of (1) fraud; (2)
misrepresentation by Jerald; and, (3) mistake as to the value of community assets.
[Headnote 1]
At the conclusion of an evidentiary hearing, the district court resolved all three contentions
against Jacklyn in an order entered January 28, 1975. Instead of timely appealing that order,
Jacklyn, on May 6, 1975, elected to file a separate action to vacate the property settlement
agreement, contending the agreement was a product of {1) fraud; {2) misrepresentation;
and, {3) mistake.
the agreement was a product of (1) fraud; (2) misrepresentation; and, (3) mistake.
The district court granted Jerald's motion to dismiss the May, 1976, complaint; and,
Jacklyn has appealed delineating several reasons why she feels we should reverse. However,
we need not, and therefore do not, consider and resolve her contentions. The validity of the
property settlement agreement had already been adjudicated; therefore, Jacklyn was barred
under the doctrine of res judicata from trying to relitigate the issue.
[Headnote 2]
Under that doctrine, a right, question or fact distinctly put in issue and directly determined
by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a
subsequent suit between the same parties or their privies; and, even if the second suit is for a
different cause of action, the right, question or fact once so determined must, as between the
same parties or their privies, be taken as conclusively established. See Lucas v. Page, 91 Nev.
493, 494, 538 P.2d 165 (1975), and cases cited therein. See also, Lubben v. Selective Service
System Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir. 1972).
The district court's order is affirmed.
____________
92 Nev. 466, 466 (1976) Talk of the Town v. City of Las Vegas
TALK OF THE TOWN BOOKSTORE, PEEK-A-RAMA, JACK LEE MARCUM, DOES I
THROUGH V, and DOE CORPORATIONS I THROUGH II, Appellants, v. CITY OF LAS
VEGAS, a Municipal Corporation, Respondents.
No. 7728
TALK OF THE TOWN BOOKSTORE, INC., Doing Business As the TALK OF THE
TOWN BOOKSTORE, and THE PEARL, Appellants, v. CITY OF LAS VEGAS, a
Municipal Corporation, and J. E. DUTTON, Director of Licensing, City of Las Vegas,
Nevada, Respondents.
No. 7774
August 31, 1976 553 P.2d 959
Appeal from injunction and order denying mandamus, Eighth Judicial District Court,
Clark County; Keith C. Hayes, Judge.
City petitioned for an injunction to restrain the operation of two bookstores until certain
privileged business licenses were issued. The bookstore owners sought a writ of mandamus
ordering immediate issuance of the licenses. The district court granted the injunction and
denied the writ of mandamus. Appeal was taken, and the Supreme Court, Gunderson, C. J.,
held that a city ordinance pertaining to the licensing of adult oriented bookstores which
granted the city commission unlimited discretion to grant or deny licenses to operate such
bookstores constituted a prior restraint of First Amendment freedoms and was
unconstitutional on its face.
Affirmed in part and reversed in part.
Alan B. Andrews, Las Vegas, for Appellants.
Carl Lovell, City Attorney, and Daniel E. Ahlstrom, Deputy City Attorney, Las Vegas, for
Respondents.
The First Amendment presumptively protects the publication and dissemination of books and other
printed material. U.S.C.A.Const. Amend. 1.
First Amendment protections are not diluted merely because books are sold for profit, although the
selling itself is not exempt from reasonable regulation. U.S.C.A.Const. Amend. 1.
City ordinance which required adult oriented bookstores to undergo a special investigation of persons
associated with such a store's management or ownership before a privileged business license for
operation of the store could be issued constituted a form of prior restraint in that it required the
bookstores to obtain permission from city officials before any ideas, whether obscene or protected, could
be communicated by the dissemination of books and, therefore, ordinance bore a heavy presumption of
unconstitutionality. U.S.C.A.Const. Amends. 1, 14.
4. Constitional Law.
To be constitutionally acceptable, ordinances authorizing public officials to license conduct
presumptively protected by the First Amendment must establish precise, narrowly drawn standards under
which the license is to be granted or denied. U.S.C.A.Const. Amends. 1, 14.
5. Licenses.
Where city ordinance pertaining to licensing of adult oriented bookstores recited no standards whatever
for granting or withholding privileged business licenses to such bookstores but rather vested city
commission with unlimited discretion to grant or deny such licenses, ordinance vested officials with a
constitutionally impermissible power of censorship in the guise of unbridled discretion to deny licenses and
was unconstitutional on its face. U.S.C.A.Const. Amends. 1, 14.
For distinction drawn in city ordinance between adult oriented bookstores and other bookstores to be
constitutionally permissible, distinction must not only have a rational basis but also must be reasonably
related to a valid municipal interest. U.S.C.A.Const. Amends. 1, 14.
OPINION
On application of the City of Las Vegas, the district court enjoined operation of appellants'
established bookstore businesses until such time as the City Commission saw fit to issue
privileged business licenses pursuant to Las Vegas Ordinance 1627. The court also denied
appellants' petition for a writ of mandamus to compel immediate issuance of such licenses.
We reverse the injunction, since Ordinance 1627 is manifestly unconstitutional; however, we
affirm the order denying the immediate issuance of business licenses, since it does not appear
license applications are now pending under any valid city ordinance.
Without defining the term adult oriented in any way, Ordinance 1627 classifies adult
oriented bookstores as privileged businesses and, if valid, would constrain license
applicants who feared their businesses might be deemed adult oriented to pay for
investigation of persons associated with their stores' management or ownership.
1
In
practice, police department agents apparently investigate without criteria to guide or limit
their inquiry, other than their own notions of relevance. Applicants are required to submit
personal history and financial status questionnaires. They must also ultimately submit to
inquiry before the City Commission, the scope of which is unlimited by ay express criteria.
Grounds for withholding a license do not appear in Ordinance 1627, or elsewhere in the City
Code. Such undefined, ad hoc licensing procedures are not imposed on applicants who apply
for ordinary bookstore licenses.
____________________

1
Ordinance 1627, adopted May 16, 1973, provides as follows: All adult oriented bookstores and adult
oriented theatres shall be classified as privileged business licenses. All said applications for a privileged business
license shall pay a minimum fee of Fifty Dollars ($50.00) as and for an investigation fee for each and every
person associated with either the management or the ownership of any adult oriented bookstores and/or adult
oriented theatres. Las Vegas, Nev. Municipal Code, Title V, ch. 1, 24.
In June, 1973, appellant Talk of the Town Bookstore, Inc., purchased two established
businesses, the Talk of the Town and the Pearl bookstores, for which the prior owner had
obtained privileged business licenses. Although the municipal code does not explicitly treat
the issue, apparently the Las Vegas Licensing Bureau permits a new owner to continue
business under the existing license, if the prior owner consents. Appellants received such
permission and conducted the business under the prior owner's licenses without incident for
nine months. On March 29, 1974, the prior owner requested that the Licensing Bureau
remove her name from appellants' licenses, but stated she did not object to the bookstores
remaining open. However, in an affidavit executed April 3, 1974, she demanded the
bookstores be closed. Pursuant to this affidavit, the Licensing Bureau ordered appellants to
cease business operations until new licenses were issued. Appellants applied for privileged
business licenses, which to date have not been issued, but refused to terminate business
operations.
Due to the continuation of business, Las Vegas petitioned for an injunction restraining
appellants' bookstore operations until new licenses were issued. Simultaneously, appellants,
attacking the constitutionality of Ordinace 1627, sought a writ of mandamus ordering
immediate issuance of licenses without the delay necessitated by a police investigation, which
could be as long as six months. The district court granted the injunction and denied the writ
of mandamus holding the constitutionality of the ordinance was not properly before it.
Appellants, even though properly operating under the prior owner's business licenses, were
also held to have unclean hands for failing to apply for new licenses when they first
acquired the bookstores.
The record does not reflect in detail what these stores purvey; however, the City Attorney
concedes they sell lawful merchandise, magazines such as Esquire, Playboy, and Penthouse,
and, for all he knows, newspapers customarily distributed in the locale. For all that appears of
record, the businesses were operated the same after the sale as before, in a manner the police
felt unable to challenge as criminal. If appellants, or the former owner, have ever sold
material violative of any valid law or ordinance, such transgressions are not before us. Of
course, supposing such transgressions have occurred, or hereafter occur, it would be the City
Attorney's duty to prosecute those responsible. We deal only with the issues as presented.
Appellants challenge the constitutionality of Ordinance 1627 on numerous grounds. Their
main contentions are: (1) because the ordinance lacks standards for the issuance of a license,
it gives unlimited discretion to public officials and is therefore an unconstitutional prior
restraint on the exercise of first amendment freedoms; and {2) the ordinance draws an
impermissible distinction between "adult oriented" and other bookstores.
license, it gives unlimited discretion to public officials and is therefore an unconstitutional
prior restraint on the exercise of first amendment freedoms; and (2) the ordinance draws an
impermissible distinction between adult oriented and other bookstores. Since the first
contention clearly has merit, we will merely discuss and not finally decide arguments
concerning the second contention.
[Headnotes 1-3]
1. The United States Supreme Court has condemned any system of prior restraint of first
amendment rights. Near v. Minnesota, 283 U.S. 697 (1931). The first amendment
presumptively protects the publication and dissemination of books and other printed material.
Smith v. California, 361 U.S. 147 (1959). First amendment protections are not diluted merely
because the books are sold for profit, although the selling itself is not exempt from reasonable
regulation. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952). Ordinance 1627 is a form of
prior restraint in that it requires adult oriented bookstores to obtain permission (a license)
from city officials before any ideas, whether they are obscene or protected by the first
amendment, can be communicated via the dissemination of books. Burstyn v. Wilson, cited
above. Because it is a system of prior restraint, Ordinace 1627 bears a heavy presumption of
unconstitutionality. Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).
[Headnotes 4, 5]
To be constitutionally acceptable, ordinances authorizing public officials to license
conduct presumptively protected by the first amendinent must establish precise, narrowly
drawn standards under which the license is to be granted or denied. Shuttlesworth v.
Birmingham, 394 U.S. 147 (1969); Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968);
Freedman v. Maryland, 380 U.S. 51 (1965); Staub v. City of Baxley, 355 U.S. 313 (1958).
Without such standards, public officials would have the impermissible power of censorship in
the guise of unbridled or excessive discretion to deny a license. As noted, Ordinance 1627
recites no standards whatever, but instead, vests the City Commission with unlimited
discretion to grant or deny a license. In light of this fact, no serious argument to support its
constitutionality can be or has been made.
2. Even if incorporated in a properly drafted ordinance, considerations that now
apparently are utilized as grounds for denying a license would be highly suspect. For
example, it may be questioned that the right to free speech, or right to engage in the business
of selling material presumptively protected by the first amendment, can be denied due to
a finding of bad character or prior criminal activity.
in the business of selling material presumptively protected by the first amendment, can be
denied due to a finding of bad character or prior criminal activity. See: Schneider v. State,
308 U.S. 147 (1939); Perrine v. Municipal Ct. East L.A. Jud. Dist. of L.A. Co., 488 P.2d 648
(1971). Indeed, the City Attorney concedes first amendment rights cannot be so infringed.
2
Likewise, it may be argued that a citizen's financial status, like race, creed, or color, is a
constitutional irrelevance and cannot be used to test, qualify, or limit first amendment
freedoms. See: Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Douglas v.
California, 372 U.S. 353 (1963). Murdock v. Pennsylvania, 319 U.S. 105 (1943). This the
City Attorney also concedes.
3

In sum, the City Attorney agrees that even after applicants for adult oriented bookstore
licenses submit to all the inquiries, investigations, and hearings imposed by Ordinance 1627,
their licenses, as with any other type of bookstore license, can still only be denied upon the
grounds of building, fire, or zoning violations.
4
All this brings into focus the second major
constitutional issue in this case, i.e., whether the distinction drawn between "adult
oriented" and other bookstores, requiring the former to submit to totally different,
burdensome licensing procedures, is violative of equal protection guarantees provided in
the Fourteenth Amendment to the Constitution of the United States.
____________________

2
Court: You would agree, would you not Mr. Ahlstrom, that it doesn't matter how many prior convictions an
individual has sustained, that the City of Las Vegas cannot refuse him the right of free speech, and therefore
cannot refuse him the right to sell newspapers, magazines, and other presumptively first amendment material?
Counsel: I would agree with that statement, your Honor.

3
Court: Well, they [city commissioners] couldn't turn him [an applicant] down on the basis of his financial
status, could they?
Counsel: They could not.
Court: Well then, why is it a legitimate interest of the city to have a financial statement if they can't base any
judgment on the financial information that is contained? You agree that they couldn't turn them [applicants]
down on the basis of any financial condition that might be reflected by the application?
Counsel: I would agree with that, your Honor.

4
Court: So, the only thing [standard] you can think of that they [the city commissioners] could deny it [the
license] on is building, fire. or zoning code violations? Is that correct?
Counsel: That is correct.
Court: Those are the only standards that they are going to apply, and on which they are going to deny a
license to an adult oriented' bookstore? Is that correct, and that would be your advice to the city commission
under this ordinance, is that correct?
Counsel: That is correct.
Court: Let's take non-adult-oriented' bookstores. They don't have to go through this special privileged
licensing material and appear before the board, correct?
Counsel: Correct.
Court: They don't have any special inquiry into their building, fire, and zoning violations, correct?
Counsel: No, they do have. All businesses have that inquiry. The
constitutional issue in this case, i.e., whether the distinction drawn between adult oriented
and other bookstores, requiring the former to submit to totally different, burdensome
licensing procedures, is violative of equal protection guarantees provided in the Fourteenth
Amendment to the Constitution of the United States.
[Headnote 6]
Of course, for the mentioned distinction to be constitutionally permissible, it must not only
have a rational basis, but also be reasonably related to a valid muncipal interest. Laakonen v.
District Court, 91 Nev. 506, 538 P.2d 574 (1975); Doubles Ltd. v. Gragson, 91 Nev. 301, 535
P.2d 677 (1975). While the city's counsel acknowledges that censorship is not such an
interest, Counsel has omitted to so advise the city fathers.
5
If another interest or purpose
exists, it apparently is unknown to the city's counsel.
Since it is unnecessary for the disposition of this case, we do not finally decide whether the
distinction drawn by Ordinance 1627 is violative of equal protection guarantees. It is
sufficient that Ordinance 1627, which vests unlimited discretion in city officials due to lack
of objective standards, is a prior restraint of first amendment freedoms and, therefore,
unconstitutional on its face.
____________________
distinction is that a regular bookstore would not come before the city commissioners.
Court: What is the constitutional basis for the distinction between adult oriented' bookstores and other
bookstores? You recognize that under the decisions of the United States Supreme Court that if a distinction is to
be drawn, there must be a rational basis for that distinction. You understand those cases, don't you?
Counsel: I understand those cases.
Court: Then what is the difference between an adult oriented' bookstore and a non-adult oriented' bookstore
insofar as building, fire, and zoning regulations are concerned?
Counsel: There are none.

5
We note the city commissioners have never been advised they do not have the power to censor a bookstore,
prior to the issuance of a license, based on material that might be sold in the future:
Counsel: The City Commission would be ill advised to attempt to censor any bookstore, whether it be
privileged or not, on the basis of the material they are going to sell before they issue a license. They legally
cannot entertain it.
Court: Have you told them that?
Counsel: I don't believe they have been told.
In its granting of an injunction, the district court is reversed; in denying mandamus, the
court is affirmed.
____________
92 Nev. 473, 473 (1976) Holland Livestock v. B & C Enterprises
HOLLAND LIVESTOCK RANCH, a Copartnership Consisting of BRIGHT-HOLLAND
CO., MAREMONT-HOLLAND CO., and NEMEROFF-HOLLAND CO., Appellant, v. B &
C ENTERPRISES, a Nevada Corporation; WILLIAM BOEGLE; PATRICIA VAN RIPER;
FIRST NATIONAL BANK OF NEVADA; and JERRY D. TORVINEN, Respondents.
B & C ENTERPRISES, a Nevada Corporation, Plaintiff, v. HOLLAND LIVESTOCK
RANCH, et al., Defendants, FIRST NATIONAL BANK OF NEVADA, Intervenor.
No. 7857
August 31, 1976 553 P.2d 950
Appeal from judgment of Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
On appeal and cross-appeal from a judgment of the district court, the Supreme Court held
that where issues were either raised for the first time on appeal, were supported by no relevant
authority or concerned determinations based on substantial evidence, and where neither side
affirmatively demonstrated error, judgment would be affirmed.
Affirmed.
Breen, Young, Whitehead & Hoy, Reno, for Appellant.
Julian Smith, Esq., Carson City, for Respondents.
Stewart & Horton, Ltd., Reno, for Intervenor First National Bank of Nevada.
Appeal and Error.
Where issues were either raised for first time on appeal, were supported by no relevant authority or
concerned determinations based on substantial evidence, and where neither side
affirmatively demonstrated error, judgment was affirmed.
92 Nev. 473, 474 (1976) Holland Livestock v. B & C Enterprises
based on substantial evidence, and where neither side affirmatively demonstrated error, judgment was
affirmed.
OPINION
Per Curiam:
Here, both sides raise numerous issues on appeal and cross-appeal. After reviewing the
record, we conclude the issues presented are either raised for the first time on appeal,
supported by no relevant authority, or concern determinations which are based on substantial
evidence. For these reasons, and because neither side has affirmatively demonstrated error,
the judgment is affirmed. Peot v. Peot, 92 Nev. 388, 551 P.2d 242 (1976). Charmicor, Inc. v.
Bradshaw Finance Co., 92 Nev. 310, 550 P.2d 413 (1976); Alves v. Bumguardner, 91 Nev.
799, 544 P.2d 436 (1975); County of Clark v. Lucas, 91 Nev. 263, 534 P.2d 499 (1975);
Kulik v. Albers Incorporated, 91 Nev. 134, 532 P.2d 603 (1975); Solar, Inc. v. Electric Smith
Constr., 88 Nev. 457, 499 P.2d 649 (1972).
Affirmed.
____________
92 Nev. 474, 474 (1976) Humane Society v. First Nat'l Bk. of Nev.
HUMANE SOCIETY OF CARSON CITY AND ORMSBY COUNTY and SOCIETY FOR
ANIMAL RIGHTS, INC., Appellants, v. FIRST NATIONAL BANK OF NEVADA,
Administrator with Will Annexed of Estate of George Whittell, Deceased; KENNETH J.
ASHCRAFT and PETER W. LACEY, Trustees of said Estate, Respondents.
No. 8101
August 31, 1976 553 P.2d 963
Appeals from decree approving allocation of residue and directing preliminary
distribution, Second Judicial District Court, Washoe County; Thomas O. Craven, Judge.
Named humane society and named society for animal rights appealed from decree of the
district court approving allocation of 25% of residue of testator's estate to certain humane
societies and directing preliminary distribution. The Supreme Court held that court had no
jurisdiction to review validity of order establishing trust committee where no appeal was ever
taken from that order; and that trial court did not abuse discretion in approving trustees'
allocation of residue.
taken from that order; and that trial court did not abuse discretion in approving trustees'
allocation of residue.
Affirmed.
[Rehearing denied September 30, 1976]
Frederick R. Rogers, Carson City, and Charles E. Springer, Reno, for Appellants.
Morrison & Foerster, One Post Street, San Francisco, Ca. 94104; Woodburn, Wedge,
Blakey, Folsom & Hug, and Casey W. Vlautin, Reno, for Respondents.
State Supreme Court had no jurisdiction to review validity of order which directed administrator with will
annexed and executors to form committee as trustee to make allocation of 25% of testator's residue estate
as no appeal was ever taken from that order. NRS 155.190.
2. Trusts.
Trustee's exercise of discretion is not subject to court control except to prevent abuse of that discretion.
3. Trusts.
Court is not permitted to substitute its judgment and discretion for that of trustees so long as they act
within proper limits.
4. Trusts.
Trial court did not abuse discretion in approving trustees' allocation of 25% of residue of testator's estate
to certain humane societies to effectuate testator's wish that benefits as bestowed upon SOCIETY FOR
THE PREVENTION OF CRUELTY TO ANIMALS (Local or National), which SOCIETY did not
exist by name as national society or single local society. NRS 155.190.
When appellant cites no authority to support his contention, reviewing court need not consider
contention.
6. Trusts.
District court, in action approving trustees' allocation of 25% residue of testator's estate to various
humane societies, did not err in refusing to admit evidence relevant to merits of particular humane society's
claim at hearing held to determine if trustees had carried out court's directive in preparing plan for
allocation and distribution since district court could not usurp trustees' role and independently determine
that other organizations such as said particular humane society were also proper and should receive
allocations. NRS 155.190.
OPINION
Per Curiam:
George Whittell died on April 17, 1969, leaving a sizeable estate located in California and
Nevada. His will, which was admitted to probate in the Superior Court of the State of
California, County of San Mateo, and in the Second Judicial District Court of the State of
Nevada, in and for the County of Washoe, left the remainder of his estate to three
organizations each to receive 25% of the total.
admitted to probate in the Superior Court of the State of California, County of San Mateo,
and in the Second Judicial District Court of the State of Nevada, in and for the County of
Washoe, left the remainder of his estate to three organizations each to receive 25% of the
total. The executors were given authority to allocate the remaining 25% among the
organizations.
The beneficiary organization named in the will as SOCIETY FOR THE PREVENTION
OF CRUELTY TO ANIMALS (Local or National) does not exist by name as a national
society or a single local society. In the Nevada proceeding to construe testator's intent the
district court followed the California (domiciliary state) court's determination that decedent
intended to create a general charitable trust for distribution, with the executors as trustees to
determine the allocation of the trust. Appellants contend the court erred by following the
California decree which created a testamentary trust and that even if the creation of the trust
was proper the trustees abused their discretion in allocating the funds. We do not agree.
The decree entered on October 20, 1971, by the district court directed the First National
Bank of Nevada as administrator with will annexed and the executors, Kenneth Ashcraft and
Bank of America, to form a committee as trustee to make an allocation of 25% of the
residue estate. The decree required the trustee to determine the allocation of property and
interest among all local or national organizations which are organized for humane purposes
and which actively perform, or assist in performing, some or all of the functions of humane
societies or societies for the prevention of cruelty to animals.
A superior court for the state of California had earlier appointed executors to perform the
same functions. Appellants contend that both the California superior court and the Nevada
district court impermissibly created the committee as trustee and the Nevada district court
improperly recognized the trust created in California.
[Headnote 1]
NRS 155.190 specifically allows an appeal from an order or decree instructing or
appointing a trustee, instructing or directing an executor or administrator, or determining
heirship or the persons to whom distribution should be made or trust property pass. No appeal
was ever taken from the order entered on October 20, 1971, establishing the trust committee.
We have no jurisdiction to review the validity of that order.
Luria v. Zucker, 87 Nev. 471, 488 P.2d 1159 (1971); United States v. McLean, 78 Nev. 60,
368 P.2d 872 (1962).
Appellant Humane Society of Carson City and Ormsby County contends that respondent
trustees abused their discretion by failing to choose it to receive an allocation from the trust.
Appellant further contends that the trustees' selections should have been disapproved because
they favored wealthy societies contrary to the October 21, 1971 decree,
1
societies which
permit animal euthanasia rather than those which provide for animal shelter, and
organizations which would build educational buildings rather than animal shelters.
Appellant Society for Animal Rights contends that respondent trustees abused their
discretion by failing to make any allocations for their legal program which is devoted to
asserting and protecting the legal rights of animals. The Society supports its argument by
citing the testimony of trustee Ashcraft who testified that he opposed the allocation because
he considered the Society to have a litigious attitude and felt other humane groups would
resent the Society considering itself the legal arm of the humane movement.
The October 20, 1971 decree which instructed the respondent trustees in the use of their
discretion provided as follows: The Trustee shall allocate said interests in such manner and
in such proportions as in its judgment will best achieve the purpose of relieving pain and
suffering among animal, bird and fish life and of preserving, improving and perpetuating
animal, bird and fish life. The trustee was not instructed to allocate funds among all local
or national organizations which are organized for humane purposes but to allocate in such a
manner as in its judgment would achieve the purpose of the bequest.
[Headnote 2]
A trustee's exercise of discretion is not subject to court control except to prevent an abuse
of that discretion. The Restatement (Second) of Trusts 187 (1959), states the rule as
follows: Where discretion is conferred upon the trustee with respect to the exercise of a
power, its exercise is not subject to control by the court, except to prevent an abuse by the
trustee of his discretion. See Estate of Flannery, 75 Cal.Rptr. 424 {Cal.App.
____________________

1
Paragraph 7(b) of the October 21, 1971 decree provides:
The Trustee shall consider each prospective beneficiary's financial needs, its ability to meet its need from
other resources, its previous activities and accomplishments in furtherance of the trust purpose, its planned use
of the funds received hereunder and the need for the planned project in the area to be served.
(Cal.App. 1969); Estate of Genung, 326 P.2d 861 (Cal.App. 1958); Estate of Greenleaf, 225
P.2d 945 (Cal.App. 1951).
[Headnotes 3, 4]
A court is not permitted to substitute its judgment and discretion for that of the trustees so
long as they act within proper limits. Estate of Greenleaf, supra. The court could not
determine that appellants were more qualified to receive the allocations than the
organizations chosen by the trustees. It could only determine whether the trustees could
reasonably have chosen those organizations accepted for allocation. The record supports the
district court's conclusion that the trustees made a conscientious investigation and exercised
their discretion reasonably and in good faith.
[Headnotes 5, 6]
Appellant Humane Society of Carson City and Ormsby County also objects to the district
court's failure to permit the introduction of evidence relevant to the merits of appellant's claim
at the hearing held to determine if the trustees had carried out the court's directive in
preparing a plan for allocation and distribution. Appellant cites no authority to support its
contention, and we need not consider it. Bradshaw v. General Electric Co., 91 Nev. 124, 531
P.2d 1358 (1975); General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1971). In any
event, we perceive no error. The district court could not usurp the trustees' role and
independently determine that other organizations such as the humane society of Carson City
and Ormsby County were also proper and should receive allocations.
The decree of the district court is affirmed.
____________
92 Nev. 478, 478 (1976) Guild v. First Nat'l Bank of Nevada
CLARK J. GUILD, Jr., Executor of the ESTATE OF ELMER WEST, Deceased, Appellant,
v. FIRST NATIONAL BANK OF NEVADA, Respondent.
No. 8274
August 31, 1976 553 P.2d 955
Appeal from judgment of the Second Judicial District Court, Washoe County; William N.
Forman, Judge.
Executor of estate brought action against person and bank to recover sum which such
person, through a power of attorney, took from decedent's bank account a few days before his
death. The district court rendered judgment in favor of executor and against individual
defendant and rendered judgment for bank and against executor, and executor appealed. The
Supreme Court, Mowbray, J., held that evidence did not support executor's contention that
bank, which permitted individual defendant to withdraw $17,000 from decedent's account and
which issued $37,000 cashier's check to such defendant, had actual knowledge that defendant
was misappropriating decedent's funds and that bank was not liable on theory that it had acted
in bad faith.
Affirmed.
[Rehearing denied September 29, 1976]
Cooke, Roberts and Reese, Reno, for Appellant.
Swanson, Swanson & Capurro, Reno, for Respondent.
1. Banks and Banking.
In action by executor of estate to recover against certain person and bank for sum, which such person,
pursuant to a power of attorney, took from decedent's bank account a few days before his death, evidence
did not support executor's contention that bank, which permitted individual defendant to withdraw $17,000
from decedent's account and which issued $37,000 cashier's check to such defendant, had actual knowledge
that defendant was misappropriating decedent's funds. NRS 162.090, 162.100.
Uniform Fiduciaries Act is intended to relax standards of care owed by banks to principals and third
parties when dealing with fiduciary accounts. NRS 162.020, subd. 2, 162.090, 162.100.
In regard to a bank's liability if it acts in bad faith in receiving deposit or in paying check by fiduciary
who is committing a breach of his obligation in making such deposit or in drawing such check, lack of due
care or negligence does not establish bad faith. NRS 162.020, subd. 2, 162.090, 162.100.
Bank, which permitted person, through a power of attorney, to misappropriate sum within decedent's
bank account a few days before his death by allowing such person to withdraw $17,000 from decedent's
account and by issuing that person a $37,000 cashier's check, was not liable on theory that bank acted in
bad faith, absent any showing that bank derived any benefit from such person's transactions, that bank knew
or suspected that funds were being misappropriated or that bank deliberately or willfully closed its eyes
or refused to investigate after having its suspicions aroused.
its eyes or refused to investigate after having its suspicions aroused. NRS 162.020, subd. 2, 162.060,
162.090, 162.100.
OPINION
Clark J. Guild, Jr. (Guild), as executor of the estate of Elmer West (West), deceased,
brought this action against Mary B. Adrian (Adrian) and First National Bank of Nevada
(Bank) to recover the sum of $54,000 taken from West's bank account a few days prior to his
death, by Adrian, acting through a power of attorney. The district court rendered judgment in
favor of Guild and against Adrian for the sum of $54,000, together with interest and costs,
and the court rendered judgment for Bank and against Guild. Guild has appealed the latter
portion of the judgment.
1. The Facts.
The facts in this case are not in dispute. Guild is the executor of the estate of West,
deceased. West died in Reno on November 16, 1973. For some time prior to his death he was
confined to the Washoe Medical Center, suffering from cancer, a terminal illness. Adrian had
known West for many years, and she saw him daily at the hospital up to and including the day
of his death.
Guild was the attorney for West, and he had been for many years prior to the death of
West. On November 5, 1973, eleven days before West's death, West advised Guild that he,
West, had a time certificate of deposit in the amount of $35,000 in a safety deposit box at the
Bank. The time certificate had been issued by Security National Bank, and it was due and
payable. West asked Guild to have the time certificate cashed and deposited in his
commercial account at the Bank.
Guild prepared a general power of attorney and left it with West on November 5, 1973. On
Guild's next visit to the hospital, on November 6 or November 7, West told Guild that he
would not sign the power of attorney as it had been prepared, but that he would sign a limited
power of attorney that would permit Guild to enter his safety deposit box, take possession of
the certificate of deposit, and deposit the proceeds in his commercial account at the Bank.
Guild then prepared a limited power of attorney, which West signed at Washoe Medical
Center on November 8, 1973. Adrian was one of the witnesses to West's signature. On
November 8, 1973, Guild, accompanied by Adrian, went to the Bank to obtain the certificate
of deposit.
Adrian had the key to West's safety deposit box. They obtained the certificate of deposit and
took it to Washoe Medical Center for West's endorsement. They learned that the certificate of
deposit did not mature until November 12, 1973. On that date, Guild cashed the time
certificate of deposit and received two checks, one in the amount of $35,000 and the other in
the amount of $431.50, representing the interest on the time certificate of deposit. Guild then
took the two checks to Washoe Medical Center and obtained West's endorsement, whereupon
Guild took the two checks to the Second and Virginia office of the Bank and there talked to
Herbert Brown, the manager, who assisted in filling out the deposit slip. Mr. Brown was told
of West's condition and that he was in Washoe Medical Center terminally ill with cancer.
On November 9, 1973, Adrian, unbeknown to Guild, went to the Bank and obtained a
bank form power of attorney signature card that would, when properly executed, authorize
her to sign and endorse checks, notes, and drafts and transact all business with the Bank in
connection with the commercial account of West as his attorney-in-fact. James Bronson, the
assistant operations officer, who obtained the power of attorney card for her, had it filled in
and gave her instructions on having it signed at the hospital by West. Adrian told Bronson
about West's condition. Adrian took the power of attorney to Washoe Medical Center and
obtained the signature of West thereto. On November 12, 1973, Adrian took the executed
power of attorney to the Bank, wrote a check on the account of West, payable to cash, in the
amount of $17,000, and cashed the same at the Bank. On the same day, Adrian opened a
personal checking account at the South Virginia office of the Bank and deposited $14,000 in
that account.
On November 13, 1973, Adrian went to the Bank and cashed a check on the account of
West, payable to cash, in the amount of $37,000, and received therefor a cashier's check from
the Bank, payable to her in that amount. Adrian cashed the $37,000 cashier's check at the
Bank on November 20, 1973, four days after West's death. Adrian drew $13,000 from her
account on November 13, 1973, and cleared the account on January 24, 1974. She testified
that all the money had been spent.
On these facts, the district court found that West had executed the power of attorney for
the purpose of having Adrian pay his outstanding bills and that the withdrawals were made
without the consent or knowledge of West and that they were converted to the use of Adrian
by her.
converted to the use of Adrian by her. The court further found that the Bank had notice that
the funds being withdrawn were being paid directly to Adrian and that a considerable portion
of such funds were drawn in cash. However, the court found that cash withdrawals were
common at this office of the Bank and that the Bank had no notice or knowledge of a
misappropriation of the funds by Adrian. Appellant Guild contends that this finding was in
error, and he asks this court to find liability on the part of the Bank as a matter of law, which
we cannot do.
2. The Bank's Liability.
The issue of the Bank's liability is governed by the provisions of the Uniform Fiduciaries
Act. In the instant case, NRS 162.090, covering the duty of a bank when a check is drawn
upon the account of a principal by a fiduciary, is controlling with regard to Adrian's
withdrawal of the $17,000 from West's account, and the issuance of the $37,000 cashier's
check to Adrian.
1

With respect to the $14,000 deposit Adrian made in her own checking account and the
subsequent cashing of checks on that deposit, NRS 162.100 governs the Bank's liability.
2
It
is noted that Bank becomes liable in each instance if it receives the deposit or pays the
check by the fiduciary with actual knowledge that the fiduciary is committing a breach of
his obligation in making such deposit or in drawing such check or with knowledge of such
facts that the Bank's action in receiving the deposit or paying the check amounts to bad
faith.
____________________

1
NRS 162.090:
If a check is drawn upon the account of his principal in a bank by a fiduciary who is empowered to draw
checks upon his principal's account, the bank is authorized to pay such check without being liable to the
principal, unless the bank pays the check with actual knowledge that the fiduciary is committing a breach of his
obligation as fiduciary in drawing such check, or with knowledge of such facts that its action in paying the
check amounts to bad faith. If, however, such a check is payable to the drawee bank and is delivered to it in
payment of or as security for a personal debt of the fiduciary to it, the bank is liable to the principal if the
fiduciary in fact commits a breach of his obligation as fiduciary in drawing or delivering the check. (Emphasis
added.)

2
NRS 162.100:
If a fiduciary makes a deposit in a bank to his personal credit of checks drawn by him upon an account in
his own name as fiduciary, or of checks payable to him as fiduciary, or of checks drawn by him upon an account
in the name of his principal if he is empowered to draw checks thereon, or of checks payable to his principal and
indorsed by him, if he is empowered to indorse such checks, or if he otherwise makes a deposit of funds held by
him as fiduciary, the bank receiving such deposit is not bound to inquire whether the fiduciary is committing
thereby a breach of his obligation as fiduciary; and the bank is authorized to pay the amount of the deposit or
any part thereof upon the personal check of the fiduciary without being liable to the principal, unless the bank
receives the deposit or pays the check with actual knowledge that the fiduciary is committing a breach of his
obligation as fiduciary in making such deposit or in drawing such check, or with knowledge of such facts that
its action in receiving the deposit or paying the check amounts to bad faith. (Emphasis added.)
It is noted that Bank becomes liable in each instance if it receives the deposit or pays the
check by the fiduciary with actual knowledge that the fiduciary is committing a breach of his
obligation in making such deposit or in drawing such check or with knowledge of such facts
that the Bank's action in receiving the deposit or paying the check amounts to bad faith.
[Headnote 1]
Guild contends that the Bank had actual knowledge that Adrian was appropriating funds of
her principal, West, and that the Bank's actions in respect to West's account amounted to bad
faith on the Bank's part. Guild theorizes that actual notice is established by virtue of the
Bank's knowledge that the $17,000 check cashed by Adrian and the $37,000 cashier's check
issued to her constituted trust moneys and, because the Bank was aware that Adrian had
opened a personal checking account at the same Bank and simultaneously deposited a large
amount of money therein, that Bank had to know that the money was being used for Adrian's
personal use.
This assertion is an allegation not supported by any direct evidence. Furthermore, under
our statutory scheme, such an inference appears to be impermissible, since the Bank may,
under NRS 162.090, supra, cash personal checks of the fiduciary on his principal's account
and may, under NRS 162.100, permit such funds to be deposited in the fiduciary's personal
account. It would defeat the purpose of the statutes to allow misconduct to be inferred from
acts specifically permitted by the statutes.
We turn to consider whether the facts mandate the conclusion that the Bank was acting in
bad faith in permitting Adrian to withdraw funds from West's account and in allowing her to
deposit the same into her personal account. The Uniform Fiduciaries Act does not define bad
faith. It does, however, define good faith as an act done honestly, whether it be done
negligently or not. NRS 162.020, subsection 2.
3
Courts, smitten with the notion of
symmetry in the law, have concluded that bad faith, being the antonym of good faith, is an act
done dishonestly. Colby v. Riggs Nat'l Bank, 92 F.2d 183 (D.C. Cir. 1937); Rheinberger v.
First Nat'l Bank, 150 N.W.2d 37 (Minn. 1967); Davis v. Pennsylvania Co. for Ins. on Lives &
Granting Annuities, 12 A.2d 66 (Pa. 1940). Logic of this sort, however, is less satisfactory
than examining the underlying purposes of the Act in order to ascertain what definition of
"bad faith" best accords with the legislative intent regarding a bank's liability when it
deals with wrongdoing trustees and mismanaged trust accounts.
____________________

3
2. A thing is done in good faith' within the meaning of NRS 162.010 to 162.140, inclusive, when it is in
fact done honestly, whether it be done negligently or not.
sort, however, is less satisfactory than examining the underlying purposes of the Act in order
to ascertain what definition of bad faith best accords with the legislative intent regarding a
bank's liability when it deals with wrongdoing trustees and mismanaged trust accounts.
[Headnotes 2-4]
The underlying purpose of the Act was to facilitate the performance by fiduciaries of their
obligations, rather than to favor any particular class of persons dealing with fiduciaries. 7
Uniform Laws Annotated 394 (West 1970). The Act was clearly meant to relax the standards
of care owed by banks to principals and third parties when dealing with fiduciary accounts.
Board of County Comm'rs v. First Nat'l Bank, 368 P.2d 132 (Wyo. 1962). Liability cannot be
predicated on a showing of lack of due care, or negligence, because bad faith imports a
moral connotation approximating purposeful or motivated conduct (misconduct). Cf. Davis,
supra. There is no showing in the instant case that the Bank derived any benefit from Adrian's
transactions,
4
actually knew or suspected that funds were being misappropriated, or
deliberately or willfully closed its eyes or refused to investigate after having its suspicions
aroused.
5
In the absence of one of such scienters or conscious purposeful misconduct,
banks may not be held liable.
Under the facts presented, we cannot rule as a matter of law in the instant case that the
Bank is liable to Guild as West's executor. Therefore, the judgment is affirmed.
____________________

4
Had the Bank derived some benefit from these transactions (e.g., if Adrian had given trust moneys to the
Bank in satisfaction of a debt she owed the Bank), the Bank would be liable if Adrian in fact breached her
obligations. In other words, strict liability attaches in this situation. NRS 162.060; NRS 162.090.

5
A mere failure to make inquiry, even though there are suspicious circumstances, does not constitute bad
faith unless the failure is due to a deliberate desire to evade knowledge because of a belief or fear that the
inquiry would disclose a vice or defect in the transaction. 5A Michie on Banks and Banking, 57b at 172-173
(1973), citing Davis, supra.
____________
92 Nev. 485, 485 (1976) Dahl v. Sheriff
DANA MORSE DAHL, Appellant, v. SHERIFF,
No. 8993
August 31, 1976 553 P.2d 949
Appeal from order denying pretrial petition for writ of habeas corpus, Second Judicial
District Court, Washoe County; Roy L. Torvinen, Judge.
The Supreme Court held that validity of a search must be challenged by a timely filed
motion to suppress, not by habeas corpus.
Affirmed.
William N. Dunseath, Public Defender, Washoe County, and Frank Roberts, Deputy, for
Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, Washoe
County, and Joseph Key, Deputy, for Respondent.
Habeas Corpus.
Validity of a search must be challenged by a timely filed motion to suppress, not by habeas corpus.
OPINION
Per Curiam:
At the conclusion of a preliminary examination Dana Morse Dahl was ordered to stand
trial for possession of a controlled substance, a felony under NRS 453.336.
In an effort to avoid trial, Dahl timely petitioned for habeas corpus contending the only
incriminating evidence was inadmissible because it was illegally obtained through an invalid
search; therefore, she argues, the state did not meet its burden of establishing probable cause
as delineated in NRS 171.206. The district court denied habeas and in this appeal the same
contention is reurged.
This court has consistently held that the validity of a search must be challenged by a timely
filed motion to suppress, not by habeas. See Cook v. State, 85 Nev. 692, 462 P.2d 523
Affirmed.
____________
92 Nev. 486, 486 (1976) Tucker v. State
HOWARD FLOYD TUCKER, Appellant, v. THE
No. 8544
August 31, 1976 553 P.2d 951
Appeal from judgment of First Judicial District Court, Carson City, Keith C. Hayes, Judge.
Defendant was convicted in the district court of burglary and he appealed. The Supreme
Court, Mowbray, J., held that under evidence, including medical testimony concerning
defendant's blood alcohol level as of the time of a confession, the jury was not compelled to
find that the confession was involuntary. It was for the jury to determine whether defendant
was so intoxicated as to be unable to form specific intent.
Affirmed.
Rodlin Goff, State Public Defender, and Don Aimar, Chief Deputy, Carson City, for
Appellant.
Robert List, Attorney General, Carson City; Michael E. Fondi, Carson City District
Attorney, and Louis R. Doescher, Deputy, Carson City, for Respondent.
1. Criminal Law.
Proof that accused was intoxicated when he confessed will not, alone, prevent admission of his
confession but if it is shown that he was intoxicated to such extent that he was unable to understand
meaning of his statements, then confession is inadmissible.
2. Criminal Law.
Under evidence, including medical testimony concerming defendant's blood alcohol level as of time of
confession, jury was not compelled to find that confession was involuntary.
3. Criminal Law.
Under evidence, in burglary prosecution, it was for jury to determine whether defendant was so
intoxicated as to be unable to form specific intent. NRS 193.220, 205.060, subd. 1, 205.065.
4. Burglary; Constitutional Law.
Statutory presumption that person who unlawfully breaks or enters shall be deemed to have done so with
intent to commit grand or petit larceny or felony therein in absence of explanation is not violative of due
process. NRS 205.065.
5. Criminal Law.
Giving instruction to clarify statutory reasonable doubt instruction was disapproved, but was not
misleading to the jury. NRS 175.211, 175.211, subds. 1, 2.
6. Criminal Law.
Defendant who requests court-appointed attorney and thereafter voluntarily acquiesces in representation
by such attorney waives constitutional right to conduct pro se defense.
waives constitutional right to conduct pro se defense. U.S.C.A.Const. Amend. 6.
7. Criminal Law.
Where defendant discharged his private counsel and stated that he would not accept representation from
state public defender's office but thereafter in writing voluntarily substituted public defender for his
attorney of record, there was no denial of his right of self-representation. U.S.C.A.Const. Amend. 6.
OPINION
A jury found Howard Floyd Tucker guilty of the crime of burglary. He was sentenced to
10 years in the Nevada State Prison. Tucker has appealed from his judgment of conviction
asserting several assignments of error, which we reject as meritless. We therefore affirm.
1. The Facts.
At approximately 2:40 on the morning of August 11, 1974, two officers of the Carson City
Sheriff's Department received a call to respond to a silent alarm at a business firm in Carson
City. On entering the building, the officers discovered that the candy machine and the coke
machine had been pried open. In an outer office they found the top of a floor safe was
missing. Upon entry to the manager's office, the officers found Tucker hiding behind a trash
can under the manager's desk. Tucker was placed under arrest and his Miranda
1
rights read
to him. He was taken to the Sheriff's Department, where one of the officers again read to him
his rights under Miranda. He signed a confession. He was duly arraigned, tried, and convicted
of burglary.
2. The Confession.
Tucker, on appeal, claims that the trial court erred in permitting the jury to consider his
confession because his intoxication at the time infected the voluntariness of the statement he
gave and signed. Dr. Leslie Gould testified for the defense and stated that, because Tucker
had a blood alcohol level of .20 at the time he signed the confession, Tucker, in Doctor
Gould's opinion, was unable to knowingly and rationally sign the confession. Tucker, so the
doctor said, stated during his interview that he had a vague memory of the events of the
evening in question. However, during the same interview Tucker was able to inform the
doctor of the time at which he started drinking, the total number of drinks he had, the bars
he had visited, and the number of drinks he had at each bar.
____________________

1
started drinking, the total number of drinks he had, the bars he had visited, and the number of
drinks he had at each bar.
[Headnotes 1, 2]
As the Arizona Supreme Court held in State v. Clark, 434 P.2d 636, 639 (Ariz. 1967):
The general rule with respect to confessions made by a person under the influence of
intoxicants can be summarized as follows: proof that the accused was intoxicated at the time
he confessed his guilt will not, without more, prevent the admission of his confession. See
e.g., Commonwealth v. Chapman, 345 Mass. 251, 186 N.E.2d 818 (1962); People v. Dorman,
28 Cal.2d 846, 172 P.2d 686 (1946); 69 A.L.R.2d 361. However, if it is shown that the
accused was intoxicated to such extent that he was unable to understand the meaning of his
statements, then the confession is inadmissible. Roper v. People, 116 Colo. 493, 179 P.2d 232
(1947).
In the instant case, the officers testified that Tucker's speech was not impaired, that he was
able to walk in a straight line, that his complexion did not appear flushed, and that he
indicated that he knew what he was doing when he signed the confession. Certainly, this was
sufficient to permit the confession to be admitted and to be considered by the jury in
determining whether the statements were given voluntarily. As the New York Court of
Appeals stated in People v. McQueen, 221 N.E.2d 550, 554 (1966):
. . . [T]he jury might apply the ancient maxim in vino veritas. The fact that [he] had been
drinking bore upon the truth or falsity of [his] statements but was not, in itself, evidence that
they were involuntary. . . . (Emphasis in original.) Tucker's confession was properly
admitted.
3. The Specific Intent.
[Headnote 3]
Tucker next complains that, because of his gross intoxication, the trial court erred in not
ruling as a matter of law that the requisite element of specific intent necessary to constitute
the crime of burglary was absent. NRS 205.060(1).
2

Whether intoxication is so gross as to preclude a capacity to form a specific intent is
normally a fact issue for the jury to resolve.
____________________

2
NRS 205.060(1):
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.
form a specific intent is normally a fact issue for the jury to resolve. State v. Jukich, 49 Nev.
217, 242 P. 590 (1926); King v. State, 80 Nev. 269, 392 P.2d 310 (1964); Andrade v. State,
87 Nev. 144, 483 P.2d 208 (1971). There is ample evidence to support the finding that Tucker
was capable of forming the specific intent required. He gained entry to the outer office by
breaking a pane of glass. He managed to find implements necessary to pry open the vending
machines. Upon hearing the officers arrive, he secreted himself behind a desk and placed a
trash can in front of it so that he would be hidden from view. Additionally, as stated supra,
the officers testified he walked properly and spoke without slurring his words. The jury was
advised that the fact of Tucker's intoxication might be taken into consideration in determining
intent. NRS 193.220.
3
We presume the jury did so. Tucker's claim in this regard is without
merit.
[Headnote 4]
Finally, Tucker urges that the statutory presumption of intent as set forth in NRS 205.065
is violative of due process.
4
We have previously considered such a contention and have
rejected it. Fritz v. State, 86 Nev. 655, 474 P.2d 377 (1970); McGuire v. State, 86 Nev. 262,
468 P.2d 12 (1970); Boyle v. State, 86 Nev. 30, 464 P.2d 493 (1970); White v. State, 83 Nev.
292, 429 P.2d 55 (1967); Schnepp v. State, 82 Nev. 257, 415 P.2d 619 (1966). We are not
persuaded that our previous rulings were in error, and we note that a statutory presumption
identical to the one at issue was recently held constitutional in State v. Livengood, 540 P.2d
480 (Wash.App. 1975).
4. The Instructions.
____________________

3
NRS 193.220:
No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by
reason of his condition, but whenever the actual existence of any particular purpose, motive or intent is a
necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken
into consideration in determining such purpose, motive or intent.

4
NRS 205.065:
Every person who shall unlawfully break and enter or unlawfully enter 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 shall be deemed to have broken and entered or entered the
same with intent to commit grand or petit larceny or a felony therein, unless such unlawful breaking and entering
or unlawful entry shall be explained by testimony satisfactory to the jury to have been made without criminal
intent.
[Headnote 5]
Tucker contends that the trial court erred in instructing the jury on the question of
reasonable doubt. The court gave the jury Instruction No. 10, the statutory reasonable doubt
instruction as set forth in subsection 1 of NRS 175.211.
5
The court also gave Instruction No.
11 to the jury,
6
which Tucker suggests violates subsection 2 of NRS 175.211, supra. The
trial court was aware of the statutory prohibition against giving any reasonable doubt
instruction other than the one set forth in subsection 1 of NRS 175.211, but the court believed
Instruction No. 11 was necessary to clarify the reasonable doubt instruction.
7
While we
disapprove this practice, because we believe the reasonable doubt statute speaks for itself, this
court has previously permitted such additional instructions that merely clarify the statutory
instruction. See State v. Hunter, 48 Nev. 358, 366, 232 P. 778, 780 (1925). Here, we do not
believe the district court's attempted clarification could have misled the jury concerning its
duties in this case.
8
5.
____________________

5
NRS 175.211:
1. A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as would
govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire
comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding
conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual and
substantial, not mere possibility or speculation.
2. No other definition of reasonable doubt shall be given by the court to juries in criminal actions in this
state.

6
Instruction No. 11:
The law does not require demonstration or that degree of proof which, excluding all possibility of error,
produces absolute certainty, for such degree of proof is rarely possible. Proof beyond a reasonable doubt only is
required, which is that degree of proof which produces conviction in an unprejudiced mind.

7
In overruling Tucker's objection to the giving of Instruction No. 11, the trial court gave the following
explanation:
As to instruction 11 which the Court will give, this instruction, we feel, is not a further definition of
reasonable doubt. It does not enlarge upon the statutory definition embraced in instruction number 10, but it
does instruct the jury, particularly as to what is not required and reiterates the language of instruction number 10
that the proof required is only that the [sic] degree which produces a conviction in an unprejudiced mind which
is the language of the statute. We find no error in giving it.

8
Tucker also challenges the propriety of instructions numbered 6, 7, 12, 13, and 14 on the ground that the
instructions violate the presumption of his innocence until proved guilty. This assertion is utterly meritless. The
instructions are mostly statutorydefining An Information, Burglary, Intent, and A Crime.
5. The Right to Conduct a Pro Se Defense.
[Headnotes 6, 7]
Tucker also contends that his conviction must be reversed because the trial court denied
him his Sixth Amendment right to self-representation, citing Faretta v. California, 422 U.S.
806 (1975). Prior to trial, Tucker was represented by Victor Allan Perry, Esq. Shortly before
trial began, Mr. Perry notified Tucker that he could not continue his representation. At a
pretrial habeas corpus hearing at which Tucker represented himself, he asked the court to
dismiss Mr. Perry and appoint new private counsel for him, as he would not accept
representation from the state public defender's office. At the conclusion of that hearing, the
trial judge remarked that Mr. Perry would have to withdraw from the case in person. Apart
from this colloquy, the record reflects that Tucker made no objection to his representation at
trial by the public defender's office. Indeed, the record reflects that on September 3, 1975,
Tucker, in writing, voluntarily substituted the public defender for his attorney of record, Mr.
Perry. Error predicated upon denial of a constitutional right must be established as a
demonstrable reality and will not be presumed on appeal. People v. Perez, 510 P.2d 1026
(Cal. 1973). Apart from Tucker's single pretrial objection to representation by the public
defender's office, the record shows that he voluntarily accepted representation by the public
defender and made no objection to such representation after it commenced. Where a
defendant requests a court-appointed attorney and thereafter voluntarily acquiesces in
representation by that court-appointed attorney, he waives his constitutional right to conduct a
pro se defense. United States v. Wolfish, 525 F.2d 457 (2d Cir. 1975); People v. Brown, 124
Cal.Rptr. 130 (Cal.App. 1975). Since the record fails to establish denial of appellant's right of
self-representation as a demonstrable reality, this assignment of error must be rejected.
9

Finding no error, we affirm the judgment below.
____________________

9
In addition to Tucker's opening and reply briefs filed by his counsel, Tucker received permission from this
court to file in proper person a supplemental opening brief, a reply brief, and a motion to supplement appeal, all
of which have been duly considered.
____________
92 Nev. 492, 492 (1976) Surianello v. State
ANTONIO SURIANELLO, Appellant, v. THE
No. 8343
August 31, 1976 553 P.2d 942
Appeal from judgment of the Eighth Judicial District Court, Clark County; Paul S.
Goldman, Judge.
Defendant appealed from his conviction in district court of first-degree murder. The
Supreme Court, Mowbray, J., held that Colorado police had probable cause under Colorado
law to arrest defendant; that evidence discovered in search incident to such arrest was
admissible; that defendant voluntarily gave consent to search of his motel room; that it was
not error for trial court to admit certain books found in defendant's possession; and that
Nevada courts had jurisdiction over crimes occurring in Clark County.
Affirmed.
Morgan D. Harris, Clark County Public Defender, and Herbert F. Ahlswede, Deputy, Las
Robert List, Attorney General, Carson City; George E. Holt, Clark County District
Attorney, and H. Leon Simon and Rimantas Rukstele, Deputies, Las Vegas, for Respondent.
1. Arrest.
Under Colorado law, if circumstances at time of arrest are sufficient to justify finding that probable cause
to arrest existed, courts will so find even though precise point at which police officer's hunch became
suspicion and then progressed to reasonable belief is impossible to determine with certainty. C.R.S.'73,
16-3-102(1)(c).
2. Arrest.
Under Colorado law, it is not imperative that arresting officer at time of arrest have subjective belief that
arrestee is guilty of particular crime in order to establish probable cause to arrest for such crime. C.R.S.'73,
16-3-102(1)(c).
3. Arrest.
Where police were called when defendant who had been ejected from bar tried to get back in after
closing time, defendant had removed louver above rear door of bar at time police arrived, and defendant
admitted possession of firearm found at scene, police had probable cause under Colorado law to arrest
defendant, for attempted burglary by use of weapon or for carrying weapon with intent to assault.
C.R.S.'63, 40-3-5, 40-11-2.
4. Criminal Law.
Where Colorado police had probable cause to arrest defendant, evidence discovered in search incident
thereto was admissible in defendant's criminal trial in Nevada.
in defendant's criminal trial in Nevada. C.R.S. 73, 16-3-102(1)(c); C.R.S. '63, 40-3-5, 40-11-2;
U.S.C.A.Const. Amend. 4.
Mere fact that defendant has given assent to search while in custody of police officer does not render
such consent involuntary. U.S.C.A.Const.Amend. 4.
Where defendant under arrest, who appeared to be intelligent and had previously been involved in
criminal process, requested to return to his motel to retrieve his personal effects, officers informed
defendant that they could not enter his motel room unless they had search warrant or unless defendant
signed waiver, defendant read waiver form and his signature was witnessed by officer, and officers merely
packed defendant's items of clothing and personal property in suitcases, at defendant's direction, coercion
inherent in fact that defendant gave consent to search while under arrest was outweighed by voluntary
nature of defendant's consent, and search was thus lawful. U.S.C.A.Const. Amend. 4.
7. Criminal Law.
Although exclusionary rule is thought to deter unlawful police activity through nurturing of respect for
Fourth Amendment values, if applied indiscriminately it may well have opposite effect of generating
disrespect for law and administration of justice. U.S.C.A.Const. Amend. 4.
8. Criminal Law.
Where book Brothels of Nevada, found in defendant's possession at time of his arrest in Colorado, was
stamped with name of Nevada city and, when viewed in conjunction with other evidence, tended to
establish defendant's proximity to scene of crime at time of its commission, probative value of book
outweighed any potential prejudice to defendant resulting from its admission.
9. Criminal Law.
It was harmless error, if any, for trial court to admit book Astrological Sex Murders, found in
defendant's possession, in defendant's murder trial.
10. Criminal Law.
Clark County was tendered to Nevada by Act of Congress, and Nevada courts had jurisdiction over
defendant charged with crime occurring therein. Const. art. 1, 14.
OPINION
A jury found appellant Antonio Surianello guilty of first-degree murder. He was sentenced
to life imprisonment without possibility of parole. In seeking reversal, he alleges that his
conviction was obtained in derogation of the Fourth and Fourteenth Amendments to the
United States Constitution.
conviction was obtained in derogation of the Fourth and Fourteenth Amendments to the
United States Constitution. We disagree, and affirm the conviction.
1. The Facts.
Paula Annas was found, savagely stabbed, lying in the doorway of her Las Vegas hotel
room about 9:00 a.m. on March 31, 1974. She died within 15 or 20 minutes after being
discovered by a hotel maid. Her blood-splattered room provided clues, but the perpetrator of
the crime could not be immediately identified.
Five days later, April 5, at approximately 2:30 a.m., police officers in Colorado Springs,
Colorado, were called by the owner of a local bar to investigate a burglary in progress.
Officer Anderson, the first policeman to arrive on the scene, observed Antonio Surianello
standing on an old water heater just outside the rear door of the bar. A louver to the door had
been removed, and Surianello was attempting to enter the building. Officers Watson and
Disch then arrived on the scene. Surianello told the officers he had been drinking in the bar,
that he had arranged to meet with one of the bar maids after the bar closed, that she had failed
to keep her promise, and that he had returned to recover money he had given her. Thereafter,
the manager of the bar declined to press charges, requesting that Surianello be asked to leave
the premises. The officers so advised Surianello and, feeling the matter was closed, Officers
Anderson and Disch left.
Officer Watson walked with Surianello to the latter's car. Near the rear door of the bar,
Watson noticed an automatic pistol lying partially exposed under the removed louver. The
officer picked up the pistol and asked Surianello if it was his; Surianello stated it was.
Watson then handcuffed Surianello and radioed the other officers to return to the scene.
Thereafter, Watson looked into Surianello's car and observed credit cards lying on the console
between the two front seats. Examination of the cards revealed that they bore the names
Raymond Gilner and Eileen Simmons. Surianello explained that he had purchased the
gun and credit cards from a hippie. The officers took Surianello to police headquarters.
Surianello, who, it was learned later, was a federal parole violator and driving a stolen car,
had been staying at a motel in Colorado Springs. He asked permission to go to the motel and
recover his belongings. The officers told him they could not enter his motel room without a
search warrant or a consent to search signed by him. He signed a consent to search his room,
and the officers escorted him to the motel.
room, and the officers escorted him to the motel. There, Surianello, who was in handcuffs,
told the officers the motel room key was in his jacket pocket. The officers removed the key
from his pocket, gave it to him, and he opened the door. The officers, in gathering
Surianello's effects, found a 4-inch switch blade knife and two books, entitled Astrological
Sex Murders and Brothels of Nevada.
The party then returned to the police station, where, during booking, Watson went through
the contents of Surianello's wallet. Therein he found a scrap of paper bearing the name and
telephone number of John Orr, a local resident. Orr and his wife had met Surianello several
weeks earlier in Las Vegas and had invited him to visit if he ever came to Colorado Springs.
When contacted by Watson, Orr related that Surianello had called from Las Vegas on April 1,
stating that he would be driving through Colorado Springs and would stop by to say hello.
Surianello also told Orr he had been out the previous evening with a girl who had been
reported murdered the morning of his phone call. This information was forwarded to
authorities in Las Vegas. Later, Surianello's fingerprints were taken in Colorado Springs, and
exemplars forwarded to Las Vegas. Identical fingerprints had been found in numerous places
in the victim's hotel room. The paper with Orr's name and phone number, and Orr's resulting
account of the April 1 conversation with Surianello, thus led to identification of Surianello as
the murderer.
2. The Probable Cause for Surianello's Arrest.
Surianello's principal contention on appeal is that the district court erred in admitting into
evidence the scrap of paper bearing John Orr's name and telephone number and the evidence
that resulted therefrom, alleging this evidence was the product of an illegal arrest.
Surianello focuses his challenge upon Officer Watson's testimony under cross-examination
at the suppression hearing. Watson there stated that he handcuffed Surianello as a protective
measure during an investigatory detention.
1
Using the subjective test for probable cause to
arrest [see, e.g.,
____________________

1
The following is an extract of pertinent part of Watson's testimony at the March 27, 1975, hearing on the
motion to suppress:
Q. [by Clark County Deputy Public Defender Ahlswede]. At that time did you suspect Mr. Surianello of a
crime?
A. [by Detective Watson of El Paso County, Colorado, Sheriff's office]. What are you referring to a crime?
Q. I am asking you was he suspected of anything?
A. A specific crime? No sir.
Q. Why did you stop Mr. Surianello?
subjective test for probable cause to arrest [see, e.g., People v. Miller, 496 P.2d 1228 (Cal.
1972)], Surianello argues that this detention was in fact an arrest without adequate probable
cause, rendering the subsequent search of his person illegal. We need not reach the issue as to
whether the officer effected an investigatory stop as opposed to an arrest, for, even
assuming an arrest occurred when Surianello was handcuffed, we find that under the
Colorado law the record establishes probable cause did in fact exist.
[Headnotes 1, 2]
Colorado Revised Statutes, Section 16-3-102 (C.R.S. 16-3-102) provides that a peace
officer may arrest a person when he has probable cause to believe that an offense has been
committed and has probable cause to believe that the offense was committed by the person to
be arrested.
2
The Colorado Supreme Court has held that probable cause deals with the
probability that a crime has been or is being committed. People v. Martinez, 475 P.2d 340
(Colo. 1970). This assessment is to be based upon the factual and practical considerations of
everyday life, on which reasonable and prudent men, not legal technicians, act. People v.
Clark, 476 P.2d 564 (Colo. 1970).
____________________
. . .
A. Because of the presence of the weapon.
Q. But there had been no specific crime committed at this point, to your knowledge?
A. There had not.
. . .
Q. Did you have probable cause to believe that a crime was committed at the time you put the handcuffs on
Mr. Surianello?
A. I believe I had probable cause to detain him. Stop right there.
Q. Under what authority did you detain Mr. Surianello?
A. For investigation, receiving stolen property.
. . .
A. It was strictly because it was 2:30 A.M. in the morning, quarter to three in the morning; suspicious party,
report of a disturbance; and a gun at the scene; and my life endangered.
Now, whatever you call it, you know, this is up to you. As far as my probable cause, I had it.
Q. Probable cause for what?
A. For protection of myself. The handcuffs by the car and the arrest is what you are after right now, am I
correct?

2
C.R.S. 16-3-102(1)(c):
(1) A peace officer may arrest a person when:
. . .
(c) He has probable cause to believe that an offense was committed and has probable cause to believe that the
offense was committed by the person to be arrested. An arrest warrant should be obtained when practicable.
If the circumstances at the time of an arrest are sufficient to justify a finding that probable
cause existed, the court will so find, even though the precise point at which the officer's
hunch became suspicion and then progressed to reasonable belief is impossible to determine
with certainty. Lanford v. People, 489 P.2d 210 (Colo. 1971). It is not imperative that the
arresting officer at the time of arrest have a subjective belief that the arrestee is guilty of a
particular crime in order to establish probable cause to arrest for that crime. Klingler v.
United States, 409 F.2d 299, 304 (8th Cir. 1969). In Klingler, the officers made an arrest for
vagrancy and conducted a contemporaneous search which revealed a pistol that later formed
the basis for a Federal Firearms Act charge. The court held that, while there was insufficient
probable cause with respect to vagrancy, there was probable cause to arrest for robbery.
Upholding the arrest, the court said:
Because probable cause for an arrest is determined by objective facts, it is immaterial that
[the officer] . . . testified that he did not think that he had enough facts' upon which to arrest
Klinger for . . . robbery. His subjective opinion is not material. . . . A constitutional safeguard
predicated on an objective standard requires an even-handed application. . . . See also State
v. Joao, 533 P.2d 270 (Hawaii 1975); State v. Pederson, 424 P.2d 810 (Ariz. 1967), cert.
denied, 389 U.S. 867 (1967).
Detective Don Disch of the El Paso County Sheriff's Department, Colorado Springs,
Colorado, in testifying at the hearing on the motion to suppress in the instant case, succinctly
expressed the circumstances before us:
Q. [by Clark County Deputy District Attorney Melvyn Harmon]. What did you do when
you arrived back at the . . . Bar?
A. Well, Officer Anderson and I both arrived at the same time. Of course, you know, we
are both on the same radio frequency. We both heard his [Officer Watson's] call for assistance
at the same time. We just turned around and went back. And we both got out of the car and
Deputy Watson was in the process of putting handcuffs on Mr. Surianello, . . .
. . . [D]ue to the hour of the night and circumstances already transpired and . . .
[Surianello's] admitting to having a gun in his possession while all this was going on, it
definitely gave us all the reason we needed to ask further questions and due to the fact the
man did have a gun in his possession at that place at that time, he was taken into custody.
Q. Why did you feel that the possession of the gun put a different type of light on the
situation?
A. Well, because we had already been told by Mr. Mills [manager of the bar] the man
was unhappy with the club and management and employees and so forth.
He tried to get back in after closing time. He was ejected from the premises and went
around and tried to get in on another side of the building.
And now we just found out that he had a gun with him at the time and this definitely gave
us reason to believe that he had something pretty serious in mind in trying to get into a closed
place of business with a gun. Definitely questionable activity.
[Headnotes 3, 4]
Considering the evidence adduced at the hearing on the motion to suppress, probable cause
existed to believe the following crimes had been committed: Attempted Burglary by Use of a
Weapon (C.R.S. 40-3-5) and Carrying a Weapon with Intent to Assault (C.R.S. 40-11-2). And
so we find nothing indicating improper conduct on Officer Watson's part suggesting that
application of the exclusionary rule was mandated in this case. Accordingly, we find no error
in the trial court's admitting evidence resulting from the arrest of Surianello. Robinson v.
United States, 414 U.S. 218 (1973); Gustafson v. Forida, 414 U.S. 260 (1973).
3. The Voluntariness of the Consent to Search Surianello's Room.
Surianello filed a motion to suppress the evidence obtained by the officers from his hotel
room.
3
The motion was grounded on his claim that the consent to search was not voluntarily
given. The district judge at the time of the evidentiary hearing on the motion expanded the
scope of the hearing by allowing Surianello to challenge the validity of his arrest and
detention. In ruling from the bench, the trial court incorrectly applied the subjective test, yet
nevertheless denied the motion to suppress, stating:
The court finds, based on the officers' lack of probable cause from a subjective standpoint
as testified to by the officer here, that the detention of the defendant was unlawful. This is
not, however, necessarily dispositive of the issues in the case.
____________________

3
It was not until Surianello's trial that it was shown that Officer Watson had obtained the slip of paper
containing John Orr's name and telephone number from Surianello's wallet. The issue was properly preserved for
appeal and is discussed supra.
. . .
The court also relies on Schneckloth v. Bustamonte as referred to yesterday, 93 Supreme
Court 2041; a 1973 case.
Rather than to go into a detailed description of my opinion regarding the case, it stands
for the proposition that voluntariness has to be determined from the totality of circumstances.
. . .
. . .
The defendant executed a consent form. And interestingly enough, that consent form set
forth and implies to the defendant he had a right to refuse to give his consent. The
requirement [is] above and beyond the requirement of Schneckloth.
The defendant appears to be intelligent. He has been previously involved in the criminal
process. He is not naive but sophisticated.
And I think overwhelming [sic] important is the fact the defendant initiated the request. It
was he who said, I want to get my clothes.'
And the officers responded, and I think very wisely so, that they would not go near that
motel room unless they had a search warrant or written consent of the defendant, which they
obtained without duress and without coercion.
. . .
The defendant accompanied the officers during the search. It wasn't as if they obtained
the consent and in his absence conducted an inch by inch search of the motel room. They
packed his items of clothing, his personal property, in his suit cases. Put them in the trunk of
the car and returned to the station.
. . .
I determine that the consent was voluntarily given and although there was inherent
coercion, it is outweighed by the facts balancing on the side of voluntariness.
The State has shown by clear and convincing evidence to the court's satisfaction that the
consent was voluntarily obtained.
A reading of the record of the hearing on the motion to suppress supports the ultimate
ruling of the district judge. Voluntariness of Surianello's consent is to be determined from the
totality of the surrounding circumstances. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
Surianello argues that, because his detention was unlawful and he was in police custody, his
consent was not voluntarily given.
As discussed supra, Surianello was under lawful arrest. Even assuming his initial premise,
as did the trial court, the result Surianello urges does not followas the court below
properly observed.
Surianello urges does not followas the court below properly observed. In McIntosh v.
State, 86 Nev. 133, 136, 466 P.2d 656, 658 (1970), where the defendant had been stopped by
a police officer who lacked probable cause and while in custody consented to a search of his
suitcase in the trunk of his car, this court said, in ruling on the validity of the consent:
[Headnote 5]
Obviously, the search of the suitcase was not incident to a valid arerst [sic], and if it is to
be upheld it must depend upon appellant's consent. Consent for the search must be freely and
voluntarily given by the individual. Proof of the voluntariness is a question of fact. [Citations
omitted.] . . . However, the mere fact that the consent was given while in the custody of a
police officer does not render the consent involuntary. [Citations omitted.]
In Lee v. State, 86 Nev. 794, 796, 477 P.2d 157, 158 (1970), the defendant, at the request
of a police officer, removed his shoes, one of which contained seconal capsules. Holding that
Lee's removal of his shoes was voluntary, this court stated:
. . . [T]he mere fact it was given while in the custody of a police officer (or here the
presence, because Lee was not yet placed under arrest) does not render the consent
involuntary. State v. Plas, supra [80 Nev. 251, 391 P.2d 867 (1964)]; McIntosh v. State,
supra.
The circumstances preceding and surrounding the search and seizure do not indicate that
force or threat of force, either physical or psychological, was exerted by either officer upon
Lee, State v. King, 209 A.2d 110 (N.J. 1965), nor was there any indication or testimony that
Lee resisted or objected, either verbally or physically, to the request of Officer Knudsen to
remove his shoes. This amounts to affirmative assistance on his part and may be considered
on the question of voluntariness of consent to waiver of a constitutional right. United States
v. Smith, 308 F.2d 657 (2d Cir. 1962).
The Supreme Court of the United States ruled earlier this year in United States v. Watson,
44 U.S.L.W. 4112 (U.S. Jan. 26, 1976), that postal inspectors who had probable cause to
believe that a suspect possessed stolen credit cards and who effected a warrantless arrest
pursuant to 18 U.S.C. 3061(a) and regulations thereunder, despite time to obtain a warrant,
did not violate the Fourth Amendment and that the defendant's consent to a subsequent search
of his car, given while in custody on a public street, was voluntary under Schneckloth v.
Bustamonte, supra.
[Headnote 6]
In the instant case, after the defendant was lawfully taken into custody and given the
Miranda warning, Surianello asked the officers if he might return to his motel room and
retrieve his personal effects. The officers, unconcerned as to Surianello's personal effects,
informed him that he would be unable to do so, but that if he knew anyone in the area, they
could bring his belongings to him. Surianello answered by stating that he knew no one in the
area and then asked the officers if they would accompany him to his motel room while he
obtained his belongings. The officers declined, informing defendant that, due to police
department policy, they could not enter his motel room unless they had a search warrant or
unless the defendant signed a form entitled Waiver of Search Warrant. After the officers
supplied the form and filled in the appropriate blanks, the form was presented to Surianello
for his signature. He read the form, and his signature was witnessed by one of the officers.
During this procedure Surianello appeared quiet, responsive, and cooperative.
After the consent was executed, Surianello, with two officers, went to his motel room.
There Surianello unlocked the door for the officers. All three entered the room, and the
officers gathered Surianello's belongings and transported them to the police station.
Looking at the totality of the circumstances, we find, as did the district judge, that the
consent to search was voluntarily given by Surianello, and therefore lawful.
It is perhaps well to pause to consider the ramifications, were we to actually adopt the
meritless contentions of this appellant in a nebulous effort to restrain police conduct that, as
here presented, strikes no chord of impropriety or threat to basic notions of propriety and
reasoned individual freedom.
[Headnote 7]
As Mr. Justice Powell, in speaking for the majority, said in Stone v. Powell, 44 U.S.L.W.
5313 (U.S. July 6, 1976), the primary justification for the exclusionary rule is the deterrence
of police conduct that violates Fourth Amendment rights. The High Court then stated, at
5320:
The costs of applying the exclusionary rule, even at trial and on direct review are well
known. The focus of the trial, and the attention of the participants therein, is diverted from the
ultimate question of guilt or innocence that should be the central concern in a criminal
proceeding. Moreover, the physical evidence sought to be excluded is typically reliable and
often the most probative information bearing on the guilt or innocence of the defendant.
innocence of the defendant. As Mr. Justice Black emphasized in his dissent in Kaufman [v.
United States, 394 U.S. 217, 237 (1969)]:
A claim of illegal search and seizure under the Fourth Amendment is crucially
different from many other constitutional rights; ordinarily the evidence seized can in no
way have been rendered untrustworthy by the means of its seizure and indeed often this
evidence alone establishes beyond virtually any shadow of a doubt that the defendant is
guilty.' [Citation omitted.]
Application of the rule thus deflects the truthfinding process and often frees the guilty. The
disparity in particular cases between the error committed by the police officer and the
windfall afforded a guilty defendant by application of the rule is contrary to the idea of
proportionality that is essential to the concept of justice. Thus, although the rule is thought to
deter unlawful police activity in part through the nurturing of respect for Fourth Amendment
values, if applied indiscriminately it may well have the opposite effect of generating
disrespect for the law and administration of justice. (Footnotes omitted.)
[Headnotes 8, 9]
Additionally, Surianello contends that the two paperback books, Astrological Sex
Murders and Brothels of Nevada, found by the officers in his room, should have been
excluded from evidence on the further ground that their potential for prejudice substantially
outweighed their probative value. The paperback book Brothels of Nevada was stamped
Lathrop Wells, Nevada. When viewed in conjunction with Exhibit 67-C, which was a map
belonging to appellant whereon Lathrop Wells was circled and inscribed with a date
preceding the date of the murder, it tended to establish appellant's proximity to the scene of
the crime at the time of its commission. We entertain substantial doubt that the book
Astrological Sex Murders should have been admitted to show motive or intent to act out
events depicted therein. However, while admitting the book may have been error, we believe
it was, in this case, harmless. Cf. Fairman v. State, 83 Nev. 287, 429 P.2d 63 (1967).
4. The Jurisdiction of the District Court.
[Headnote 10]
Surianello's last contention is that Las Vegas, Clark County, where the crime occurred is
not a part of the State of Nevada and that therefore the statutes of Nevada have no force and
effect.
This jurisdictional issue, which is presented periodically, is, of course, meritless and is
summarily rejected. For the record, however, it is true that the boundaries of Nevada, as
described in Section 1, Article 14, of the Constitution of Nevada, did not include any lands
south of 37 north latitude; the parcel of land that includes Clark County was added to
Nevada on January 18, 1867, when Joint Resolution IX of the Third Session of the Nevada
Legislature, Stats. Nev. 1867, at 145, was passed, accepting land that had been tendered to
Nevada by an Act of the Congress of the United States, entitled An Act concerning the
boundaries of the State of Nevada, approved May 5, 1866. 14 Stat. 43.
The judgment of conviction is affirmed.
____________
92 Nev. 503, 503 (1976) State ex rel. List v. Mirin
STATE OF NEVADA, Ex Rel. ROBERT LIST, Attorney General for the State of Nevada,
On Relation of Its STATE TAXICAB AUTHORITY OF CLARK COUNTY, and Its
Administrator and Board Members, Acting In Their Offical Capacity, Named Herein As
MANUEL CORTEZ, JAMES JONES, B. J. HANDLON and JOSEPH LA VOIE, and Its
Investigator-Employees, Acting In Their Official Capacity, Named Herein as WAYNE
McDORMAN, MAC SECHRIST, THOMAS FOGERTY and WALTER HINSON;
CHECKER, INC., dba CHECKER CAB CO.; VEGAS-WESTERN CAB, INC., dba
VEGAS-WESTERN CAB CO.; YELLOW CAB COMPANY OF NEVADA, dba YELLOW
CAB CO.; ACE CAB INCORPORATED, dba ACE CAB CO.; UNION CAB CO.;
WHITTLESEA BLUE CAB COMPANY, dba WHITTLESEA CAB CO.; and
HENDERSON YELLOW CAB CO., Appellants, v. WILLIAM MIRIN, Individually, and
WILLIAM MIRIN, dba STRIP CAB CO., Respondents.
No. 7864
August 31, 1976 553 P.2d 966
Appeal from order of the Eighth Judicial District Court, Clark County; Keith Hayes,
Judge.
The State sought to enjoin the continuance of unauthorized operation of a taxicab
company. Injunctive relief was denied by the district court, which ordered issuance of a
certificate of convenience and necessity. The State and other plaintiffs appealed. The
Supreme Court held that the record permitted the State Taxicab Authority to find that the
applicant demonstrated lack of fiscal responsibility. In view of such evidence, the trial court
erred in reversing the Authority's denial of the application for certificate, and the court's
further order directing issuance of a certificate was beyond the court's jurisdiction.
Reversed.
Robert List, Attorney General, and Stephen P. Boland, Deputy, Carson City; and Neil
Slocum, Deputy, Las Vegas, for Appellants State and State Taxicab Authority of Clark
County.
Galane, Tingey & Shearing, Las Vegas, for Appellants Checker Cab and Vegas-Western
Cab.
Wiener, Goldwater, Galatz & Waldman, Ltd., and Allan R. Earl, Las Vegas, for Appellant
Yellow Cab.
Morris & Wood, Las Vegas, for Appellants Ace Cab and Union Cab.
Howard Ecker, Las Vegas, for Appellant Whittlesea Cab.
Leonard A. Wilson, Las Vegas, for Appellant Henderson Yellow Cab.
Kermitt L. Waters, Las Vegas, for Respondents.
Appeal could be taken from order denying motion for injunction without any express determination that
there was no just reason for delay. NRCP 54(b); NRAP 3A(b) (2).
2. Automobiles.
Record permitted State Taxicab Authority to find that applicant for certificate of public convenience and
necessity demonstrated lack of fiscal responsibility. NRS 233B.140, subd. 5(e), (f), 706.391, subd. 2,
706.881, 706.8819, subd. 2, 706.8823, subd. 1, 706.8824, subds. 1, 2, 706.8827, subd. 2.
3. Automobiles.
In view of evidence permitting State Taxicab Authority to find that applicant for certificate of
convenience and necessity lacked fiscal responsibility, trial court erred in reversing Authority's denial of
application for certificate, and court's further order directing issuance of certificate was beyond
court's jurisdiction.
issuance of certificate was beyond court's jurisdiction. NRS 233B.140, subd. 5(e), (f), 706.391, subd. 2,
706.881, 706.8819, subd. 2, 706.8823, subd. 1, 706.8824, subds. 1, 2, 706.8827, subd. 2.
OPINION
Per Curiam:
This is an appeal from an order of the district court granting a partial summary judgment in
favor of Respondents William Mirin individually and William Mirin doing business as Strip
Cab Co. (hereinafter referred to as Mirin), wherein the district court reversed an order of the
Taxicab Authority of Clark County (hereinafter referred at as Authority) that had denied
Mirin's application for a certificate of public convenience and necessity. The court further
ordered Authority to immediately grant Mirin a certificate with necessary licenses and
medallions to operate 64 taxicabs in Clark County.
The instant action was commenced by the State of Nevada to enjoin Mirin from continuing
the unauthorized operation of a taxicab company. Mirin had previously applied to Authority
for a certificate, which Authority, after a public hearing, denied. In response to the State's
complaint, Mirin filed a counterclaim in 12 counts, seeking, among other relief, in Count I, an
order setting aside Authority's order denying his certificate, on the grounds that said order
was unreasonable, arbitrary, capricious, and not supported by the evidence, . . .
1
Mirin
filed a supplemental counterclaim, then moved for partial summary judgment on Count I,
which State moved to dismiss, including all remaining counts.
2
The district court found in
favor of Mirin and against the State, setting aside Authority's order denying Mirin a certicate
of public convenience and necessity and directing Authority to forthwith issue a certificate to
Mirin, with the necessary licenses and medallions, to operate 64 taxicabs in Clark County,
from which order State has appealed.
[Headnote 1]
Since there was no final adjudication of the 11 remaining counts of Mirin's counterclaim
and appellants were desirous of perfecting an early appeal from the partial summary
judgment, they moved the court for an express determination that there was no just
reason for delay, as required by NRCP 54{b), which the court denied.3 A threshold issue,
therefore, is Mirin's contention that this court is without jurisdiction at this juncture to
entertain the appeal.
____________________

1
Mirin in the other counts sought damages for false arrest, malicious prosecution, and fraud.

2
At this juncture, the additional parties had been joined on motion to intervene, namely, Checker Cab Co.,
Vegas-Western Cab Co., Yellow Cab Co., Ace Cab Co., Union Cab Co., Whittlesea Cab Co., and Henderson
Yellow Cab Co.
perfecting an early appeal from the partial summary judgment, they moved the court for an
express determination that there was no just reason for delay, as required by NRCP 54(b),
which the court denied.
3
A threshold issue, therefore, is Mirin's contention that this court is
without jurisdiction at this juncture to entertain the appeal. NRAP 3A(b)(2) permits an appeal
to be taken from an order granting or denying an injunction.
4
The order presently under
review comes squarely within the purview of this section, since it effectively denies the
State's request for an injunction to restrain Mirin from operating a taxicab business in Clark
County. In De Luca Importing Co. v. Buckingham Corp., 90 Nev. 158, 520 P.2d 1365 (1974),
this court rejected the contention that an appeal from an order denying an injunction requires
a 54(b) certification if it disposes of less than all of the claims of the parties. In reaching that
conclusion, this court said, 90 Nev. at 159-160, 520 P.2d at 1366:
. . . An appeal may be taken from an order denying a motion for an injunction without any
express determination that there is no just reason for delay as required by NRCP 54(b).
NRAP 3A(b)(2). See Atlantic Richfield Co. v. Oil, Chemical & A. Wkrs. Int. U., 447 F.2d
945 (7th Cir. 1971); Build of Buffalo, Inc. v. Sedita, 441 F.2d 284 (2nd Cir. 1971); Western
Geophysical Co. of Amer. v. Bolt Associates, Inc., 440 F.2d 765 {2nd Cir.
____________________

3
NRCP 54(b):
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. 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.

4
NRAP 3A(b)(2):
(b) Appealable Determinations. An appeal may be taken:
. . .
(2) From an order granting or refusing a new trial, or granting or refusing to grant or dissolving or refusing
to dissolve an injunction, or appointing or refusing to appoint a receiver, or vacating or refusing to vacate an
order appointing a receiver, or dissolving or refusing to dissolve an attachment, or changing or refusing to
change the place of trial, and from any special order made after final judgment.
440 F.2d 765 (2nd Cir. 1971); Rains v. Cascade Industries, Inc., 402 F.2d 241 (3rd Cir.
1968); Alloyd General Corp. v. Building Leasing Corp., 361 F.2d 359 (lst Cir. 1966); George
P. Converse & Co. v. Polaroid Corporation, 242 F.2d 116 (1st Cir. 1957); Pang-Tsu Mow v.
Republic of China, 201 F.2d 195 (D.C. Cir. 1952); [sic] 91 U.S. App. D.C. 324, cert. denied
345 U.S. 925.
We turn to consider the merits of the case. The Legislature has provided that in counties
where population is 200,000 or more the power to regulate the taxicab industry is conferred
upon a Taxicab Authority and that the regulatory authority given the Public Service
Commission of Nevada does not apply.
5
Such Taxicab Authority is given express power to
conduct hearings and make final decisions on applications for certificates of public
convenience and necessity to operate a taxicab service. NRS 706.8819(2).
6

The Legislature has also empowered Authority to allocate the number of taxicabs among
the certificate holders. NRS 706.8824(1).
7
The Legislature has also set forth in NRS
706.8824(2) the factors which Authority shall consider in determining the allocation of
taxicabs,
8
which shall be heard and considered before the Taxicab Administrator.
____________________

5
NRS 706.881:
1. NRS 706.8811 to 706.885, inclusive, apply to a county whose population is 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.
2. Within any such county, those provisions of this chapter which confer regulatory authority over taxicab
motor carriers upon the public service commission of Nevada do not apply.

6
NRS 706.8819(2):
The taxicab authority shall conduct hearings and make final decisions in the following matters:
. . .
2. Applications for certificates of public convenience and necessity to operate a taxicab service; . . .

7
NRS 706.8824(1):
1. Whenever circumstances require a change in the allocations existing on July 1, 1969, or afterward
established, the taxicab authority shall allocate the number of taxicabs among the certificate holders in any
county to which NRS 706.881 to 706.885, inclusive, apply.

8
NRS 706.8824(2):
2. In determining the allocation of taxicabs as set forth in subsection 1, the taxicab authority shall consider:
(a) The needs and requirements of residents of the area served by the certificate holders;
(b) The needs and requirements of the tourists of the area served by the certificate holders;
(c) The interests, welfare, convenience, necessity and well-being of the public at large in the area served by
the certificate holders; and
and considered before the Taxicab Administrator. NRS 706.8823(1).
9
In NRS 706.391(2)
[cross-referenced in NRS 706.8827(2)], the Legislature set forth the factors which Authority
must take into consideration when determining whether the applicant is fit, willing, and able
to perform the services of a common carrier. Pursuant to its powers to establish rules and
regulations, Authority adopted Rule 103 of General Order Number 3 of the State of Nevada
Taxicab Authority, which provides:
The burden of proof shall be with the applicant to satisfy the authority of his financial
ability to perpetuate a continuous service, as applied for, consistent with the public interest;
and the authority may also consider applicant's background prior to any grant. The authority
also reserves the exclusive right to make any investigation prior to issuance of a certificate of
public convenience and necessity or a permit.
After a public hearing, Authority denied Mirin's application for a certificate of public
convenience and necessity. In doing so, Authority predicated its ruling in part on findings that
Mirin (1) had failed to show an adequate financial statement and (2) had failed to establish
financial responsibility.
[Headnotes 2, 3]
A review of the record shows that the findings of Authority relating to the inadequacy of
Mirin's financial statement and fiscal responsibility are supported by substantial evidence.
Mirin filed two financial statements. In the first statement, he omitted a $250,000 liability.
The amended statement showed two six-million-dollar choses in action consisting solely of
pending law suits. Both statements reflected as assets a pledged loan from Pioneer Citizens
Bank. The sole evidence supporting the pledge was a letter from the bank that it was willing
to entertain an application for a loan, assuming certain conditions were met. The record
discloses that Mirin's financial statements showed that he had solid assets of $400 and
liabilities in excess of $262,850.
Additional evidence reflecting on Mirin's fiscal responsibility indicates that in 1967 he
failed to pay the Internal Revenue Service withholding funds he retained from his employees
and that he used the funds to pay his own debts.
____________________
(d) Any other factors which the administrator considers necessary and proper for determining the
allocation.

9
NRS 706.8823(1):
The [taxicab] administrator shall conduct hearings and submit recommendations for a final decision to the
taxicab ruthority, which shall render a final decision in the following matters:
1. Allocation of taxicabs;
that he used the funds to pay his own debts. Not only did Mirin admit that he failed to pay the
IRS, but he failed to recognize the obligation as a trustee of the funds, testifying:
Well, I wasn't delinquent. I had the money, and I sent the necessary paper work in.
10

In view of the evidence, Authority's findings cannot be said to be clearly erroneous, nor
may Authority's ruling be characterized as arbitrary or capricious. NRS 233B.140(5)(e).
11
The court was therefore in error in reversing the decision of Authority in denying Mirin's
application for a certificate of public convenience and necessity. And it follows, of course,
that the court's further order directing Authority to issue a certificate to Mirin with necessary
licenses and medallions was without the court's jurisdiction, for the Legislature has delegated
such power to Authority. NRS 706.8819(2), supra. Therefore, the order granting partial
summary judgment is hereby reversed.
____________________

10
Mirin further demonstrated his lack of fiscal responsibility when he testified as follows at the May 8-9,
1974 hearing before Authority.
MR. CORTEZ [Authority Administrator]: . . .
Do you still owe the Internal Revenue Service money according to direct testimony here?
THE WITNESS: Well, the once falsifying the return, if I recall.
MR. CORTEZ: I didn't ask you why. Do you still owe them some money?
THE WITNESS: I don't feel that I do.
MR. CORTEZ: Do they feel you do?
THE WITNESS: They haven't bothered me in five years.
. . .
Q [by Mr. Schreck, counsel for Whittlesea Cab Co.] Now, Mr. Mirin, you state that this $250,000 that is
owed presently to your attorney does not appear on your financial statement. That is a mere oversight; is that
correct?
A Yes. You are being repetitious. I answered that.
Q It's a mere oversight? The $250,000 is a mere oversight?
A There is no pressing need to pay that thing tomorrow or the next month or the next year.

11
NRS 233B.140(5)(e), (f):
5. The court shall not substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings.
The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because
the administrative findings, inferences, conclusions or decisions are:
. . .
(e) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
____________
92 Nev. 510, 510 (1976) Bishop v. State
BARNELL BISHOP, Appellant, v. THE
No. 7587
August 31, 1976 554 P.2d 266
Appeal from a judgment of conviction of first-degree murder, robbery, and arson; Eighth
Judicial District Court, Clark County; Howard W. Babcock, Judge.
The Supreme Court, Batjer, J., held that there was no error in denial of defendant's pretrial
motions for change of venue and to question the master jury panel, no error in admitting into
evidence a long undiscovered bank bag, and no error in admission of dying declarations
including photographic identification, and that the state had not erroneously been allowed to
present part of its case-in-chief on rebuttal.
Affirmed.
Morgan D. Harris, Clark County Public Defender, and A. Bill Maupin, Deputy, Las
Attorney, and Dan M. Seaton and H. Leon Simon, Deputies, Las Vegas, for Respondent.
1. Jury.
Constitutional standard of fairness requires that defendant have a panel of impartial, indifferent jurors,
but qualified jurors need not be totally ignorant of facts and issues involved. U.S.C.A.Const. Amends. 6,
14; NRS 174.455, 174.455, subd. 2.
2. Criminal Law; Jury.
Defendant failed to show that posture or setting of his trial was inherently prejudicial or that process of
selecting jury allowed any inference of actual prejudice. NRS 174.455, 174.455, subd. 2.
Criminal defendant in state court is guaranteed impartial jury by Sixth Amendment as applicable to states
through the Fourteenth Amendment, and principles of due process also guarantee defendant an impartial
jury. U.S.C.A.Const. Amends. 6, 14; NRS 174.455, 174.455, subd. 2.
Jury selection violates Sixth Amendment or due process and equal protection clauses of Fourteenth
Amendment only if it can be shown that members of defendant's race were excluded systematically from
jury duty; purposeful discrimination may not be assumed or merely asserted, but rather must be proved.
U.S.C.A.Const. Amends. 6, 14; NRS 174.455, 174.455, subd. 2.
5. Jury.
Where trial court after long and extensive hearing found as matter of fact a possibility of de minimis
underrepresentation of persons of the Negro race, but no showing of intentional or purposeful exclusion,
requirement of significant exclusion or underrepresentation, to show unconstitutionality, was not met.
U.S.C.A.Const. Amends. 6, 14; NRS 174.455, 174.455, subd. 2.
6. Criminal Law.
Whether declarations were made while declarant believed his death was imminent must be determined
preliminarily by trial court, whose ruling will remain undisturbed unless there has been apparent abuse of
discretion. NRS 51.075, subd. 1, 51.335.
7. Homicide.
Under statutes, before accusatory statement may be admitted as dying declaration, evidence must
demonstrate that at time statement was made declarant believed that his death was imminent. NRS
51.075, subd. 1, 51.335.
8. Homicide.
Best evidence that declarant believed his death to be imminent when he made accusatory statements is a
direct statement by victim, but sense that death was imminent may be inferred from circumstances such as
nature of the declarant's wounds or injury; if declarant subjectively senses impending death without any
hope of recovery, then there is present the vibrant requisite which law demands to waive solemnity of oath
and to receive deceased declarant's testimony without cross-examination. NRS 51.075, subd. 1, 51.335.
9. Homicide.
Once trial judge finds from evidence that there is sufficient foundation to adinit dying declaration, then
accusatory statements are presented to jury to be considered and weighed along with credibility of
declarant. NRS 51.075, subd. 1, 51.335.
10. Homicide.
Trial court did not abuse its discretion in ruling, in homicide case, that victim's verbal acknowledgment of
his imminent death as well as his critical condition which was apparent to him established predicate for his
dying declarations made during forty-eight hours after he was burned, and did not err in allowing several
witnesses to relate information victim had given them during such time, including his photographic
identification of defendant. NRS 51.075, subd. 1, 51.335.
11. Criminal Law.
Constitutional right to counsel does not attach until judicial criminal proceedings are initiated, and
exclusionary rule relating to out-of-court identification in absence of counsel does not apply to
identification testimony based upon police station showup or photo identification which took place before
accused was indicted or otherwise formally charged with criminal offense.
12. Criminal Law.
In prosecution for murders perpetrated in cleaning establishment, blue bank bag, though found some
eight months after date of offense, was relevant and material and was properly admitted where it was
identical to other bank bag used at cleaners and had similar laundry tag and where
scrapings from safe at cleaning establishment and from bag were similar and where
defendant's traveling companion testified that she had seen the bag for first time in
his hotel room on morning after the murders; passage of time between crime date
and discovery date went to weight rather than admissibility.
where it was identical to other bank bag used at cleaners and had similar laundry tag and where scrapings
from safe at cleaning establishment and from bag were similar and where defendant's traveling companion
testified that she had seen the bag for first time in his hotel room on morning after the murders; passage of
time between crime date and discovery date went to weight rather than admissibility. NRS 48.015.
13. Criminal Law.
Admission of physical evidence notwithstanding passage of time between crime date and date of
discovery of the evidence was within sound discretion of trial court, exercise of which would be respected
in absence of grave abuse. NRS 48.035, subd. 1.
14. Criminal Law.
Where defendant testified that he was not in vicinity of crime when crime occurred, trial court did err in
allowing prosecution witness to testify in rebuttal that he recognized defendant as passenger in automobile
near crime scene shortly before fire was reported.
OPINION
Early on the morning of April 23, 1971, the burned bodies of Alfred, Ida, and John Lizzio
were discovered on the floor of a fire-damaged building used by Cantrell Cleaners in Las
Vegas, Nevada. The other victim, Jake Wright, with his clothing afire, managed to escape the
burning building at 12:01 a.m. on April 23, 1971, and to run across Charleston Boulevard
seeking help. Wright lived for 31 days after the fire and was able to describe to investigating
officers and others the events of the crime as he remembered them. At trial several witnesses
were permitted to relate the information Wright had given to them.
Before his death he told investigators that a black man came into the cleaning
establishment, wielded a chrome pistol and said this is a stickup, forced him, as well as
Alfred Lizzio and John Lizzio, prone on the floor, went through their pockets and took the
keys to the safe. During this episode Ida Lizzio came into the building. After a scuffle with
the assailant she was forced to the floor. All were bound, clothing was thrown on them and
cleaning solvent splashed on the clothing which was set afire. Pathologists testified that all
deaths were caused by third degree burns.
On the evening of April 23, 1971, at the Southern Nevada Memorial Hospital, Wright,
viewing a 1971 photograph, identified appellant as the assailant. A chrome pistol was
discovered by the police on the work bench near the victims.
by the police on the work bench near the victims. Bishop had redeemed that same gun from a
pawn shop in Phoenix, Arizona, on April 20, 1971. One witness testified that he had seen him
in a nearby 7-11 Store late on the evening of April 22, 1971.
The operator of a casino in Lovelock, Nevada, testified that Bishop had lost a considerable
amount of money there between April 27 and May 1, 1971. Part of that money was silver
certificates. Other testimony indicated that the victim, Alfred Lizzio, had collected silver
certificates and kept them in a safe place at the cleaning establishment.
Bishop had registered at the Four Queens Hotel in Las Vegas, Nevada, on the evening of
April 21, 1971, and he checked out at 6:34 a.m. on April 23, 1971. He was arrested in Reno,
Nevada, on May 1, 1971. Several months after the murders a bank bag similar to one found at
the cleaning establishment was inadvertently found in the room occupied by him at the Four
Queens Hotel. Launky tags in the bank bag matched tags used at Cantrell's Cleaners. The
bank bag was introduced as evidence at the trial.
Bishop's traveling companion corroborated his redemption of the gun in Phoenix, Arizona.
She also testified that he left the hotel room during the evening of April 22, 1971, and that
she did not see him again until the morning of April 23, 1971, and on that morning she saw a
bank bag in the hotel room for the first time.
Sylvester Scott testified that Bishop admitted the commission of the crime to him.
Raymond Berkley testified that he heard him say: I'm not going to fry; they can't prove
anything, even though I did do it. Both were his fellow inmates in the Clark County Jail. A
police officer testified that in referring to one of the jail guards, he said: I'm going to make
him number five.
Bishop took the witness stand where he admitted being at the Four Queens Hotel, claimed
he sold his pistol to two black men, admitted he traveled to Reno and Lovelock, Nevada,
denied any connection with the murders and denied that he had made any admission to fellow
inmates or police officers. In rebuttal the state called William Rehn who testified that he saw
Bishop riding in an automobile that sped through the intersection of Charleston and Maryland
Parkway near Cantrell's Cleaners shortly before midnight on April 22, 1971.
The jury found Bishop guilty of four counts of murder in the first degree, robbery and
second degree arson. He was sentenced to consecutive terms of life in prison without the
possibility of parole on each of the murder counts, a consecutive term of fifteen years for
robbery and a consecutive term of ten years for second degree arson.
term of fifteen years for robbery and a consecutive term of ten years for second degree arson.
He now contends that the trial court erred in denying his pretrial motions for a change of
venue and to quash the Clark County master jury panel, erred during the course of his trial
when it admitted into evidence the long undiscovered bank bag and the hearsay statements
and photographic identification of appellant by Jake Wright, and that it further erred when it
denied his motion to dismiss the second amended information and allowed the state to present
part of its case in chief on rebuttal.
We find all of appellant's assignments of error to be without merit and therefore affirm the
judgment of the district court.
1. Prior to jury selection, Bishop moved to change the venue of the trial pursuant to NRS
174.455(2);
1
the court denied this motion. See Hanley v. State, 80 Nev. 248, 391 P.2d 865
(1964). He concedes that NRS 174.455 is a codification of our case law but contends that his
right to due process is infringed and prejudice must be presumed by the requirement that voir
dire examination must first be conducted and that it must become apparent to the trial court
that a fair and impartial jury cannot be selected before a change of venue can be granted in a
criminal action.
In support of his contentions appellant relies principally upon Irvin v. Dowd, 366 U.S. 717
(1961); Rideau v. Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532 (1965); and
Sheppard v. Maxwell, 384 U.S. 333 (1966). In each of those cases the High Court overturned
a state court because, in the words of that Court, each conviction [was] obtained in a trial
atmosphere that had been utterly corrupted by press coverage. Murphy v. Florida, 421 U.S.
794, 798 (1975). We have examined the record in this case and find nothing approaching the
situations described in the cases relied upon by appellant. Nowhere can be found the circus
atmosphere of Estes or the carnival conditions of Sheppard. There was no television
broadcast of a confession such as occurred in Rideau or the barrage of inflammatory
publicity immediately prior to trial in Irvin. See Murphy v. Florida, supra.
The newspaper article Voice from the Graves, about which the appellant has registered
his chief complaint, was not inflammatory, but factual in its context.
____________________

1
NRS 174.455(2): An application for removal of a criminal action shall not be granted by the court until
after the voir dire examination has been conducted and it is apparent to the court that the selection of a fair and
impartial jury cannot be had in the county where the indictment, information or complaint is pending.
inflammatory, but factual in its context. It was published on May 23, 1971. Appellant's trial
did not commence until August 20, 1973.
[Headnote 1]
The constitutional standard of fairness requires that a defendant have a panel of impartial,
indifferent' jurors. Irvin v. Dowd, 366 U.S. at 722. Qualified jurors need not, however, be
totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. at 799-800.
[Headnote 2]
The appellant has failed to show that the posture or setting of his trial was inherently
prejudicial or that the process of selecting the jury allows any inference of actual prejudice.
[Headnotes 3, 4]
2. We turn now to consider appellant's contention that there had been discrimination in
the jury selection and that the trial court erred in refusing to quash the master jury panel. A
state is obligated to a defendant to impanel an impartial jury.
2
A jury selection violates the
Sixth Amendment or the due process and equal protection clauses of the Fourteenth
Amendment only if it can be shown that members of the appellant's race were excluded
systematically from jury duty. [P]urposeful discrimination may not be assumed or merely
asserted. Swain v. Alabama, 380 U.S. 202, 205 (1965). Such discrimination must be proved.
Tarrance v. Florida, 188 U.S. 519 (1903).
In Ristaino v. Ross, 96 S.Ct. 1017, 1021 n. 8 (1976), it was noted by the High Court: In
our heterogeneous society policy as well as constitutional considerations militate against the
divisive assumptionas a per se rulethat justice in a court of law may turn upon the
pigmentation of skin, the accident of birth, or the choice of religion. See Connors v. United
States, 158 U.S. 408, 415 (1895).
[Headnote 5]
In authority relied upon by appellant it was held that systematic exclusion or
underrepresentation of Negroes summoned for jury duty does not comply with the equal
protection clause of the Fourteenth Amendment. Brown v. Allen, 344 U.S. 443 {1953).
____________________

2
A criminal defendant in a state court is guaranteed an impartial jury by the Sixth Amendment as
applicable to the States through the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145 (1968).
Principles of due process also guarantee a defendant an impartial jury. See, e.g., Irvin v. Dowd, 366 U.S. 717,
722 (1961).
(1953). Here the trial court, after a long and extensive hearing, found as a matter of fact a
possibility of de minimis underrepresentation of persons of the Negro race, but no showing
of intentional or purposeful exclusion. Therefore, the requirement of significant exclusion or
underrepresentation was not met. Brown v. Allen, supra.
We are not confronted with a fact pattern such as found in Norris v. Alabama, 294 U.S.
587 (1935), where there was proof that Negroes constituted a substantial segment of the
population of the jurisdiction, that some Negroes were qualified to serve as jurors and that
none had been called for jury service over an extended period of time; or as in the case of
Patton v. Mississippi, 332 U.S. 463 (1947), where no Negro had served on the criminal court
grand or petit jury for a period of thirty years; or even the facts found in Swain v. Alabama,
380 U.S. 202 (1965), cited and relied upon by both appellant and respondent, where Negroes
constituted 26 percent of the population of Talladega County, Alabama, yet from 1953 to
1965 jury panels averaged 10 percent to 15 percent Negroes, and from 1950 to 1965 no Negro
had served on a petit jury. There the High Court affirmed the Alabama Supreme Court which
had in turn affirmed the Alabama trial court's denial of Swain's motion (1) to quash the
indictment, (2) to strike the trial jury venire and (3) to void the trial jury; all based on
discrimination in the selection of jurors.
Fairness in [jury] selection has never been held to require proportional representation of
races upon a jury. Akins v. Texas, 325 U.S. 398, 403 (1945).
. . . Jurymen should be selected as individuals, on the basis of individual qualifications,
and not as members of a race.
. . . [T]he Constitution requires only a fair jury selected without regard to race. . . . An
accused is entitled to have charges against him considered by a jury in the selection of which
there has been neither inclusion nor exclusion because of race.
. . . [S]ince there can be no exclusion of Negroes as a race and no discrimination because
of color, proportional limitation is not permissible. Cassell v. Texas, 339 U.S. 282, 286-287
(1950).
In Collins v. State, 88 Nev. 9, 13, 492 P.2d 991, 993 (1972), we said: 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. See also Collins
v. State, 84 Nev. 599, 446 P.2d 163 {196S).
(1968). This case contains no evidence to suggest an exclusion of Negroes from jury service
because of race. As a matter of fact, the trial court found no significant disparity existing
between the percentage of Negroes eligible for jury service and those on the jury venire.
Upon this record we perceive no prima facie case of invidious discrimination under the
Fourteenth Amendment to the United States Constitution.
3. We now consider appellant's contention that none of the statements or declarations of
the victim Jake Wright, including his photographic identification of appellant, qualify as
dying declarations, but even if they technically qualify they should not have been admitted
because the circumstances under which they were made offered no such strong assurace of
accuracy and reliability to qualify as an adequate substitute for cross examination under NRS
51.075(1).
Although the Sixth Amendment's guaranty protecting an accused's right to confront the
witnesses against him was made obligatory on the states by the Fourteenth Amendment
(Pointer v. Texas, 380 U.S. 400 (1965)), the United States Supreme Court has recognized the
admissibility of dying declarations. Mattox v. United States, 146 U.S. 140, 151 (1892);
Pointer v. Texas, supra. In Pointer, supra at 407, the High Court reiterated the admissibility
against an accused of dying declarations as an exception to the Sixth Amendment's guarantee
of confrontation and said, Nothing we hold here is to the contrary.
[Headnote 6]
Whether or not the declarations were made while the declarant believed his death was
imminent must be determined preliminarily by the trial court and its ruling will remain
undisturbed unless there has been an apparent abuse of discretion. Wilson v. State, 86 Nev.
320, 468 P.2d 346 (1970); State v. Scott, 37 Nev. 412, 142 P. 1053 (1914). See also, People
v. Bagwell, 113 Cal.Rptr. 122 (Cal.App. 1974).
[Headnote 7]
Before an accusatory statement may be admitted as a dying declaration, the evidence must
demonstrate that at the time the statement was made declarant believed that his death was
imminent.
3
NRS 51.335.
4
[Headnote S]
[Headnote S]
____________________

3
Some jurisdictions allow an accusatory statement to be admitted as a dying declaration only if the evidence
demonstrates that at the time the statement was made (1) death was imminent, (2) declarant had a sense of
impending death and (3) that death did ensue. Commonwealth
[Headnote 8]
Appellant argues that the prosecution failed to show that Wright believed his death to be
imminent at the time he made the accusatory statements. Of course, the best evidence of this
necessary element is a direct statement by the victim; however, the sense that death was
imminent may be inferred from circumstances such as the nature of the declarant's wounds or
injury. Ennis v. State, 91 Nev. 530, 539 P.2d 114 (1975); Wilson v. State, 86 Nev. 320, 468
P.2d 346 (1970); State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948). If the declarant
subjectively senses impending death without any hope of recovery, then there is present the
vibrant requisite which the law demands to waive the solemnity of an oath and to receive the
decendent's testimony without cross examination.
Here the declarant was so badly burned that one witness testified his skin was still
smoking when he reached the parking lot across the street from the fire. Two other witnesses
described him as being on fire, and at that time Wright said he might not make it. A
police officer who arrived shortly after Wright reached the parking lot testified that the
declarant said, I am going to die, I know I am going to die. Another recalled his saying, I
am going to die.
During the evening of the day of the fire, in response to words of encouragement from a
police officer, Wright said, No I don't think I'm going to make it. His attending physician
who was the director of the burn center at Southern Nevada Memorial Hospital described him
as being burned very significantly (55% third degree and 10% second degree), that he had
reservations about his survival, and in his experience only two or three patients who appeared
to be as badly burned survived, but the possibility of death was never communicated by the
physician to Wright.
Appellant contends further that there were many discrepancies in Wright's statements and
photographic identification and they were made under conditions which created considerable
question as to his competency and his ability to accurately and reliably relate his observation,
and for those reasons they should have been excluded as evidence by the district court.
____________________
v. Cooley, 348 A.2d 103 (Pa. 1975). Others require that the declarant, if living, would have been a competent
witness to testify as to the matter. State v. Brown, 139 S.E.2d 609 (N.C. 1965); People v. Little, 371 N.Y.S.2d
726 (Yates County Ct. 1975).

4
NRS 51.335: A statement made by a declarant while believing that his death was imminent is not
inadmissible under the hearsay rule if the declarant is unavailable as a witness.
should have been excluded as evidence by the district court. Appellant misconceives the
function of the court and jury.
[Headnotes 9, 10]
Once the trial judge finds from the evidence that there is sufficient foundation to admit the
dying declaration then the accusatory statements are presented to the jury to be considered
and weighed along with the credibility of the declarant. Wilson v. State, 86 Nev. 320, 468
P.2d 346 (1970). In State v. Scott, 37 Nev. 412, 430, 142 P. 1053, 1059 (1914), this court
said:
. . . [T]he ultimate fact and the weight, credence and significance to be given to the
statement when admitted is for the jury. . . . The trial court did not abuse its discretion in
ruling that Wright's verbal acknowledgment of his imminent death as well as his critical
condition which was apparent to him established a predicate for his dying declarations made
during the forty-eight hours after he was burned. Consequently it did not err in allowing
several witnesses to relate at trial information Wright had given them during those forty-eight
hours, including his photographic identification of the appellant.
[Headnote 11]
4. Appellant's additional contention that Wright's photographic identification of him on
the evening of April 23, 1971, was conducted in violation of his right to counsel is
unsupported in law and without merit. Appellant was not arrested until May 1, 1971. The
constitutional right to counsel does not attach until judicial criminal proceedings are initiated.
The exclusionary rule relating to out of court identification in the absence of counsel does not
apply to identification testimony based upon a police station showup or photo identification
which took place before the accused has been indicted or otherwise formally charged with the
criminal offense. Kirby v. Illinois, 406 U.S. 682 (1972). Thompson v. State, 85 Nev. 134, 451
P.2d 704 (1969), upon which appellant relies is inapposite because Thompson was in police
custody when he was identified at the police station from a group of pictures.
The manner in which the lineup in question was conducted is outlined in detail in the
record. The police officer who conducted the lineup and all witnesses who were present were
carefully cross examined and there is no indication of any unfair or improper procedures. Cf.
Stovall v. Denno, 388 U.S. 293 (1967); Kirby v. Illinois, supra. In Simmons v. United States,
390 U.S. 377, 384 (1968), the High Court said: ". . . [W]e hold that each case must be
considered on its own facts, and that convictions based on eyewitness identification at
trial following a pretrial identification by photograph will be set aside on that ground only
if the photographic identification procedure was so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misidentification."
. . . [W]e hold that each case must be considered on its own facts, and that convictions based
on eyewitness identification at trial following a pretrial identification by photograph will be
set aside on that ground only if the photographic identification procedure was so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.
5. Also without merit is appellant's claim that the trial court erred in refusing to dismiss
the second amended information because it failed to give adequate notice of the charges
against him. As amended the information complies substantially with the mandates of
Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972). NRS 173.075(2).
5

. . . The test is not whether the indictment could have been made more definite and
certain. Rather, before a conviction, the indictment standing alone must contain the elements
of the offense intended to be charged and must be sufficient to apprise the accused of the
nature of the offense. . . . However, after a verdict or plea of guilty, every intendment must be
indulged in support of the indictment or information and such a verdict or plea cures mere
technical defects unless it is apparent that they have resulted in prejudice to the defendant.
Laney v. State, 86 Nev. 173, 178, 466 P.2d 666, 669 (1970). The record does not reflect
prejudice to appellant.
[Headnotes 12, 13]
6. Prejudicial error is claimed by appellant upon the ground that a blue bank bag found
some eight months after April 23, 1971, in the room occupied by him at the Four Queens
Hotel was erroneously admitted into evidence. We do not agree. The bag was a relevant and
material item of evidence. NRS 48.015.
6
It was identical to the other bank bag used at
Cantrell Cleaners and it had a similar laundry tag; scrapings from the safe at the cleaning
establishment and from the bag were similar, and appellant's traveling companion testified
that she had seen the bag for the first time in the hotel room on the morning after the murders.
____________________

5
NRS 173.075(2), which provides in part:
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.

6
NRS 48.015: As used in this chapter, relevant evidence' means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more or less probable than it
would be without the evidence.
Appellant argues that the passage of time between the crime date and the discovery date
rendered it inadmissible. That fact goes to the weight rather than the admissibility which is
within the sound discretion of the trial court and will be respected in the absence of grave
abuse. See Brown v. State, 81 Nev. 397, 404 P.2d 428 (1965). The probative value of the bag
as evidence outweighs any inference of prejudice. NRS 48.035(1).
7

[Headnote 14]
7. Finally appellant complains that over his objection the state was allowed to call
William Rehn to rebut appellant's testimony that he was not at or near the scene of the crime.
It is appellant's contention that he was unfairly and harmfully surprised by Rehn's testimony
which more properly should have been introduced by the state during its case in chief. . . .
[W]here rebuttal testimony is offered, which should have been more properly introduced in
the opening, it is within the sound judicial discretion of the trial court to allow it, which
discretion is not reviewable in the absence of gross abuse. State v. Lewis, 50 Nev. 212, 233,
255 P. 1002, 1009 (1927); Walker v. State, 89 Nev. 281, 283-284, 510 P.2d 1365, 1367
(1973); Goldsby v. United States, 160 U.S. 70 (1895).
In Harris v. New York, 401 U.S. 222, 225 (1971), the High Court said: Every criminal
defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege
cannot be construed to include the right to commit perjury. See United States v. Knox, 396
U.S. 77 (1969); cf. Dennis v. United States, 384 U.S. 855 (1966). Having voluntarily taken
the stand, petitioner was under an obligation to speak truthfully and accurately, and the
prosecution here did no more than utilize the traditional truth-testing devices of the adversary
process. Likewise in this case appellant testified that he was not in the vicinity when the
crime occurred but at his hotel.
The trial court did not err in allowing Rehn to testify in rebuttal that he recognized
appellant as a passenger in an automobile near the crime scene shortly before the fire was
reported.
Affirmed.
____________________

7
NRS 48.035(1): Although relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury.
____________
92 Nev. 522, 522 (1976) Sierra Pac. Power v. Public Serv. Comm'n
SIERRA PACIFIC POWER COMPANY, a Nevada Corporation, Appellant, v. PUBLIC
SERVICE COMMISSION OF NEVADA, An Administrative Agency of the State of Nevada;
NOEL A. CLARK, Chairman, EVO A. GRANATA, and HEBER P. HARDY, As Members
of Said Commission; HARRAH'S, ANACONDA COMPANY, CARLIN GOLD MINING
COMPANY, EAGLE PICHER INDUSTRIES, INC., DUVAL CORPORATION, U.S.
GYPSUM, COUNTIES OF WASHOE, CHURCHILL, LYON, DOUGLAS, NYE,
HUMBOLDT, STOREY and MINERAL, and the CITIES OF CARSON CITY and
WINNEMUCCA, Respondents.
No. 8958
September 8, 1976 554 P.2d 263
Appeal from order denying preliminary injunction, First Judicial District Court, Carson
City; Stanley Smart, Judge.
Public utility sought review of Public Service Commission's order entitling utility to
$3,772,000 general rate increase rather than $10,525,000 requested increase, moved to enjoin
enforcement of order, and set forth proposed rate schedules to become effective should
injunction issue that were new and different from those originally filed with Commission.
The district court denied preliminary injunction, and public utility appealed. The Supreme
Court, Guy, District Judge, held that new rate schedules could not be subject of injunction
suspending or staying order of Commission relating to rates.
Affirmed.
Thompson, J., dissented.
Richard G. Campbell, John Madariaga, and Douglas C. Fletcher, Reno, for Appellant.
Robert List, Attorney General, and E. Williams Hanmer, Deputy Attorney General, Carson
City, for Respondent Public Service Commission.
Larry R. Hicks, District Attorney, and Richard M. Edelman, Deputy District Attorney,
Reno, for Governmental Respondents.
Robert W. Marshall, John P. Sande, III, Vargas Bartlett & Dixon, Reno, for Respondents.
1. Statutes.
Statutory language that is specific, clear and unambiguous must be enforced so long as absurd result does
not occur in its application.
New rate schedules, different from those filed with Public Service Commission, may not be subject of
injunction issued under statute which provides for suspending or staying of order of Commission relating to
rates and which provides that if injunction is granted public utility may keep in effect or cause to be put
into effect suspended schedule or part thereof pending final determination, and thus district court could not
issue injunction effectuating rate schedule which had not been considered or ruled upon by Commission in
issuing order entitling public utility to $3,772,000 rather than $10,525,000 requested increase. NRS
704.550.
OPINION
By the Court, Guy, D. J.
1

On December 1, 1975, Sierra Pacific Power Company, a Nevada corporation, filed its
application with the Public Service Commission of Nevada requesting an approximate
$10,525,000 general rate increase. With its application, Sierra filed a schedule of rates
pursuant to NRS Chapter 704. The Commission conducted an investigation, held public
hearings, and, on May 28, 1976, issued an order entitling Sierra to a $3,772,000 increase.
On June 16, 1976, Sierra filed a complaint in district court seeking judicial review of the
Commission's order. Simultaneously, Sierra filed a motion for preliminary injunction to
prevent the Commission from enforcing its order. With this motion, Sierra set forth proposed
rate schedules which would become effective pursuant to NRS 704.550 should the injunction
issue.
2
These proposed schedules were new and different from those Sierra originally filed
with the Commission, and, for this reason, the district court ruled it had no jurisdiction to
issue an injunction which would implement schedules never before considered by the
Commission.
____________________

1
The Governor, pursuant to Article VI, 4, of the Constitution, designated the Honorable Addeliar D. Guy,
judge of the Eighth Judicial District, to sit in place of Mr. Justice Cameron Batjer, who voluntarily disqualified
himself in this case.

2
1. No injunction shall issue suspending or staying any order of the commission relating to rates, fares,
charges, classification, joint rate or rates, or any order fixing any regulations, except upon application to the
court or judge thereof, upon notice given the commission within 20 days of the rendition of the order of the
commission complained of, and no such injunction shall issue except upon such notice being first given and a
hearing of the petition therefor by the court or judge within 20 days thereafter. In any event all rates, charges and
regulations of the commission shall be deemed reasonable and just until set aside by the
from those Sierra originally filed with the Commission, and, for this reason, the district court
ruled it had no jurisdiction to issue an injunction which would implement schedules never
before considered by the Commission.
Sierra here contends NRS 704.550 permits the district court to issue an injunction
effectuating rate schedules which have not been considered or ruled upon by the Commission.
We disagree.
In NRS Chapter 704, our legislature has enacted extensive provisions governing rate
changes by public utilities. A utility may not change its rate schedules without first giving
notice to the Commission. NRS 704.100(1). After receiving this notice, the Commission can
suspend the operation of the proposed rate schedules and conduct hearings and investigations
concerning the propriety of the new schedules. NRS 704.110(1) & (2). If the Commission
finds the proposed rate schedules are unjust, unreasonable or unjustly discriminatory, it can
permanently suspend their application and, by order, substitute different rate schedules. NRS
704.120(1). If a utility is dissatisfied with the Commission's substituted rate schedule, it may
commence action in district court to set aside the order fixing such schedules. NRS
704.540(1). Pending final determination of this action, the district court can enjoin the
application of the Commission's substituted schedules. NRS 704.550(1). If the court grants
such an injunction and the order complained of is one which permanently suspends a
schedule of rates and charges or a part thereof filed by any public utility . . . , or which
otherwise prevents such schedule or part thereof from taking effect, the public utility
complaining may keep in effect or cause to be put into effect . . . the
____________________
court, and in all actions for injunction or otherwise the burden of proof shall be upon the party attacking or
resisting the order of the commission to show by clear and satisfactory evidence that the order is unlawful, or
unreasonable, as the case may be.
2. If an injunction is granted by the court and the order complained of is one which permanently suspends a
schedule of rates and charges or a part thereof filed by any public utility pursuant to NRS 704.070 to 704.110,
inclusive, or which otherwise prevents such schedule or part thereof from taking suspended schedule or
part thereof.effect, the public utility complaining may keep in effect or cause to be put into effect, as the case
may be, the suspended schedule or part thereof pending final determination by the court having jurisdiction, by
filing a bond with the court in such amount as the court may fix, conditioned upon the refund to persons, firms,
companies or corporations entitled thereto of the amount of the excess if the rate or rates so suspended are
finally determined by the court to be excessive. (Emphasis added.)
suspended schedule or part thereof. . . . (Emphasis added.) NRS 704.550(2).
[Headnote 1]
Sierra contends the language of NRS 704.550(2), part thereof, should be interpreted to
mean part of the total monetary increase sought rather than part of the suspended schedules
originally filed with its application for new rates. However, by its express language, the
statute refers to the suspended schedule or part thereof. This language is specific, clear, and
unambiguous, and it is our duty to enforce it so long as an absurd result does not occur in its
application. Cf. Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 503 P.2d 457
(1972); Western Pacific R. R. v. State, 69 Nev. 66, 241 P.2d 846 (1952). See also: State v.
V.F.W. Post No. 3722, 527 P.2d 1020 (Kan. 1974); Marquez v. Rapid Harvest Co., 358 P.2d
168 (Ariz. 1960). Reasons for the legislature's choice of language may be discerned. In
particular, we note that limiting interlocutory relief to the original rate schedules helps to
assure that disposition of the interim motion will be both summary and certain. We do not
consider these to be absurd or unwarranted concerns.
[Headnote 2]
On this appeal, we do not hold that new schedules may never be filed and litigated in the
district court. Here, we merely hold that those schedules may not be the subject of an
injunction issued pursuant to NRS 704.550. It may, of course, be argued that interlocutory
relief should be coextensive with any relief which may be afforded in the underlying action,
and, that thus, in this instance, the new schedules should be subject to an interlocutory order.
However, our legislature, by using the precise language, suspended schedule or part
thereof, circumscribed the interlocutory relief provided by NRS 704.550. As a rational
reason for this language appears, and no absurdity results, we are bound to enforce the statute
according to its literal terms.
Affirmed.
Gunderson, C. J., and Zenoff and Mowbray, JJ., concur.
Thompson, J., dissenting:
I do not agree with the majority opinion. The plain purpose of NRS 704.550 is to afford
fair treatment to the utility and to the rate payer pending judicial review of that part of the
Public Service Commission order which is challenged as unreasonable or unlawful.
the rate payer pending judicial review of that part of the Public Service Commission order
which is challenged as unreasonable or unlawful. Such fairness may be accomplished only
through the utilization of the injunctive provisions of the statute. Of course, an injunction
may be issued and the proposed rates put into effect only upon the filing of a bond in an
amount sufficient to protect each individual rate payer for his overpayment should the court
finally determine that the challenged portion of the Commission's order was correct. NRS
704.550(2)(3). When such power is exercised neither the utility nor the rate payer is injured.
Michigan Consolidated Gas Co. v. Michigan Public Service Commission, 181 N.W.2d 596
(Mich. 1970). On the other hand, when such power is not exercised, and if it is finally
determined that the challenged order is unreasonable or unlawful, property of the utility has
been confiscated without any method provided by law for its recovery. The legislative
purpose in enacting NRS 704.550 was to avoid this consequence.
Accordingly, I construe the phrase or part thereof in the statute to allow a utility,
pending judicial review, and upon the filing of an appropriate bond, to put into effect
schedules of rates which would produce revenue within the limits of the original schedules of
rates upon which hearings were held before the Commission. It follows, then, that the district
court had jurisdiction to grant the requested preliminary injunction.
A public utility, equally with the rate payer, is entitled to due process. Respectfully, I
suggest that this basic tenet of our constitutional law has been ignored by the majority opinion
in affirming the decision below.
____________
92 Nev. 526, 526 (1976) Saye v. Paradise Memorial Gardens, Inc.
LEONARD R. SAYE, Appellant, v. PARADISE
MEMORIAL GARDENS, INC., Respondent.
No. 8314
September 8, 1976 554 P.2d 274
Appeal from order dismissing complaint, Eighth Judicial District Court, Clark County;
Thomas J. O'Donnell, Judge.
Action was brought to recover on promissory notes, to recover for goods and services
rendered and to recover damages for breach of contract for sale of cemetery lots. The district
court dismissed all claims, except portion of claim for goods and services pertaining to
deferred commissions, and plaintiff appealed.
district court dismissed all claims, except portion of claim for goods and services pertaining
to deferred commissions, and plaintiff appealed. The Supreme Court held that affidavit
signed by defendant's president did not toll six-year statute of limitations in regard to claim
for recovery on promissory notes, that alleged account stated prepared by plaintiff did not
toll four-year statute of limitations in regard to claim for goods and services rendered and that
contract was unenforceable where it had no definite, specified and complete date of
termination.
Affirmed.
Galane & Tingey, Las Vegas, for Appellant.
R. L. Gilbert and Johnson & Pilkington, Las Vegas, for Respondent.
Affidavit signed by defendant's president did not toll six-year statute of limitations in regard to plaintiff's
claim for recovery on promissory notes where affidavit did not directly, distinctly and unqualifiedly admit
nor manifest any willingness or intent to pay the debt. NRS 11.190, 11.390.
Alleged account stated prepared by plaintiff did not toll four-year statute of limitations in regard to his
claim for goods and services rendered to defendant, in absence of any indication of any express or implied
agreement regarding the obligation or the amount thereof. NRS 11.190.
3. Brokers.
Exclusive listing contract for sale of cemetery lots was unenforceable where it had no definite, specified
and complete date of termination. NRS 645.320.
OPINION
Per Curiam:
Appellant sought recovery for promissory notes due and owing, goods and services
rendered, and damages for breach of contract. Upon proper motions, the district court
dismissed all three claims, except that portion of appellant's claim for goods and services
pertaining to deferred commissions. Appellant here contends those dismissals were in error.
We disagree.
[Headnote 1]
1. Appellant contends it was error to dismiss his claim based upon seven promissory notes
because those notes were not barred by the six-year statute of limitations prescribed by
NRS 11.190.1 Appellant argues that statute was tolled, pursuant to NRS 11.390, by an
acknowledgment in the form of an affidavit signed by respondent's president.2 However,
the affidavit neither directly, distinctly and unqualifiedly admits nor manifests any
willingness or intent to pay the debt, and thus is insufficient to satisfy the mandate of
NRS 11.390.
not barred by the six-year statute of limitations prescribed by NRS 11.190.
1
Appellant argues
that statute was tolled, pursuant to NRS 11.390, by an acknowledgment in the form of an
affidavit signed by respondent's president.
2
However, the affidavit neither directly, distinctly
and unqualifiedly admits nor manifests any willingness or intent to pay the debt, and thus is
insufficient to satisfy the mandate of NRS 11.390. See: Western Coal Mining Co. v. Jones,
167 P.2d 719 (Cal. 1946).
[Headnote 2]
2. Appellant next contends his claim for goods and services rendered was not barred by
the four-year statute of limitations of NRS 11.190, because that limitation was tolled by an
alleged account stated prepared by appellant. We have previously held that the genesis of
an account stated is the express or implied agreement of the parties concerning the amount of
the account. Old West Enterprises, Inc. v. Reno Escrow Company, 86 Nev. 727, 476 P.2d 1
(1970). Here, appellant purportedly submitted a document entitled Statement of Account to
respondent demanding reimbursement for goods and services rendered, and no agreement,
express or implied, regarding the obligation, nor the amount thereof, is apparent to us from
the record. Thus, except for the deferred commissions, appellant's claim is barred by the
four-year statute of limitations.
____________________

1
NRS 11.190 provides in pertinent part:
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.

2
No acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take
the case out of the operation of this chapter, unless the same be contained in some writing signed by the party to
be charged thereby, except as provided in NRS 11.200.
[Headnote 3]
3. Finally appellant contends respondent breached a written contract entered into by the
parties. That contract was an exclusive listing contract for the sale of cemetery lots and, as
such, fell within the purview of NRS 645.320.
3
However, the contract, having no definite,
specified and complete date of termination, fails to satisfy the requirements of NRS 645.320,
and thus is unenforceable. Bangle v. Holland Realty Inv. Co., 80 Nev. 331, 393 P.2d 138
(1964).
Affirmed.
____________________

3
Every exclusive listing shall:
1. Be in writing.
2. Have set forth in its terms a definite, specified and complete termination.
3. Contain no provision requiring the person signing such listing to notify the real estate broker of his
intention to cancel the exclusive features of such listing after such expiration date.
4. Be signed by both the listing property owner or his duly authorized representative and the listing agent or
his duly authorized representative in order to be enforcible.
____________
92 Nev. 529, 529 (1976) LoBue v. State ex rel. Dep't Hwys.
MARY LoBUE, an Unmarried Woman, Owner as Sole and Separate Property, Appellant, v.
THE STATE OF NEVADA, on Relation of Its Department of Highways, Respondent.
No. 8087
September 17, 1976 554 P.2d 258
Appeal from judgment entered in the Eighth Judicial District Court, Clark County;
The Supreme Court, Batjer, J., held that where it was clear from two prior opinions of the
Supreme Court in the case that only question to be decided on remand was amount of
damages, if any, owed to counterclaimant by State, and that cause had been remanded for but
a single purpose, under doctrine of law of case district court erred in permitting jury to decide
whether a contract had been entered into between plaintiff and county and whether it had
been breached.
Cooper & Nelsen; Foley Brothers, Las Vegas, for Appellant.
Robert List, Attorney General; Melvin L. Beauchamp, Deputy Attorney General, Carson
Where appellate court deciding an appeal states a principal or rule of law, necessary to the decision, the
principle or rule of law becomes law of case and must be adhered to throughout its subsequent progress
both in the lower court and upon subsequent appeal.
Where it was clear from two prior opinions of Supreme Court in case that only question to be decided on
remand was amount of damages, if any, owed to counterclaimant by State and cause had been remanded for
but a single purpose, under doctrine of law of case, district court erred in permitting jury to decide whether
contract had been entered into between counterclaimant and county and whether it had been breached.
OPINION
This matter has been before this court on two previous occasions, State ex rel. Dep't of
Highways v. LoBue, 83 Nev., 221, 427 P.2d 639 (1967) and LoBue v. State ex rel. Dep't of
Highways, 87 Nev. 372, 487 P.2d 506 (1971). The facts have been exhaustively set forth in
our earlier opinions and need not be repeated.
In October, 1967, after our remand in State ex rel. Dep't of Highways v. LoBue, supra,
Mary LoBue filed her amended counterclaim against the State of Nevada seeking to recover
alleged damages resulting from Clark County's failure to construct certain roads. In that case
the State was granted summary judgment which we reversed and again remanded for a trial
on the question of damages, if any, for breach of contract.
The district court, relying on Hall v. Superior Court, 289 P.2d 431 (Cal. 1955); Glassell v.
Hansen, 87 P. 200 (Cal. 1906); Bate v. Marsteller, 43 Cal.Rptr. 149 (Cal.App. 1965);
Weightman v. Hadley, 292 P.2d 909 (Cal.App. 1956); took the position that our opinion in
State ex rel. Dep't of Highways v. LoBue, supra, mandated the placing of the parties in the
same position as if the case had never been tried and as a result entered a pretrial order
determining (1) that it was necessary for LoBue to prove the contract, its terms, and purported
breach; (2) that the measure of damages would be the value of the benefit expected less the
value of the benefit actually received; and {3) that under the rule of judicial estoppel
LoBue was estopped by the prior condemnation action judgment from asserting she did
not receive frontage and access to Tropicana Avenue and Industrial Road and the corner
at the intersection of these streets since she claimed she lost such frontage in the prior
trial.
value of the benefit expected less the value of the benefit actually received; and (3) that under
the rule of judicial estoppel LoBue was estopped by the prior condemnation action judgment
from asserting she did not receive frontage and access to Tropicana Avenue and Industrial
Road and the corner at the intersection of these streets since she claimed she lost such
frontage in the prior trial.
As a result of the pretrial order the question of the existence of a contract and whether it
had been breached was submitted to the jury. In answer to certain interrogatories the jury
returned a verdict finding no contract between LoBue and Clark County. The jury never
reached the question of damages.
Appellant now contends that the district court not only erred in its pretrial ruling but also
erred by failing to allow one of appellant's witnesses to testify regarding comparable sales.
We agree that the district court erred in submitting the issue of the existence of a contract and
the question of its breach to the jury. However, because the jury never reached the question of
damages appellant was not prejudiced by the district court's refusal to allow testimony
regarding comparable sales. Way v. Hayes, 89 Nev. 375, 513 P.2d 1222 (1973).
The only issue requiring consideration is the effect of the opinions of this court filed in the
two previous appeals. In State ex rel. Dep't of Highways v. LoBue, supra, at 223-226, we
reversed and held: The disputed parcel (3.80 acres) is removed from this litigation and the
State's title thereto confirmed.
. . .
The consideration for that conveyance failed. Clark County did not construct the roads.
That failure, however, was not accompanied by fraud or bad faith on the part of the County.
The County acted in good faith in making its representations. . . .
. . .
. . . The grantor's remedy when the bargained for consideration fails and a reason for
equitable relief is not present, is an action at law for damages.
. . .
We conclude that, in these circumstances, the grantor's (LoBue) remedy for the failure of
Clark County to construct the roads is an action at law for damages; not a suit in equity to
cancel the deed. The reason for withholding equitable relief is the need for preserving the
finality of a deed and the integrity of title to real property. This can best be accomplished by
limiting the grantor to the remedy of damages.
limiting the grantor to the remedy of damages. We express no opinion on the point of
damages. . . .
Although the California cases relied upon by the district court applied the general rule that
an unqualified reversal by an appellate court remands the case for a new trial and sets at large
for readjudication all issues involved, those cases are inapposite because the reversal by this
court of State ex rel. Dep't of Highways v. LoBue, supra, was clearly with sufficient direction.
Furthermore, the district court neglected to follow, so far as applicable, our previous opinions
in this case and thus failed to heed the exception announced in Hall v. Superior Court, supra.
[Headnote 1]
Cases are legion in the various jurisdictions holding that where an appellate court deciding
an appeal states a principal or rule of law, necessary to the decision, the principal or rule
becomes the law of the case and must be adhered to throughout its subsequent progress both
in the lower court and upon subsequent appeal.
The law of the first appeal is the law of the case on all subsequent appeals in which the
facts are substantially the same. Walker v. State, 85 Nev. 337, 343, 455 P.2d 34, 38 (1969);
State v. Loveless, 62 Nev. 312, 315, 150 P.2d 1015, 1016 (1944). Cf. Wright v. Carson Water
Co., 22 Nev. 304, 39 P. 872 (1895).
Where a judgment is reversed by an appellate court, the judgment of that court is final
upon all questions decided and those questions are no longer open to consideration. The
Court to which the cause is remanded can take only such proceedings as conform to the
judgment of the appellate tribunal.Schulenburg v. Signatrol, Inc., 226 N.E.2d 624, 628 (Ill.
1967); Thomas v. Durchslag, 102 N.E.2d 114, 115 (Ill. 1951). Cf. VanDiest v. VanDiest, 72
Cal. Rptr. 304 (Cal.App. 1968); Shell v. Schmidt, 330 P.2d 817 (Cal.App. 1958).
[Headnote 2]
Upon reading our opinions in State ex rel. Dep't of Highways v. LoBue, supra, and LoBue
v. State ex rel. Dep't of Highways, supra, it is abundantly clear that the only question to be
decided on remand was the amount of damages, if any, owed to LoBue by the State. The
cause was remanded for but a single purpose. Under the doctrine of the law of the case the
district court erred in permitting the jury to decide whether a contract had been entered into
between LoBue and Clark County and whether it had been breached.
This case is again reversed and remanded for further proceedings not inconsistent with this
opinion for the sole and single purpose of determining what damages, if any, are owed to
Mary LoBue by the State of Nevada.
We do not reach any of the other assignments of error.
____________
92 Nev. 533, 533 (1976) Burns v. Sheriff
OSCAR THOMAS BURNS, Jr., Appellant, v. SHERIFF,
No. 9033
September 17, 1976 554 P.2d 257
Appeal from order denying pretrial petition for wit of habeas corpus, Eighth Judicial
Accused petitioned for habeas corpus to avoid trial on a charge of felonious possession of
cocaine. The district court denied relief and accused appealed. The Supreme Court held that
the validity of a search and seizure had to be challenged by timely filed motion to suppress,
not by habeas corpus; that the evidence regarding the chain of custody of the cocaine was
sufficient to establish probable cause; and that possession of cocaine was prohibited by
Nevada law.
Affirmed.
John F. O'Reilly, Las Vegas, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and Jerry
McGimsey, Deputy, Clark County, for Respondent.
1. Habeas Corpus.
Validity of search and seizure had to be challenged by timely filed motion to suppress, not by habeas
corpus.
2. Criminal Law.
Evidence regarding chain of custody of cocaine was sufficient to establish probable cause to try
defendant on charge of felonious possession of controlled substance. NRS 171.206, 453.171,
453.336.
3. Criminal Law.
To establish chain of custody and competent identification of evidence, there must be reasonable showing
that substitution, alteration, or tampering of evidence did not occur; and that offered evidence is the same,
or reasonably similar to substance seized.
Possession of cocaine is prohibited by law. NRS 453.171, subd. 2(d).
OPINION
Per Curiam:
Oscar Thomas Burns, Jr., was charged with, and ordered to stand trial for, the felonious
possession of a controlled substance (cocaine) in violation of NRS 453.336 and NRS
453.171. In an effort to avoid trial, Burns petitioned for habeas corpus contending (1) the
contraband was seized during an invalid search; (2) the prosecution failed to present
sufficient evidence at the preliminary examination to meet the probable cause test delineated
in NRS 171.206; and, (3) possession of cocaine is not prohibited by Nevada law.
The district judge denied habeas and the same contentions are reurged in this appeal.
[Headnote 1]
1. The court has frequently and consistently held the validity of a search and seizure must
be challenged by a timely filed motion to suppress, not by habeas. See Cook v. State, 85 Nev.
692, 462 P.2d 523 (1969), and its progeny.
[Headnote 2]
2. The thrust of Burns' challenge to the sufficiency of the evidence is directed to the proof
adduced regarding chain of custody of the cocaine.
The arresting officer testified he placed the seized bottle (of what later proved to be
cocaine) in an envelope which he sealed, initialed and placed in the North Las Vegas Police
Department evidence vault. The chemist testified she obtained the sealed and initialed
envelope from the evidence vault and after breaking the seal, performed various tests on the
contents of the bottle, which confirmed the substance was cocaine. Thereafter, she returned
the bottle to the envelope which was resealed, initialed and placed in the evidence vault
where it remained until it was removed by the arresting officer and brought to court. The
chemist testified it was then in the same condition it had been when she had placed it in the
vault, after testing.
[Headnote 3]
To establish chain of custody and competent identification of evidence Nevada law
requires (1) reasonable showing that substitution, alteration or tampering of the evidence
did not occur; and, {2) the offered evidence is the same, or reasonably similar to the
substance seized.
substitution, alteration or tampering of the evidence did not occur; and, (2) the offered
evidence is the same, or reasonably similar to the substance seized. Carter v. State, 84 Nev.
592, 446 P.2d 165 (1968); Eisentrager v. State, 79 Nev. 38, 378 P.2d 526 (1963). The
testimony of the arresting officer and the chemist was sufficient to sustain the district judge's
conclusion that the state had met the requirements listed.
[Headnote 4]
3. Burns' contention that possession of cocaine is not prohibited by Nevada law is patently
frivolous. NRS 453.171(2)(d).
Affirmed.
____________
92 Nev. 535, 535 (1976) Stevenson v. Sheriff
RUFUS DUANE STEVENSON, Appellant, v. SHERIFF,
No. 9070
September 17, 1976 554 P.2d 255
Appeal from order denying petition for habeas corpus, Eighth Judicial District Court,
Clark County; Michael J. Wendell, Judge.
The defendant who was charged with felonious possession of a controlled substance
petitioned for writ of habeas corpus asserting that the charges should be dismissed because
preliminary examination was not scheduled within the fifteen (15)-day statutory period. The
district court entered a judgment denying habeas corpus and appeal was taken. The Supreme
Court held that where record established that the reason for setting the preliminary hearing
beyond the statutory period was the over-crowded condition of court, the magistrate could in
the first instance set the preliminary examination beyond the statutory period.
Affirmed.
Morgan D. Harris, Public Defender, and Joseph W. Houston, Deputy, Clark County, for
Appellant.
Rimantas A. Rukstele, Deputy, Clark County, for Respondent.
92 Nev. 535, 536 (1976) Stevenson v. Sheriff
Criminal Law.
Magistrate could properly, in the first instance, set the preliminary examination beyond the statutory
fifteen (15)-day period where record established that the reason for doing so was the overcrowded
condition of court's calendar. NRS 171.196, subd. 2, 453.161, 453.336.
OPINION
Per Curiam:
Charged with the felonious possession of a controlled substance (heroin), in violation of
NRS 453.336 and NRS 453.161, Rufus Duane Stevenson petitioned for habeas corpus.
Stevenson argued the charges should be dismissed because his preliminary examination was
not scheduled within the fifteen (15)-day period prescribed by NRS 171.196(2). The
magistrate had scheduled the preliminary examination nineteen (19) days after Stevenson's
initial appearance in the justice court.
The district judge denied habeas and in this appeal the same contention is reurged. We
extend the decision in Shelton v. Lamb, 85 Nev. 618, 460 P.2d 156 (1969), and now hold a
magistrate may, in the first instance, set a preliminary examination beyond the statutory
fifteen (15)-day period, when the record establishes, as it does here, that the reason for so
doing is the overcrowded condition of the court's calendar.
Affirmed.
____________
92 Nev. 536, 536 (1976) Hunt v. State
ROXANNE HUNT, Appellant, v. THE STATE
No. 8971
September 17, 1976 554 P.2d 255
Defendant was convicted in district court of grand larceny, and she appealed. The Supreme
Court held that substantial evidence supported defendant's conviction.
Affirmed.
92 Nev. 536, 537 (1976) Hunt v. State
Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy, Clark County, for
Appellant.
Howard C. Jones, Deputy, Clark County, for Respondent.
Larceny.
Substantial evidence supported defendant's conviction of grand larceny. NRS 205.220.
OPINION
Per Curiam:
At the conclusion of a bench trial Roxanne Hunt was adjudged guilty of the crime of grand
larceny, a felony under NRS 205.220. After receiving a four (4) year sentence, which was
suspended, and being placed on probation for three (3) years, she perfected this appeal
contending the evidence was insufficient to sustain the conviction.
Whether the trier of fact in a criminal case is a juryor a judge, as herethe sufficiency
of the evidence test is the same.
The test . . . for sufficiency upon appellate review is not whether this court is convinced
of the guilt of the defendant beyond a reasonable doubt, but whether this court can conclude
the trier of facts could, acting reasonably, be convinced to the degree of certitude by the
evidence which it had a right to believe and accept as true. Crowe v. State, 84 Nev. 358, 366,
441 P.2d 90, 95 (1968). Cf. Sanders v. State, 90 Nev. 433, 529 P.2d 206 (1974).
That the evidence is insufficient to warrant the judgment cannot be maintained, as there is
substantial testimony for its support. In fact, the case seems to have been fairly tried and
properly decided, both in fact and law. Blackie v. Cooney, 8 Nev. 41, 49 (1872).
Accordingly, we affirm.
____________
92 Nev. 538, 538 (1976) Kitzman v. Bank of Nevada
J. ANDREW KITZMAN, Appellant, v. BANK OF NEVADA,
a Nevada Banking Corporation, Respondent.
No. 8261
September 17, 1976 554 P.2d 262
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
The Supreme Court held that where defendant who suggested no legal reason why he was
unable, as he claimed, to conduct adequate discovery or otherwise offer a defense and cited
no relevant authority in support of his novel claim, grant of summary judgment would not be
disturbed.
Affirmed.
Vargas, Bartlett & Dixon, and Edward H. Tricker, Las Vegas, for Appellant.
Smith & O'Brien, Las Vegas, for Respondent.
Appeal and Error.
Where defendant, claiming inability to conduct adequate discovery to ferret out sufficient facts to support
affirmative defenses in his answer, failed to suggest any legal reason why he was unable to conduct
discovery or otherwise offer a defense and had not cited any relevant authority in support of his novel
claim, Supreme Court declined to disturb trial court's grant of summary judgment to plaintiff. NRCP 56.
OPINION
Per Curiam:
In this appeal from an order granting summary judgment, J. Andrew Kitzman contends
summary disposition under NRCP 56 was inappropriate. He argued we should reverse
because of his inability to conduct adequate discovery to ferret out sufficient facts to support
affirmative defenses set forth in his answer. He does not suggest any legal reason why he was
unable to conduct discovery, or otherwise offer a defense. Neither has he cited relevant
authority in support of his novel claim.
It is sufficient to note that in analogous situations this court has consistently declined to
disturb the trial court's judgment.
92 Nev. 538, 539 (1976) Kitzman v. Bank of Nevada
See, for example, Lindauer v. Allen, 85 Nev. 430, 433, 456 P.2d 851, 853 (1969), and its
progeny.
Affirmed.
____________
92 Nev. 539, 539 Benavidez v. Benavidez
DAVID BENAVIDEZ, Appellant, v. HOLLACE
BENAVIDEZ, Respondent.
No. 8239
September 17, 1976 554 P.2d 256
Appeal from judgment, Eighth Judicial District Court, Clark County; Thomas J.
O'Donnell, Judge.
Action was brought seeking dissolution of marriage. The district court dissolved marriage
and distributed property acquired during coverture and prior thereto while the parties were
co-habiting and pooling their resources, and appeal was taken from the property distribution.
The Supreme Court held that where property division was based on statutory guidelines and
there was no showing of abuse of discretion, reviewing court would not interfere.
Affirmed
L. Earl Hawley, of Las Vegas, for Appellant.
Muriel D. Gund, of Las Vegas, for Respondent.
Divorce.
Where property distribution made on dissolution of marriage was properly based on statutory guidelines
and there was no showing of abuse of discretion, reviewing court would not interfere therewith. NRS
125.150.
OPINION
Per Curiam:
The district court entered judgment dissolving the parties' marriage and distributing
various real and personal properties which had been acquired during the marriage and prior to
the marriage while the parties were co-habiting and pooling their resources. The appeal is
taken only from the property distribution and it is contended the division was based on
unequal and improper legal theories and was unsupported by the evidence.
92 Nev. 539, 540 Benavidez v. Benavidez
We have reviewed the evidence and pleadings in the case and find appellant's contentions
to be devoid of merit. The division of the property was properly based upon the guidelines
specified in NRS 125.150;
1
therefore, perceiving no abuse of discretion, we affirm. See
Jolley v. Jolley, 92 Nev. 298, 549 P.2d 1407 (1976), and cases cited therein.
____________________

1
The applicable portion of NRS 125.150 reads:
1. In granting a divorce, the court . . . shall make such disposition of the community property of the parties,
as appears just and equitable, . . .
. . .
3. The court may also set apart such portion of the husband's property for the wife's support, or the wife's
property for the husband's support if he is disabled or unable to provide for himself, . . .
____________
92 Nev. 540, 540 (1976) State of Nevada v. Nevada Power Co.
THE STATE OF NEVADA; THE NEVADA TAX COMMISSION; THE COUNTY OF
CLARK, a Political Subdivision of the STATE OF NEVADA; and W. W. GALLOWAY,
Treasurer and Ex-Officio Tax Receiver of the County of Clark, Appellants, v. NEVADA
POWER COMPANY, a Corporation, Respondent.
No. 7860
September 21, 1976 554 P.2d 261
Judge.
Electric light and power utility company brought action against State, State Tax
Commission, county, and county treasurer to recover overassessments of property taxes by
county. The district court ruled in favor of utility and defendants appealed. The Supreme
Court held that statute authorized valuation of utility's property by apportionment of that
value on a mileage basis to different counties and taxing districts, and that such method of
apportionment was not discriminatory, unequal, or non-uniform.
Reversed.
Robert List, Attorney General, and James D. Salo, Deputy Attorney General, Carson City,
for Appellants State of Nevada and Nevada Tax Commission.
George E. Holt, District Attorney, and D. Francis Horsey, Deputy District Attorney, Las
Vegas, for Appellants County of Clark and W. W. Galloway.
M. Gene Matteucci, Esq., V. Gray Gubler, Esq., and John G. Gubler, Esq., Las Vegas, for
Respondent.
1. Taxation.
Tax Commission was authorized by statute to value electric light and power utility company's property as
a collective unit, determine its total mileage operated within the state and counties thereof, and apportion
the collective valuation to the counties upon a mile-unit valuation basis; the county is authorized to further
apportion its assigned valuation among its various taxing districts on a mileage basis. NRS 361.320,
subd. 2.
2. Taxation.
Statutory apportionment plan under which Tax Commission values electric light and power utility
company's property as a collective unit, determines its total mileage operated within the state and counties
thereof, and apportions the collective valuation to counties upon a mile-unit valuation basis, and under
which plan the county is authorized to further apportion its assigned valuation among its various taxing
districts on a mileage basis, is not discriminatory, unequal or non-uniform. NRS 361.320, subd. 2.
OPINION
Per Curiam:
Respondent, an electric light and power utility company, brought action against appellants
to recover over-assessments of property taxes by Clark County. Respondent contended that
the alleged over-assessments resulted from the unauthorized intra-county apportionment,
based on a wire-mile formula, of the unit valuation of its property apportioned to Clark
County by the Nevada Tax Commission pursuant to NRS 361.320(2).
1
The district court
held that NRS 361.320(2) did not authorize such intra-county apportionment and ruled in
respondent's favor.
____________________

1
2. Except as otherwise provided in subsections 3 and 4, the foregoing shall be assessed as follows: The
Nevada tax commission shall establish and fix the valuation of the franchise, if any, and all physical property
used directly in the operation of any such business of any such company in this state, as a collective unit; and if
operating in more than one county, on establishing such unit valuation for the collective property, the Nevada tax
commission shall then proceed to determine the total aggregate mileage operated within the state and within the
several counties thereof, and apportion the same upon a mile-unit valuation basis, and the number of miles so
apportioned to any county shall be subject to assessment in that county according to the mile-unit valuation so
established by the Nevada tax commission. (Emphasis added.)
such intra-county apportionment and ruled in respondent's favor. Appellants here contend that
(1) NRS 361.320(2) does authorize the valuation of respondent's property and the
apportionment of that value on a mileage basis to the different counties and taxing districts
therein through which respondent's wires run, and (2) such a method of apportionment is not
discriminatory, unequal, or non-uniform. We agree.
[Headnote 1]
1. It is undisputed that NRS 361.320(2) authorizes the Nevada Tax Commission to value
respondent's property as a collective unit, determine respondent's total mileage operated
within the state and counties thereof, and apportion the collective valuation to the counties
upon a mile-unit valuation basis. However, respondent contends that the county is not
authorized to further apportion its assigned valuation among its various taxing districts on a
mileage basis. NRS 361.320(2) expressly states the contrary and instead provides: the
number of miles so apportioned to any county shall be subject to assessment in that county
according to the mile-unit valuation so established by the Nevada Tax Commission.
[Headnote 2]
2. Respondent's claim that the apportionment plan envisioned by NRS 361.320(2) is
discriminatory, unequal, and non-uniform is without merit. Plans similar to that of NRS
361.320(2) have been warmly commended as best calculated to achieve equality, uniformity,
and fairness in the valuation of a utility's property. See: Yellowstone Pipe Line Co. v. State
Bd. of Equalization, 358 P.2d 55 (Mont. 1960); State v. Back, 100 N.W. 952 (Neb. 1904);
Ames v. People, 56 P. 656 (Colo. 1899). Indeed, as the Supreme Court stated in State
Railroad Tax Cases, 92 U.S. 575 at 608 (1875): It may well be doubted whether any better
mode of determining the value of that portion . . . within any one county has been devised
than to ascertain the value of the whole . . . and apportion the value within the county by its
relative length to the whole. (Emphasis added.)
Reversed.
____________
NARVELL WILLIAMS, Appellant, v. SHERIFF,
CARSON CITY, NEVADA, Respondent.
No. 9057
September 30, 1976 554 P.2d 732
District Court, Carson City, Frank B. Gregory, Judge.
At conclusion of preliminary examination, defendant was ordered to stand trial for grand
larceny whereupon she filed pretrial petition for writ of habeas corpus contending evidence
adduced by prosecuting attorney did not establish probable cause that she had committed
charged offense. The district court denied habeas, and defendant appealed. The Supreme
Court held that defendant was entitled to writ as record was barren of any evidence
connecting defendant to charged crime.
Kenneth J. Jordan, Carson City, for Appellant.
Robert List, Attorney General; Michael E. Fondi, District Attorney, and Louis R.
Doescher, Deputy, Carson City, for Respondent.
Habeas Corpus.
Defendant who had been ordered to stand trial for grand larceny after preliminary examination was
entitled to writ of habeas corpus as record was totally barren of any evidence connecting defendant to
charged crime. NRS 171.206, 205.220.
OPINION
Per Curiam:
At the conclusion of a preliminary examination Narvell Williams was ordered to stand
trial for grand larceny, a felony under NRS 205.220. Williams then filed a pretrial petition for
a writ of habeas corpus contending the evidence adduced by the prosecuting attorney did not
establish probable cause that she had committed the charged offense.
The district court denied habeas and in this appeal Williams reurges the same contention.
NRS 171.206 provides, in part: 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; . . ."
committed it, the magistrate shall forthwith hold him to answer in the district court; . . . [Our
emphasis.]
Even if we assume the evidence presented by the prosecuting attorney establishes probable
cause that the crime of grand larceny had, in fact, been committed, the record is totally barren
of any evidence connecting the defendant to the charged crime.
Accordingly, we reverse and remand this case to the district court with instructions to
grant the petition for a writ of habeas corpus. In the event the state has evidence that Narvell
Williams committed a crime, it may institute new charges within fifteen (15) days after
remittitur issues.
____________
92 Nev. 544, 544 (1976) Morgan v. Sheriff
EARL MORGAN, Appellant, v. SHERIFF, CLARK
No. 8918
September 30, 1976 554 P.2d 733
Appeal from order denying petition for writ of habeas corpus, Eighth Judicial District
Court, Clark County; James A. Brennan, Judge.
Complaints were dismissed by a magistrate for unnecessary delay in bringing defendant
before a magistrate following arrest. On appeal to the district court there was a reversal and
remand to the justice court for preliminary examination. Habeas corpus relief was then denied
and defendant appealed. The Supreme Court held that any reasonable delay in bringing
defendant before a magistrate after arrest must not be intended to allow for extraction of a
confession from defendant, but where there was no confession, incriminating statements or
interrogation occuring during delay, defendant's rights were not violated.
Affirmed.
Edwin J. Dotson and J. E. Smith, Las Vegas, for Appellant.
J. Cremen, Deputy District Attorney, Clark County, for Respondent.
1. Arrest.
Purpose behind requirement that arrested person be brought before magistrate without unnecessary delay
after his arrest is to check resorts to those reprehensible practices known as "third
degree" which still find their way into use; such requirement aims to avoid all evil
implications of secret interrogation of persons accused of crime.
check resorts to those reprehensible practices known as third degree which still find their way into use;
such requirement aims to avoid all evil implications of secret interrogation of persons accused of crime.
NRS 171.178, subd. 1.
2. Arrest.
Any reasonable delay in bringing defendant before magistrate after arrest must not be intended to allow
for extraction of confession from defendant, but where there was no confession, incriminating statements or
interrogation occurring during delay, defendant's rights were not violated. NRS 171.178, subd. 1; Fed.
Rules Crim.Proc. Rule 40(a), 18 U.S.C.A.
OPINION
Per Curiam:
About seven p.m. on the evening of September 23, 1975, Las Vegas police officers were
dispatched to Earl Morgan's residence to execute a search warrant. Finding no one at the
house, the officers maintained a vigil for some fifteen (15) minutes until Morgan returned.
The officers immediately served the warrant and during the ensuing search they seized a
substantial amount of stolen property, and what appeared to be a controlled substance
(marijuana). Morgan was promptly arrested and incarcerated. The following day he moved
for a reduction of bail, which had been set at $75,000. On September 25, 1975, the magistrate
reduced bail to $25,000.
A two (2) count criminal complaint was filed against Morgan September 29, 1975, four (4)
judicial days after his arrest; however, his appearance before the magistrate was continued
until the following day because of the absence of Morgan's counsel. The next day, September
30, 1975, Morgan appeared before the magistrate and the state filed two additional criminal
complaints, one charging five counts of possession of stolen property; the other, possession of
a controlled substance. After that appearance Morgan was released on his own recognizance
and, on October 6, 1975, the magistrate granted a motion to dismiss the three complaints
because Morgan had not been brought before a magistrate without unnecessary delay, as
contemplated by NRS 171.178(1).
The state appealed to the district court which reversed and remanded the proceedings to
the justice court for preliminary examination. Morgan then sought, and was denied, habeas
relief and in this appeal his sole contention is that the delay occasioned by the state proscribes
prosecution and compels us to reverse.
[Headnote 1]
Although Morgan argues the delay was prejudicial, the record does not support his
undocumented conclusion. NRS 171.178(1) provides that an arrested person shall be brought
before a magistrate without unnecessary delay after his arrest. The purpose behind this
procedural requirement is to check resort to those reprehensible practices known as the
third degree' which, though universally rejected as indefensible, still find their way into use.
It aims to avoid all the evil implications of secret interrogation of persons accused of crime.
McNabb v. United States, 318 U.S. 332, 344 (1943).
[Headnote 2]
In the federal courts, the requirement that the arrested person be brought before the nearest
available federal magistrate without unnecessary delay (Fed. R.Crim.P. 40(a)) has been held
not to require mechanical or automatic obedience. Mallory v. United States, 354 U.S. 449,
455 (1957). But any reasonable delay must not be intended to allow for the extraction of a
confession from the defendant. Id. at 455. The rule is invoked for the protection of a
defendant who may be prejudiced by the delay, and when there is no confession,
incriminating statements or interrogation occurring during the delay, the defendant's rights are
not violated. United States v. Bandy, 421 F.2d 646 (8th Cir. 1970). Cf. Tellis v. Sheriff, 85
Nev. 557, 459 P.2d 364 (1969); Brown v. Justice's Court, 83 Nev. 272, 428 P.2d 376 (1967).
Affirmed.
____________
92 Nev. 546, 546 (1976) St. Pierre v. State
LOUIS O. ST. PIERRE, Appellant, v. THE
No. 8365
September 30, 1976 554 P.2d 1126
Appeal from conviction of second degree murder, Second Judicial District Court, Washoe
The Supreme Court held that instruction that burden of proving circumstances which
justify or excuse killing of another is upon defendant, but defendant need not prove such
circumstances beyond reasonable doubt, did not violate due process.
circumstances beyond reasonable doubt, did not violate due process.
Affirmed.
[Rehearing denied November 8, 1976]
David Hamilton, Reno, and Simon & Sheridan, Los Angeles, Calif., for Appellant.
Robert List, Attorney General, Carson City, Larry Hicks, District Attorney, and Kathleen
M. Wall, Deputy District Attorney, Washoe County, for Respondent.
In homicide case, instruction that burden of proving circumstances which justify or excuse killing of
another is upon defendant, but defendant need not prove such circumstances beyond reasonable doubt, did
not deny due process to defendant.
2. Criminal Law.
If defendant desired court to give a more particular instruction as to self-defense, it was incumbent on
him to prepare such instruction and request court to give it.
3. Criminal Law.
Without trial transcript before it, Supreme Court could not determine whether lack of particular
instruction was prejudicial.
OPINION
Per Curiam:
[Headnote 1]
Appellant stands convicted by jury of second degree murder. At the conclusion of trial,
before defining the defense of self-defense, the court instructed: The burden of proving
circumstances which justify or excuse the killing of another is upon the defendant, but the
defendant need not prove such circumstances beyond a reasonable doubt. Appellant
contends that, in light of Mullaney v. Wilbur, 421 U.S. 684 (1975), this instruction violates
due process by placing the burden on him to prove he acted in self-defense. We disagree.
According to Mullaney, it violates the due process requirement that the prosecution must
prove every element of the crime charged beyond a reasonable doubt, for a state to compel a
defendant to prove, by a preponderance of the evidence, that he acted in the heat of passion
on sudden provocation, and thus was guilty of manslaughter rather than murder. However,
Mullaney dealt with implied malice, and "[n]owhere in Mullaney did the Court hold that
requiring a defendant to prove self-defense affirmatively, denies him due process."
Mullaney dealt with implied malice, and [n]owhere in Mullaney did the Court hold that
requiring a defendant to prove self-defense affirmatively, denies him due process. State v.
Bolton, 223 S.E.2d 863, 866 (S.C. 1976). At this point in time, without further guidance, we
decline to extend the reasoning of Mullaney to the defense of self-defense.
[Headnotes 2, 3]
Even were we disposed to extend Mullaney to self-defense situations, the record here
would not warrant our doing so. On its face, the challenged instruction did not specify what
would occur if appellant undertook, as he did, to meet the burden of producing some evidence
on the issue of self-defense. It did not state whether, once appellant satisfied this burden of
going forward, the burden would then shift back to the State to prove its case beyond a
reasonable doubt. It is clear that Mullaney does not forbid an instruction placing the burden
on the defendant to produce some evidence on the issue. See: Mullaney v. Wilbur, cited
above at 701 n. 28. If appellant desired the court to give a more particular instruction, it was
incumbent on him to prepare such an instruction and request the court to give it. See: State v.
Lewis, 59 Nev. 262, 91 P.2d 820 (1939); State v. Hall, 54 Nev. 213, 13 P.2d 624 (1932);
State v. White, 52 Nev. 235, 285 P. 503 (1930). This was not done. Instead, the record
reflects that appellant neither objected to the given instruction, nor voiced any other concern
about the matter at trial. Moreover, with no trial transcript before us, we could not determine
whether lack of an instruction on the particular distinction now relied upon was in fact
prejudicial.
Affirmed.
____________
92 Nev. 548, 548 (1976) Engebregson v. Bank of Nevada
DARYL ENGEBREGSON, Appellant, v.
BANK OF NEVADA, Respondent.
Nos. 8330 and 8331
September 30, 1976 554 P.2d 1121
Appeals from summary judgments; Eighth Judicial District Court, Clark County; Carl J.
Christensen, Judge.
Bank brought action to recover on notes executed by defendant, and defendant filed
permissive counterclaims seeking more money than sought by plaintiff. The district court
rendered final summary judgments for plaintiff on plaintiff's claims, and defendant
appealed. The Supreme Court, Thompson, J., held that where defendant did not contest
his indebtedness on the notes but the bank denied liability on each counterclaim, it was
not abuse of discretion to enter final summary judgments for plaintiff on the uncontested
claims, notwithstanding that counterclaims remained pending.
claims, and defendant appealed. The Supreme Court, Thompson, J., held that where
defendant did not contest his indebtedness on the notes but the bank denied liability on each
counterclaim, it was not abuse of discretion to enter final summary judgments for plaintiff on
the uncontested claims, notwithstanding that counterclaims remained pending.
Affirmed.
Daryl Engebregson, of Las Vegas, for Appellant.
Smith & O'Brien, of Las Vegas, for Respondent.
Judgment.
Where defendant maker admitted liability on notes at issue but plaintiff bank denied liability on
defendant's permissive counterclaims, which sought more money than sought by the complaint, district
court acted in its discretion in entering final summary judgment for plaintiff on its claims, notwithstanding
that counterclaims remain pending. NRCP 13(b), 54-56, 54(b).
OPINION
These consolidated appeals present a single issue. May the district court enter final
summary judgments (NRCP 54NRCP 56) for plaintiff upon uncontested claims for relief
when there remains pending for adjudication the defendant's permissive counterclaims? We
hold that the entry of final summary judgments was within the discretionary authority of the
court and, therefore, affirm.
The Bank of Nevada filed separate actions upon promissory notes executed by
Engebregson. In each case Engebregson counterclaimed for more money than sought by the
complaint. In each instance the counterclaim did not arise out of the same transaction or
occurrence that was the subject of the complaint and was, therefore, permissive in character.
NRCP 13(b).
The district court entered final summary judgment for the Bank in each action by an
express determination that there was no just reason to delay the entry thereof. NRCP 54(b).
The refusal to delay entry of final judgment is, by Engebregson, claimed to be error since his
counterclaim in each case, if validly established, would defeat the Bank's claim for relief and
result in a money judgment for him. He does not contest his indebtedness upon the
promissory notes. The Bank denies liability upon each counterclaim.
We are not here concerned with a compulsory counterclaim arising out of the transaction
which was the subject matter of the Bank's claim for relief. Cf. Parmelee v. Chicago Eye
Shield Co., 157 F.2d 582 (8th Cir. 1946). Nor are we dealing with a case where liability for
the counterclaimed amount is admitted. Cf. Hunting Supply Corp. v. Febrey, 254 N.Y.S.2d
758 (App. Div. 1964). In the matter at hand, the opposing claims are unrelated. The
obligation of Engebregson to the Bank is admitted. The liability of Bank to Engebregson is
denied. In these circumstances the district court acted within permissible limits of its
discretion in directing entry of final judgments on the uncontested claims. Woods v. Whelan,
93 F.Supp. 401 (E.D. Pa. 1950); Manchester Memorial Hospital v. Whitney, 269 A.2d 300
(Cir.Ct. Conn. 1969).
Affirmed.
____________
92 Nev. 550, 550 (1976) Lamb v. Doe
RALPH LAMB, SHERIFF OF CLARK COUNTY, NEVADA, In His Official Capacity,
STATE OF NEVADA, and COUNTY OF CLARK, Appellants, v. JOHN DOE, On Behalf of
Himself and Every Other Person Similarly Situated in the Same or Similar Class,
Respondent.
No. 8956
September 30, 1976 554 P.2d 732
Appeal from judgment granting declaratory and injunctive relief; Eighth Judicial District
Court, Clark County; James Brennan, Judge.
Unidentified plaintiff brought action for himself and as a purported representative of an
undefined class of persons similarly situated against sheriff, county, and state seeking
injunctive and declaratory relief for the purpose of precluding enforcement of certain criminal
laws regarding bookmaking. The district court entered judgment for plaintiff and defendants
appealed and moved for stay of judgment pending appeal. The Supreme Court held that trial
court erred in entering judgment for plaintiffs, because it is not the court's business to render
advisory opinions for unknown persons who may or may not have a justiciable
controversy with named defendants.
92 Nev. 550, 551 (1976) Lamb v. Doe
to render advisory opinions for unknown persons who may or may not have a justiciable
controversy with named defendants.
Reversed and remanded with direction to dismiss action.
Robert List, Attorney General, Marcus H. Sloan and A. J. Hicks, Deputy Attorneys
General, for Appellant State of Nevada.
George E. Holt, District Attorney, and Thomas J. Moore, Deputy District Attorney, Clark
County, for Appellants Ralph Lamb and County of Clark.
R. Paul Sorenson and Kermitt L. Waters, of Las Vegas, for Respondent.
Constitutional Law; Declaratory Judgment.
Trial court erred in granting declaratory and injunctive relief in action brought by plaintiff whose identity
was unknown for himself and as purported representative of undefined class of persons similarly situated
for purpose of precluding enforcement against unidentified plaintiffs of certain criminal laws regarding
bookmaking; it is not the court's business to render advisory opinion for unknown persons who may or may
not have a justiciable controversy with named defendants.
OPINION
Per Curiam:
This action for declaratory and injunctive relief was commenced by John Doe, identity
unknown, for himself and as the purported representative of an undefined class of persons
similarly situated. Its purpose is to preclude the enforcement against the unidentified
plaintiffs of certain criminal laws regarding bookmaking. The district court granted plaintiffs
the relief requested, and this appeal followed.
The immediate matter before us for attention is the motion of the appellants for a stay of
the district court judgment pending appeal. Since we believe it to be clear that the district
court was in error in entering judgment for plaintiffs, we choose to dispose of this litigation
rather than to rule upon the interim motion for a stay order. Accordingly, we dismiss this
appeal and remand the matter to the district court with direction to dismiss the action below.
It is not the court's business to render advisory opinions for unknown persons who may or
may not have a justiciable controversy with named defendants.
____________
92 Nev. 552, 552 (1976) Scott v. State
ALBERT O'NEAL SCOTT, Appellant, v. THE
No. 8322
September 30, 1976 554 P.2d 735
Appeal from judgment of the Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge.
Defendant was convicted in the district court of first-degree murder and attempted murder,
and he appealed. The Supreme Court, Mowbray, J., held that evidence was sufficient to
support finding that defendant voluntarily waived his Fifth Amendment rights against
self-incrimination before giving police officers incriminating statements; that trial court
properly instructed jury that first-degree murder requires that premeditation and deliberation
precede act of killing and that time lapse need only be an instant; that trial judge did not abuse
his discretion in failing to give jury further instruction on question of premeditation after jury
foreman, during deliberation, suggested to judge that such an instruction might be helpful;
that jury was properly instructed not to find defendant guilty of a lesser degree of crime based
solely on a mitigating circumstance; that trial court did not commit reversible error in
admitting into evidence photograph of murder victim taken at morgue.
Affirmed.
George H. Spizzirri, Las Vegas, for Appellant.
Leon Simon, Chief Appellate Deputy, Clark County, for Respondent.
1. Criminal Law.
In prosecution for first-degree murder and attempted murder, State had to prove by a preponderance of
the evidence that defendant waived his Fifth Amendment rights against self-incrimination before making
incriminating statements to police officers.
2. Criminal Law.
In prosecution for first-degree murder and attempted murder, evidence was sufficient to support finding
that defendant voluntarily waived his Fifth Amendment rights against self-incrimination before giving
police officers incriminating statements.
3. Homicide.
First-degree murder requires that premeditation and deliberation precede the act of killing, but time lapse
need only be an instant.
92 Nev. 552, 553 (1976) Scott v. State
4. Criminal Law.
Trial judge has wide discretion in the manner and extent he answers a jury's questions during
deliberation; if he is of the opinion the instructions already given are adequate, correctly state the law and
fully advise the jury, his refusal to answer a question already answered in the instructions is not error.
5. Criminal Law.
In prosecution for first-degree murder and attempted murder, trial judge did not abuse his discretion in
failing to reinstruct jury on question of premeditation after jury foreman suggested to judge during
deliberations that it might be helpful if jury were further instructed on premeditation.
6. Homicide.
In prosecution for first-degree murder and attempted murder, trial court properly admonished jury not to
find defendant guilty of a lesser degree of crime based solely on a mitigating circumstance.
7. Criminal Law.
In prosecution for first-degree murder and attempted murder, trial court did not commit reversible error
in admitting into evidence photograph of murder victim taken at morgue, in view of fact that photograph
was admitted for purpose of identifying murder victim as the person upon whom State's witness performed
an autopsy.
8. Criminal Law.
Photographs that aid in the ascertainment of truth may be received in evidence, even though they may be
gruesome.
9. Criminal Law.
In prosecution for first-degree murder and attempted murder, trial court did not err in sustaining objection
to misstatement of law by defense counsel during his closing argument to the jury.
Where jury returned verdict of murder in the first degree, finding beyond a reasonable doubt that
defendant murdered victim deliberately, willfully, and with premeditation, express malice was conclusively
established, and thus implied malice rule, which was given in the form of a jury instruction, could not have
denied defendant his due process right of presumptive innocence. NRS 200.020, subd. 1.
OPINION
A jury found Albert O'Neal Scott guilty of first-degree murder and attempted murder. He
has appealed from his judgment of conviction, asserting numerous assignments of error,
which we reject as meritless. Accordingly, we affirm.
1. On the evening of October 13, 1974, Scott and a Mr. Ronnie Davis went to the Las
Vegas home of Miss Lynette Blake to buy narcotics. There, Scott met Miss Blake, her friend
Janice Crisp, and John Coleman.
92 Nev. 552, 554 (1976) Scott v. State
Janice Crisp, and John Coleman. The sale was never made. An argument developed, ending
by Scott shooting and killing Lynette Blake and seriously wounding Janice Crisp.
[Headnotes 1, 2]
2. At trial, Scott admitted shooting Blake and Crisp. He claimed he was acting in
self-defense. The State impeached Scott's testimony by offering in evidence contradictory and
inconsistent statements that Scott had given the police immediately following the shooting.
Scott, without success, had attempted to suppress the statements prior to trial, on the ground
that they were physically coerced. He testified at the suppression hearing that he had been
beaten, choked, and threatened by Police Officers Jones and Dixon. Officers Jones and Dixon
testified to the contrary. They said that Scott was given his Miranda warnings
1
and that he
voluntarily gave the incriminating statements. The trial judge chose to believe the officers and
denied Scott's motion to suppress. The statements were received in evidence. Scott claims
that this pretrial ruling constituted reversible error. He seeks now to have this court find the
facts in his favor, which the trial court did not do. The State need prove only that Scott
waived his Fifth Amendment rights against self-incrimination by a preponderance of the
evidence. Lego v. Twomey, 404 U.S. 477 (1974). This burden was satisfied by the testimony
of Officers Jones and Dixon, as found by the district court, which finding we shall not disturb
on appeal.
[Headnote 3]
3. Scott also contends that the trial judge, in instructing the jury, failed to clarify the
distinction between first- and second-degree murder.
2
Scott argues that the lack of any
appreciable time requirement between the formation of the intent to kill and the act of
killing eliminates the degrees of murder.
____________________

1

2
The instruction of which he complains is as follows:
To constitute murder of the first degree there need be no considerable lapse of time between the formation
of the felonious design to kill and the execution of the design. If a person has actually with malice aforethought
formed the unlawful purpose to kill and has premeditated and deliberated upon it before he performs the act and
then performs it in furtherance of said felonious design, he is guilty of murder of the first degree[,] however
short the time may have been between the purpose and the execution. The intention to kill and the act of killing
may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be
preceded by and be the result of a concurrence of will, deliberation and premeditation on the part of the slayer,
no matter how rapidly these acts of the mind succeed each other or how quickly they may be followed by the act
of killing.
92 Nev. 552, 555 (1976) Scott v. State
time requirement between the formation of the intent to kill and the act of killing eliminates
the degrees of murder. This contention has been considered and rejected by this court on
previous occasions. State v. Fisko, 58 Nev. 65, 80, 70 P.2d 1113, 1118 (1937); State v.
Randolph, 49 Nev. 241, 242, 242 P. 697, 698 (1926). As given, the instruction requires that
the premeditation and deliberation precede the act of killing. The instruction states that the
time lapse need only be an instant. The instruction does not misstate the law, and it was
properly given.
[Headnotes 4, 5]
4. Scott also urges that the trial court erred in failing to reinstruct the jury on the question
of premeditation. Before the jury retired for the evening, the foreman suggested to the judge
that it might be helpful if the jury were further instructed on premeditation. The judge
responded that he would do so the following morning if he believed a further instruction was
necessary. Apparently the judge concluded that the given instruction was adequate, for he did
not reinstruct the jury. Nor did the jury ask for further clarification prior to reaching its
verdict. The question of reinstructing the jury is a matter that rests within the sound discretion
of the court. The trial judge has wide discretion in the manner and extent he answers a jury's
questions during deliberation. If he is of the opinion the instructions already given are
adequate, correctly state the law and fully advise the jury . . . his refusal to answer a question
already answered in the instructions is not error. Tellis v. State, 84 Nev. 587, 591, 445 P.2d
938, 941 (1968). In the instant case, the jury were properly and fully instructed on the issue of
premeditation. The trial judge apparently concluded that a further instruction was
unnecessary. In view of these facts, no abuse of discretion appears from the record.
[Headnote 6]
5. As a fifth assignment of error, Scott contends that the trial judge's instruction
concerning the effect of mitigating circumstances on the different degrees of murder
precluded the jury from finding him guilty of manslaughter. The objected-to instruction reads
as follows:
You are instructed that by statute, mitigation is available to the jury only within the area
of first degree murder where assessment of punishment by the jury is proper.
The reduction in the degree of the crime is not available to the jury upon the basis of
mitigating circumstances, but only upon the basis of lack of proof of the elements of the
crime as fixed by law."
92 Nev. 552, 556 (1976) Scott v. State
upon the basis of lack of proof of the elements of the crime as fixed by law.
There is nothing objectionable about the instruction. It admonishes the jury not to find the
appellant guilty of a lesser degree of crime based solely on a mitigating circumstance. The
jury were fully and properly instructed on the issue of provocation as it related to
manslaughter. Cf. Ricci v. State, 91 Nev. 373, 536 P.2d 79 (1975).
3

[Headnotes 7, 8]
6. Scott asserts that the trial judge committed reversible error by admitting into evidence a
photograph of the deceased taken at the morgue. The photograph was admitted for the
purpose of identifying the murder victim as the person upon whom the State's witness
performed an autopsy. We have repeatedly held that photographs that aid in the ascertainment
of truth may be received in evidence, even though they may be gruesome. Theriault v. State,
92 Nev. 185, 547 P.2d 668 (1976).
[Headnote 9]
7. Scott argues that the trial judge erroneously and to his prejudice limited defense
counsel's closing argument to the jury. The record fails to support this allegation. At one point
during defense counsel's closing argument, the trial judge properly sustained an objection to a
misstatement of law. Counsel apologized for the misstatement and properly rephrased the
principle. This colloquy did not interfere with the scope or substance of counsel's argument.
8. Scott also seeks reversal because he claims the prosecutor concealed from evidence a 9
mm automatic weapon found at the scene of the crime and a pillow case purporting to bear a
bullet hole, relating to his defense. These allegations of prosecutorial misconduct find no
support in the record. Consequently, we summarily reject them.
[Headnote 10]
9. As a last assignment of error, appellant contends that Nevada's implied malice rule,
given in the form of a jury instruction, denied him his due process right of presumptive
innocence. This contention is without merit. The jury returned a verdict of murder in the first
degree. They must have found beyond a reasonable doubt that Scott murdered Lynette Blake
deliberately, willfully, and with premeditation. These elements
____________________

3
Appellant's failure to object to the instruction could have precluded appellate review. Geer v. State, 92 Nev.
221, 548 P.2d 945 (1976).
92 Nev. 552, 557 (1976) Scott v. State
of the crime conclusively established express malice as defined in NRS 200.020, subsection
1. Thus, implied malice played no part in this case. Cf. Evans v. State, 349 A.2d 300, 314
(N.J. 1975).
Affirmed.
____________
92 Nev. 557, 557 (1976) Schnepp v. State
DONALD J. SCHNEPP, Appellant, v. THE
No. 8664
September 30, 1976 554 P.2d 1122
Appeal from judgment of Second Judicial District Court, Washoe County; John W.
Barrett, Judge.
Defendant was convicted in the district court of issuing a check without sufficient funds or
credit with intent to defraud and he appealed. The Supreme Court, Mowbray, J., held that
where a jury had been selected, empaneled and sworn to try the case, defendant's
constitutional rights were not violated by the trial court's refusal to allow defendant to
discharge his court-appointed counsel and proceed in proper person at least where there was
no suggestion that defendant was dissatisfied with counsel's services, but predicated his
request to discharge counsel on the absence of witnesses whom counsel had been unable to
locate.
Affirmed.
William N. Dunseath, Public Defender, and Thomas R. Brennan, Keith J. Rohrbough, and
Michael McDonald, Deputy Public Defenders, Washoe County, for Appellant.
Kathleen M. Wall and William Cobb, Deputy District Attorneys, Washoe County for
Respondent.
1. Criminal Law.
Where jury had been selected and sworn to try defendant, jeopardy had attached.
2. Criminal Law.
Where jury had been selected, empaneled and sworn to try case, defendant was not denied constitutional
rights by trial court's refusal to allow him to discharge his court-appointed counsel and proceed in proper
person, at least where defendant was not dissatisfied with counsel's services, but predicated his request to
discharge counsel on absence of witnesses whom counsel had been unable to locate. U.S.C.A.Const.
Amends. 6, 14; Const. art. 1, 8.
Defendant's failure to object to sufficiency of information prior to trial waived any defect therein. NRS
174.105.
4. False Pretenses.
Statute elevating misdemeanor offense of writing checks with insufficient funds to felony where checks
written in 90-day period total $100 or more was not unconstitutional. NRS 205.130.
5. Criminal Law.
Where defendant was arraigned and went to trial on amended information without entering any objection
thereto, he was precluded from objecting to information on appeal. NRS 174.105.
6. Criminal Law.
Where defendant had known identity of allegedly exculpatory witnesses for several months and had made
no attempt to locate them or secure their presence at trial, and there was no showing of materiality of their
testimony nor that they would be present at later date if trial were continued, trial court did not err in
denying continuance. NRS 174.105, 174.125.
OPINION
The principal issue presented on this appeal is whether an accused's constitutional rights
under the Sixth and Fourteenth Amendments have been violated where that accused, after a
jury has been selected, empaneled, and sworn to try his case, attempts to discharge his
court-appointed counsel and proceed in proper person, and is denied permission to do so.
[Headnotes 1, 2]
1. An Information was filed in the Second Judicial District Court in Washoe County on
April 11, 1975, charging the defendant-appellant, Donald J. Schnepp, with violation of NRS
205.130, issuing a check without sufficient funds or credit, with intent to defraud. Schnepp
was arraigned in district court on April 24, 1975. When Schnepp refused to plead, the judge
entered a plea of not guilty for him. His trial date was set, without objection, for June 9, 1975.
As a result of habeas petitions filed by Schnepp, the trial was continued from time to time
until November 17, 1975.
petitions filed by Schnepp, the trial was continued from time to time until November 17,
1975. On that date, the public defender, who had been previously appointed to represent
Schnepp, moved for a continuance on the principal ground that Schnepp had suggested to
counsel the names of two witnesses who might aid in Schnepp's defense.
1
The court denied
the motion, whereupon Defendant Schnepp sought permission to address the court. He asked
that his counsel be discharged and that he be permitted to proceed in proper person,
predicating his request on the court's refusal to grant a continuance of the trial.
2
The court
denied Schnepp's motion. He now seeks reversal on the principal ground that he was denied
his constitutional right, under the Sixth and Fourteenth Amendments, to self-representation.
Schnepp relies on Faretta v. California, 422 U.S. 806 (1975). In Faretta, the Supreme Court of
the United States held that the Sixth Amendment, as made applicable to the States by the
Fourteenth, guarantees that a defendant in a state criminal trial has an independent
constitutional right of self-representation and that he may proceed to defend himself without
counsel when he voluntarily and intelligently elects to do so. The High Court held that the
California trial court erred in forcing Faretta against his will to accept a state-appointed public
defender and in denying his request to conduct his own defense.3 Faretta had requested
that he be permitted to represent himself "[w]ell before the date of trial".4 Not so in the
instant case.
____________________

1
The motion was made after the jury was selected, but with the court's prior permission given at the
commencement of trial.

2
MR. BRENNAN [Deputy Washoe County Public Defender]: . . .
Your Honor, I have one more matter, and that is I discussed this with Mr. Schnepp on the contingency that
your Honor disallowed our motion for continuance, Mr. Schnepp, at this time, would like to address the Court on
his own behalf and move that the Court allow him to proceed in proper person and try this case himself, you
Honor. And if your Honor would entertain that motion at this time, we would appreciate it.
THE COURT: All right. Go ahead.
THE DEFENDANT: . . . The reason that I make this motion to proceed on my own is I am placing too much
of a responsibility on Mr. Brennan. There were witnesses, I don't know if they will be here or not. Their
investigator is trying to locate those witnesses. I gave him the information this morning in regards to those
witnesses. Mr. Brennan had one day last week, from the 13th, he had one day in which he could possibly do any
locating of witnesses. The other two days was a weekend, as the Court knows. So I feel that any defense without
those witnesses would be a token defense. . . .
. . .
. . . So, therefore, I feel that I should proceed in pro per. And I would like to add that I do have nothing but
respect for Mr. Brennan and his capabilities, but he can't go unless there is something. . . .
public defender and in denying his request to conduct his own defense.
3
Faretta had
requested that he be permitted to represent himself [w]ell before the date of trial.
4
Not so
in the instant case. The jury had been selected and sworn to try Schnepp. Jeopardy had
attached. State v. Pritchard, 16 Nev. 101 (1881); Hanley v. State, 83 Nev. 461, 434 P.2d 440
(1967).
As the court said in United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir.
1965):
The right of a defendant in a criminal case to act as his own lawyer is unqualified if
invoked prior to the start of the trial. [Citations omitted.] Once the trial has begun with the
defendant represented by counsel, however, his right thereafter to discharge his lawyer and to
represent himself is sharply curtailed. There must be a showing that the prejudice to the
legitimate interests of the defendant overbalances the potential disruption of proceedings
already in progress, with considerable weight being given to the trial judge's assessment of
this balance. [Citations omitted.]
5
In the instant case, Schnepp predicated his request to
discharge counsel on the absence of the witnesses whom counsel had been unable to
locate.6 There was no suggestion that he was dissatisfied with counsel's services.
____________________

3
Nev. Const. art. 1, 8. Rights of accused in criminal prosecutions; jeopardy; due process of law; eminent
domain. . . . [T]he party accused shall be allowed to appear and defend in person, and with counsel, as in civil
actions. No person shall be subject to be twice put in jeopardy for the same offense; . . .

4
At the time of his arraignment, on April 24, 1975, Schnepp sought self-representation, and it was granted.
However, subsequently, with the filing of the habeas petitions, the county public defender's office represented
him and continued to do so.
From the transcript of arraignment proceedings:
THE COURT: All right. The defendant having elected to stand mute at this time, not having requested time
for entry of plea, at this time, the Court enters a plea of not guilty to the charge, and the case will now be set for
trial to commence at the hour of 10:00 o'clock a.m., on Monday, June 9, 1975.
MR. DUNLAP [Deputy District Attorney]: Thank you, Your Honor.
THE COURT: Now, Mr. Schnepp, I am sure you understand what you are doing at this time. The case is set
for trial for June 9th, and you have mentioned, and it's in the record, that at this time you prefer to represent
yourself, which is your privilege; when that trial date arrives, you will be expected to go to trial, either as your
own attorney or with an attorney, if you can arrange that.
THE DEFENDANT: I realize.
THE COURT: Understood?
THE DEFENDANT: Yes, sir.

5
Maldonado was pre-Faretta. However, as pointed out by Mr. Justice Powell in his dissent, Faretta does not
tell us how soon in the criminal proceedings a defendant must decide between proceeding by counsel or pro se
or whether he may be allowed to switch after trial has commenced.
In the instant case, Schnepp predicated his request to discharge counsel on the absence of
the witnesses whom counsel had been unable to locate.
6
There was no suggestion that he
was dissatisfied with counsel's services. On the contrary, he said he had nothing but respect
for Mr. Brennan and his capabilities. Under the facts presented, we cannot say that it was
error to deny Schnepp's request for self-representation.
2. We turn to consider the remaining assignments of error.
[Headnote 3]
A. Schnepp contends that the Information charging him with violating NRS 205.130 is
fatally defective for failure to identify with specificity the aggrieved party to whom the checks
were issued and, further, for failure to describe clearly the situs of the crime. There is nothing
in the record before us to show that Schnepp objected to the sufficiency of the Information
prior to trial, as required by NRS 174.105.
7
Consequently, this assignment of error is
rejected.
[Headnote 4]
B. Schnepp argues that, since none of the checks presented in evidence exceeded $100, the
offense alleged in the Information constituted a misdemeanor. This contention is meritless.
NRS 205.130 elevates such offenses to a felony where the checks written in a 90-day period
total $100 or more, such as in this case.
8
We sustained the constitutionality of the statute in
Parkus v. State, 88 Nev. 553, 501 P.2d 1039 (1972).
____________________

6
See f. 2, supra.

7
NRS 174.105, subsections 1 and 2:
1. Defenses and objections based on defects in the institution of the prosecution, other than insufficiency of
the evidence to warrant an indictment, or in the indictment, information or complaint, other than that it fails to
show jurisdiction in the court or to charge an offense, may be raised only by motion before trial. The motion
shall include all such defenses and objections then available to the defendant.
2. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the
court for cause shown may grant relief from the waiver.

8
NRS 205.130, subsection 1, in relevant part:
1. Every person who for himself, or as the agent or representative of another, . . . willfully, with intent to
defraud, shall make, pass, utter or publish any bill, note, check or other instrument in writing for the payment of
money . . . directed to or drawn upon any real or fictitious person, bank, firm, partnership, corporation or
depositary, when in fact such person shall have no money, . . . or shall have insufficient money, . . . with the
drawee of such instrument to meet and make payment of the same in full upon its presentation, 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 . . .
[Headnote 5]
C. Schnepp was initially charged with issuing a check without sufficient funds, with intent
to defraud. Prior to trial the Information was amended, changing the dates when the checks
were issued from July 11, 1975, through July 19, 1975, to July 11, 1975, through July 18,
1975, and by the addition of a habitual criminal count, Schnepp complains for the first time
on appeal that the Information was amended without first obtaining an order of the court to do
so. Yet he was arraigned and went to trial on the amended Information without entering any
objection thereto. He is precluded from objecting at this juncture. NRS 174.105, supra.
[Headnote 6]
D. Finally, Schnepp urges that the trial court committed reversible error in not granting his
motion for a continuance made on the date of his trial.
On the morning of trial, Schnepp's counsel made an oral motion for a continuance of the
trial. The motion was predicated principally upon counsel's representation that Schnepp had
given him the names of two witnesses whose testimony might be helpful to the defense.
9

In State v. Nelson, 36 Nev. 403, 136 P. 377 (1913), this court laid down the rule that, to
entitle an accused to a continuance on the ground of the absence of witnesses, it must
appear that the witnesses' testimony is material, that the accused has been guilty of no
negligence in securing the witnesses' attendance, and that the attendance of the
witnesses can be had at the time to which the trial is continued.
____________________

9
NRS 174.125, in relevant part:
1. All motions in a criminal prosecution to suppress evidence, for a transcript of former proceedings, for a
preliminary hearing, for severance of joint defendants, for withdrawal of counsel, and all other motions which by
their nature, if granted, delay or postpone the time of trial, shall be made prior to trial, unless opportunity to
make any such motion prior to trial did not exist or the moving party was not aware of the grounds for the
motion prior to trial.
. . .
3. In any judicial district in which two or more judges are provided by NRS 3.010:
(a) All motions subject to the provisions of subsection 1 shall be made in writing not less than 15 days before
the date set for trial, except that if less than 15 days intervene between entry of a plea and the date set for trial,
such a motion may be made within 5 days after entry of the plea.
(b) The court may, if a defendant waives hearing on the motion or for other good cause shown, permit the
motion to be made at a later date.
4. Grounds for making such a motion after the time provided or at the trial must be shown by affidavit.
In presenting the oral motion, counsel complained that Schnepp had never entered a plea to the amended
Informationalthough the record shows that, when Schnepp refused to plead, the trial court had entered a not
guilty plea for him.
court laid down the rule that, to entitle an accused to a continuance on the ground of the
absence of witnesses, it must appear that the witnesses' testimony is material, that the accused
has been guilty of no negligence in securing the witnesses' attendance, and that the attendance
of the witnesses can be had at the time to which the trial is continued. In Nelson, the
accused's motion was denied for failure to satisfy any one of these three requisites. The denial
was sustained on appeal. In the instant case, the trial court found that Schnepp was negligent
because he had known the identity of the witnesses for several months and had made no
attempt to locate them or secure their presence at trial. There was no showing of the
materiality of their testimony, nor that they would be present at a later date if the trial had
been continued. Accordingly, the motion for a continuance was properly denied. See DCR 21.
For these reasons, we affirm Schnepp's judgment of conviction.
____________
92 Nev. 563, 563 (1976) Phillips v. City of Reno
WILLIAM PHILLIPS, JOAQUIN BALLARD, BRUNO BENNA, CLAY CARPENTER,
GEORGE COX, BLAINE GORMAN, RAYMOND JESCH, TOM KEAN, DON KENNY,
MARILYN PARSONS, JACK QUADE, NAT QUILICI, RUSS SCHOOLEY, VERN
SEGALE and GEORGE YOUNG, Appellants, v. THE CITY OF RENO, and MARGERY E.
CAVANAUGH, Administratrix With the Will Annexed of the Estate of John E. Cavanaugh,
Sr., JOHN E. CAVANAUGH, Jr., TOM BEKO, HOWARD R. FARRIS, LEON R.
NIGHTINGALE, JAMES W. TEIPNER, Jr., and WILLIAM A TEIPNER, as Joint Venturers
d.b.a. STRIPCO; FAIRMONT COMPANY, INC.; NEVADA RECREATION, INC.;
MOLLIE J. GRIMES, and OFFENHAUSER DEVELOPMENT COMPANY, Respondents.
No. 8304
September 30, 1976 554 P.2d 740
Appeal from judgment denying plaintiffs' application to annul a completed voluntary
annexation; Second Judicial District Court, Washoe County; William N. Forman, Judge.
County real property owners brought action against city and others seeking to annul a
completed voluntary annexation. The district court denied plaintiffs' application to annul, and
plaintiffs appealed. The Supreme Court, Thompson, J., held that where final judgment had
been entered with respect to those claims of plaintiff property owners relating to sufficiency
of petition for annexation, lack of environmental study, and whether annexation would cause
undue tax burden upon taxpayers of county, and no timely appeal was taken as to those
claims, judgment with respect to those claims was final and not subject to review; and
thereafter, plaintiffs did not have standing to protest annexation, since nothing remained in
record to establish that interests of plaintiffs were affected in any legally cognizable way by
the annexation.
Affirmed.
Paul A. Richards, of Reno, for Appellants.
Robert L. VanWagoner, City Attorney, and Jack Schroeder, Deputy City Attorney, for
Respondent City of Reno.
Thornton, Stephens, Atkins and Kellison, of Reno, for the other Respondents.
Where final judgment had been entered in action challenging annexation with respect to those claims of
plaintiff property owners relating to sufficiency of petitions for annexation, lack of environmental study,
and whether annexation would cause undue tax burden upon county taxpayers, and no timely appeal was
taken as to those claims, judgment with respect to those claims was final and not subject to review; and
thereafter, plaintiffs did not have standing to protest annexation, since nothing remained in record to
establish that interests of plaintiffs were affected in any legally cognizable way by the annexation. NRS
268.668, 268.670; NRCP 54(b).
OPINION
Fifteen Washoe County real property owners commenced this proceeding in district court
to annul completed action of the Reno City Council annexing to the City of Reno
approximately 250 acres of vacant land. The annexation was initiated and completed pursuant
to NRS 268.670. One hundred percent of the owners of record of the contiguous land sought
to be annexed signed petitions therefor which were accepted by the Reno City Council and
an annexing ordinance adopted.
be annexed signed petitions therefor which were accepted by the Reno City Council and an
annexing ordinance adopted.
The district court found that all preconditions for voluntary annexation pursuant to NRS
268.670 had been met and, therefore, declined to annul the annexation. This appeal followed.
The main challenge to the ruling below is that the annexed land is not contiguous within
the contemplation of subsection 2 of the statute.
1
Below, other challenges to the annexation
were tendered, such as the sufficiency of the petitions for annexation, the lack of an
environmental study, and whether annexation would cause an undue tax burden upon the
taxpayers of Washoe County. These claims were denied, summary judgment thereon entered
for defendants, and a Rule 54(b) determination made. Since an appeal was not timely taken as
to those claims we are not now concerned with them.
We affirm the result reached by the district court, but for a different reason. In our view the
plaintiffs do not have standing to protest the annexation. All of them own property and reside
in the unincorporated area of Washoe County. None owns property within the annexed area
nor bordering it. Six of the plaintiffs, however, also own property within the City of Reno.
This voluntary annexation was completed pursuant to NRS 268.670. That special statute
does not appear to allow for protest. With regard to annexations other than voluntary, any
person or city claiming to be adversely affected may apply to the district court and protest.
NRS 268.668. However, the voluntary annexation statute explicitly states [n]otwithstanding
the provisions of NRS 268.610 to 268.668, inclusive, the governing body of the city may
annex. Such language would appear to preclude challenge to a voluntary annexation even
though the protestant claims to be adversely affected thereby.
____________________

1
NRS 268.670: 1. Notwithstanding the provisions of NRS 268.610 to 268.668, inclusive, the governing
body of a city may annex:
(a) Contiguous territory owned in fee by the city.
(b) Other contiguous territory if 100 percent of the owners of record of individual lots or parcels of land
within such area sign a petition requesting the governing body to annex such area to the city. If such petition is
received and accepted by the governing body, the governing body may proceed to adopt an ordinance annexing
such area and to take such other action as is necessary and appropriate to accomplish such annexation.
2. For the purposes of this section, contiguous means either abutting directly on the boundary of the
annexing municipality or separated from the boundary thereof by a street, alley, public right-of-way, creek, river
or the right-of-way of a railroad or other public service corporation, or by lands owned by the annexing
municipality, by some other political subdivision of the state or by the State of Nevada.
In this case, however, we need not decide whether this was the legislative intent since the
plaintiffs have not established an adverse effect upon their interests in any event. As already
noted, their assertions of environmental pollution and increased tax burden by reason of the
annexation were rejected by the district court, summary judgment entered for defendants, a
Rule 54(b) determination made and no appeal taken. Consequently, that judgment is final and
not subject to review. Nothing remains in the record before us to establish that the interests of
the six plaintiffs owning property within the City of Reno are affected in any legally
cognizable way by the annexation here in issue. Accordingly, we are compelled to conclude
from the posture of this case that the plaintiffs lack standing to protest the annexation.
Affirmed.
Gunderson, C.J., and Batjer, Zenoff, and Mowbray, JJ., concur.
____________
92 Nev. 566, 566 (1976) Todora v. Todora
GAIL J. TODORA, Appellant, v. PEGGY
B. TODORA, Respondent
No. 8247
October 1, 1976 554 P.2d 738
Appeal from order admitting will to probate and appointing respondent executrix of estate;
Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
The district court entered order admitting will to probate and appointing as executrix of
estate woman who was testator's wife at time will was executed, and woman whom testator
married after divorcing prior wife appealed. The Supreme Court held that statute, which
mandated revocation of all beneficial interests given to testator's former spouse in will
executed prior to divorce, contemplated divestiture of any beneficial or equitable property
interests given the former spouse, but did not include revocation of provision in will naming
that spouse as executrix of the will; that doctrine of implied revocation due to changed
circumstances of the testator did not apply to subsequent divorce and remarriage.
Affirmed.
Morris & Wood, Las Vegas, for Appellant.
Jolley & Urga, Las Vegas, for Respondent.
1. Wills.
Statutes governing the revocation of wills are strictly construed.
2. Wills.
Statute providing that divorce or annulment of marriage of testator revokes every beneficial devise,
legacy or interest given to the testator's former spouse in a will executed before the divorce or annulment
contemplates the divestiture of any beneficial or equitable property interests given the former spouse, but
does not include revocation of provision naming that spouse as executor or executrix of the will despite a
divorce and subsequent remarriage of the testator, in view of inter alia, fact that divorce does not
necessarily connote lack of confidence in a former spouse. NRS 133.115.
3. Wills.
Doctrine of implied revocation due to changed circumstances of the testator does not apply to subsequent
divorce and remarriage, as these circumstances are governed specifically by statutes governing revocation
of wills executed before marriage, divorce or annulment. NRS 133.110, 133.115, 133.120, subd. 2.
OPINION
Per Curiam:
In 1966, Joseph Todora executed his last will and testament. He named his wife, Peggy B.
Todora, as his sole beneficiary and appointed her executrix. Joseph and Peggy were divorced
in January 1975. Joseph married the appellant, Gail J. Todora, on March 30, 1975. He died
two days later, on April 2, 1975.
Both parties to this appeal have stipulated that NRS 133.115 precludes Peggy from sharing
in the proceeds of the estate and that Gail is to take her portion of the decedent's estate as if
he had died intestate. See NRS 133.110. However, Gail further contends that NRS 133.115
also revokes that part of the will naming Peggy executrix of the estate.
1
NRS 133.115
provides in part that "[d]ivorce or annulment of the marriage of the testator revokes
every beneficial devise, legacy or interest given to the testator's former spouse . . ."
____________________

1
NRS 133.115:
Divorce or annulment of the marriage of the testator revokes every beneficial devise, legacy or interest given
to the testator's former spouse in a will executed before the entry of the decree of divorce or annulment unless
otherwise:
1. Provided in a property or separation agreement which is approved by the court in the divorce or
annulment proceedings and not merged in the decree; or
2. Ordered by the court in the divorce or annulment proceedings, and the will shall take effect in the same
manner as if the former spouse had died before the testator.
in part that [d]ivorce or annulment of the marriage of the testator revokes every beneficial
devise, legacy or interest given to the testator's former spouse . . . Gail argues that the
appointment of Peggy as executrix is an interest contemplated by the statute. We disagree.
[Headnotes 1, 2]
Statutes governing the revocation of wills are strictly construed. In re Arnold's Estate, 60
Nev. 376, 380, 110 P.2d 204, 206 (1941). NRS 133.115 is predicated upon the presumed
intent of a divorced testator to revoke any legacy or bequest to a former spouse contained in a
will executed prior to divorce. The rationale underlying this provision does not extend to the
appointment of a divorced spouse named as an executrix in such a will. In re Estate of Davis,
256 N.E.2d 281 (Ohio 1969). A divorce is traditionally accompanied by an equitable division
of the parties' property. An additional distribution of property to a former spouse under the
terms of a will executed prior to divorce would not be in accord with the testator's intent. On
the other hand, divorce does not necessarily connote lack of confidence in a former spouse.
Frequently, issue of the marriage may take under the will. The testator may very well prefer
that the former spouse probate the estate in order to protect the best interests of their children.
2
Accordingly, we believe and so hold that NRS 133.115, which mandates the revocation of
all beneficial interests given to the testator's former spouse in a will executed prior to divorce,
contemplates the divestiture of any beneficial or equitable property interests given the former
spouse, but that it does not include a revocation of a provision naming that spouse as executor
or executrix of the will.
3
[Headnote 3]
[Headnote 3]
____________________

2
We note that the divorce in the present case was accompanied by a property settlement and that four issues
of the marriage will probably take under the will.

3
Unlike NRS 133.115, many states' statutes specifically provide that divorce revokes the appointment of the
ex-spouse as executor of a will executed prior to divorce. See, e.g., N.Y. Estates, Powers & Trusts Law 5-1.4
(McKinney 1967); 19 Code of Laws of South Carolina 223 (Supp. 1975); Uniform Probate Code 2-508 (West
1972). See also A. Casner, Estate Planning, at 121-122 (1975 Supp.), where the author states:
If the controlling statute does not provide that a will is revoked in its entirety by a divorce or that the
will is to operate as though the divorced spouse predeceased the testator, but only provides that
dispositions in favor of the divorced spouse are revoked, conceivably the divorce will not prevent the
divorced spouse from serving as executor if so named in the will.
[Headnote 3]
Finally, Gail contends that NRS 133.120, subsection 2,
4
effects a revocation of the 1966
will, predicated on the changed circumstances of the testator, since he had divorced and
remarried subsequent to its execution. The doctrine of implied revocation due to changed
circumstances of the testator, codified in NRS 133.120, subsection 2, does not apply to
subsequent divorce and remarriage. These circumstances are governed specifically by NRS
133.110
5
and NRS 133.115, supra. Cf. Leggett v. Estate of Leggett, 88 Nev. 140, 494 P.2d
554 (1972). Accordingly, we affirm.
____________________

4
2. Nothing contained in this section shall prevent the revocation implied by law from subsequent changes in
the condition or circumstances of the testator.

5
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 provisions; and no other
evidence to rebut the presumption of revocation shall be received.
____________
92 Nev. 569, 569 (1976) San Diego Prestressed v. Chicago Title Ins.
SAN DIEGO PRESTRESSED CONCRETE CO. Appellant, v. CHICAGO TITLE
INSURANCE CORPORATION, a Missouri Corporation, and CAMERON-BROWN
INVESTMENT GROUP, a Massachusetts Business Trust, Respondents.
No. 8294
October 20, 1976 555 P.2d 484
Appeal from an order and judgment of dismissal and an order denying reconsideration,
Eighth Judicial District Court, Clark County; Carl J. Christensen, Judge.
Materialman brought action to foreclose lien against general contractor, land owner,
construction lender and corporate construction control which received and disbursed some of
construction funds. The district court entered order and judgment of dismissal and order
denying reconsideration and plaintiff appealed. The Supreme Court, Batjer, J., held that
allegations of false and deceitful statements made by construction lender and construction
control were sufficiently specific to satisfy requirement that circumstances constituting
fraud be stated with particularity; that since plaintiff's right to damages was outgrowth of
alleged deceit resulting in defendants' unjust enrichment, any invalidity of plaintiff's
contract would not affect that right; that claim was not barred by statue proscribing
contractor from maintaining action to collect compensation for act for which license is
required without proving that it had license; and that plaintiff raised genuine issue of fact
as to whether it furnished material within exclusion from statute of anyone who merely
furnishes materials or supplies without fabricating them into or consuming them in
performance of work of contractor.
specific to satisfy requirement that circumstances constituting fraud be stated with
particularity; that since plaintiff's right to damages was outgrowth of alleged deceit resulting
in defendants' unjust enrichment, any invalidity of plaintiff's contract would not affect that
right; that claim was not barred by statue proscribing contractor from maintaining action to
collect compensation for act for which license is required without proving that it had license;
and that plaintiff raised genuine issue of fact as to whether it furnished material within
exclusion from statute of anyone who merely furnishes materials or supplies without
fabricating them into or consuming them in performance of work of contractor.
Haley & Wirth, Las Vegas, for Appellant.
Albright & McGimsey; Brown & Deaner, Las Vegas, for Respondents.
1. Pleading.
In determining propriety of granting motion to dismiss, district court was obligated to accept as true
allegations in amended complaint, to accord plaintiff favor in inferences to be drawn therefrom and to
resolve all doubts in its favor.
On appeal from judgment of dismissal, Supreme Court must accept the charge of amended complaint as
true and insure that district court accorded appellant its rights.
3. Pleading.
Allegations in amended complaint filed by materialman on ground of alleged false and deceitful
statements purportedly made by construction lender and corporate construction control, which received and
disbursed some of construction funds, were sufficiently specific to satisfy requirement that circumstances
constituting fraud be stated with particularity. NRCP 9(b).
4. Licenses.
Where materialman's claim of right to damages was outgrowth of alleged deceit practiced upon it by
construction lender and corporate construction control which received and disbursed some of construction
funds, resulting in their unjust enrichment and allegation of existence of contract was merely statement of
circumstances under which services were rendered, any invalidity of contract would not affect right of
materialman to recover and claim was not barred by statute precluding contractor from suing for
compensation for performance of act for which license is required, without proving it was licensed. NRCP
9(b); NRS 624.320.
5. Judgment.
Genuine issue of material fact was presented as to whether plaintiff materialman had furnished materials
to project without fabricating them into work of a contractor, on basis that it had hired a
licensed Nevada contractor to fabricate the materials into the project, and thus was
not required to be licensed as a contractor to maintain suit to recover for material
furnished pursuant to contract, precluding summary judgment for defendant.
fabricating them into work of a contractor, on basis that it had hired a licensed Nevada contractor to
fabricate the materials into the project, and thus was not required to be licensed as a contractor to maintain
suit to recover for material furnished pursuant to contract, precluding summary judgment for defendant.
NRS 624.020, subd. 3; 624.320.
OPINION
Planning the construction of a 200-unit condominium project, Womack, Inc., a Nevada
corporation, purchased real property in Las Vegas, Nevada. On June 24, 1973, it entered into
a construction loan agreement with respondent, Cameron-Brown Investment Group. The loan
of six million dollars secured by deed of trust was to be used to finance the construction of
the project. Cameron-Brown established a construction control pursuant to NRS Chapter 627
with respondent Chicago Title Insurance Corporation to oversee the project and to insure that
loan funds would be properly paid to those who furnished material and labor.
In September, 1973, Womack, Inc. contracted with R. C. Johnson and Associates
Construction Co., to act as general contractor on the project. On December 13, 1973, R. C.
Johnson and Associates contracted with Formigli Corporation for the supply and installation
of prestressed concrete slabs at a total price of $562,413.00. On January 2, 1974, Rohr
Industries, Inc., acquired a portion of Formigli, including the contract between Formigli and
R. C. Johnson and Associates. Rohr Industries then assigned that contract to its
wholly-owned subsidiary San Diego Prestressed Concrete Co., appellant herein.
Formigli held a valid Nevada contractor's license but Rohr and appellant did not. On
January 25, 1974, Rohr contacted the Nevada State Contractor's Board seeking information
about obtaining a contractor's license and was told it could proceed with the contract executed
by Formigli with the understanding it would make application for a contractor's license
immediately. Thereafter, appellant, not Rohr, furnished stress-core plank to the jobsite and
contracted with Concrete Erectors Prestress and Precast, Inc., for the erection of the plank.
Concrete Erectors performed under a valid contractor's license.
In the month of September, 1974, the State Contractor's Board received an application for
a contractor's license from appellant and a license was issued on November 27, 1974.
On or about April 12, 1974, not having received payment for the material which had been
fabricated into the project by Concrete Erectors, appellant recorded a lien against the real
property owned by Womack, Inc.
In its complaint filed on October 11, 1974 to foreclose the lien, appellant alleged that by
March 21, 1974 when it refused to provide further materials, it had supplied material and
incurred expenses aggregating nearly $300,000 and had not been paid. Appellant sought to
recover on its contract from the general contractor, R. C. Johnson and Associates; and
damages from the land owner, Womack; the construction lender, Cameron-Brown; and
Chicago Title, the construction control who received and disbursed some of the construction
funds.
Appellant alleged that although Cameron-Brown declared the construction loan agreement
breached and discontinued payments of loan funds, they acquiesced in continuing
construction on the project and were aware that appellant was continuing to supply materials
and incur debts for labor. Appellant further alleged that Cameron-Brown represented to R. C.
Johnson and Associates, other subcontractors, and appellant, that in spite of the declared
breach it would continue to transmit funds for construction, and that such representations
were false and made for the purpose of inducing appellant and others to continue to supply
material and labor to the property with the result that Cameron-Brown's security was unjustly
enriched and appellant damaged.
Appellant alleged that Chicago Title as construction control negligently failed to properly
categorize and disburse moneys and at the time of commencement of construction of the
project falsely represented to the detriment of appellant that the entire loan proceeds of six
million had been deposited with it.
Pursuant to NRCP 12(b)(5),
1
Cameron-Brown and Chicago Title moved to dismiss the
complaint asserting that appellant had failed to state a claim upon which relief could be
granted because it did not have a valid contractor's license as required by NRS 624.320.2
Appellant was allowed to file an amended complaint alleging Rohr's acquisition of
Formigli and its dealings with the State Contractor's Board.
____________________

1
NRCP 12(b)(5): Every defense, in law or fact, to a claim for relief in any pleading, whether a claim,
counterclaim, cross-claim, or third-party claim shall be asserted in the responsive pleading thereto if one is
required, except that the following defenses may at the option of the pleader be made by motion: . . . (5) failure
to state a claim upon which relief can be granted, . . .
required by NRS 624.320.
2
Appellant was allowed to file an amended complaint alleging
Rohr's acquisition of Formigli and its dealings with the State Contractor's Board.
Cameron-Brown and Chicago Title then moved to dismiss the amended complaint, again
asserting a failure to state a claim upon which relief could be granted because appellant
lacked a contractor's license.
This appeal is taken from the district court's order dismissing the amended complaint and
entering a judgment of dismissal for respondents Cameron-Brown and Chicago Title and also
from its order denying reconsideration. The district court certified there was no just cause for
delay. NRCP 54(b).
1. It is apparent from the record that matters outside the pleadings were not considered by
the district court and that the motion to dismiss was not treated as one for summary judgment.
NRCP 12.
[Headnotes 1, 2]
In determining the propriety of granting the respondents' motion to dismiss, the district
court was obligated to accept as true the allegations in appellant's amended complaint, to
accord appellant favor in the inferences to be drawn therefrom and to resolve all doubts in its
favor. Chapman v. City of Reno, 85 Nev. 365, 455 P.2d 618 (1969). On this appeal from the
judgment of dismissal we must accept the charge of the amended complaint as true and insure
that the district court accorded appellant its rights. Hansen-Neiderhauser v. Nev. Tax
Comm'n, 81 Nev. 307, 402 P.2d 48 (1965); Chapman v. City of Reno, supra.
Appellant's causes of action against Cameron-Brown and Chicago Title seeking damages
resulting from fraud are not for the collection of compensation for the performance of any
act or contract for which a license is required . . . Appellant's right is based upon alleged
false and deceitful statements purported to have been specifically made by
Cameron-Brown and Chicago Title.
____________________

2
NRS 624.320: No person, firm, copartnership, corporation, association or other organization, or any
combination of any thereof, engaged in the business or acting in the capacity of a contractor shall bring or
maintain any action in the courts of this state for the collection of compensation for the performance of any act
or contract for which a license is required by this chapter without alleging and proving that such person, firm,
copartnership, corporation, association or other organization, or any combination of any thereof, was a duly
licensed contractor at all times during the performance of such act or contract and when the job was bid.
statements purported to have been specifically made by Cameron-Brown and Chicago Title.
In Grant v. Weatherholt, 266 P.2d 185, 192 (Cal.App. 1954), that court said: The sections
of the code [similar to NRS 624.320] which shield from liability those who enter into
contracts with unlicensed persons do not purport to shield them from responsibility for their
own torts, nor do they relate to actions or proceedings except those that are based upon
contract liability.
[Headnote 3]
Although appellant does not use the word fraud in the amended complaint its recitation of
respondents' conduct effectively alleges fraud. Issues raised in the amended complaint are
sufficiently specific to satisfy the requirement that the circumstances constituting fraud be
stated with particularity. NRCP 9(b).
[Headnote 4]
Appellant's right to damages is the outgrowth of the alleged deceit practiced upon it by
respondents, resulting in their unjust enrichment. Cf. Magill v. Lewis, 74 Nev. 381, 333 P.2d
717 (1958). The validity or invalidity of appellant's contract does not affect that right and it is
not barred by NRS 624.320. The allegation of the existence of a contract along with the
causes of action for fraud was merely a statement of the circumstances under which
appellant's services were rendered.
Accepting appellant's allegation to be true the pleadings state a claim upon which relief
could be granted.
[Headnote 5]
2. In the amended complaint appellant claims to be a third party beneficiary under the July
24, 1973 construction loan agreement and alleges that it furnished material in the nature of
stress-core plank to the project and hired Concrete Erectors Prestress and Precast, Inc., a
licensed Nevada contractor, to fabricate the plank into the project. NRS 624.020 defines a
contractor and NRS 624.020(3)
3
provides that a contractor does not include anyone who
merely furnishes material or supplies without fabricating them into or consuming them in the
performance of the work of a contractor. Appellant has raised a genuine issue of fact
whether it has furnished material within the exclusion of NRS 624.020{3), and as a
consequence would not be barred by NRS 624.320.
____________________

3
NRS 624.020(3): A contractor within the meaning of this chapter includes subcontractor or specialty
contractor, but does not include anyone who merely furnishes material or supplies without fabricating them into,
or consuming them in the performance of, the work of a contractor.
a genuine issue of fact whether it has furnished material within the exclusion of NRS
624.020(3), and as a consequence would not be barred by NRS 624.320.
Appellant's amended complaint alleges facts which give rise to triable issues on the
question of fraud and appellant's status under NRS 624.020(3) and NRS 624.320. Because
these issues exist the district court erred in granting respondents' motion to dismiss.
Reversed and remanded for further proceedings not inconsistent with this opinion.
____________
92 Nev. 575, 575 (1976) Campbell v. Sheriff

JOYCE E. CAMPBELL, Appellant, v. SHERIFF,
No. 9013
October 20, 1976 555 P.2d 218
Petitioner, charged with sale of marijuana, challenged quantum of evidence to sustain the
charge by pretrial petition for habeas corpus. The district court denied the writ and petitioner
appealed. The Supreme Court held that evidence that petitioner was present in residence
when undercover agent purchased baggie of marijuana from another person and that after the
transaction was completed the undercover agent requested petitioner to get him a paper sack,
which she did, was insufficient to establish probable cause that petitioner made a sale.
Reversed.
J. E. Smith, Las Vegas, for Appellant.
J. Morton, Deputy, Clark County, for Respondent.
Drugs and Narcotics.
Evidence that petitioner was present in residence when undercover agent purchased baggie of marijuana
from another person and that after the transaction was completed the undercover agent
requested petitioner to get him a paper sack, which she did, was insufficient to
establish probable cause that petitioner made a "sale."
92 Nev. 575, 576 (1976) Campbell v. Sheriff
and that after the transaction was completed the undercover agent requested petitioner to get him a paper
sack, which she did, was insufficient to establish probable cause that petitioner made a sale. NRS
453.161, 453.321.
OPINION
Per Curiam:
An indictment, authorized as a result of a True Bill by the Clark County Grand Jury,
charged Joyce E. Campbell with selling a controlled substance (marijuana), a felony under
NRS 453.321 and NRS 453.161.
A pretrial petition for habeas corpus challenged the quantum of evidence to sustain the
charge. Habeas was denied and in this appeal the same contention is reurged.
The only evidence connecting Ms. Campbell to the charged offense was that she and her
two month old child were in a residence when an undercover agent purchased a baggie of
marijuana from another person. After the transaction was completed the undercover agent
requested Ms. Campbell to go to the kitchen and get him a paper sack, which she did.
The physical presence and recited conduct of Ms. Campbell may well subject her to some
criminal charge; however, we deem this evidence insufficient to establish probable cause that
she made a sale. Cf. Egan v. Sheriff, 88 Nev. 611, 503 P.2d 16 (1972). Accordingly, the
charge against her should have been dismissed in the writ proceedings.
Reversed.
____________
92 Nev. 576, 576 (1976) Oelsner v. Charles C. Meek Lumber Co.
PAUL F. OELSNER and ELAINE E. OELSNER, Husband and Wife, Appellants, v.
CHARLES C. MEEK LUMBER CO., of Carson City, a Partnership, Respondent.
No. 8503
October 20, 1976 555 P.2d 217
Appeal from order granting motion to amend judgment, Ninth Judicial District Court,
Douglas County; Frank B. Gregory, Judge.
From order of the district court granting motion for an order amending and altering the
judgment herein regarding attorney's fees," appeal was taken.
92 Nev. 576, 577 (1976) Oelsner v. Charles C. Meek Lumber Co.
attorney's fees, appeal was taken. The Supreme Court held that where such motion was not
filed until more than 10 days after movants' counsel was served with notice of entry of order
granting such judgment, district court was without jurisdiction to consider motion.
Order vacated.
Goldwater, Fahrenkopf, Mortimer, Sourwine, Mousel & Pinkerton, Reno, for Appellants.
Robert A. Grayson, Carson City, for Respondent.
Judgment.
Where motion for an order amending and altering the judgment herein regarding attorney's fees was not
filed until more than 10 days after movants' counsel was served with notice of entry of order granting such
judgment, district court was without jurisdiction to consider motion; and, thus, order granting motion was
void. NRAP 4(a), 26(a); NRCP 59, 59(e).
OPINION
Per Curiam:
An order granting appellants' motion for summary judgment was entered March 14, 1975.
The order, inter alia, awarded appellants an attorney's fee in the amount of $2000. Notice of
entry of the order was served on respondent's counsel, by mail, the same day. NRAP 4(a);
NRAP 26(a).
On April 4, 1975, respondent filed a motion pursuant to NRCP 59 . . . for an order
amending and altering the judgment herein regarding attorney's fees . . . On September 19,
1975, the trial court granted the motion and entered an order reducing the fee award to $1000.
This appeal contends the September 19, 1975 order is void. We agree.
A motion to amend filed under NRCP 59 . . . shall be served not later than 10 days after
service of written notice of entry of the judgment. NRCP 59(e). Here, the motion to amend
was not filed within the required 10 day period; therefore, the district court was without
jurisdiction to consider it. Cf. Culinary Workers v. Haugen, 76 Nev. 424, 357 P.2d 113
(1960). Accordingly, the September 19, 1975 order, being null and void, is vacated.
____________
92 Nev. 578, 578 (1976) Hankins v. Administrator of Vet. Affairs
ROBERT HANKINS and JUANITA HANKINS, Appellants, v. THE ADMINISTRATOR
OF VETERANS AFFAIRS, an Officer of the United States of America, Respondent.
No. 8399
October 20, 1976 555 P.2d 483
Appeal from judgment of unlawful detainer, Eighth Judicial District Court, Clark County;
Action for an unlawful detainer was initiated by Administrator of Veterans Affairs to
cause mortgagors to vacate their residential premises following a nonjudicial foreclosure
effected under a deed of trust. The district court entered judgment of unlawful detainer, and
an appeal was taken. The Supreme Court held that VA diary control card and affidavit of
publication of notice of sale, in custody of attorney for VA did not have personal knowledge
of documents or of their accuracy; that mailing of notice of sale was all that statute required;
and that tender of payment of mortgagors following foreclosure proceedings was properly
refused, since there is no right of redemption in that type of proceedings.
Affirmed.
Deaner, Deaner & Reynolds, of Las Vegas, for Appellants.
Lawrence J. Semenza, United States Attorney, William Turner, Assistant United States
Attorney, of Las Vegas, and John A. Brant, of Los Angeles, California, for Respondent.
1. Evidence.
In action in unlawful detainer initiated by Administrator of Veterans Affairs to cause occupants to vacate
residential premises following a nonjudicial foreclosure effected by a deed of trust, VA diary control card
and affidavit of publication of notice of sale, in custody of attorney for VA, were properly admitted, even if
attorney for VA did not have personal knowledge of documents or of their accuracy, since personal
knowledge of custodian of records is unnecessary as long as record's authenticity and use in regularly
conducted, normal course of business is shown.
2. Mortgages.
Mailing of notice of sale, in foreclosure proceedings effected under deed of trust, was all that statute
required; the mailing of the notice presumed that it was received; actual notice was not necessary so long as
statutory requirements were met.
3. Mortgages.
Mortgagors' previous experience under foreclosure of same property diluted contention that they
lacked knowledge of foreclosure proceedings.
4. Mortgages.
Fact that mortgagors received payment notices and fact that notice erroneously recited place of
foreclosure as North Las Vegas, rather than Las Vegas, did not invalidate proceedings, since mortgagors
did not show that they were misled by payment notices or mistake in reciting place of foreclosure.
5. Mortgages.
Tender of payment by mortgagors following foreclosure proceedings effected under deed of trust was
properly refused, since there is no right of redemption in that type of proceedings. NRS 107.080, subd.
5.
OPINION
Per Curiam:
This action in unlawful detainer was initiated by the Administrator of Veterans Affairs to
cause Robert and Juanita Hankins to vacate their residential premises in Las Vegas following
a nonjudicial foreclosure. This foreclosure was effected by a deed of trust which Mr. and Mrs.
Hankins had executed to the Veterans Administration upon the reconveyance of the property
to them following a previous nine-month default and consequent nonjudicial foreclosure. As
guarantor in the first foreclosure, the Veterans Administration (hereinafter VA) obtained the
property from the first lender and upon the execution of another promissory note and deed of
trust as security returned the property to appellants.
The Hankins again fell into extensive default and the second foreclosure was
accomplished. Now, however, they contest the foreclosure proceedings as being defective and
not in compliance with statutory requirements. They claim that: (a) the attorney for VA who
was the custodian of two exhibits, the VA diary control card and the affidavit of publication
of the notice of sale, did not have personal knowledge of the documents or of their accuracy,
and that (b) the Hankins did not receive the notice of sale, that the notice incorrectly set the
sale at the Clark County Courthouse in North Las Vegas when the Clark County Courthouse
is in Las Vegas, not North Las Vegas. Also, that during pendency of the foreclosure
proceedings and after the foreclosure was completed they continued to receive payment of
notices from the VA which they say led them to believe they could cure the default even after
the sale. They did, in truth, tender payment of the total delinquency almost a month after the
sale and the tender was refused.
[Headnote 1]
1. The control card and affidavit of mailing were properly admitted. Personal knowledge
of the custodian of records is unnecessary so long as the record's authenticity and use in
the regularly conducted, normal course of business are shown as was properly done in
this case.
unnecessary so long as the record's authenticity and use in the regularly conducted, normal
course of business are shown as was properly done in this case. Hamm v. Sheriff of Clark
County, 90 Nev. 252, 523 P.2d 1301 (1974); United States v. Ahrens, 530 F.2d 781, 784 n. 6
(8th Cir. 1976).
[Headnotes 2-5]
2. Mailing of the notices is all that the statute requires. Their mailing presumes that they
were received. Actual notice is not necessary as long as the statutory requirements are met.
See Turner v. Dewco, 87 Nev. 14, 479 P.2d 462 (1971). Their previous experience with the
same property dilutes the Hankins' contention that they lacked knowledge of the proceedings
nor do they show that they were misled by the payment notices or the mistake in reciting the
place of foreclosure. Although the courthouse is in Las Vegas, not North Las Vegas, no
evidence was presented that prospective bidders appeared at the wrong place. There being no
right of redemption in this type of proceedings, NRS 107.080(5), the tender of payment was
properly refused.
Finding the requisite statutory compliance, the sale will not be set aside and the judgment
of unlawful detainer shall stand.
Affirmed.
____________
92 Nev. 580, 580 (1976) Geo. B. Smith Chemical v. Simon
GEO. B. SMITH CHEMICAL WORKS, INC., a Nevada Corporation, Appellant, v. PETER
A. SIMON II, dba POP'S OASIS, Respondent.
No. 8422
October 20, 1976 555 P.2d 216
Appeal from judgment, Eighth Judicial District Court, Clark County; Carl J. Christensen,
Judge.
Tenant brought action to enforce right to extend term of ten-year lease with right of
renewal provided that tenant shall at commencement of said term be operating a
manufacturing plant on the demised premises. The district court entered a judgment for
landlord on ground that the operation of manufacturing plant was only sporadic during the
initial term and the tenant appealed. The Supreme Court held that in view of clear words of
lease, court erred in receiving extraneous evidence concerning intention of parties and
construing lease to authorize extension of term only if there was continuous plant
operation during initial term.
authorize extension of term only if there was continuous plant operation during initial term.
Reversed.
McNamee, McNamee & Rittenhouse, Las Vegas, for Appellant.
Jones, Jones, Bell, LeBaron & Close and Joseph W. Brown, Las Vegas, for Respondent.
1. Evidence.
Where written contract is clear on its face, extraneous evidence cannot be introduced to explain its
meaning.
2. Evidence.
Where lease of land for ten-year term clearly provided a right to extend lease for successive terms
thereafter provided that with respect to each extended term tenant shall at commencement of said term be
operating a manufacturing plant on the demised premises, court improperly received extraneous evidence
as to parties' intention and concluded that right to renewal depended on continuous plant operation during
initial term, since such construction was a revision of the agreement while professing to construe it.
OPINION
Per Curiam:
Respondent's predecessor in interest leased unimproved desert land to appellant for a
ten-year term. Appellant was given the right to extend the lease for three successive terms
thereafter provided that with respect to each extended term the Lessee shall at the
commencement of said term be operating a manufacturing plant on the demised premises.
(Emphasis added.)
Appellant erected a plant on the premises and, at the conclusion of its initial term, timely
sought an extension pursuant to the provisions of the lease. Although the plant was operating
at the commencement of the extended term, respondent refused to grant the extension
because of appellant's prior sporadic operation of the plant and brought suit to obtain
possession of the premises. Finding the provision operating a manufacturing plant
ambiguous, the district court took parol evidence over appellant's objections regarding the
meaning of that term and ruled the parties intended the right of extension only if plant
operations were on a sustained basis during the initial term.
operations were on a sustained basis during the initial term. Because appellant's operations
were only sporadic, the district court voided the lease, finding appellant was not operating a
manufacturing plant within the meaning of the lease provision. Appellant contends this
interpretation by the district court is erroneous. We agree.
[Headnotes 1, 2]
Where, as here, a written contract is clear and unambiguous on its face, extraneous
evidence cannot be introduced to explain its meaning. Lindley & Co. v. Piggly Wiggly, 55
Nev. 458, 39 P.2d 903 (1935). By disregarding the plain language of the lease and inserting
words not used by the parties requiring continuous plant operations during the initial term, the
district court revised the agreement while professing to construe it. This was error. Mohr Park
Manor, Inc. v. Mohr, 83 Nev. 107, 424 P.2d 101 (1967); Club v. Investment Co., 64 Nev.
312, 182 P.2d 1011 (1947).
Reversed.
____________
92 Nev. 582, 582 (1976) Daines v. Markoff
DARRELL R. DAINES, Clark County Comptroller, Appellant, v. DANIEL MARKOFF and
MARTIN R. BOYERS, Respondents.
No. 8499
EARL W. WHITE, Jr., and ANTHONY M. EARLE, Appellants, v. DARRELL R. DAINES,
Clark County Comptroller, Respondent.
No. 8625
DARRELL R. DAINES, Clark County Comptroller, Appellant, v. EIGHTH JUDICIAL
DISTRICT COURT, Respondent.
No. 8729
October 20, 1976 555 P.2d 490
Consolidated appeals from three separate judgments concerning attorney fees for court
appointed counsel in criminal cases; Eighth Judicial District Court, Clark County; J. Charles
Thompson, Judge, Case No. 8499; Joseph S. Pavlikowski, Judge, Case No. 8625; Paul S.
Goldman, Judge, Case No. 8729.
The Supreme Court, Thompson, J., held that in the absence of extraordinary
circumstances, a court is without power to direct compensation for professional services
beyond limits legislatively imposed, that personal sacrifice and perhaps a reduction in
personal income do not qualify as extraordinary circumstances justifying such
compensation, that statute authorizing, within an express limit, compensation for services in a
district court on behalf of a person charged with any offense by indictment or information is
applicable with respect to compensation on a per case as distinguished from a per count basis,
and that statute is not unconstitutional as either allowing a taking of attorney's services for
public use without just compensation, denying equal protection of the law, or permitting the
taking of property without due process.
Case No. 8625, affirmed.
Case No. 8499, reversed.
Case No. 8729, reversed.
George E. Holt, District Attorney, and Thomas J. Moore, Deputy District Attorney, Clark
County, for Darrell R. Daines.
Robert N. Peccole, of Las Vegas, for Earl W. White, Jr. and Anthony M. Earle.
Daniel Markoff and Martin R. Boyers, of Las Vegas, for themselves.
Cromer, Barker & Michaelson, and Frank Cook, of Las Vegas, for Judge Paul S.
Goldman.
In the absence of extraordinary circumstances, a court is without power to direct compensation for
attorneys appointed in criminal cases for professional services beyond limits legislatively imposed. NRS
7.260.
In the absence of statute, an attorney appointed in a criminal case would be obliged to honor the
appointment and to defend without compensation. NRS 7.260.
Duty of an attorney appointed in a criminal case is an incident of the license to practice law. NRS
7.260.
A permanent solution of the problem of compensating an attorney appointed in a criminal case must rest
with the legislative branch of the government. NRS 7.260.
A court possesses the inherent power in extraordinary circumstances to award fees to an attorney
appointed in a criminal case in excess of the statutory maximum. NRS 7.260.
Personal sacrifice and perhaps a reduction in personal income do not qualify as extraordinary
circumstances authorizing a court to award fees to an attorney appointed in a criminal case in excess of
statutory maximum. NRS 7.260.
7. Counties.
Statute providing that in every case in which the district court or district judge is authorized by law to
order any money to be paid out of the county treasury, such order shall be first presented to the county
auditor, who shall number and register the same, and issue his warrant on any fund in the county treasury
not otherwise specially appropriated or set apart is inapplicable to a professional services situation in which
legislature has not authorized payment other than within certain limits. NRS 7.260, 354.170.
Statute authorizing compensation for services in a district court on behalf of a person charged with any
offense by indictment or information is limited in application to compensation on a per case as
distinguished from a per count basis. NRS 7.260.
The professional obligation to respond to the call of the court is an incident of the privilege to practice
law and does not offend constitutional commands. Const. art. 1, 8; U.S.C.A.Const. Amends. 5, 14.
Neither state nor federal constitutions preclude service to indigents without full compensation. Const.
art. 1, 8; U.S.C.A.Const. Amends. 5, 14.
11. Attorney and Client; Constitutional Law; Eminent Domain.
Statute authorizing, within an expressed limit, compensation for services in a district court on behalf of a
person charged with any offense by indictment or information is not unconstitutional either as allowing a
taking of attorney's services for public use without just compensation, denying equal protection under the
law, or permitting the taking of property without due process. NRS 7.260; Const. art. 1, 8;
U.S.C.A.Const. Amends. 5, 14.
12. Attorney and Client; Contempt.
Trial court was without power to order county comptroller to pay fees for appointed defense counsel in
excess of that allowed by statute and, hence, comptroller could not be held in contempt of order. NRS
7.260.
OPINION
The above-entitled cases have been consolidated for appeal since each concerns the award
of fees to court appointed counsel for persons charged with criminal offenses.
In case No. 8499 the district court directed Clark County to pay fees to court appointed
attorneys Markoff and Boyers in excess of the statutory limit then in existence. Markoff and
Boyers represented Albert Oneal Scott charged with noncapital murder and attempted
murder. NRS 7.260, since amended, then limited compensation for counsel to $300 for
services in the district court unless the crime is punishable by death in which event the fee
shall not be set at more than $1,000. The district court believed that NRS 354.170 authorized
such payment, and that, in any event, the court possessed inherent power to direct such
payment. The County Comptroller has appealed from that order.
Case No. 8625 is an appeal by attorneys, White and Earle, from an order of the district
court dismissing their petition for a writ of mandamus to compel Clark County to pay them
fees in excess of the authorization stated in NRS 7.260. The attorneys had been appointed to
defend a person charged with a capital offense and compensation for each, therefore, was
limited to $1,000 by the statute. The court found that extraordinary circumstances justifying
greater compensation were not present.
Case No. 8729 is an appeal from a judgment finding the Clark County Comptroller in
contempt for his refusal to pay attorneys fees in excess of $300 for court appointed service in
a noncapital case wherein ten counts were charged. The court reasoned that it could award
compensation on a per count basis, rather than on a case basis, thereby enabling a greater fee
than $300.
[Headnotes 1-5]
1. In Brown v. Board of County Comm'rs, 85 Nev. 149, 451 P.2d 708 (1969), we ruled
that, in the absence of extraordinary circumstances, a court is without power to direct
compensation for professional services beyond limits legislatively imposed. We there noted
that in the absence of statute an attorney would be obliged to honor the court appointment and
to defend without compensation; that such duty is an incident of the license to practice law;
and that a permanent solution of the problem must rest with the legislative branch of our
government since it is charged with the responsibility of appropriating public funds for public
purposes.
1
We also indicated that in extraordinary circumstances a court possessed the
inherent power to award fees in excess of the statutory maximum, citing the Illinois case
of People ex rel.
____________________

1
The legislature enacted a new fee law effective May 20, 1975. See: NRS 7.125. This law provides for
additional compensation. The professional services rendered in the cases before us predate the new law.
in extraordinary circumstances a court possessed the inherent power to award fees in excess
of the statutory maximum, citing the Illinois case of People ex rel. Conn v. Randolph, 219
N.E.2d 337 (1966).
[Headnote 6]
In our view, Brown, supra, is dispositive of the cases before us. Extraordinary
circumstances justifying resort to the court's inherent power are not present in any of the three
cases under review. To be sure, personal sacrifice and perhaps a reduction in personal income
occurred in each instance, as happened in the Brown case. These factors, however, do not
qualify as extraordinary circumstances. As in Brown, we wish once more to commend the
several counsel for their services in the cases at hand. Their willingness to respond to the
court's call is in the highest tradition of our profession, and brings honor to them and to the
profession as a whole.
2. In case No. 8499, the district court believed that NRS 354.170 authorized a greater
payment. That statute provides . . . in every case in which the district court or district judge
is authorized by law to order any money to be paid out of the county treasury, such order shall
be first presented to the county auditor, who shall number and register the same, and he shall
issue his warrant on any fund in the county treasury not otherwise specially appropriated or
set apart.
[Headnote 7]
That statute is inapposite since the precondition in which the district court or district
judge is authorized by law to order any money to be paid does not exist. The legislature did
not authorize payment other than within the limits of NRS 7.260, nor was the court permitted
to exercise its inherent power for the reasons already expressed.
3. In case No. 8729, a noncapital case, ten separate counts were contained in the charge
filed against the defendant. The court awarded compensation on a per count basis, thereby
enabling a greater fee than $300.
[Headnote 8]
The statute, NRS 7.260, does not authorize a per count compensation. It only authorizes,
within the expressed limit, compensation for services in a district court on behalf of a person
charged with any offense by indictment or information. We read such language to mean
compensation on a per case as distinguished from a per count basis.
4. Constitutional challenges to NRS 7.260 are tendered. It is claimed that the statute
allows a taking of an attorney's services for public use without just compensation; denies
equal protection of the law; and permits the taking of property without due process. Nev.
Const. art. 1, 8; U.S. Const. amend. V and amend. XIV.
[Headnotes 9-11]
The professional obligation to respond to the call of the court is an incident of the privilege
to practice law, and does not offend constitutional commands. United States v. Dillon, 346
F.2d 633 (9th Cir. 1965); State v. Rush, 217 A.2d 441 (N.J. 1966); Lindh v. O'Hara, 325 A.2d
84 (Del. 1974). Neither our state constitution nor the federal constitution precludes service to
indigents without full compensation.
5. In case No. 8729, the court ordered the Comptroller to pay counsel fees greater than
allowed by statute, and when the Comptroller refused to do so, found him in contempt.
[Headnote 12]
For reasons already stated, the court was without power to order such payment. One may
not be held in contempt of a void order. Ex Parte Gardner, 22 Nev. 280, 39 P. 570 (1895);
Cline v. Langan, 31 Nev. 239, 101 P. 553 (1909); Culinary Workers v. Court, 66 Nev. 166,
207 P.2d 990 (1949).
Therefore, we affirm case No. 8625, and reverse cases Nos. 8499 and 8729.
I concur generally in the views expressed by Justice Thompson, but feel a brief further
comment is warranted.
In granting fees in excess of the limits legislatively fixed, the court did not act of course,
but entertained special motions as to which notice and hearing was requisite. See, for
example, Maheu v. District Court, 88 Nev. 26, 493 P.2d 709 (1972), and authorities cited
therein. Thus, the orders granting fees in excess of those that the statute routinely authorizes
were void.
If the Comptroller had been afforded notice and an opportunity to be heard, and if the
record reflected a case of truly extraordinary proportions or complexity, making fees in
excess of the statutory amount clearly necessary in order to avoid inordinate hardship upon
counsel, then an award in excess of the statutory limit would be proper.
____________
92 Nev. 588, 588 (1976) Stewart v. Warden
JAMES RUDY STEWART, Appellant, v. WARDEN,
NEVADA STATE PRISON, Respondent.
No. 9046
October 20, 1976 555 P.2d 218
Appeal from order of First Judicial District Court, Carson City; Frank B. Gregory, Judge.
Petitioner appeal from an order of the district court which summarily dismissed his
petition for post-conviction relief. The Supreme Court held that where the petitioner
requested his attorney on direct appeal of his conviction to raise certain claims of error and
the attorney neither presented those claims of error nor offered any reason or explanation for
his failure to do so, the petitioner was not precluded from raising those claims of error in a
petition for post-conviction relief.
District court order vacated; and, case remanded.
Horace R. Goff, Nevada State Public Defender, and J. Thomas Susich, Deputy Public
Defender, Carson City, for Appellant.
Robert List, Attorney General, and Patrick B. Walsh, Deputy Attorney General, Carson
Criminal Law.
Petitioner for post-conviction relief was not precluded from raising issues not asserted on direct appeal of
his conviction where petitioner had requested his appointed appellate counsel to raise certain claims of
error, but counsel neither presented those claims of error nor offered any reason or explanation for his
failure to do so. NRS 177.375, subd. 2.
OPINION
Per Curiam:
This appeal is from an order which summarily dismissed a petition for habeas corpus
[post-conviction] relief.
In dismissing the petition the district judge concluded, inter alia, our decision in Johnson
v. Warden, 89 Nev. 476, 515 P.2d 63 (1973), precludes appellant from now litigating the
claimed errors that could have been raised on direct appeal.
In Johnson we said: . . . this court will consider as waived those issues raised in a
post-conviction relief application which might properly have been raised on direct appeal,
where no reasonable explanation is offered for petitioner's failure to present such issues."
Id. S9 Nev. at 477, 515 P.2d at 64, [our emphasis].
reasonable explanation is offered for petitioner's failure to present such issues. Id. 89 Nev.
at 477, 515 P.2d at 64, [our emphasis]. See also, NRS 177.375(2), which contains analogous
language
1
.
The record reflects a deputy in the Office of the Washoe County Public Defender
represented appellant when he was tried for first degree murder, and on the subsequent
appeal, which was affirmed. See Stewart v. State, 92 Nev. 168, 547 P.2d 320 (1976).
It is uncontroverted that while the appeal was in progress appellant requested his then
attorney to raise certain claims of error, and the attorney neither presented those claims of
error to the supreme court nor offered any reason or explanation for his failure to do so. See
Anders v. California, 386 U.S. 738 (1967); and, Sanchez v. State, 85 Nev. 95, 450 P.2d 793
(1969).
In our view, the recited circumstances constitute both a reasonable explanation, as
contemplated by Johnson; and, the good cause, specified in NRS 177.375(2), for
appellant's failure to present the issues in his direct appeal.
In the factual context of this post-conviction proceeding, we hold the unexplained
omissions of appellant's former attorney may not be relied upon by a district court to penalize
appellant for the failure of his . . . appointed counsel [to] function in the active role of an
advocate,
. . . Entsminger v. Iowa, 386 U.S. 748, 751 (1967)
2
.
The district judge should have heard and resolved those contentions which appellant had
requested his attorney to pursue and are now before the state court for the first time in the
post-conviction proceeding
3
.
____________________

1
177.375 Waiver of Claims.
. . .
2. If the petitioner's conviction was the result of a trial, all claims for post-conviction relief are waived
which were or could have been:
(b) . . . raised in any other proceeding that the petitioner has taken to secure relief from his conviction or
sentence, unless the court finds good cause shown for the failure to present such claims. [Our emphasis.]

2
[T]he implied general authority of an attorney does not include any power or authority to dispose of the
client's substantive rights, . . . Gagnon Company v. Nevada Desert Inn, 289 P.2d 466, 474-475 (Cal. 1955).

3
Counsel for respondent, in asking us to deny relief, has alleged, but not documented, that appellant is also
trying to pursue the same contentions in the Federal Courts. Assuming the allegation correct, it is more
appropriate for the state court, in the first instance, to consider and resolve claimed errors.
The district court order is vacated; and, this cause is remanded for further proceedings.
____________
92 Nev. 590, 590 (1976) J & J Building Contractors, Inc., v. Savage Construction, Inc.
J & J BUILDING CONTRACTORS, INC., a Nevada Corporation, Appellant, v. SAVAGE
CONSTRUCTION, INC., a Nevada Corporation, Respondent.
No. 8354
October 20, 1976 555 P.2d 488
Judge.
The Supreme Court held that where trial court, sitting without a jury, made a
determination upon conflicting evidence, such determination would not be disturbed on
appeal where it was supported by substantial evidence.
Affirmed.
John J. McCune and Paul J. Williams, Reno, for Appellant.
Robert A. Grayson, Carson City, for Respondent.
Appeal and Error.
Where trial court, sitting without a jury, made a determination upon conflicting evidence, such
determination would not be disturbed on appeal where it was supported by substantial evidence.
OPINION
Per Curiam:
After hearing argument of counsel, reviewing the record and considering the briefs on file
herein, we conclude there is substantial, though conflicting, evidence to support the trial
court's findings.
Where a trial court, setting without a jury, makes a determination upon conflicting
evidence, that determination will not be disturbed on appeal where, as here, it is supported by
substantial evidence. Alves v. Bumguardner, 91 Nev. 799, 544 P.2d 436 (1975); County of
Clark v. Lucas, 91 Nev. 263, 534 P.2d 499 (1975); Fletcher v. Fletcher, 89 Nev. 540, 516
P.2d 103 (1973).
Affirmed.
____________
92 Nev. 591, 591 (1976) Hamilton v. Sheriff
MICHAEL LEE HAMILTON, Appellant, v. SHERIFF,
ELKO COUNTY, NEVADA, Respondent.
No. 9116
October 25, 1976 555 P.2d 489
Appeal from order denying pretrial petition for writ of habeas corpus, Fourth Judicial
District Court, Elko County; Joseph O. McDaniel, Judge.
The Supreme Court, Zenoff, J., held that police officer who received from an informant
whom he had known for approximately a year, and from whom he had received accurate
information on two prior occasions, information to the effect that a particular automobile was
being used to transport marijuana had probable cause to make a stop of the vehicles; and that
challenge to incriminating evidence was not cognizable in habeas corpus.
Affirmed.
Horace R. Goff, State Public Defender, Carosn City; and John J. Kadlic, Deputy, Elko, for
Appellant.
Robert C. Manley, District Attorney, Elko County, for Respondent.
1. Arrest.
Police officer who was given information to the effect that two men were headed in a particular direction
in a particular automobile and were transporting marijuana, who received the information from an
informant whom he had known for approximately a year and from whom he had received accurate
information on two prior occasions, and who noted that informant was able to describe with considerable
accuracy the circumstances surrounding the particular incident had probable cause to stop the vehicle.
2. Habeas Corpus.
Challenge to admissibility of incriminating evidence is not cognizable in habeas corpus; challenge should
be raised through motion to suppress.
OPINION
On April 29, 1976, Michael Lee Hamilton was a passenger in an automobile owned and
driven by Karl Pappas. Wells Police Officers had received a radio broadcast from Elko Police
that the two men were headed in the direction of Wells and were transporting marijuana. The
officers recognized and stopped the vehicle as it approached Wells.
stopped the vehicle as it approached Wells. After Pappas consented to a search of his
automobile, eight bags of marijuana were found in the back seat. The two men were arrested.
At the conclusion of a preliminary examination, Hamilton was ordered to stand trial for
possession of a controlled substance (marijuana), a felony under NRS 453.161 and 453.336.
He then sought and was denied habeas relief and has now appealed.
The thrust of Hamilton's argument below, and here, is that the arrest was invalid because
the incriminating information was given to the Elko Police by an unidentified informant.
[Headnote 1]
1. In order to make a valid warrantless arrest based upon information received from an
informant, there must be a showing of the underlying circumstances from which the
informant concluded that the narcotics were where he claimed they were, and some of the
underlying circumstances from which the officer concluded that the informant . . . was
credible' or his information reliable.' McCray v. Illinois, 386 U.S. 300, 304 (1967), citing
Aguilar v. Texas, 378 U.S. 108, 114 (1964). Here, the police officer to whom the information
was supplied testified that he had known the informant for approximately a year and that he
had received accurate information from him on two previous occasions. Furthermore, the
informant was able to describe with considerable accuracy the circumstances surrounding this
particular incident. See Draper v. United States, 358 U.S. 307 (1959).
We perceive no error in the trial judge's determination that there was sufficient reliable
information to allow the police officers to stop Pappas's vehicle. The arrests were, therefore,
valid. See Robertson v. State, 84 Nev. 559, 445 P.2d 352 (1968).
[Headnote 2]
2. Hamilton also suggests that absent illegally obtained evidence and testimony there was
insufficient evidence to bind [him] over for trial; . . . This challenge to the incriminating
evidence is not cognizable in habeas; rather, it should be raised through a motion to suppress,
as contemplated by NRS 174.125. See Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969), and
its progeny.
Other contentions are also without merit.
Affirmed.
____________
92 Nev. 593, 593 (1976) Crane v. State
GERALD CLAIR CRANE, Appellant, v. THE
No. 8854
October 28, 1976 555 P.2d 845
Appeal from conviction and sentence, First Judicial District Court, Carson City; Frank B.
Gregory, Judge.
Defendant was convicted in the district court of first degree kidnapping, and he appealed.
The Supreme Court held that defendant was not entitled to credit on state sentence for time
spent in federal custody pending trial and sentencing on federal charges; that defendant could
be convicted of and sentenced for distinct crimes of kidnapping and attempted robbery; and
that trial court properly imposed state sentence to run consecutively to his federal sentence on
attempted robbery charge.
Affirmed.
Horace R. Goff, Public Defender, Carson City, for Appellant.
Michael Fondi, District Attorney, Carson City, for Respondent.
1. Criminal Law.
In cases where consecutive sentences are involved, criminal defendants are not entitled to credit on state
sentences for time spent in federal custody pending trial and sentencing on federal charges.
2. Criminal Law.
Where defendant kidnapped person for purpose of exacting $150,000 from branch of bank through
kidnapped person's husband, i.e., manager of that bank, and while at bank attempting to achieve this goal,
was apprehended, defendant could be convicted of and punished for two distinct crimes of kidnapping and
attempted robbery.
3. Criminal Law.
Defendant convicted of federal charges of attempted bank robbery and of state charges of kidnapping had
violated laws of two sovereigns and was punishable by both and, thus, state court properly imposed
state sentence to run consecutively to federal sentence.
92 Nev. 593, 594 (1976) Crane v. State
properly imposed state sentence to run consecutively to federal sentence.
OPINION
Per Curiam:
Convicted of first degree kidnapping, appellant here contends the district court erred by (1)
denying credit on his state sentence for time served while in federal custody, and (2) imposing
a state sentence to run consecutively to his federal sentence. We disagree.
On October 15, 1975, appellant kidnapped Marie Butler for the purpose of exacting
$150,000.00 from the Carson City branch of the First National Bank of Nevada through her
husband, the manager of that bank. While at the bank attempting to achieve this goal,
appellant was apprehended and thereafter incarcerated in the Carson City Jail until October
16, 1975, when he was surrendered to federal authorities to face charges of attempted bank
robbery. Appellant pleaded guilty to those charges and was sentenced to a term of ten years in
federal prison, with credit for time served since October 16, 1975. Subsequently, appellant
pleaded guilty to state charges of first degree kidnapping and was sentenced to twenty-five
years in the Nevada State Prison with credit for the one day served in the Carson City Jail.
This sentence was to be served consecutively and in addition to his federal sentence.
[Headnote 1]
1. Appellant contends he should receive credit on his state sentence for time served while
in federal custody. However, in cases where consecutive sentences are involved, criminal
defendants are not entitled to credit on state sentences for time spent in federal custody
pending trial and sentencing on federal charges. See: Cox v. State, 522 P.2d 173 (Kan. 1974).
[Headnotes 2, 3]
2. Appellant also contends the kidnapping and attempted robbery were incident to one
criminal transaction and, thus, he should be subject to only one punishment. This contention
is meritless because distinctly different crimes are involved. Lovell v. State, 92 Nev. 128, 546
P.2d 1301 (1976). Further, appellant has violated the laws of two sovereigns and is
punishable by both. Bartkus v. Illinois, 359 U.S. 121 (1959).
Affirmed.
____________
92 Nev. 595, 595 (1976) DuBois v. DuBois
DIXIE PETERSON DuBOIS, Appellant, v.
JOHN BALDWIN DuBOIS, Respondent.
No. 8469
October 28, 1976 555 P.2d 839
Appeal from order denying motion to modify decree of divorce, Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
The Supreme Court held that trial court did not abuse discretion in denying wife's motion
to modify decree of divorce to increase alimony payments from former husband.
Affirmed.
Dickerson, Miles & Pico, Las Vegas, for Appellant.
Albright & McGimsey, Las Vegas, for Respondent.
Divorce.
Trial court did not abuse discretion in denying former wife's motion to modify decree of divorce to
increase alimony payments from former husband, pursuant to modification provision of integrated
separation and property support agreement.
OPINION
Per Curiam:
Appellant contends the district court abused its discretion in failing to grant her motion to
modify a decree of divorce. We disagree.
Pursuant to the modification provision of an integrated separation and property support
agreement, appellant sought an increase in alimony payments from her husband. After a
hearing, the district court denied her motion. We have reviewed the record and find no abuse
of the district court's discretion. Adler v. Adler, 80 Nev. 364, 394 P.2d 350 (1964); see: Porter
v. Porter, 473 P.2d 538 (Mont. 1970); Moses v. Moses, 394 P.2d 601 (Colo. 1964); cf. Nace
v. Nace, 489 P.2d 48 (Ariz. 1971); Gordon v. Gordon, 266 P.2d 786 (Wash. 1954).
Affirmed.
____________
92 Nev. 596, 596 (1976) Gross v. McCall
RICHARD L. GROSS and JOHN ELLENBURG and RODNEY CONNER, Doing Business
as THE ELLENBURG AND CONNER COMPANY, Appellants, v. ETHEL McCALL and
WILLIAM A. McCALL, Husband and Wife, Respondents.
No. 8750
October 28, 1976 555 P.2d 847
Appeal from order granting motion for summary judgment, Eighth Judicial District Court,
Clark County; Carl J. Christensen, Judge.
In action for specific performance of oral contract to convey real property and for payment
of real estate commissions thereunder, the district court granted defendants' motion for
summary judgment, and plaintiffs appealed. The Supreme Court held that in light of
defendants' affirmative defense of statute of frauds, there was no error in granting summary
judgment.
Affirmed.
Vargas, Bartlett & Dixon, Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for Respondents.
Judgment.
Where plaintiffs sought specific performance of an oral contract to convey real property, and
commissions thereunder, and defendants affirmatively raised the statute of frauds as a defense, there was no
error in granting summary judgment to defendants. NRCP 56.
OPINION
Per Curiam:
Appellants contend the district court erred by granting respondents' motion for summary
judgment because there existed material issues of fact to be decided. We disagree.
Appellants sought specific performance of an oral contract to convey real property and
payment of real estate commissions due under that contract. Respondents affirmatively raised
the Statute of Frauds as a defense and moved for summary judgment. After considering
supporting affidavits and pleadings, the district court entered summary judgment. Viewing
the evidence presented in a light most favorable to appellants, we perceive no error. NRCP
56; see: Olson v. Iacometti, 91 Nev. 241, 533
92 Nev. 596, 597 (1976) Gross v. McCall
P.2d 1360 (1975); Tibbs v. Smart and Final Iris Co., 313 P.2d 636 (Cal.App. 1957); cf. Ades
v. Supreme Lodge Order of Ahepa, 181 P.2d 161 (N.M. 1947).
Affirmed.
__________
92 Nev. 597, 597 (1976) Gerber v. Prunty
CLAUDE E. GERBER, Appellant, v.
MARGIELOU PRUNTY, Respondent.
No. 8568
October 28, 1976 555 P.2d 488
Appeal from judgment, Fourth Judicial District Court, Elko County; Joseph O. McDaniel,
Judge.
Affirmed.
Manzonie and Hawley, Elko, for Appellant.
Wait, Shamberger, Georgeson & McQuaid, Reno, for Respondent.
OPINION
Per Curiam:
Appellant sought damages for personal injuries sustained in an automobile accident near
Elko, Nevada. Jury verdict was in favor of respondent. Appellant contends the verdict was
contrary to the weight of the evidence. We disagree.
The record contains sufficient evidence to support the jury verdict and, thus, it will not be
disturbed. Steen v. Gass, 85 Nev. 249, 454 P.2d 94 (1969); Quilici v. Battaglia, 78 Nev. 413,
374 P.2d 887 (1962); Leete v. Southern Pac. Co., 37 Nev. 49, 139 P.29 (1914).
Other issues raised by appellant are without merit.
Affirmed.
____________
92 Nev. 598, 598 (1976) Brymer v. Sheriff
WILLARD ROSS BRYMER, Appellant, v. SHERIFF,
STOREY COUNTY, NEVADA, Respondent.
No. 9134
October 28, 1976 555 P.2d 844
District Court, Storey County, Frank B. Gregory, Judge.
The Supreme Court held that district court properly determined that there was sufficient
evidence to bind petitioner over for trial, and that petitioner's assertion that alleged offense
lacked magnitude of murder was for trier of fact to consider at trial.
Affirmed.
Jerome Polaha, Reno, for Appellant.
Robert List, Attorney General, Carson City; and Virgil A. Bucchianeri, District Attorney,
Storey County, for Respondent.
1. Habeas Corpus.
On pretrial petition for writ of habeas corpus contending that there was insufficient evidence adduced by
prosecution to establish probable cause that petitioner committed charged offense of murder, district court
properly determined that there was sufficient evidence to bind petitioner over for trial.
2. Criminal Law.
In order to bind an accused over for trial, all that is required is that there be enough evidence presented to
support reasonable inference that accused committed charged offense.
3. Habeas Corpus.
Assertion of petitioner, who at conclusion of preliminary examination had been ordered to stand trial for
murder and who sought pretrial writ of habeas corpus, that alleged offense lacked magnitude of murder was
for trier of fact to consider at trial.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Willard Ross Brymer was ordered to
stand trial for murder. He then filed a pretrial petition for a writ of habeas corpus contending
there was insufficient evidence adduced by the prosecution to establish probable cause that he
committed the charged offense. The district court denied habeas and in this appeal Brymer
reurges the same contention.
92 Nev. 598, 599 (1976) Brymer v. Sheriff
This proceeding arose as a result of the fatal shooting of one Oscar Bonavena on May 22,
1976. Brymer does not dispute the fact that the shooting occurred; however, he contends there
is no evidence to establish that he committed the homicide. We disagree.
[Headnotes 1, 2]
In our view, a factual recitation from the 454-page record would serve no useful purpose.
Suffice it to say, the district judge correctly determined there was sufficient evidence to bind
appellant over for trial. All that is required in this regard is that there be enough evidence
presented to support a reasonable inference that the accused committed the charged offense.
Kinsey v. Sheriff, 87 Nev. 361, 487 P.2d 340 (1971). [W]e are not now concerned with the
prospect that the evidence presently in the record may, by itself, be insufficient to sustain a
conviction. McDonald v. Sheriff, 89 Nev. 326, 327, 512 P.2d 774, 775 (1973).
[Headnote 3]
Brymer also asserts that the alleged offense lacked the magnitude of murder. This
contention is also without merit. [T]he 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. Ricci v. Sheriff, 88 Nev. 662, 663-664,
503 P.2d 1222, 1223 (1972), citing State v. Fuchs, 78 Nev. 63, 68-69, 368 P.2d 869, 871
(1962).
Affirmed.
____________
92 Nev. 599, 599 (1976) Mountain Shadows of Incline v. Kopsho
MOUNTAIN SHADOWS OF INCLINE, a Nevada Corporation,
Appellant, v. GEORGE KOPSHO, Respondent.
No. 8562
October 28, 1976 555 P.2d 841
Judge.
The district court awarded plaintiff judgment against defendant based on oral employment
contract between the parties, and defendant appealed. The Supreme Court held that evidence
was sufficient to support finding that parties orally agreed to complete contract with mutual
intention that it would become binding immediately, even though it was contemplated
that formal written agreement would thereafter be prepared and signed, and that there
was no meeting of minds or adequate consideration that constituted accord and
satisfaction discharging defendant's obligations.
to complete contract with mutual intention that it would become binding immediately, even
though it was contemplated that formal written agreement would thereafter be prepared and
signed, and that there was no meeting of minds or adequate consideration that constituted
accord and satisfaction discharging defendant's obligations.
Affirmed.
[Rehearing denied January 10, 1977]
Edmund S. Barnett, Crystal Bay, for Appellant.
Julian C. Smith, Jr., Carson City, for Respondent.
1. Master and Servant.
Fact that employment contract was not reduced to written agreement and signed by the parties did not
prevent contract from taking effect.
2. Master and Servant.
Evidence was sufficient to support finding that parties orally agreed to complete employment contract
with mutual intention that it would become binding immediately, even though it was contemplated that
formal written agreement would thereafter be prepared and signed.
3. Accord and Satisfaction.
To establish accord and satisfaction, it must be clearly shown that there was meeting of minds of parties
accompanied by sufficient consideration.
4. Accord and Satisfaction.
Evidence in suit on oral employment contract was sufficient to support finding that there was no meeting
of minds of parties or adequate consideration to constitute accord and satisfaction discharging defendant's
obligations.
OPINION
Per Curiam:
The district court awarded respondent a judgment against appellant based on an oral
employment contract between the parties. Appellant contends we must reverse because the
district court erred by finding (1) there was a binding contract, and (2) there was no accord
and satisfaction of appellant's obligations.
[Headnotes 1, 2]
1. We reject appellant's contention that it cannot be bound by its employment contract
because the contract was not reduced to a written agreement and signed by the parties.
Where a complete contract was made orally, the fact that it was expected that a written
contract would afterwards be signed, embodying the terms of the oral contract, does not
prevent the oral contract from taking effect.' Micheletti v. Fugitt, 61 Nev. 478, 489, 134 P.2d
99, 104 (1943). Accord: Thompson v. Schurman, 150 P.2d 509 (Cal.App. 1944). Here, the
district court found the parties orally agreed to a complete contract with the mutual intention
that it would become binding immediately, even though it was contemplated that a formal
written agreement was thereafter to be prepared and signed. This finding is supported by
substantial evidence; therefore, it will not be disturbed on appeal. Alves v. Bumguardner, 91
Nev. 799, 544 P.2d 436 (1975); County of Clark v. Lucas, 91 Nev. 263, 534 P.2d 499 (1975).
[Headnotes 3, 4]
2. We also reject appellant's contention that an accord and satisfaction discharged all its
obligations to respondent. To establish an accord and satisfaction, it must be clearly shown
that . . . there was a meeting of the minds of the parties, accompanied by a sufficient
consideration. Walden v. Backus, 81 Nev. 634, 637, 408 P.2d 712, 713-14 (1965). See also,
Adelman v. Arthur, 83 Nev. 436, 433 P.2d 841 (1967); and, Wolf v. Humboldt County, 36
Nev. 26, 131 P. 964 (1913). Here, the district court found there was no meeting of the minds
or adequate consideration. This finding is also supported by substantial evidence and will not
be disturbed on appeal. Alves v. Bumguardner, cited above; County of Clark v. Lucas, cited
above.
Collateral issues raised by appellant are without merit.
Respondent is allowed interest on the judgment, and costs. NRAP 37; NRAP 39(a). His
request for an attorney's fee, under NRAP 39, is denied.
Affirmed.
____________
92 Nev. 602, 602 (1976) State ex rel. Bd. Parole Comm'rs v. Brown
STATE OF NEVADA, On Relation of Its BOARD OF PAROLE COMMISSIONERS,
Appellant, v. THE HONORABLE SEYMORE BROWN, Police Judge, Municipal Court, In
and For the City of Las Vegas, Respondent.
No. 8982
October 28, 1976 555 P.2d 846
Appeal from order denying petition for writ of mandamus, Eighth Judicial District Court,
The Supreme Court held that where answering brief was neither filed within allotted time
nor was any explanation tendered for failure to comply with requirements of Rules of
Appellate Procedure with respect to filing answering brief, omission would be treated as
confession of error and writ of mandamus compelling dismissal of certain misdemeanor
charges should be granted.
Reversed with instructions.
Robert List, Attorney General, and David B. Small, Deputy Attorney General, Carson City,
for Appellant.
Carl E. Lovell, City Attorney, and Gerald Welt, Deputy City Attorney, Las Vegas, for
Respondent.
Mandamus.
Where respondent's answering brief was neither filed within allotted time nor did respondent give any
explanation for failure to comply with requirements of Rules of Appellate Procedure, omission would be
treated as confession of error and case would be remanded with instructions to grant petition for
extraordinary writ of mandamus compelling dismissal of certain misdemeanor charges.
OPINION
Per Curiam:
Under the Rules of Appellate Procedure, respondent was required to serve and file his
answering brief on or before October 17, 1976. The brief was neither filed within the allotted
time nor has any explanation been tendered for respondent's failure to comply with the
requirements of the rules.
Accordingly, under the authority of, and for the same reasons stated in, Kitchen Factors, Inc.
v. Brown, 91 Nev. 308, 535
92 Nev. 602, 603 (1976) State ex rel. Bd. Parole Comm'rs v. Brown
P.2d 677 (1975), we elect to treat the omission as a confession of error.
The order of the district court is reversed and we remand this proceeding to the district
court with instructions to grant appellant's petition for the extraordinary writ of mandamus to
compel respondent to dismiss misdemeanor charges in cause No. 21181, styled: City of Las
Vegas v. Hampton.
____________
92 Nev. 603, 603 (1976) Clough v. State
LESLIE R. CLOUGH, Appellant, v. THE
No. 8755
October 28, 1976 555 P.2d 840
Appeal from judgment, Sixth Judicial District Court, Pershing County; Stanley A. Smart,
Judge.
Defendant was convicted in the district court of unauthorized signing of a credit card and
he appealed. The Supreme Court held that credit card which was seized by police officer at
time of defendant's arrest was in plain view; and that, even if seizure of the credit card at the
scene of the arrest did result from an illegal search, the credit card was still admissible since it
would inevitably have been found as a result of a proper inventory of the automobile which
was being towed following defendant's arrest for driving while intoxicated.
Affirmed.
Horace R. Goff, Public Defender, Carson City, for Appellant.
Richard A. Wagner, District Attorney, Pershing County, for Respondent.
Where police officer, after stopping defendant's automobile, observed, when a passenger opened the door
in order to retrieve some items from the automobile, two wallets in the automobile, one of which had a
credit card in plain view, officer's seizure of the credit card was proper.
2. Criminal Law.
Where police had arranged to tow defendant's automobile after his arrest for driving while intoxicated
and would have been justified in conducting an inventory search during which they would inevitably have
found credit card and wallet which were in plain view, credit card was admissible in
defendant's trial for unauthorized signing of a credit card even if its seizure by police
officer at the scene of the arrest was the result of an illegal search.
plain view, credit card was admissible in defendant's trial for unauthorized signing of a credit card even if
its seizure by police officer at the scene of the arrest was the result of an illegal search.
OPINION
Per Curiam:
Convicted by jury for the unauthorized signing of a credit card, NRS 205.750, appellant
here contends the district court erred by admitting into evidence a credit card obtained
pursuant to an illegal search. We disagree.
On August 24, 1975, a police officer observed a vehicle weaving across the highway.
Suspecting the driver to be intoxicated, the officer stopped the vehicle and asked the driver,
appellant, for his identification. Appellant responded that he had none. Four hitchhikers were
traveling in the vehicle with appellant. Since appellant and his vehicle were being taken into
custody, the police released the hitchhikers to continue their travels. Upon release, one
hitchhiker indicated that he desired to retrieve his map from the car's jockey box. When the
hitchhiker procured his map, the officer observed two wallets in the jockey box, one having a
credit card in plain view. The officer inquired whether the wallets belonged to the hitchhikers,
and, when each indicated they had their wallets, the officer took the two wallets into custody.
Subsequently, the police obtained verbal identification from appellant, and, since the
identification differed from that contained in both wallets, the police commenced an
investigation which resulted in the present charge and conviction.
[Headnote 1]
At appellant's trial and over his objection, the credit card was introduced into evidence.
Appellant argues this was error because the police obtained the card pursuant to an illegal
search. However, the district court found, as a matter of fact, that there was no search of the
vehicle, only a seizure of the credit card and wallets. After reviewing the record, we agree.
See: Fagundes v. United States, 340 F.2d 673 (1st Cir. 1965).
[Headnote 2]
Even assuming arguendo that an illegal search did occur, the credit card would still be
admissible. We have held that evidence obtained as a result of information derived from an
unlawful search or other illegal police conduct is not inadmissible . . . where the normal
course of police investigation would, in any case, even absent the illicit conduct, have
inevitably led to such evidence.' " Yeoman v. State, 92 Nev. 36S, 369
would, in any case, even absent the illicit conduct, have inevitably led to such evidence.'
Yeoman v. State, 92 Nev. 368, 369, 550 P.2d 1273, 1274 (1976). Here, the police had
arranged to tow appellant's vehicle and would have been justified in conducting an inventory.
See: Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967); Plitko v. State, 272 A.2d 669
(Md.App. 1971). During this inventory, the police would inevitably have found the credit
card and wallets which were in plain view. Under these circumstances, we believe the police
conduct was reasonable.
Other issues raised by appellant are without merit, and we need not consider them.
Affirmed.
____________
92 Nev. 605, 605 (1976) Pierson v. Robert Griffin Investigations
FAYETTE DEXTER PIERSON, Appellant, v. ROBERT GRIFFIN INVESTIGATIONS,
INC., and NLV CASINO CORPORATION, Respondents.
No. 8418
October 28, 1976 555 P.2d 843
Appeal from order granting motion to dismiss; Eighth Judicial District Court, Clark
County; Keith C. Hayes, Judge.
Employee brought defamation action against his employer and corporation which
employer, a casino corporation, engaged to prepare a background investigation of plaintiff.
The district court granted defendants' motion to dismiss, and plaintiff appealed. The Supreme
Court held that since document was subject to a qualified privilege any defamatory statements
therein were not actionable unless defendants published with malice in fact or otherwise
abused the privilege and that since plaintiff's character was put in issue by defendants' defense
of truth, evidence of criminal acts committed by plaintiff more than 10 years before the
alleged libel were admissible.
Affirmed.
George E. Graziadei, Las Vegas, for Appellant.
Galatz, Earl & Biggar, Las Vegas, for Respondents.
1. Libel and Slander.
Background investigation prepared for plaintiff's employer, a casino corporation, was subject to qualified
privilege and, as such, allegedly defamatory statements therein were not actionable
unless the employer and preparer of the report published with malice in fact or
otherwise abused the privilege; burden of establishing malice or abuse of privilege
was on plaintiff.
allegedly defamatory statements therein were not actionable unless the employer and preparer of the report
published with malice in fact or otherwise abused the privilege; burden of establishing malice or abuse of
privilege was on plaintiff.
2. Libel and Slander.
Evidence of criminal acts committed by plaintiff more than 10 years before alleged libel was admissible
in defamation action, since plaintiff's character was put in issue by defendants' defense of truth. NRS
48.055, 50.095.
OPINION
Per Curiam:
Appellant Fayette Pierson brought suit to recover damages for respondents' publication of
an alleged document concerning Pierson. That document was a background investigation of
Pierson prepared by Respondent Robert Griffin Investigations, Inc., for Pierson's employer,
Respondent NLV Casino Corporation. At the conclusion of Pierson's case, the district court
granted respondents' motion to dismiss pursuant to NRCP 41(b). Pierson here contends the
district court erred by (1) granting the motion to dismiss and (2) permitting evidence, elicited
from Pierson on cross-examination, of specific dishonest acts of Pierson that occurred more
than 10 years before the alleged libel. We disagree.
[Headnote 1]
1. At trial, the parties conceded and the court ruled that the document in question was
subject to a qualified privilege. As such, statements therein were not actionable unless
respondents published with malice in fact or otherwise abused the privilege. See Gallues v.
Harrah's Club, 87 Nev. 624, 646, n. 1, 491 P.2d 1276 (1971); Reynolds v. Arentz, 119
F.Supp. 82, 88 (D.Nev. 1954). The burden of establishing malice or abuse of privilege was on
Pierson. See Gallues v. Harrah's Club, supra, at 626, n. 2. In granting respondents' motion to
dismiss pursuant to NRCP 41(b), the district court held, as a matter of law, that Pierson had
failed to meet this burden. The record supports the court's conclusion.
[Headnote 2]
2. Pierson, relying on NRS 50.095, contends the district court erred in admitting into
evidence criminal acts committed by him more than 10 years before the alleged libel.
1
Pierson's reliance on NRS 50.095 is misplaced.
____________________

1
1. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime
is admissible but only if
reliance on NRS 50.095 is misplaced. Since Pierson's character was put in issue by
respondents' defense of truth, the evidence was properly admissible pursuant to NRS 48.055.
Moore v. Davis, 27 S.W.2d 153, 157 (Tex.Crim.App. 1930).
2

Affirmed.
____________
92 Nev. 607, 607 (1976) Buchanan v. Goldman
JAMES L. BUCHANAN, II, Appellant, v. PAUL
S. GOLDMAN, District Judge, Respondent.
No. 9006
November 4, 1976 555 P.2d 842
Appeal from order holding appellant in contempt of court, Eighth Judicial District Court,
Clark County; Paul S. Goldman, Judge.
James L. Buchanan, II, Las Vegas, for Appellant.
Paul S. Goldman, pro se, Las Vegas, for Respondent.
OPINION
Per Curiam:
Under the Rules of Appellate Procedure, respondent was required to serve and file his
answering brief on or before November 2, 1976. The brief was neither filed within the
allotted time nor has any explanation been tendered for respondent's failure to comply with
the requirements of the rules.
____________________
the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was
convicted.
2. Evidence of a conviction is inadmissible under this section if a period of more than 10 years has elapsed
since:
(a) The date of the release of the witness from confinement; or
(b) The expiration of the period of his parole, probation or sentence,
whichever is the later date. (Emphasis added.)

2
1. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be
made by testimony as to reputation or in the form of an opinion.
2. In cases in which character or a trait of character of a person is an essential element of a charge, claim or
defense, proof may also be made of specific instances of his conduct.
92 Nev. 607, 608 (1976) Buchanan v. Goldman
respondent's failure to comply with the requirements of the rules.
Accordingly, under the authority of, and for the same reasons stated in, Kitchen Factors,
Inc. v. Brown, 91 Nev. 308, 535 P.2d 677 (1975), we elect to treat the omission as a
confession of error.
The order of the district court is reversed and we remand this proceeding with instructions
to vacate the order holding appellant in contempt.
____________
92 Nev. 608, 608 (1976) Evans v. Evans
SHELBY A. EVANS, Appellant, v. JACK
L. EVANS, Respondent.
No. 8465
November 9, 1976 555 P.2d 839
Appeal from decree of divorce, Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Affirmed.
Daniel J. Olguin, Reno, for Appellant.
James R. Brooke, Reno, for Respondent.
OPINION
Per Curiam:
The district court entered judgment dissolving the parties' marriage and distributing the
community property. Appellant contends the property distribution was in error.
After reviewing the record, we believe the distribution was equitable and perceive no
abuse of discretion. NRS 125.150; see: Benavidez v. Benavidez, 92 Nev. 539, 554 P.2d 256
(1976); Jolley v. Jolley, 92 Nev. 298, 549 P.2d 1407 (1976); Todkill v. Todkill, 88 Nev. 231,
495 P.2d 629 (1972).
Affirmed.
____________
92 Nev. 609, 609 (1976) Powers v. Johnson
ALBERT A. POWERS, Appellant, v.
SHIRLEY JOHNSON, Respondent.
No. 8415
November 10, 1976 555 P.2d 1235
Appeal from judgment entered upon jury verdict, Second Judicial District Court; William
N. Forman, Judge.
Action was brought for personal injuries arising out of automobile accident occurring
while defendant was driving automobile in which plaintiff was a passenger. The district court
entered a judgment in favor of the defendant motorist and the plaintiff passenger appealed.
The Supreme Court held that the trial court properly excluded proffered expert testimony for
lack of sufficient foundation and could not review claimed errors in instructions where they
were not included in record.
Affirmed.
[Rehearing denied December 14, 1976]
Harry S. Busscher, Reno, for Appellant.
Donald Thorpe, Reno, for Respondent.
1. Evidence.
In view of testimony as to the changed conditions between time of accident and time of witness'
investigation as well as his failure to ascertain certain critical matters, court did not err in excluding
proffered expert testimony of such witness on ground of insufficient foundation.
Supreme Court would not consider alleged error with respect to giving of two particular jury instructions
and the refusal to give another where appellant designated, as a part of record, objections and exceptions to
jury instructions but they were not included in the record. NRCP 51; NRAP 10(c), 11(a).
It is appellant's responsibility to insure that all items enumerated in designation of record are included in
record which is docketed in court. NRCP 51; NRAP 10(c), 11(a).
OPINION
Per Curiam:
On May 2, 1970, Shirley Johnson was test-driving a motor vehicle in which Albert
Powers, an automobile salesman who was trying to sell the car, was riding.
was trying to sell the car, was riding. As the vehicle approached Eighth Avenue, traveling
north on Yukon Drive in the Reno area, it collided with a westbound vehicle. Powers, who
was severely injured, sued for damages and at the conclusion of a three-day trial, the jury
returned a verdict for the defendant.
Powers has appealed contending the court committed reversible error by (1) excluding
parts of the proffered expert testimony of John Lommell; and, (2) giving two particular jury
instructions and refusing to give another.
1. John Lommell, described as an accidentologist, was called as a witness and Powers
attempted to elicit Lommell's opinion as to the zone of vision, the zone of hazard, and
the required stopping distance at the intersection where the accident took place. Objections
were made and sustained on the grounds that insufficient foundation had been laid for such
testimony.
[Headnote 1]
The record shows, inter alia, Lommell's investigation took place nearly three and one-half
(3 1/2) years after the accident. Photographs taken in the interim showed the street had been
resurfaced, rendering the relied upon coefficient of friction test irrelevant. One witness had
described tree limbs as being a visual obstruction when the accident occurred; Mr. Lommell
concluded the limbs were in a completely different condition when he made his
investigation on August 6, 1973. Additionally, he had not ascertained the vehicles' weights;
and, he had not viewed the vehicles. Indeed, it was doubtful that he had even viewed pictures
of the vehicles. Upon stronger facts, this court has held it to be prejudicial error to allow such
testimony. Gordon v. Hurtado, 91 Nev. 641, 541 P.2d 533 (1975); Choat v. McDorman, 86
Nev. 332, 468 P.2d 354 (1970). Cf. Levine v. Remolif, 80 Nev. 168, 390 P.2d 718 (1964).
[Headnote 2]
2. Although Powers designated, as a part of the record on appeal, the objections and
exceptions to the jury instructions, they are not included in the record. Therefore, we are
unable to consider and resolve his second claimed error. NRCP 51; NRAP 10(c); Shoshone
Coca-Cola v. Dolinski, 82 Nev. 439, 445, 420 P.2d 855, 859 (1966).
[Headnote 3]
It is appellant's responsibility to ensure that all items enumerated in the designation of
record are included in the record which is docketed in the court.
which is docketed in the court. See NRAP 11(a) which provides, in part, that [a]fter filing
the notice of appeal the appellant . . . shall take any other action necessary to enable the clerk
to assemble and transmit the record. [Emphasis added.] Accord: Business Forms Finishing
Service, Inc. v. Carson, 463 F.2d 966 (7th Cir. 1971). Cf. Pyramid Mobile Homes, Inc. v.
Speake, 531 F.2d 743 (5th Cir. 1976).
Affirmed.
____________
92 Nev. 611, 611 (1976) Shaw v. Beehive State Agric. Co-op
MARIANNE SHAW, Individually and as Mother and Next Friend of WILLIAM C.
STEWART, a Minor, Appellant, v. BEEHIVE STATE AGRICULTURAL CO-OP, INC.;
CHARLES E. SCOTT, Respondents.
No. 8584
November 10, 1976 555 P.2d 958
Appeal from jury verdict and orders denying motion for new trial and judgment
notwithstanding the verdict, Second Judicial District Court, Washoe County; Grant L.
Bowen, Judge.
Passenger in tractor-trailer vehicle brought action against driver and owner of the vehicle
to recover for personal injuries. The district court entered judgment on the verdict in favor of
defendants and passenger appealed. The Supreme Court held that evidence sustained finding
that driver of the vehicle was not negligent with respect to the injuries suffered by the
passenger; and that trial court did not abuse its discretion in denying motion for new trial
based on alleged misconduct by jury foreman.
Affirmed.
Echeverria and Osborne, Reno, for Appellant.
Hibbs & Newton, Reno, for Respondents.
1. Automobiles.
Evidence sustained finding that driver of tractor-trailer vehicle was not negligent with respect to
injuries sustained by passenger in the trailer.
2. New Trial.
Trial court did not abuse its discretion in denying new trial which was sought on the basis of
alleged misconduct by the jury foreman.
92 Nev. 611, 612 (1976) Shaw v. Beehive State Agric. Co-op
which was sought on the basis of alleged misconduct by the jury foreman.
OPINION
Per Curiam:
Appellant Marianne Shaw sought damages for injuries suffered by her son while he was a
passenger in a tractor-trailer vehicle owned by respondent Beehive State Agricultural Co-op,
Inc., and driven by respondent Charles Scott. Appellant now appeals from the adverse jury
verdict, contending (1) the verdict is contrary to the evidence; (2) it was error for the district
court to deny the motion for judgment notwithstanding the verdict; and (3) it was error to
deny the motion for new trial. We disagree.
[Headnote 1]
1. The record discloses the jury verdict is supported by substantial evidence, and, thus, we
will not disturb it on appeal. Steen v. Gass, 85 Nev. 249, 454 P.2d 94 (1969); Heric v.
Christensen, 73 Nev. 6, 306 P.2d 769 (1957).
2. Appellant's contention that it was error to deny her motion for judgment
notwithstanding the verdict is without merit. Such motion for judgment is properly refused
where, as here, there is evidence tending to support the verdict, or where there is a conflict
of evidence, so that the jury could properly decide, either way, even though the conflict is
such that the court would be justified in granting a new trial * * *.' Dudley v. Prima, 84
Nev. 549, 551, 445 P.2d 31, 32 (1968).
[Headnote 2]
3. Finally, appellant contends it was error to deny her motion for new trial because of
alleged misconduct by the jury foreman. After examining the jurors' affidavits, we are not
persuaded that the trial court abused its discretion in denying a new trial. Cf. Walkowski v.
McNally, 87 Nev. 474, 488 P.2d 1164 (1971); McNally v. Walkowski, 85 Nev. 696, 462 P.2d
1016 (1969).
Affirmed.
____________
92 Nev. 613, 613 (1976) Archie v. Sheriff
JOANNE ARCHIE, Appellant, v. SHERIFF, CLARK
No. 9137
November 10, 1976 555 P.2d 1233
Pretrial petition for writ of habeas corpus was filed on the ground that evidence adduced
by prosecuting attorney did not establish probable cause that petitioner had committed
charged offenses of robbery and use of deadly weapon during commission of crime. The
district court denied habeas and petitioner appealed. The Supreme Court held that evidence
was sufficient to bind petitioner over for trial.
Affirmed.
Thorndal & Liles, Las Vegas, for Appellant.
George E. Holt, District Attorney, and Rimantas A. Rukstele, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
There is sufficient evidence to bind a defendant over for trial if evidence supports reasonable
inference that she committed offense charged or that she aided or abetted its commission by another. NRS
171.206.
2. Criminal Law.
Evidence was sufficient to support reasonable inference that petitioner for habeas corpus had
committed offenses of robbery and use of deadly weapon during commission of a crime or had aided or
abetted commission by others and was sufficient to bind her over for trial. NRS 171.206, 193.165,
200.380.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Joanne Archie was ordered to stand trial
for robbery (NRS 200.380), and use of a deadly weapon during the commission of a crime
(NRS 193.165). She then filed a pretrial petition for a writ of habeas corpus contending the
evidence adduced by the prosecuting attorney did not establish probable cause that she had
committed the charged offenses.
The district court denied habeas and in this appeal appellant reurges the same contention.
92 Nev. 613, 614 (1976) Archie v. Sheriff
[Headnote 1]
There is sufficient evidence to bind a defendant over for trial pursuant to NRS 171.206 if
the evidence supports a reasonable inference that she committed the offense charged or that
she aided or abetted its commission by another. In the Matter of Beasley, 79 Nev. 78, 378
P.2d 524 (1963).
[Headnote 2]
The record, here, supports such an inference. Archie was stopped moments after the
robbery, driving a vehicle, identified by the witnesses as the getaway car. The car contained
two passengers, later identified as the robbers, a handgun, identified as the one used in the
robbery, and a distinctive beanie-type hat worn during the robbery.
This court has held that presence, companionship, and conduct after an offense are
circumstances from which one's participation in the crime may be inferred. Robertson v.
Sheriff, 85 Nev. 681, 462 P.2d 528 (1969). For cases involving similar fact patterns, see State
v. Ritson, 529 P.2d 90 (Kan. 1974), and People v. Beaulieu, 301 P.2d 304 (Cal.App. 1956).
Affirmed.
____________
92 Nev. 614, 614 (1976) Morato v. State
BIENVENIDO HIPOLIPO MORATO, Appellant, v.
No. 8603
November 10, 1976 555 P.2d 1228
Appeal from judgment of conviction and sentence, Eighth Judicial District, Clark County;
Joseph S. Pavlikowski, Judge.
Defendant was convicted in the district court of attempted murder and he appealed. The
Supreme Court held that question of whether trial judge's alleged sua sponte statement, made
before jury panel during voir dire, that accused had constitutional right not to testify violated
statute proscribing unsolicited jury instruction would not be reached by Supreme Court on
appeal, where there was nothing other than defendant's conclusory statement to suggest error,
and that, inasmuch as defense did not object to alleged prosecutorial misconduct during trial,
defendant was precluded from pursuing issue on appeal.
Affirmed.
Morgan D. Harris, Public Defender, and Herbert F. Ahlswede, Deputy, Clark County, for
Appellant.
1. Criminal Law.
Question of whether trial judge's alleged sua sponte statement, made before jury panel during voir dire,
that accused had constitutional right not to testify violated statute proscribing unsolicited jury instruction
would not be reached by Supreme Court on appeal, where there was nothing other than defendant's
conclusory statement to suggest error.
2. Criminal Law.
Even if statute proscribing unsolicited jury instruction was violated by alleged sua sponte comment of
trial judge before jury panel to effect that accused had constitutional right not to testify, in absence of
allegation and proof of prejudice, the error, if any, was harmless. NRS 175.181, subd. 1.
3. Criminal Law.
Where defense did not consider alleged prosecutorial misconduct serious enough to provide an objection
during trial, defendant was precluded from pursuing the issue on appeal.
OPINION
Per Curiam:
Bienvenido Hipolipo Morato was convicted, by jury verdict, of attempted murder. After
being sentenced to a twenty (20) year term in the Nevada State Prison, Morato perfected this
appeal contending he is automatically entitled to have his conviction reversed because: (1) his
Fifth Amendment rights against self-incrimination were infringed; and, (2) the prosecuting
attorney knowingly permitted one of the witnesses to commit perjury. In the context
presented neither contention has merit.
[Headnote 1]
1. In support of the constitutional challenge Morato complains of a sua sponte comment
the trial judge made before the jury panel during voir dire. The thrust of the statement was
that the accused had the constitutional right not to testify. Morato offers the conclusion that
the statement acquired constitutional magnitude because, he argues, it amounted to an
unsolicited jury instruction which is specifically proscribed by NRS 175.181(1).
1
[Headnote
2]
____________________

1
The statute provides, in part: [n]o instruction shall be given relative
[Headnote 2]
Error predicated upon denial of a constitutional right must be established as a
demonstrable reality and will not be presumed on appeal. Tucker v. State, 92 Nev. 486, 553
P.2d 951 (1976). Other than Morato's conclusory statement there is nothing to suggest error.
Accordingly, we need not and, therefore, do not reach the question of whether the trial judge's
comment constitutes a violation of the statute.
2

2. In support of the second contention it is argued that to knowingly elicit and encourage a
prosecution witness to give, what Morato concludes to be, perjured testimony, constitutes
prosecutorial misconduct which compels reversal.
3

[Headnote 3]
Defense counsel did not consider the alleged conduct serious enough to provide an
objection during trial; therefore, he is precluded from pursuing the issue on appeal. See
Bonnenfant v. State, 86 Nev. 393, 396, 469 P.2d 401, 403 (1970), and cases cited therein.
Affirmed.
____________________
to the failure of the person . . . to testify, except, upon the request of the person so charged, the court shall
instruct the jury that, in accordance with a right guaranteed by the constitution, no person can be compelled, in a
criminal action, to be a witness against himself.

2
Even if we assume a violation, in the absence of an allegationand proofof prejudice, the errorif
anywas harmless. Cf. Schneble v. Florida, 405 U.S. 427 (1972).

3
Although a discrepancy in the testimony of the witness in question does appear of record, we do not believe
it supports appellant's unsupported allegation of prosecutorial misconduct in as much as the discrepancy could
well have been the result of the witness's misunderstanding or misinterpretation of questions put to him during
cross-examination.
____________
92 Nev. 616, 616 (1976) Winston v. Sheriff
JOHNNY F. WINSTON, Appellant, v. SHERIFF,
No. 9170
November 10, 1976 555 P.2d 1234
District Court; Howard W. Babcock, Judge.
Accused, who had been bound over for trial on charges of robbery and battery with
intent to commit robbery, sought habeas corpus.
robbery and battery with intent to commit robbery, sought habeas corpus. The district court
denied relief and accused appealed. The Supreme Court held that evidence that accused was
present in washroom where robbery and battery occurred and that accused attempted to
dissuade a would-be rescuer from interfering with the robbery was sufficient to establish
probable cause.
Affirmed.
Gary L. Redmon, Las Vegas, for Appellant.
George E. Holt, District Attorney, and Rimantas A. Rukstele, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Evidence that victim of robbery was brutally battered and robbed in one of the toilet stalls in a casino by
codefendant and testimony by another witness that, upon entering the room, he heard the commotion, that
he saw accused, and that accused approached the witness and said They are just taking a crap was
sufficient to establish probable cause to believe that accused committed robbery and battery with intent to
commit robbery. NRS 200.380, 200.400.
2. Criminal Law.
Although mere presence cannot support an inference that one is a party to an offense, presence together
with other circumstances may do so.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Johnny F. Winston was bound over for
trial on charges of robbery and battery with intent to commit robbery, felonies under NRS
200.380 and 200.400. Winston then filed a pretrial petition for a writ of habeas corpus
contending the evidence adduced by the prosecuting attorney was insufficient to establish
probable cause that he committed the charged offenses. The district court denied habeas and
Winston, reurging the same contention, has appealed.
The record establishes that this proceeding arose out of an alleged violent robbery in the
Las Vegas Frontier Hotel Casino men's rest room. The victim testified he was brutally
battered and robbed in one of the toilet stalls by Winston's codefendant. Another witness
testified that, upon entering the room, he heard the commotion. There he saw Winston, who
approached him and said: They are just taking a crap.
[Headnote 1]
Winston argues that mere presence, coupled with his statement, is insufficient to
establish probable cause of his complicity in the crimes. We disagree.
[Headnote 2]
Although mere presence cannot support an inference that one is a party to an offense,
People v. Francis, 450 P.2d 591 (Cal. 1969), presence together with other circumstances may
do so. State v. Cummings, 423 P.2d 438 (Haw. 1967). Here there is more than mere presence.
There was great commotion inside the toilet stall. The sound of one person hitting another
was audible. The victim was shouting for help and sobbing loudly. In this context, Winston's
statement gives rise to a reasonable inference that he was attempting to dissuade a would-be
rescuer from interfering, and that his presence was for that purpose. See also, Robertson v.
Sheriff, 85 Nev. 681, 462 P.2d 528 (1969).
Affirmed.
____________
92 Nev. 618, 618 (1976) Culpepper v. Sheriff
CALVIN ODELL CULPEPPER, Appellant, v. SHERIFF,
No. 9138
November 10, 1976 555 P.2d 1231
District Court; James A. Brennan, Judge.
Defendant, bound over for trial on charge of attempted murder, filed pretrial petition for
writ of habeas corpus, challenging sufficiency of the evidence. The district court denied relief,
and defendant appealed. The Supreme Court held that evidence that defendant attempted to
rob a room full of victims, that one victim grabbed defendant and tried to disarm him of a
small handgun and that the gun discharged wounding victim was sufficient to warrant holding
defendant for trial on the subject charged.
Affirmed.
Morgan D. Harris, Public Defender, and Howard Ecker, Deputy Public Defender, Clark
County, for Appellant.
92 Nev. 618, 619 (1976) Culpepper v. Sheriff
George E. Holt, District Attorney, and Bill C. Hammer, Deputy District Attorney, Clark
Criminal Law.
Evidence that defendant attempted to rob a room full of victims, that one victim grabbed defendant and
tried to disarm him of a small handgun and that gun discharged wounding victim was sufficient to warrant
binding defendant over for trial on charge of attempted murder, regardless of whether such evidence, by
itself, was sufficient to convict defendant of such offense.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Calvin Odel Culpepper was bound over
for trial on several charges, including one count of attempted murder. He filed a pretrial
petition for a writ of habeas corpus, contending there was insufficient evidence to show the
requisite specific intent for the attempted murder charge. The district court denied habeas and
the same contention is reurged here.
The record establishes that Culpepper attempted to rob a roomful of victims. During the
attempt, one victim grabbed Culpepper and tried to disarm him of a small handgun. The gun
discharged and the victim was wounded.
This court has previously affirmed a finding of probable cause on similar facts. See, for
example, Perkins v. Sheriff, 92 Nev. 180, 547 P.2d 312 (1976), where we said, [w]e believe
such evidence, while marginal, justified the magistrate's determination that there was
probable cause to hold [the defendant] for trial. See State v. Havas, 91 Nev. 611, 540 P.2d
1060 (1975). Cf. Maupin v. Sheriff, 90 Nev. 99, 520 P.2d 237 (1974); Mathis v. State, 82
Nev. 402, 419 P.2d 775 (1966). We are not now concerned that such evidence may, by itself,
be insufficient to convict [him] of the charged offense. McDonald v. Sheriff, 89 Nev. 326,
512 P.2d 774 (1973).
Affirmed.
____________
92 Nev. 620, 620 (1976) Meredith v. Arden
THOMAS K. MEREDITH and ROSE N. MEREDITH, Appellants, v. VIRGIE L. SPEKKER
ARDEN and JOHN ARDEN, et al., Respondents.
No. 8421
November 10, 1976 555 P.2d 1241
Appeal from dismissal for failure to prosecute under NRCP 41(e) by the Second Judicial
District Court, Washoe County; Grant L. Bowen, Judge.
The Supreme Court held that where nine and three-quarters years elapsed without the
action coming to trial, dismissal was mandated without regard to any exercise of discretion on
the part of the trial judge, in absence of written stipulation extending time for trial.
Affirmed.
Paul A. Richards, of Reno, for Appellants.
Emerson J. Wilson, Ltd., and Timothy J. Henderson, of Reno, for Respondents Virgie L.
Spekker Arden, John Arden, Jimmie Ferrara and Leona Ferrara.
McDonald, Carano, Wilson, Bergin and Bible, of Reno, for all Respondents except Lloyd
E. Blair, Jo Ann G. Blair, Virgie L. Spekker Arden, John Arden, Jimmie Ferrara, Leona
Ferrara, Ernest W. Mack, M.D., Roberta Mack, M. H. McKinnin and Lloyd V. Smith.
Dismissal and Nonsuit.
Where nine and three-quarters years elapsed without action coming to trial, dismissal was mandated
without regard to any exercise of discretion on part of trial judge, in absence of written stipulation
extending time for trial. NRCP 41(e).
OPINION
Per Curiam:
This action was dismissed for failure to prosecute within five years. NRCP 41(e). The
complaint was filed August 18, 1965. Nine and three-quarters years elapsed without the
action coming to trial. Now appellant claims the trial court abused its discretion in granting
the motion to dismiss.
This court holds once again that a period of delay between the filing of the complaint and
trial which exceeds five years mandates dismissal.
92 Nev. 620, 621 (1976) Meredith v. Arden
mandates dismissal. Under NRCP 41(e) dismissal is required without regard to any exercise
of discretion on the part of the trial judge. In the absence of a written stipulation extending the
time for trial, the trial court properly granted the motion. Monroe, Ltd. v. Central Telephone
Co., 91 Nev. 450, 538 P.2d 152 (1975); Trail v. Faretto, 91 Nev. 401, 536 P.2d 1026 (1975);
Lighthouse v. Great W. Land and Cattle, 88 Nev. 55, 493 P.2d 296 (1972); Lindauer v. Allen,
85 Nev. 430, 456 P.2d 851 (1969).
Affirmed.
____________
92 Nev. 621, 621 (1976) Diversified Capital v. City No. Las Vegas
DIVERSIFIED CAPITAL CORPORATION, a Delaware Corporation, Appellant, v. CITY
OF NORTH LAS VEGAS, a Municipal Corporation, and TITLE INSURANCE AND
TRUST COMPANY OF CALIFORNIA, a California Corporation, Respondents. BANK OF
NEVADA, a Nevada Banking Corporation, Joined Respondent.
No. 8181
November 10, 1976 555 P.2d 1236
Appeal by trustor from judgment denying a permanent injunction to enjoin sale under deed
of trust and granting costs of sale and attorneys' fees to beneficiary. Eighth Judicial District
Court, Clark County; Joseph S. Pavlikowski, Judge.
Trustor brought action against beneficiary to enjoin sale of land under deed of trust. The
district court denied permanent injunction and granted cost of sale and attorneys' fees to
beneficiary, and trustor appealed. The Supreme Court, Zenoff, J., held that assessments
exceeded value of benefits bestowed upon property, and injunction prohibiting collection of
such assessments was appropriate; that city was obligated to utilize funds to construct
improvements itemized in agreement, and upon its failure to do so, trustor, as owner of land,
acquired equitable title to fund, and city could not declare default on assessment until trustor
was given credit for full amount of fund; and that award of attorneys' fees to beneficiary could
not be sustained in absence of showing that trustee's sale was necessary.
Reversed and remanded with instructions.
Gunderson, C. J., concurred in part, dissented in part.
Lionel, Sawyer, Collins & Wartman, and Paul R. Hejmanowski, of Las Vegas, for
Appellant.
Paul H. Schofield, City Attorney, of North Las Vegas, for City of North Las Vegas.
Smith & O'Brien, of Las Vegas, for Bank of Nevada.
Municipality may not unilaterally alter its contractual obligations to its benefit through subsequent
enactment of ordinances or by adoption of resolutions.
2. Municipal Corporations
Where deed of trust was executed in conjunction with agreement whereby municipal beneficiary agreed
to provide funds for construction of improvements to subject property, but before any funds were dispersed
for any of specified purposes, municipal beneficiary imposed moratorium ostensibly absolving it from
expenditure of funds for improvements to subject property until certain further conditions, not mentioned in
agreement, were met by trustor, additional extra contractual conditions imposed on trustor were invalid.
Law prohibits recovery of assessments by municipality for improvements which greatly exceed benefits
bestowed on property.
to provide funds for construction of improvements to subject property and provide sufficient surplus so that
no assessments would have to be paid by trustor for two years, but, although no improvements were made
to subject property, assessments encumbering property more than doubled after execution of agreement,
assessments exceeded value of benefits bestowed upon property, and injunction prohibiting collection of
such assessments was appropriate.
to provide funds for construction of improvements to subject property, and funds for construction of
improvements were to be held by municipal beneficiary in type of constructive trust for benefit of land
against which assessments to pay for improvements had been levied, city was obligated to utilize such
funds to construct improvements itemized in agreement, and upon its failure to do so, trustor, as owner of
land, acquired equitable title to fund, and city could not declare default on assessment until trustor was
given credit for full amount of fund.
to provide funds for construction of improvements to subject property, and funds for construction of
improvements were to be held by municipal beneficiary in type of constructive trust
for benefit of land against which assessments to pay for improvements had been
levied, disbursements from fund which resulted in no improvement or direct benefit
to property could not subsequently be the subject of an assessment.
construction of improvements were to be held by municipal beneficiary in type of constructive trust for
benefit of land against which assessments to pay for improvements had been levied, disbursements from
fund which resulted in no improvement or direct benefit to property could not subsequently be the subject
of an assessment.
to provide funds for construction of improvements to subject property, but before any funds were disbursed
for any of improvements, municipal beneficiary imposed moratorium ostensibly absolving it from
expenditure of funds for improvements to subject property until certain further conditions, not mentioned in
agreement, were met by trustor, trial court, on remand of trustor's action to enjoin sale of property, would
be required to calculate amount remaining in project fund, including accrued interest, plus all amounts
which were disbursed therefrom for which no improvements to property could be shown, and total would
be subtracted from amount of all unpaid assessments; if there remained surplus in project fund, it would be
credited against future assessment and sale of property would be enjoined unless or until trustor defaulted.
8. Mortgages.
Award of attorneys' fees to defendant beneficiary in trustor's action to enjoin sale of land under deed of
trust could not be sustained in absence of showing that trustees' sale was necessary.
OPINION
Prior to 1970, the City of North Las Vegas expended approximately $2,100,000.00 for
general improvements to a tract of land within its boundaries known as Nellis Industrial Park
Unit No. 1. Proceeds from the sale of bonds by the City were utilized to implement the
improvements and an improvement district, comprised solely of the land within the park, was
created against which assessments were levied to secure payment of the bonds.
In 1970, Diversified Capital Corporation owned the land occupied by the industrial park. It
acquired the land from owners who had permitted the assessments to fall in arrears. The park
at that time sat virtually unoccupied and Diversified was without sufficient funds to pay the
assessments. Negotiations between Diversified and Milton Weiss (Director of Finance for the
City) resulted in the execution of a memorandum on April 2, 1970, purporting to set forth
the terms of a settlement between the City and Diversified in connection with litigation then
pending involving the delinquent assessments.
with litigation then pending involving the delinquent assessments. That memorandum
apparently constituted the foundation of a formal agreement executed on August 8, 1970, by
the mayor of the City and representatives of Diversified.
The pertinent terms of the August 8 agreement provided that the City would issue a series
of interim warrants in the amount of $2,425,000.00. The proceeds from the sale thereof were
earmarked to provide funds for construction of further improvements and to provide a
sufficient surplus so that no assessments would have to be paid for a period of two years. The
proceeds which were earmarked for the construction of further physical improvements to the
park ($1,100,000.00) were placed in an account designated project fund. The agreement
itemized the work which was to be done and paid for out of the project fund and provided
that it should be completed at the earliest practicable time.
Contemporaneously with the execution of the agreement of August 8, Diversified executed
a deed of trust naming the City as beneficiary and encumbering the property in the amount of
$1,000,000.00. The deed of trust was intended to secure payment of the assessments when the
same became due.
The city council subsequently approved the August 8 agreement in accordance with the
provisions of the applicable statutes and promulgated appropriate ordinances to effectuate its
purposes.
In December of 1970, before any portion of the project fund was disbursed for any of the
purposes specified in the agreement, the city council imposed a moratorium on the
expenditure of any funds in connection with improvements to the industrial park. The
resolution imposing the moratorium provided that funds for improvements could be disbursed
only where a tenant had committed himself to the construction and occupancy of a building
and had obtained valid lender commitments for construction financing.
As of the date this lawsuit was commenced, only an insignificant amount had been
disbursed from the project fund to accomplish the purposes specified in the agreement.
Substantial amounts have been withdrawn from the fund to pay interest on the bonds and
warrants and lesser sums have been withdrawn to reimburse the City for attorneys' fees and
litigation expenses arising from its relationship with Diversified. Funds also have been
withdrawn from the project fund to pay the salaries of private guards hired to protect the park
from vandalism.
The first assessment owed by Diversified pursuant to the agreement of August S became
due in March of 1973.
agreement of August 8 became due in March of 1973. Diversified was unable to pay that
assessment or the following one which became due in December of the same year.
Consequently, on February 12, 1974, the City commenced to exercise its power of sale under
the deed of trust.
Diversified initiated this action seeking to permanently enjoin the trustees' sale. Although a
preliminary injunction to that effect was granted, Diversified ultimately was denied all relief
and the City was awarded $1,000.00 in attorneys' fees and an undetermined amount to cover
the trustees' fees upon sale of the property. The judgment of the lower court was stayed
pending the outcome of this appeal.
The principal issue on this appeal is whether the City may properly exercise the power of
sale granted to it under the deed of trust executed in conjunction with the agreement of
August 8, 1970.
1. The trial court concluded that the City complied fully with the terms of the agreement.
Diversified contends that such a conclusion is unsupported by the evidence and that, in fact,
the evidence in the record is capable of supporting only a contrary conclusion.
The agreement of August 8 provided that certain itemized work would be performed by
the City to improve the park site and that it would be completed at the earliest practicable
time. Diversified argues that the moratorium subsequently declared by the City violated the
express terms of the agreement and completely frustrated the purposes sought to be achieved
thereby.
[Headnote 1]
There is nothing in the record which indicates that at the time the agreement was executed
the parties intended anything other than that the work specified therein should be commenced
forthwith. Certainly, the agreement on its face did not contemplate the unilateral declaration
of a moratorium by the City ostensibly absolving it from the responsibility of performing the
work specified in the agreement until certain further conditions, not mentioned in the
agreement, were met by Diversified. A municipality may not unilaterally alter its contractual
obligations to its benefit through subsequent enactment of ordinances or by adoption of
resolutions. Arlington Hts. Nat. Bank v. Village of Arlington Hts., 213 N.E.2d 264 (Ill.
1966).
[Headnote 2]
The additional extra-contractual conditions imposed on Diversified by the City before the
project fund could be utilized for the purpose for which it was intended were invalid.
utilized for the purpose for which it was intended were invalid. As a result of the moratorium
only an insignificant portion of the work specified in the agreement was completed. The fact
that the park existed in an unimproved condition undoubtedly adversely affected its salability
and consequently frustrated Diversified's efforts to obtain tenants upon whom it relied to
generate funds to pay the assessments.
The record is void of any suggestion that the parties contemplated or intended that a
moratorium be imposed subsequent to the execution of the agreement. To construe the plain
language of the agreement to countenance the moratorium would be a creative exercise
indeed. Succinctly stated, the conclusion that the City complied in all respects with the
provisions of the August 8 agreement simply is not supported by the record. See Cardan
Overseas, Ltd. v. Harris, 92 Nev. Adv. Op. 15 (1976).
2. By entering into the agreement of August 8 and subsequently declaring the moratorium,
the City effectively increased the assessment on the land within the industrial park twofold
but spent only an insignificant fraction of the increase on actual improvements. The park lies
today in the same condition as it was in 1970 yet is subject to assessments for improvements
in an amount in excess of $5,000,000.00, more than double the amount of assessments which
encumbered the property in 1970. Over $1,000,000.00 of the increase is attributable to
improvements which were promised but never completed. In short, the City now seeks to
compel Diversified to pay for over $1,000,000.00 in improvements to its land which were
never made.
[Headnotes 3, 4]
The law prohibits recovery of assessments by a municipality for improvements which
greatly exceed the benefit bestowed upon the property. Norwood v. Baker, 172 U.S. 269
(1898); City of Reno v. Folsom, 86 Nev. 39, 464 P.2d 454 (1970). Here, we are not faced
with the problem of weighing the benefit occasioned by the improvements to the property
against the amount of the assessment. It is undisputed that virtually no improvements were
made. Thus, there is no question but that the assessments exceed the value of any benefit
bestowed upon the property. Under such circumstances, an injunction prohibiting the
collection of such assessments is appropriate. Maxwell v. City of Santa Rosa, 347 P.2d 678
(Cal. 1959); City and County of Denver v. Greenspoon, 344 P.2d 679 (Colo. 1959).
[Headnote 5]
The funds earmarked for the construction of improvements to the industrial park site were
held by the City in a type of constructive trust for the benefit of the land against which
assessments to pay for the improvements had been levied. The City was obligated to utilize
the funds to construct the improvements itemized in the August 8 agreement. Diversified, as
owner of the land subject to the assessments, acquired equitable title to the project fund as a
result of the City's failure to construct the improvements as promised. Consequently, the City
was in no position to declare default on any assessment until Diversified was given credit for
the full amount of the project fund. Cf. Crone v. Johnson, 403 S.W.2d 738 (Ark. 1966);
Savings Bank v. Asbury, 48 P. 1081 (Cal. 1897); Ball v. Bankers Life Co., 103 S.W.2d 1111
(Tex.Civ.App. 1937); Salinger v. Lincoln Nat. Life Ins. Co., 52 F.2d 1080 (8th Cir. 1931).
Before the City should be permitted to compel a sale of the land under the deed of trust, it
first should be required to reduce the assessments levied against the improvement district in
an amount equal to the amount earmarked for improvements by the August 8 agreement plus
accrued interest on that sum. From that amount there should be subtracted any money actually
expended for improvements or for the direct benefit of the district. That sum would not
include expenditures for such items as the salaries of guards
1
hired to protect the site from
vandalism or attorneys' fees and litigation expenses incurred by reason of certain lawsuits
pending against Diversified.
[Headnote 6]
The project fund was not created for the benefit of the City or of Diversified but was
created for the benefit of the land located within the improvement district. See Heavens v.
King County Rural Library District, 404 P.2d 453 (Wash. 1965). Disbursements from the
fund which resulted in no improvement or direct benefit to the property within the district
cannot be the subject of an assessment. City of Reno v. Folsom, supra; Heavens v. King
County Rural Library District, supra; Town of Fort Lupton v. Union Pacific R.R. Co., 399
P.2d 248 {Colo.
____________________

1
The City hired off-duty police officers to patrol the park in lieu of providing public police protection. No
reason for such action appears in the record. Since the park was located within the confines of the city limits it
should have been afforded the same police protection as any other parcel of property similarly located.
(Colo. 1965); Smith v. City of Bozeman, 398 P.2d 462 (Mont. 1965); Application of Erick
Hospital District, 444 P.2d 216 (Okl. 1968).
[Headnote 7]
There being insufficient evidence in the record for us to ascertain the amount which should
be credited against the assessments presently encumbering the subject property, we remand
the case to the trial court to make such determination. The trial court is directed to calculate
the amount remaining in the project fund (including accrued interest) plus all amounts which
were disbursed therefrom for which no improvements or direct benefit to the property can be
shown. The total should be subtracted from the amount of all unpaid assessments. If a surplus
in the project fund remains, it should be credited against future assessments and the trustees'
sale should be enjoined unless or until Diversified defaults again on the assessments. If the
unpaid assessments exceed the amount in the project fund as computed by the trial court, the
trustees' sale shall proceed in accordance with the provisions of the agreement of August 8.
[Headnote 8]
Under the circumstances, the award of attorneys' fees to the City by the lower court cannot
be sustained. However, ifafter the trial court has acted in accordance with the instructions
set forth abovea trustees' sale is still necessary, Diversified shall bear the costs thereof.
Reversed and remanded with instructions.
Batjer, Mowbray, and Thompson, JJ., concur.
Gunderson, C. J., concurring and dissenting:
I accept the opinion prepared by Justice Zenoff insofar as it decides that the City acted
improperly. I do not agree with this court's instructions, which in my view do not
adequately redress the wrongs in question.
If the City had performed in accordance with the obligations which the majority find it
breached, appellant might not, and quite probably would not, be in apparent default. Thus,
seemingly, the City should not be allowed to foreclose following the arithmetical adjustments
prescribed by this court. Instead, an injunction should issue against any foreclosure until the
City has fully and completely performed the obligations of the parties' agreement according to
their tenor.
The latter is the relief sought in this appeal, and, in my view, is the relief to which
appellant is entitled in light of the wrongs the majority determine have occurred.
is the relief to which appellant is entitled in light of the wrongs the majority determine have
occurred.
____________
92 Nev. 629, 629 (1976) Davis v. Gomez
WILLIAM DAVIS, Appellant, v. RAMIRO
M. GOMEZ, Respondent.
No. 8513
November 10, 1976 555 P.2d 1228
Thompson, Judge.
The district court found consideration for modification of a written contract. An appeal
was taken. The Supreme Court held that where substantial evidence supporting the finding of
consideration, judgment would be affirmed.
Affirmed.
Stanley W. Pierce, Las Vegas, for Appellant.
Earle W. White, Jr., Las Vegas, for Respondent.
Appeal and Error.
Where substantial evidence supported finding of consideration for modification of written contract,
judgment was affirmed.
OPINION
Per Curiam:
Appellant contends the trial court erred in finding consideration for modification of a
written contract. We disagree.
After reviewing the record, we find substantial evidence supporting that finding and, thus,
the judgment is affirmed. J & J Building Contractors, Inc. v. Savage Construction, Inc., 92
Nev. 590, 555 P.2d 488 (1976); Holland Livestock v. B & C Enterprises, 92 Nev. 473, 553
P.2d 950 (1976).
Other issues raised by appellant are without merit and we need not consider them.
Affirmed.
____________
92 Nev. 630, 630 (1976) McMurtry v. McMurtry
JOHN McMURTRY, Appellant, v. GLORIA
McMURTRY, Respondent.
No. 8507
November 10, 1976 555 P.2d 959
Appeal from order granting custody of a minor child, Eighth Judicial District Court, Clark
The district court at conclusion of a contested hearing awarded custody of the parties'
minor child, in divorce litigation. The father appealed. The Supreme Court held that where
custody had not finally been decided, and thus was a pending matter, notice to the father
through his attorney that the district court had set a hearing to consider all matters pending
was sufficient for district court jurisdiction.
Affirmed.
Calvin C. Magleby, Las Vegas, for Respondent.
1. Divorce.
Where custody of parties' minor child had not finally been decided, and thus was pending matter, notice
to father through his attorney that district court had set hearing to consider all matters pending in divorce
litigation was sufficient for district court jurisdiction.
Where both parties and attorneys attended hearing and appellant brought neither hearing transcript nor
substitute, reviewing court was obliged to assume that equal opportunity to be heard had been allowed.
NRAP 10 (c).
OPINION
Per Curiam:
At the conclusion of a contested hearing, the district court, inter alia, awarded respondent
custody of the parties' minor child. Appellant contends we are compelled to reverse because,
he argues, the district court acted without or in excess of its jurisdiction. In support of this
argument appellant claims he did not receive notice that child custody would be considered at
the hearing. We reject the contention.
[Headnotes 1, 2]
The scant record discloses appellant, through his attorney, received timely notice that the
district court had set a hearing to consider "all matters pending" in the divorce litigation.
92 Nev. 630, 631 (1976) McMurtry v. McMurtry
to consider all matters pending in the divorce litigation. The custody of the parties' minor
child had not finally been decided, and thus was a pending matter. Both parties and their
attorneys attended the hearing, and, since appellant neither brought up the hearing transcript,
nor a substitute therefor permitted by NRAP 10(c), we must assume each was given a full
opportunity to be heard. Under these circumstances, there is nothing to support appellant's
claim that the district court acted without or in excess of its jurisdiction. Cf. Matthews v.
District Court, 91 Nev. 96, 531 P.2d 852 (1975); Turner v. Saka, 90 Nev. 54, 518 P.2d 608
(1974).
Affirmed.
____________
92 Nev. 631, 631 (1976) Rice v. Wadkins
JOHN RICE, Appellant, v. DENNIS LEE WADKINS; STOCKS MILL AND SUPPLY
COMPANY, INC., a Nevada Corporation, Respondents.
No. 8654
November 10, 1976 555 P.2d 1232
Appeal from judgment and order denying motion for new trial, Eighth Judicial District
Court, Clark County; Paul S. Goldman, Judge.
A judgment and order of the district court denied a motion for a new trial in a negligence
case, and plaintiff appealed. The Supreme Court held that the comparative negligence statute,
enacted after the accident but before trial, was not to be applied retrospectively.
Affirmed.
Goodman & Snyder and Richard W. Myers, Las Vegas, for Appellant.
Cromer, Barker & Michaelson, Las Vegas, for Respondents.
Negligence.
Comparative negligence statute, enacted after accident but before trial, was not to be applied
retrospectively. NRS 41.141.
OPINION
Per Curiam:
Appellant contends the district court erred by failing to apply our comparative negligence
statute retrospectively.
92 Nev. 631, 632 (1976) Rice v. Wadkins
apply our comparative negligence statute retrospectively. We disagree.
Appellant sought damages for personal injuries sustained in an automobile-pedestrian
accident on April 7, 1971, in Las Vegas, Nevada. Subsequent to the accident, but before trial,
the Nevada legislature enacted our comparative negligence statute.
1
At trial, the appellant
argued that the jury should be instructed on comparative negligence instead of contributory
negligence because the newly-enacted statute was retroactive. However, the statute was silent
as to its retroactive effect and we have long held that courts will not give retrospective
interpretation to statutes unless the legislative intent that they do so is clearly manifested in
the statute. Miller v. Ashurst, 86 Nev. 241, 468 P.2d 357 (1970); Wildes v. State, 43 Nev.
388, 187 P. 1002 (1920); Fitch v. Elko County, 8 Nev. 271 (1873); Joseph v. Lowery, 495
P.2d 273 (Or. 1972).
Affirmed.
____________________

1
1. In any action to recover damages for injury to persons or property in which contributory negligence may
be asserted as a defense, the contributory negligence of the plaintiff shall not bar a recovery if the negligence of
the person seeking recovery was not greater than the negligence or gross negligence of the person or persons
against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of
negligence attributable to the person seeking recovery.
2. In such cases, the judge may, and when requested by any party shall instruct the jury that:
(a) The plaintiff may not recover if his contributory negligence has contributed more to the injury than the
negligence of the defendant or the combined negligence of multiple defendants.
(b) If the jury determines the plaintiff is entitled to recover, it shall return by general verdict the total amount
of damages the plaintiff would be entitled to recover except for his contributory negligence.
(c) If the jury determines that a party is entitled to recover, it shall return a special verdict indicating the
percentage of negligence attributable to each party.
(d) The percentage of negligence attributable to the person seeking recovery shall reduce the amount of such
recovery by the proportionate amount of such negligence.
3. Where recovery is allowed against more than one defendant in such an action:
(a) The defendants are severally liable to the plaintiff.
(b) Each defendant's liability shall be in proportion to his negligence as determined by the jury, or judge if
there is no jury. The jury or judge shall apportion the recoverable damages among the defendants in accordance
with the negligence determined.
____________
92 Nev. 633, 633 (1976) Evenson v. Smith
PHILLIP L. EVENSON, dba EMPIRE AUTO BODY SHOP,
Appellant, v. JOANNE E. SMITH, Respondent.
No. 8438
November 10, 1976 555 P.2d 1230
Appeal from order refusing to set aside a default judgment; First Judicial District Court,
Carson City; John F. Sexton, Judge.
The Supreme Court held that on the record, the trial court abused its discretion in refusing
to set aside the default and default judgment.
Reversed and remanded for a trial on the merits.
Eck & Harkins, Ltd., Carson City, for Appellant.
Kenneth J. Jordan, Carson City, for Respondent.
Judgment.
On record, trial court abused its discretion in refusing to set aside default and default judgment.
OPINION
Per Curiam:
This is an appeal from an order of the district court refusing to set aside a default
judgment.
It is manifest from the record that the court below abused its discretion in refusing to set
aside the default and default judgment. Cipolla v. Cipolla, 85 Nev. 43, 449 P.2d 258 (1969);
Adams v. Lawson, 84 Nev. 687, 448 P.2d 695 (1968). Accordingly, we reverse and remand
the case for a trial on the merits.
____________
92 Nev. 633, 633 (1976) Brechan v. Scott
FRED C. BRECHAN and RUTH S. BRECHAN, Appellants,
v. HARRY V. SCOTT, dba SCOTT MASONRY, Respondent.
No. 8789
November 12, 1976 555 P.2d 1230
Appeal from judgment, Eighth Judicial District, Clark County; Keith C. Hayes, Judge.
Appeal was taken from denial of motion requesting order amending, modifying, and
supplementing findings of fact and conclusions of law and entry of amended judgment by the
district court. The Supreme Court held that where appellant did not specify and court was not
able to find anything in record from which it could conclude that it was clear that wrong
conclusion had been reached in judgment, motion was properly denied.
Affirmed.
Stanley W. Pierce, Las Vegas, for Appellants.
Michael L. Hines, Las Vegas, for Respondent.
An exception to the general rule that when there is substantial evidence to sustain a judgment it will not
be disturbed obtains where, upon all the evidence, it is clear that a wrong conclusion has been reached.
NRCP 52(b), 52(e).
Where appellants did not specify and court was not able to find anything in record from which it could
conclude that it was clear that a wrong conclusion had been reached in judgment which was sustained by
substantial evidence, Supreme Court would not disturb judgment. NRCP 52(b), 59(e).
OPINION
Per Curiam:
Pursuant to NRCP 52(b) and 59(e), appellants filed a motion with the district court
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. That motion was denied and
appellants now appeal, contending that the judgment is contrary to the evidence and law
applicable to the facts as found by the court.
[Headnotes 1, 2]
The general rule of this court is that when there is substantial evidence to sustain the
judgment, it will not be disturbed. An exception to the general rule obtains where, upon all
the evidence, it is clear that a wrong conclusion has been reached. Seyden v. Frade, 88 Nev.
174, 177, 494 P.2d 1281, 1283 (1972). Appellants have neither specified, nor have we been
able to find, anything in the record from which we could conclude that this case falls
within the above exception.
able to find, anything in the record from which we could conclude that this case falls within
the above exception.
Affirmed.
____________
92 Nev. 635, 635 (1976) Jones v. Revell
DAVID R. JONES, Appellant, v. IRENE
C. REVELL, Respondent.
No. 8888
November 19, 1976 555 P.2d 1327
Appeal from order granting summary judgment, Eighth Judicial District Court, Clark
County; Paul S. Goldman, Judge.
After accepting payment of money and executing release of all claims arising out of
injuries and damages received in accident, plaintiff filed suit to recover other damages
attributable to accident. The district court granted respondent's motion for summary
judgment, and plaintiff appealed. The Supreme Court held that plaintiff was not entitled to
recover additional damages.
Affirmed.
Edwin S. Pomeranz, Las Vegas, for Appellant.
Dickerson, Miles and Pico, Las Vegas, for Respondent.
Release.
After accepting payment of money and executing release of all claims arising out of injuries and damages
received in accident, plaintiff, who did not allege fraud, duress, mistake or any other legal basis for
avoiding release, was not entitled to recover other damages attributable to accident.
OPINION
Per Curiam:
Appellant contends the district court committed reversible error by granting respondent's
motion for summary judgment because there were material issues of fact to be decided. We
disagree.
After accepting payment of money and executing a release of all claims arising out of
injuries and damages received in an accident with respondent, appellant filed suit to recover
other damages attributable to the accident.
92 Nev. 635, 636 (1976) Jones v. Revell
other damages attributable to the accident. The complaint did not allege fraud, duress,
mistake, or any other legal basis for avoiding the release.
Based on the unchallenged, and apparently valid, release, the district court granted
respondent's motion for summary judgment, which appellant had neither opposed by
affidavits nor controverted by points and authorities. Subsequently, appellant filed a motion
for rehearing wherein he attempted to interject a belated defense to the release; the motion
was considered and denied. In our view, appellant has failed to demonstrate error in the
court's rulings. See Igert v. State Farm Mut. Auto. Ins., 91 Nev. 240, 533 P.2d 1365 (1975);
and, Hustead v. Farmers Insurance Group, 90 Nev. 354, 526 P.2d 1116 (1974). Accordingly,
we affirm.
____________
92 Nev. 636, 636 (1976) Meadows v. Sheldon Pollack Corp.
RICHARD E. MEADOWS, Appellant, v. SHELDON POLLACK CORPORATION, a
Foreign Corporation, Respondent.
No. 8464
November 19, 1976 556 P.2d 546
Appeal from order granting motion to dismiss complaint, Eighth Judicial District Court,
In a suit to recover for personal injuries suffered in the fall of an elevator installed by
defendant, plaintiff appealed from a ruling by the district court that the action was precluded
by a two-year statute of limitations. The Supreme Court held that the cause of action sounded
in tort and that the two-year statute was therefore applicable.
Affirmed.
Daryl Engebregson, Las Vegas, for Appellant.
Peter Burleigh, Las Vegas, for Respondent.
Limitation of Actions.
Suit to recover damages for personal injuries sustained in fall of elevator, brought against corporation
which installed such machine, sounded in tort, not contract, and such suit therefore was controlled by
two-year statute of limitations applicable to personal injury actions, and was barred.
92 Nev. 636, 637 (1976) Meadows v. Sheldon Pollack Corp.
was controlled by two-year statute of limitations applicable to personal injury actions, and was barred.
NRS 11.190, subds. 1(b), 2(c), 4(e), 11.205.
OPINION
Per Curiam:
On October 10, 1974, appellant filed suit to recover for personal injuries suffered May 11,
1972, in a fall of an elevator manufactured by Montgomery Elevator Company and installed
by respondent Sheldon Pollack Corporation. Finding the two-year statute of limitations (NRS
11.190(4)(e)) precluded appellant's action, the district court granted respondent's motion to
dismiss.
1
Here, appellant contends the district court erred by ruling the two-year statute of
limitations was applicable. He also contends the trial court erred in ruling the provisions of
NRS 11.205 inapplicable. We reject both contentions.
1. Appellant argues the longer statute of limitations of NRS 11.190(1)(b) or 11.190(2)(c)
govern because his action sounds in contract.
2
However, the gravamen of his cause of action
is in tort to recover damages for personal injuries; thus, the two-year limitation of NRS
11.190(4)(e) is applicable. See: Blotzke v. Christmas Tree, Inc., 88 Nev. 449, 499 P.2d 647
(1972); and, State Farm Mut. Auto. Ins. v. Wharton, 88 Nev. 183, 495 P.2d 359 (1972).
2. Appellant cites no relevant authority in support of his argument that the provisions of
NRS 11.205 are applicable; thus, we need not, and therefore do not, consider it. Alves v.
Bumguardner, 91 Nev. 799, 544 P.2d 436 (1975).
Affirmed.
____________________

1
NRS 11.190(4)(e) provides:
. . .
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. The provisions of this paragraph relating to an action to recover damages for injuries to
a person shall apply only to causes of action which shall accrue after March 20, 1951.
Actions under NRS 11.205 must be brought within six (6) years.

2
The period of limitation in NRS 11.190(1)(b) is six (6) years; in NRS 11.190(2)(c), it is four (4) years.
____________
92 Nev. 638, 638 (1976) Corbin v. Sheriff
WILLIAM S. CORBIN, Appellant, v. SHERIFF,
No. 9196
November 22, 1976 555 P.2d 1325
District Court, Clark County, Thomas J. O'Donnell, Judge.
Reversed.
David M. Schreiber, Las Vegas, for Appellant.
George E. Holt, District Attorney, and Albert Matteucci, Deputy District Attorney, Clark
OPINION
Per Curiam:
For the same reasons enunciated in McNair v. Sheriff, 89 Nev. 434, 514 P.2d 1175 (1973),
the district court's order denying a pretrial petition for habeas corpus is reversed.
____________
92 Nev. 638, 638 (1976) Alitalia-Linee Aeree v. District Court
ALITALIA-LINEE AEREE ITALIANES.p.A., an Italian Corporation, Petitioner, v. THE
SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, In and For the
County of Washoe, JOHN E. GABRIELLI, Judge, Respondent.
No. 8955
November 22, 1976 556 P.2d 544
Original proceedings in prohibition were brought to bar district court from entertaining
jurisdiction in suit filed against foreign corporation for unlawful invasion of plaintiff's
privacy. The Supreme Court held that where, in action for unlawful invasion of privacy,
United States District Court of Nevada ruled that foreign corporation's contacts with Nevada
were insufficient to subject it to personal jurisdiction in Nevada and granted motion to quash
return of service and summons, plaintiff, who chose not to appeal decision of federal court,
could not challenge it in a collateral proceeding in state court on petition against foreign
corporation for unlawful invasion of privacy; and that foreign corporation which filed
petition for removal to federal court did not thereby appear generally in action for
invasion of privacy.
not challenge it in a collateral proceeding in state court on petition against foreign corporation
for unlawful invasion of privacy; and that foreign corporation which filed petition for
removal to federal court did not thereby appear generally in action for invasion of privacy.
Writ granted.
Herzfeld & Rubin, P.C., and Alan A. D'Ambrosio, New York; McDonald, Carano, Wilson,
Bergin & Bible and John Frankovich, Reno, for Petitioner.
Roger A. Bergmann and Stephen C. Mollath, Reno, for Respondent and for Real Party in
Interest Steve McKinney.
1. Judgment.
The doctrine of res judicata proscribes the hearing of an issue determined by a court of competent
jurisdiction in a previous proceeding between the same parties and the same cause of action, and doctrine
applies to questions of jurisdiction with same force as to other legal issues.
2. Judgment.
Where, in action for unlawful invasion of privacy, United States District Court of Nevada ruled that
foreign corporation's contacts with Nevada were insufficient to subject it to personal jurisdiction in Nevada
and granted motion to quash return of service and summons, plaintiff, who chose not to appeal decision of
federal court, could not challenge it in a collateral proceeding in state court on petition against foreign
corporation for unlawful invasion of privacy.
In federal practice, an order granting a motion to quash return of service and summons is treated as
equivalent to one granting a motion to dismiss for lack of personal jurisdiction and is immediately
appealable, provided its result is to dispose of the entire action.
4. Corporations.
Foreign corporation which filed petition for removal to federal court did not thereby appear generally in
action for invasion of privacy.
OPINION
Per Curiam:
Alitalia-Linee Aeree Italiane-S.p.A., an Italian corporation, seeks in this original
proceeding a writ of prohibition barring the respondent district court from entertaining
jurisdiction in a suit filed against Alitalia by Steve McKinney, plaintiff in the respondent
court below, for unlawful invasion of McKinney's privacy.
On July 16, 1974, McKinney won the Kilometro Lanciato, a ski race in Cervenia, Italy.
Alitalia obtained pictures of McKinney and later used the pictures at ski shows in Boston,
Chicago, and New York to promote travel to Italy. McKinney claims that as a result of this
publicity he lost his amateur status.
Initially, McKinney filed action in the United States District Court for the District of
Nevada. Alitalia moved to quash the return and service of summons, which the United States
District Court granted on May 23, 1975.
1

Almost 6 months later, McKinney filed the instant action in the state district court. Again
Alitalia moved to quash the return of service and summons. Alitalia also filed a petition for
removal of the case to the United States District Court.
2
The state court denied the motion to
quash and assumed jurisdiction. Hence this petition for prohibition.
Alitalia predicates its petition primarily on the principle that the prior ruling of the federal
court that Alitalia was not subject to service of process in Nevada is res judicata in the instant
case. We agree.
[Headnote 1]
The doctrine of res judicata proscribes the hearing of an issue determined by a court of
competent jurisdiction in a previous proceeding between the same parties in the same cause
of action. Markoff v. New York Life Ins. Co., 92 Nev. 268, 549 P.2d 330 (1976); Lucas v.
Page, 91 Nev. 493, 538 P.2d 165 (1975).This doctrine applies to questions of jurisdiction
with the same force as to other legal issues. Baldwin v. Iowa State Travelingmen's Ass'n, 283
U.S. 522 (1931); Webster v. Steinberg, 84 Nev. 426, 442 P.2d 894 (1968).
____________________

1
Federal Judge Thompson ruled in part in his written decision:
Plaintiff [McKinney] argues that Alitalia's solicitation of business by maintaining telephone listings in
Nevada and by advertising in a nationally distributed magazine is sufficient to satisfy N.R.S. 14.065(2)(a).
Mere solicitation of business in Nevadaeither by Alitalia or by Dazey Travel Service, an independent Nevada
agentis insufficient to subject Alitalia to personal jurisdiction. Section 14.065(2) clearly states that the
particular cause of action must have arisen from doing business in Nevada to subject a foreign corporation to
personal jurisdiction. See, also, Process Church of Final Judgment v. Sanders, 338 F.Supp. 1396, 1398 (N.D.
Ill. 1972). Plaintiff has not shown any connection between Alitalia's use of the photographs and films of plaintiff
and Alitalia's transaction of business within the State of Nevada. If Alitalia did invade plaintiff's privacy, the
invasion occurred from the transaction of business in Boston, Massachusetts[,] or Cervenia, Italy, not in
Nevada.

2
The case was subsequently remanded to state court on grounds not here pertinent.
[Headnotes 2, 3]
On May 23, 1975, the United States District Court for the District of Nevada ruled that
Alitalia's contacts with Nevada were insufficient to subject it to personal jurisdiction in
Nevada. The court granted a motion to quash. In federal practice, such an order is treated as
equivalent to one granting a motion to dismiss for lack of personal jurisdiction and is
immediately appealable, provided its result is to dispose of the entire action, as in the instant
case. Orient Mid-East Lines, Inc. v. Albert E. Bowen, Inc., 297 F.Supp. 1149 (D.N.Y. 1969);
Beury v. Beury, 222 F.2d 464 (4th Cir. 1955). McKinney chose not to appeal Federal Judge
Thompson's determination and may not now challenge it in a collateral proceeding.
[Headnote 4]
McKinney also contends that Alitalia appeared generally in the instant case when Alitalia
filed its petition for removal to the federal court. This contention is meritless. The authorities
relied on establish only that a party appears generally when he seeks additional relief, such as
a motion to dismiss, from the state court. Selznick v. District Court, 76 Nev. 386, 355 P.2d
854 (1960); Barnato v. District Court, 76 Nev. 335, 353 P.2d 1103 (1960). A petition for
removal to a federal court is the assertion of a federal right and may not be held to affect the
petitioner's posture in the state court.
We therefore order that the petition be granted and that the writ issue.
___________
No. 9168
November 22, 1976 556 P.2d 549
District Court; Joseph S. Pavlikowski, Judge.
Public administrator who had been charged with extortion and with failure to file a full
and correct quarterly financial statement petitioned for habeas corpus. The district court
denied relief, and petitioner appealed. The Supreme Court held that within statute proscribing
receipt by public officer of unauthorized fees for his official service, official service
includes more than duties explicitly delineated by statute; and that for the purpose of
determining scope of public administrator's "official service," statutory scheme
contemplated official duties prior to his appointment over a particular estate.
includes more than duties explicitly delineated by statute; and that for the purpose of
determining scope of public administrator's official service, statutory scheme contemplated
official duties prior to his appointment over a particular estate.
Affirmed.
Harry E. Claiborne, Las Vegas, for Appellant.
J. Cremen, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Unless a criminal statute clearly manifests a legislative intent to alter or abolish the common law
definition of a crime, the statute must be construed in light of that definition.
2. Extortion.
Common law definition of extortion is the corrupt collection of an unlawful fee by an officer under the
color of office.
3. Extortion.
Within statute proscribing public officers from accepting unauthorized fees for their official service,
official service includes more than the duties explicitly delineated by statute, and relevant question is
whether officer charged with extortion imparted and exploited a reasonable belief that fees were necessary
by virtue of the use or misuse of his office. NRS 197.170.
4. Extortion.
Legislative scheme contemplates official duties prior to public administrator's appointment over a
particular estate, and thus charges of extortion with respect to alleged receipt of unlawful fee is not
precluded merely because letters of administration had not been issued to administrator, despite contention
that prior to issuance of letters fees were not received as part of his official service. NRS 197.170,
253.050, subd. 2.
OPINION
Per Curiam:
At the conclusion of a preliminary examination Nat Adler was ordered to stand trial on
two counts of extortion by a public officer (NRS 197.170) and two counts of failure to file a
full and correct quarterly financial statement (NRS 253.090). Adler then filed a pretrial
petition for a writ of habeas corpus contending the evidence adduced by the prosecuting
attorney did not establish probable cause that he had committed the charged offenses.
The district court denied habeas and in this appeal Adler reurges the same contention.
The thrust of Adler's argument is that NRS 197.170 proscribes a public officer from
accepting unauthorized fees only in matters that are part of his official service.
1
He argues
his official services as a public administrator, regarding a particular estate, do not commence
until letters of administration are issued to him. Therefore, the argument goes, he cannot
properly be charged with extortion prior to receipt of such letters, there being no official
services for which to receive a fee. We reject the argument for two reasons.
[Headnote 1-3]
First, the statutory phrase, official service, in NRS 197.170 does not carry the restrictive
interpretation Adler offers. Unless a criminal statute clearly manifests a legislative intent to
alter or abolish the common law definition of a crime, the statute must be construed in light
of that definition. State v. Weleck, 91 A.2d 751 (N.J. 1952). The common law definition of
extortion is the corrupt collection of an unlawful fee by an officer under color of office.
2
When read against the backdrop of color of office, official service includes more than the
duties explicitly delineated by statute. The relevant question is whether Adler imparted and
exploited a reasonable belief that the fees were necessary by virtue of (the use or misuse of)
his office. United States v. Hathaway, 534 F.2d 386 (1st Cir. 1976).
[Headnote 4]
Second, Adler's characterization of his official duties is unreasonably narrow. NRS
253.050(2)
3
provides for the compensation of public administrators, by the court, for
duties arising prior to the issuance of letters of administration.
____________________

1
Extortion by public officer. Every public officer who shall ask or receive, or agree to receive a fee or other
compensation for his official service, either:
1. In excess of the fee or compensation allowed to him by statute therefor; or
2. Where no fee or compensation is allowed to him by statute therefor, commits extortion and shall be
punished by imprisonment in the state prison for not less than 1 year or more than 10 years, or by a fine of not
more than $5,000, or by both fine and imprisonment. [Emphasis added.]

2
R. Perkins, Criminal Law 367 (2d ed. 1969).

3
The public administrator may be compensated by the court for services performed in preserving the
personal property of an estate of a deceased person prior to the appointment of an administrator. [Emphasis
added.]
pensation of public administrators, by the court, for duties arising prior to the issuance of
letters of administration. The legislative scheme, then, clearly contemplates official duties
prior to the public administrator's appointment over a particular estate.
It is, therefore, untenable to suppose Mr. Adler could not have received an unlawful fee
merely because letters of administration were not issued.
Affirmed.
____________
92 Nev. 644, 644 (1976) Cox v. Sheriff
JAMES COX, Appellant, v. SHERIFF, CLARK
No. 9213
November 22, 1976 555 P.2d 1326
District Court, Clark County; Howard W. Babcock, Judge.
Defendant charged by indictment with conspiracy to commit murder filed pretrial petition
for writ of habeas corpus. The district court denied habeas corpus, and defendant appealed.
The Supreme Court held that where indictment charging defendant was not filed until twenty
(20) months after charged offense occurred, defendant was not subject to prosecution under
the indictment.
Reversed.
Morgan D. Harris, Public Defender, and George E. Franzen, Deputy, Clark County, for
Appellant.
Sherman H. Simmons, Deputy, Clark County, for Respondent.
Indictment and Information.
Where indictment charging defendant with conspiracy to commit murder, a gross misdemeanor, was not
filed until twenty (20) months after charged offense occurred, defendant was not subject to prosecution
under the indictment. NRS 171.090, 199.480.
OPINION
Per Curiam:
Pursuant to a True Bill returned by a Clark County Grand Jury, an indictment was filed
October 23, 1975, which charged that on June 23, 1974, James Cox committed the crime
of conspiracy to commit murder, a gross misdemeanor under NRS 199.4S0.1
92 Nev. 644, 645 (1976) Cox v. Sheriff
Jury, an indictment was filed October 23, 1975, which charged that on June 23, 1974, James
Cox committed the crime of conspiracy to commit murder, a gross misdemeanor under NRS
199.480.
1

Cox sought and was denied habeas corpus and in this appeal he contends the order of the
district court must be reversed. We agree.
The indictment was not filed until twenty (20) months after the charged offense occurred.
NRS 171.090 provides, in part, that [a]n indictment for any misdemeanor must be found, . . .
within 1 year after its commission. Accordingly, Cox is not subject to prosecution under the
indictment. See Cherubini v. Sheriff, 92 Nev. 111, 546 P.2d 598 (1976).
Reversed.
____________________

1
The offense subsequently achieved felony status. See Stats. of Nev. 1975, ch. 363, p. 509.
____________
92 Nev. 645, 645 (1976) Rice v. Harrison
JACK RICE and GUITHRUN RICE, Appellants, v.
ED HARRISON, Respondent.
No. 8623
November 22, 1976 555 P.2d 1325
Appeal from judgment, Eighth Judicial District Court, Clark County; Michael J. Wendell,
Judge.
Purchaser brought action against vendors for specific performance of contract for sale of
land. The district court entered judgment for vendors and purchaser appealed. Following
remand, 89 Nev. 180, 510 P.2d 633 (1973), the district court awarded purchaser specific
performance of contract and damages, and vendors appealed. The Supreme Court held that
evidence sustained finding that parties had entered into valid contract for sale of land; and
that trial court properly awarded purchaser damages, in an amount supported by substantial
evidence, to compensate him for losses caused by vendors' delay in performance.
Affirmed.
John Peter Lee and James C. Mahan, Las Vegas, for Appellants.
Earl and Earl, and Anthony M. Earl, Las Vegas, for Respondent.
92 Nev. 645, 646 (1976) Rice v. Harrison
1. Specific Performance.
Evidence in action for specific performance of written contract for sale of land sustained finding that
parties had entered into valid contract for sale of land.
2. Specific Performance.
In action for specific performance of written contract for sale of land, trial court properly awarded
purchaser damages, in an amount supported by substantial evidence, to compensate him for losses caused
by vendors' delay in performance.
OPINION
Per Curiam:
After a new trial pursuant to our ruling in Harrison v. Rice, 89 Nev. 180, 510 P.2d 633
(1973), the district court awarded respondent Harrison specific performance of a written
contract for the sale of real property and damages. Appellants contend the district court erred
by (1) directing specific performance because there was no valid contract, and (2) awarding
damages. We disagree.
[Headnote 1]
1. The district court's finding that the parties had entered into a valid contract for the sale
of land is supported by substantial evidence and will not be disturbed on appeal. Alves v.
Bumguardner, 91 Nev. 799, 544 P.2d 436 (1975); County of Clark v. Lucas, 91 Nev. 263,
534 P.2d 499 (1975).
[Headnote 2]
2. The district court properly awarded respondent damages to compensate him for losses
caused by appellants' delay in performance. See: Reinink v. Van Loozenoord, 121 N.W.2d
689 (Mich. 1963). The amount awarded is supported by substantial evidence and will not be
disturbed. Alves v. Bumguardner, cited above; County of Clark v. Lucas, cited above.
Affirmed.
____________
92 Nev. 647, 647 (1976) Casino Car Wash, Inc. v. Koepenick
CASINO CAR WASH, INC., and NEIL STEIN, Appellants, v. WARD J. KOEPENICK,
BETTY L. KOEPENICK, GYLE HALVERSON and HANNA INDUSTRIES, Respondents.
No. 8718
November 22, 1976 555 P.2d 1327
Appeal from judgment, Second Judicial District Court, Washoe County; Peter I. Breen,
Judge.
The Supreme Court held that trial court's findings were supported by substantial evidence.
Affirmed.
Hale and Belford, and J. Stephen Peek, Reno, for Appellants.
Stewart & Horton, Reno, for Respondents.
Appeal and Error.
Trial court's findings were supported by substantial evidence and thus would not be disturbed on appeal.
OPINION
Per Curiam:
Appellants' only claim of error is that certain findings of fact by the district court are
unsupported by the evidence. After reviewing the record, we conclude the findings are
supported by substantial evidence, and, thus, we will not disturb them on appeal. Alves v.
Bumguardner, 91 Nev. 799, 544 P.2d 436 (1975); County of Clark v. Lucas, 91 Nev. 263,
534 P.2d 499 (1975).
Affirmed.
____________
92 Nev. 647, 647 (1976) Applewhite Mtg. & Inv. Co. v. Vaccaro
APPLEWHITE MORTGAGE & INVESTMENT CO. Appellant, v. JOHN J. VACCARO
and SANDRA K. VACCARO, Respondents.
No. 8712
November 23, 1976 556 P.2d 542
Appeal from judgment, Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
92 Nev. 647, 648 (1976) Applewhite Mtg. & Inv. Co. v. Vaccaro
Homeowners brought suit to recover damages resulting from defendant's breach of a
commitment to loan money to finance the construction of plaintiffs' home. The district court
entered judgment in favor of plaintiffs, and defendant appealed. The Supreme Court held that
the finding of detrimental reliance was supported by substantial evidence and would therefore
not be disturbed on appeal.
Affirmed.
Thorndal & Liles, Ltd., and Virgil R. Gentner, Las Vegas, for Appellant.
James L. Buchanan, II, Las Vegas, for Respondents.
Appeal and Error; Contracts.
In suit to recover damages resulting from defendant's breach of a commitment to loan money to finance
the construction of plaintiffs' home, the district court's finding of detrimental reliance was supported by
substantial evidence and therefore would not be disturbed on appeal.
OPINION
Per Curiam:
Respondents sought and recovered damages which resulted from appellant's breach of a
commitment to loan money to finance the construction of respondents' home. Appellant
contends this was error. We disagree.
The district court's finding of detrimental reliance is supported by substantial evidence,
and, thus, we will not disturb it on appeal. Alves v. Bumguardner, 91 Nev. 799, 544 P.2d 436
(1975); County of Clark v. Lucas, 91 Nev. 263, 534 P.2d 499 (1975).
Other contentions by appellant are without merit, and we need not consider them.
Affirmed.
____________
92 Nev. 648, 648 (1976) Pederson v. Owen
BJARNE PEDERSON, Appellant, v. JAMES OWEN,
MARTHA OWEN and DONALD CLORE, Respondents.
No. 7567
November 29, 1976 556 P.2d 542
Appeal from judgment, First Judicial District Court, Carson City; Frank B. Gregory,
Judge.
Minority stockholders brought action against corporate president and vice-president, who
owned some 75 percent of the stock, to have voided warehouse construction contract, which
was entered into with construction company owned by the president, as well as other relief.
The district court found the agreement void and entered judgment accordingly, and appeal
was taken. The Supreme Court, Hayes, District Judge, sitting by designation, held that
evidence failed to support finding that the agreement was unfair since it was uncontested that
corporation received just what it ordered, an elaborate warehouse, for little more than the
contractor's cost.
Sheerin & Griffin, Carson City, for Appellant.
Carl F. Martillaro, Carson City, for Respondents.
Corporations.
Evidence in action brought by minority shareholders against majority shareholders to void a warehouse
construction contract between the corporation and a general contracting company owned by one defendant
failed to support finding that the agreement was unfair, in that the corporation received just what it ordered,
an elaborate warehouse, for little more than the contractor's cost, notwithstanding that if the warehouse was
completely rented the scheduled rental revenue would be $40 less than the monthly mortgage payments.
NRS 78.140.
OPINION
By the Court, Hayes, D. J.:
1

All the parties in this controversy were shareholders of Tahoe-Carson Auto Racing, Inc.
(T-Car), which promotes and conducts automobile racing events at facilities it owns south of
the Carson City urban district.
At the time of the incident giving rise to this litigation, appellant Bjarne Pederson owned
32.5 percent of T-Car stock and was corporate president. His co-defendant below, Bob
Meyer, owned 42.5 percent of the stock and served as vice-president and manager of the
corporate activities. Respondents, plaintiffs below, owned the remaining 25 percent of T-Car
stock.
____________________

1
The Governor, pursuant to Article VI, 4 of the Constitution, designated District Judge Keith C. Hayes to
sit in the place of Mr. Justice Cameron Batjer, who voluntarily disqualified himself and took no part in this
decision.
stock. Pederson and his wife also own Carson Ready Mix, a general contractor and purveyor
of concrete mix.
In 1971 Pederson, apparently at the behest of Meyer, contracted on behalf of T-Car with
Carson Ready Mix for construction, on the T-Car property, of a concrete warehouse
containing 24 automobile storage stalls. To finance construction Pederson and Meyer pledged
the security of T-Car for a $51,000 bank loan, repayable at $760 per month over a seven-year
period.
After the construction was completed and since all of the storage stalls were not rented
immediately, the three respondents brought suit against Pederson and Meyer seeking (1) to
have the warehouse construction contract voided; (2) to recover monies the corporation had
spent; (3) to recover damages in the amount of $7,857.59; and, (4) to recover the value of
steel forms left over from the construction and later used by Pederson.
In support of their challenge to the construction contract, respondents contended the
contract was unfair to T-Car, hence it was forbidden by NRS 78.140, because the Pedersons
own Ready Mix, and the rental income was insufficient to meet the mortgage payments.
2

The trial court agreed and found, as fact, that the construction agreement between T-Car
and Ready Mix was unfair and, therefore, void. The record does not support this finding;
therefore, it must be set aside. See Clark County v. Mullen, 91 Nev. 172, 533 P.2d 156
(1975).
This court has previously held that contracts between corporations and their directors are
valid if, as here, the contract is fair to the corporation at the time it was made. See Hough v.
Reserve Gold Mining Co., 55 Nev. 375, 35 P.2d 742 (1934). NRS 78.140. It is uncontested
that T-Car received just what it ordered, an elaborate warehouse, for little more than the
contractor's cost.
3
Without more, in the absence of a showing of substantial profiteering by
Ready Mix, there is nothing in this record to support the lower court's determination that the
contract was unfair when it was made.
The judgment of the district court is reversed, except for that portion in which it was
specified that Ready Mix would reimburse T-Car for steel forms left over from the
construction.
____________________

2
Respondents' evidence established, inter alia, that if all 24 spaces in the warehouse were rented at all times,
the scheduled rental revenue of $30 per month per space would produce only $720 monthly income, some $40
less than the monthly bank payment, a fact known to respondents prior to the time construction started.

3
It is uncontroverted that Ready Mix made $660 on the project, a 1.3 percent profit.
portion in which it was specified that Ready Mix would reimburse T-Car for steel forms left
over from the construction.
Gunderson, C. J., and Zenoff and Mowbray, JJ., concur.
____________
92 Nev. 651, 651 (1976) Board of Sch. Trustees v. Rathbun
BOARD OF SCHOOL TRUSTEES OF THE CLARK COUNTY SCHOOL
DISTRICT, Appellant, v. JAMES RATHBUN, Respondent.
No. 8572
November 29, 1976 556 P.2d 548
Thompson, Judge.
Dismissed, certificated teacher sought review of his dismissal by the school district for
alleged unprofessional conduct. The district court entered judgment ordering teacher's
reinstatement and the school district appealed. The Supreme Court held that in absence of the
necessary statutory admonition to teacher the conduct could not be relied upon as ground for
dismissal in disciplinary proceeding and the only properly admonished conduct did not
constitute legal cause for dismissal.
Affirmed.
Robert L. Petroni, Las Vegas, for Appellant.
Frank A. Schreck, Las Vegas, for Respondent.
Where necessary statutory admonishments had not been given for each diverse and dissimilar type of
conduct relied upon by school district as grounds for dismissing certificated teacher, such conduct could
not be considered in the disciplinary action against teacher.
Where article, which was prepared by certificated teacher for a university class attended by him, did not
produce any harmful disorganization of chaos among students, teachers, or administrators and did not
adversely affect teacher's ability to perform his duties, such article did not constitute legal cause for
dismissal.
OPINION
Per Curiam:
Appellant dismissed respondent from a teaching position with the Clark County School
District for alleged unprofessional conduct.
the Clark County School District for alleged unprofessional conduct. On review, the district
court ordered respondent reinstated because admonishments required by NRS 391.313 had
not been given for certain conduct specified as grounds for dismissal and other conduct,
properly admonished, did not constitute legal cause for dismissal. Here, appellant contends
the district court erred in ruling (1) admonishments must be given for each diverse and
dissimilar act relied upon as grounds for disciplinary action, and (2) there was no legal cause
for respondent's dismissal. We disagree.
[Headnote 1]
1. As a condition precedent to the dismissal of a certificated teacher for unprofessional
conduct, NRS 391.313 requires an admonishment be given the teacher to enable him to
remedy the cause for potential dismissal.
1
No such admonishments were given for each
diverse and dissimilar type of conduct relied upon by appellant as grounds for dismissing
respondent. Thus, the district court correctly ruled this conduct could not be considered in the
disciplinary action against respondent. Cf. Miller v. Board of Education of School Dist. No.
132, 200 N.E.2d 838 (Ill.App. 1964); Fresno City High School Dist. v. De Caristo, 92 P.2d
668 (Cal.App. 1939).
[Headnote 2]
2. The only conduct admonished in accordance with NRS 391.313 consisted of data
respondent placed in an article concerning an incident which occurred at his school. This
article, which was prepared for a university class attended by respondent, did not produce any
harmful disorganization or chaos among students, teachers, or administrators; and, it did not
adversely affect respondent's ability to perform his duties.
____________________

1
1. Whenever an administrator charged with supervision of a certificated employee believes it is necessary to
admonish a certificated employee for a reason that he believes may lead to demotion, dismissal or cause the
certificated employee not to be reemployed under the provisions of NRS 391.312, he shall:
(a) Bring the matter to the attention of the certificated employee involved, in writing, and make a reasonable
effort to assist the employee to correct whatever appears to be the cause for potential dismissal or failure to
reemploy; and
(b) Except as provided in NRS 391.314, allow reasonable time for improvement, which shall not exceed 3
months for the first admonishment.
adversely affect respondent's ability to perform his duties. As such, it did not constitute a
legal cause for dismissal. See: Paulson v. Civil Service Commission, 90 Nev. 41, 518 P.2d
148 (1974); Meinhold v. Clark County School Dist., 89 Nev. 56, 506 P.2d 420 (1973).
Other contentions by appellant are without merit, and we need not consider them.
Affirmed.
____________
92 Nev. 653, 653 (1976) L. M. Enterprises, Inc. v. Kenny
L. M. ENTERPRISES, INC., dba L & M ENTERPRISES and L & M ENTERPRISES,
Appellants, v. JOHN C. KENNY and LORRAINE M. KENNY, Respondents.
No. 8558
November 29, 1976 556 P.2d 547
Appeal from judgment and order denying motion for new trial, Eighth Judicial District
Court, Clark County; Keith C. Hayes, Judge.
Houseboat owners brought negligence suit for damages to their houseboat. The district
court found for owners, and defendants appealed. The Supreme Court held that evidence
supported trial court's findings that defendants had assumed duty to beach owners' damaged
houseboat, had performed that duty in negligent manner, and that such negligence was
proximate cause of owners' actual damages.
Affirmed.
Cromer, Barker & Michaelson, William S. Barker, Las Vegas, for Appellants.
Leavitt, Edwards & Leavitt, Brent E. Leavitt, Las Vegas, for Respondents.
Negligence.
Evidence, in houseboat owners' action for damages allegedly caused by defendants' negligent handling of
damaged houseboat, was sufficient to support trial court's findings that defendants had assumed duty to
beach owners' damaged houseboat, had performed that duty in negligent manner, and that such
negligence was proximate cause of plaintiffs' actual damages.
92 Nev. 653, 654 (1976) L. M. Enterprises, Inc. v. Kenny
that duty in negligent manner, and that such negligence was proximate cause of plaintiffs' actual damages.
OPINION
Per Curiam:
Appellants contend we must reverse because the evidence does not support the findings of
fact made by the district court. We disagree.
Respondents sought and recovered damages, allegedly caused by appellants' negligent
handling of a damaged houseboat. The district court, in a trial without jury, found that
appellants had assumed a duty to beach respondents' damaged houseboat, had performed that
duty in a negligent manner, and such negligence was the proximate cause of respondents'
actual damages. The record contains substantial, though conflicting, evidence to support these
findings; thus, they will not be disturbed. J & J Building Contractors, Inc. v. Savage
Construction, Inc., 92 Nev. 590, 555 P.2d 488 (1976).
Other issues raised by appellants are without merit and we need not consider them.
Affirmed.
____________
92 Nev. 654, 654 (1976) Peacock Jewelers, Inc. v. Nevada St. Bk.
PEACOCK JEWELERS, INC., Appellant, v.
NEVADA STATE BANK, Respondent.
No. 8414
December 6, 1976 556 P.2d 1266
Appeal from judgment of the Eighth Judicial District Court, Clark County; Llewellyn A.
Young, Judge.
The issuer of a check brought an action against the bank for the latter's alleged negligence
in acting as intermediary for the check's collection. The district court entered judgment for the
bank, and the issuer appealed. The Supreme Court held that the evidence supported the trial
court's ruling on the issue of negligence but that the bank had been improperly allowed
attorney's fees.
Affirmed in part and reversed in part.
Thomas E. Lea, of Las Vegas, for Appellant.
92 Nev. 654, 655 (1976) Peacock Jewelers, Inc. v. Nevada St. Bk.
Freedman and Whelton, of Las Vegas, for Respondent.
Evidence supported trial court's finding that bank had not been negligent in acting as intermediary for
collection of check.
2. Costs.
Where initial complaint in check issuer's action against bank for alleged negligence in acting as
intermediary for collection of check sought more than $10,000 in damages from bank, bank, as prevailing
party, was not entitled to award of attorney's fees. NRS 18.010, subd. 3(c).
OPINION
Per Curiam:
Following a nonjury trial, it was the determination of the trial court that there had been no
negligence on the part of the defendant Nevada State Bank in acting as the intermediary for
the collection of a check written to the plaintiff. Appellant now seeks review claiming that the
court erred in so finding.
[Headnote 1]
We affirm the lower court's finding on the issue of negligence. A review of the facts and
evidence upon which the trial judge based his finding fails to expose sufficient substantial
evidence to support the allegation of negligence. Gunlock v. New Frontier Hotel, 78 Nev.
182, 370 P.2d 682 (1962); Eggers v. Harrah's Club, Inc., 86 Nev. 782, 476 P.2d 948 (1970).
[Headnote 2]
Appellant alternatively contends that the award of attorney's fees to the defendant as the
prevailing party was not allowable under NRS 18.010(3)(c). Respondent concedes this point.
The initial complaint did seek more than $10,000 from the defendant. We therefore vacate
that portion of the order awarding attorney's fees to the respondent.
The judgment is affirmed on the issue of negligence and reversed as to the award of
attorney's fees.
Affirmed in part and reversed in part as noted.
____________
92 Nev. 656, 656 (1976) Auto Fair, Inc. v. Spiegelman
AUTO FAIR, INC., Appellant, v. AARON
SPIEGELMAN, Respondent.
No 8305
December 6, 1976 557 P.2d 273
Appeal from judgment of the Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
Action was instituted for wrongful death and personal injuries arising from an automobile
accident. On remand after a prior appeal, 91 Nev. 542, 539 P.2d 1216 (1975), the district
court entered judgment on the jury's $95,000 verdict in favor of plaintiff, and a defendant
appealed. The Supreme Court, Mowbray, J., held, inter alia, that the evidence supported the
jury's verdict and that the trial court did not err in excluding a prior complaint from evidence.
Affirmed.
Cromer, Barker & Michaelson and Corby D. Arnold, Las Vegas, for Appellant.
Hilbrecht, Jones & Schreck, Las Vegas; Walkup, Downing & Sterns; Robert A. Seligson,
Inc., Robert A. Seligson and Patrick A. Nielson, San Francisco, California, for Respondent.
1. Damages.
Evidence supported jury's verdict awarding $95,000 in damages arising out of vehicular collision which
occurred after automobile lost tire.
2. Trial.
In view of fact that presentation on merits was preserved, trial court in personal injury action arising out
of automobile collision did not err in permitting plaintiff to withdraw admission obtained because of failure
to timely respond to pretrial request for admissions. NRCP 36(b).
3. Evidence.
Trial court in personal injury action arising out of automobile collision did not err in excluding prior
complaint, offered as party admission, where such complaint was one filed in action for damages arising
out of same accident which plaintiff had unsuccessfully attempted to join in instant action and which
proceeded on alternative theory of recovery which, had joinder been granted, could not have been used as
admission to negate other theory. NRCP 8(a).
4. Witnesses.
Inconsistent statements made in prior proceedings are generally admissible as party admissions for
purpose of impeachment.
5. Trial.
Trial court did not err, in personal injury action arising out of motor vehicle accident, in refusing to
instruct jury that it should direct verdict for defendant if it found that plaintiff continued to operate vehicle
after he acquired knowledge of its dangerous condition where there was no evidence to support such
instruction.
Contention that trial court erroneously admitted expert testimony would not be considered on appeal
where there was no objection to such testimony when it was given.
7. Trial.
Plaintiff's closing arguments to jury in personal injury action arising out of automobile collision were not
improper, prejudicial, or an appeal to jury's sympathy.
OPINION
The facts that led to this litigation appear in Spiegelman v. Gold Dust Texaco, 91 Nev.
542, 539 P.2d 1216 (1975), where we reversed a district court order and remanded this case
for trial on its merits.
After remand, the case was tried before a jury, which returned a $95,000 verdict in favor of
Aaron Spiegelman. This appeal, by Auto Fair, Inc., advances several assignments of error,
none of which have merit.
[Headnote 1]
Auto Fair first contends the verdict is contrary to the evidence. We have reviewed the
testimony in the case and believe it supports the jury's verdict. Way v. Hayes, 89 Nev. 375,
513 P.2d 1222 (1973).
[Headnote 2]
Next, Auto Fair contends the trial court erroneously permitted Spiegelman to withdraw an
admission obtained because of the failure to timely respond to a pretrial request for
admissions. The request related to a complaint Spiegelman had filed against Gold Dust
Texaco and others, charging them with negligence in causing the accident in question.
Spiegelman argued, in limine, to exclude the admission from evidence. The court, finding no
prejudice to Auto Fair and desiring to preserve a presentation of the case on its merits, ruled
that under NRCP 36(b) the admission could be withdrawn. Auto Fair has exhibited no
prejudice, and none affirmatively appears of record. Since a presentation on the merits was
preserved, we are not persuaded that the trial court abused its discretion.
[Headnotes 3, 4]
An additional contention is that the prior complaint constituted a party admission that the
trial court erroneously excluded from evidence. This contention is without merit under the
circumstances of the instant case. The general rule is that inconsistent statements made in a
prior proceeding are admissible as party admissions or for the purpose of impeachment.
Whittlesea Blue Cab Co. v. McIntosh, 86 Nev. 609, 472 P.2d 356 (1970). In this case,
however, the prior proceeding was an action for damages arising out of the same accident
involved herein against a defendant that Spiegelman had attempted to join in the instant
action. Cf. Spiegelman v. Gold Dust Texaco, supra.
Had joinder been granted, respondent's alternative theories of recovery clearly could not
have been used as admissions, negating each other. Nevada Rule of Civil Procedure 8(a)
specifically permits a plaintiff to assert inconsistent claims for relief. To treat such claims as
admissions would defeat the purposes of the liberal pleading provisions of NRCP 8 and
render them a trap for the unwary. Parrish v. Atchison, Topeka and Santa Fe Railway Co.,
152 F.Supp. 158, 166 (S.D.Cal. 1957). We perceive no reason why a different rule should
apply when alternative, inconsistent theories are advanced in separate actions, based on the
same transaction, which the litigant tries unsuccessfully to join. In the instant case, Auto Fair
vigorously opposed the joinder and succeeded in blocking it. To hold that this success also
entitles it to an evidentiary advantage would be legally untenable and equitably indefensible.
[Headnote 5]
It is also contended that the trial court erroneously refused to give an instruction directing
a verdict for Auto Fair should the jury find that the plaintiff, the owner, or the operator of the
vehicle in question continued to operate it after he acquired knowledge of its dangerous
condition. There was evidence that the operator of the vehicle stopped at a gas station shortly
before the accident and was told that if he had not stopped, one of the wheels would have
fallen off. There was no evidence, however, that he continued his journey with knowledge
that any danger persisted. Since the requested instruction was not supported by the evidence,
it was properly refused. Johns v. McAteer, 85 Nev. 477, 457 P.2d 212 (1969).
[Headnote 6]
Auto Fair further contends that the trial court erroneously admitted expert testimony
concerning the amount of foot-pounds necessary to tighten lug nuts on Ford automobile
wheels.
admitted expert testimony concerning the amount of foot-pounds necessary to tighten lug nuts
on Ford automobile wheels. There was no objection to that testimony when it was given;
therefore the issue will not be considered on appeal. Bill Stremmel Motors, Inc. v. Kerns, 91
Nev. 110, 111, 531 P.2d 1357 (1975).
[Headnote 7]
The final contention is that Spiegelman's closing argument to the jury was improper,
prejudicial, and constituted an appeal to the sympathy of the jury. Having reviewed the
remarks to the jury, we find nothing therein that warrants reversal. Burch v. Southern Pacific,
32 Nev. 75, 104 P. 225 (1909).
Affirmed.
1

____________________

1
Present counsel did not represent the appellant, Auto Fair, Inc., in the court below.
____________
92 Nev. 659, 659 (1976) Fischmann v. City of Henderson
EDWARD FISCHMANN and LUCILLE FISCHMANN, Appellants, v. CITY
OF HENDERSON, a Municipal Corporation, Respondent.
No. 8433
December 6, 1976 556 P.2d 923
Appeal from an order granting summary judgment. Eighth Judicial District Court, Clark
Homeowner brought action against City claiming negligence on part of city in
maintenance and operation of sewer system. The district court granted City's motion for
summary judgment, and homeowner appealed. The Supreme Court held that under statute
City could not be held liable for failure to inspect sewer system in order to discover
obstructions or other malfunctionings and deficiencies.
Affirmed.
Monte J. Morris, of Henderson, for Appellants.
Cromer, Barker & Michaelson, and James R. Olson, of Las Vegas, for Respondent.
Despite statute by which state generally waived its immunity from suit and liability, under statute
continuing state's immunity from any suit or action if based on failure to inspect or discover any hazard or
deficiency whether or not there exists a duty to inspect, political subdivisions are not to be held liable for
failure to inspect sewer systems in order to discover obstructions or other malfunctionings and deficiencies.
NRS 41.031, 41.033.
OPINION
Per Curiam:
The complaint in this action alleged negligence by the City of Henderson in the
maintenance and operation of its sewer system. From the granting of the City's motion for
summary judgment, plaintiffs appeal.
The question is whether NRS 41.031, which generally abrogates governmental immunity,
does except therefrom the right to bring suit against a political subdivision of Nevada in such
a case.
There is no genuine issue of material fact. Flooding occurred in the appellants' home on
September 14, 1974. After being informed of this, the Sewer and Water Department of the
City of Henderson checked the sewer lines servicing the appellants' home and found that the
lines were functioning properly and without obstruction. Nevertheless, the Fischmanns
brought this action claiming negligence on the part of the City in the maintenance and
operation of the sewer system.
In 1965 the State of Nevada waived its immunity from suit and liability by enacting NRS
41.031 subject, however, to various exceptions. One of those exceptions, NRS 41.033,
continues this immunity from any suit or action if it is based on the failure to inspect or
discover any hazard or deficiency whether or not there exists a duty to inspect.
1
NRS 41.033
was intended to apply to the situation presented here.
____________________

1
NRS 41.031: Waiver by state, its agencies and political subdivisions of immunity from liability and action;
actions; State of Nevada as defendant, service of process. 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 actions 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 limitations 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,
NRS 41.033 was intended to apply to the situation presented here. It appears clear to this
court that the legislative intent was that political subdivisions are not to be held liable to
lawsuit for failure to inspect sewer systems in order to discover obstructions or other
malfunctionings and deficiencies. Cf. Williams v. City of North Las Vegas, 91 Nev. 622, 541
P.2d 652 (1975). We uphold the granting of the summary judgment in favor of the City.
Affirmed.
____________________
provided the claimant complies with the limitations of NRS 41.032 to 41.036, inclusive . . . .
NRS 41.033: Conditions and limitations on actions: Failure to inspect, discover. No action may be brought
under NRS 41.031 or against the employee which is based upon:
1. Failure to inspect any building, structure or vehicle, or to inspect the construction of any street, public
highway or other public work to determine any hazards, deficiencies or other matters, whether or not there is a
duty to inspect;
2. Failure to discover such hazard, deficiency or other matter whether or not an inspection is made.
____________
92 Nev. 661, 661 (1976) 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. 8371
December 6, 1976 556 P.2d 1265
Appeal from judgment, First Judicial District, Churchill County, Richard L. Waters,
Judge.
Action was brought under Uniform Fraudulent Conveyance Act to set aside a conveyance
of real property from husband to wife. The district court dismissed and plaintiff appealed. The
Supreme Court held that the evidence was not sufficient to warrant a finding that the
challenged conveyance was fraudulent within the meaning of the Uniform Fraudulent
Conveyance Act.
Affirmed.
Stokes & Eck, Ltd. and F. Thomas Eck, Carson City, for Appellant.
Diehl, Recanzone & Evans, Fallon, for Respondents.
1. Fraudulent Conveyances.
Uniform Fraudulent Conveyance Act requires that husband-wife transactions be closely scrutinized.
NRS 112.010 et seq., 112.050.
2. Fraudulent Conveyances.
Evidence was insufficient to warrant finding that conveyance of real property from husband to wife was
fraudulent within meaning of Uniform Fraudulent Conveyance Act. NRS 112.050.
OPINION
Per Curiam:
Appellant, plaintiff below, commenced this action under the Uniform Fraudulent
Conveyance Act, NRS 112.010 et seq., to set aside a conveyance of real property Gill White
made to his wife, Dorothy White.
1

At the conclusion of the plaintiff's case, the district court granted Dorothy White's motion
to dismiss, pursuant to NRCP 41(b), because appellant failed to prove, as required by NRS
112.050, that Gill White was insolvent when the conveyance was made, or that the
conveyance had rendered him insolvent.
Appellant subsequently obtained the determination required by NRCP 54 (b) and perfected
this appeal.
The thrust of appellant's argument suggests that, if we utilize the well-recognized rule
which requires husband-wife transactions to be viewed with suspicion in order to prevent
fraud on creditors, we must find he presented sufficient evidence to establish that Gill White
was insolvent.
[Headnotes 1, 2]
Although we agree the Uniform Fraudulent Conveyance Act requires husband-wife
transactions be closely scrutinized (Mohar v. McLelland Lumber Company, 501 P.2d 722,
726 (Ida. 1972)), we are not here persuaded appellant's evidence was sufficient to warrant a
finding that the challenged conveyance was fraudulent within the meaning of NRS 112.050.
2
Cf. Miller v. Keegan, 207 P.2d 1073 (Cal.App. 1949). Accord-
____________________

1
The parties were permitted to submit this appeal on the record and briefs filed in Crescent v. White, 91 Nev.
209, 533 P.2d 159 (1975).

2
The statute provides: Every conveyance made and every obligation incurred by a person who is or will be
thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is
made or the obligation is incurred without a fair consideration.
ingly, we affirm.
3
See also, Alves v. Bumguardner, 91 Nev. 799, 544 P.2d 436 (1975).
____________________

3
Mr. Justice Batjer, having voluntarily disqualified himself, did not participate in the resolution of this
appeal.
____________
92 Nev. 663, 663 (1976) Hay v. Hay
ROBERT M. HAY, Appellant, v. HELENE
A. HAY, Respondent.
No. 8375
December 13, 1976 556 P.2d 1264
Appeal from an order denying motions to amend and supplement findings of fact and
conclusions of law in a divorce case and for new trial or amendment of judgment; Sixth
Judicial District, Humboldt County; Llewellyn A. Young, Judge.
Appeal was taken from an order of the district court which denied various motions in a
divorce case. The Supreme Court held that because the transcript contained only part of the
trial court proceedings it was presumed that the testimony and the inferences to be drawn
from the testimony supported the trial court's findings.
Affirmed.
[Rehearing denied February 3, 1977]
George Abbott, Esq., Minden, for Appellant.
LeRoy Arrascada, Esq., Reno, for Respondent.
Appeal and Error.
Where appellate record before Supreme Court contains transcript of only part of proceedings below, it is
presumed that testimony and inferences to be drawn from testimony support trial court's findings.
OPINION
Per Curiam:
We have before us a transcript of only part of the proceedings below. In such cases, we
presume that the testimony, and the inferences to be drawn from it, support the trial court's
findings. Kockos v. Bank of Nevada, 90 Nev. 140, 520 P.2d 1359 (1974); Fenkell v. Fenkell,
86 Nev. 397, 469 P.2d 701 {1970).
92 Nev. 663, 664 (1976) Hay v. Hay
(1970). In light of our authorities in this regard, and in light of such record as is before us, we
cannot say as a matter of law that the trial court erred.
The judgment of the trial court is affirmed.
____________
92 Nev. 664, 664 (1976) Azbill v. State
SYLVESTER JACKSON AZBILL, Appellant, v.
No. 6122
December 16, 1976 556 P.2d 1264
Sua sponte proceedings pursuant to an opinion by the United States Court of Appeals.
Judgment of conviction vacated.
John Manzonie, Wiener, Goldwater & Galatz, Las Vegas, for Appellant.
OPINION
Per Curiam:
In Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (1972), we affirmed a judgment which had
convicted Sylvester Jackson Azbill of first degree murder and arson.
Thereafter, the United States Court of Appeals reversed the murder conviction (Azbill v.
Pogue, 534 Fed.2d 195 (9th Cir. 1976)), and the United States Supreme Court denied
certiorari October 18, 1976. Notice of the federal court proceedings has been furnished to this
court.
In view of the foregoing, we vacate the judgment of conviction for murder and direct the
Eighth Judicial District Court to afford Sylvester Jackson Azbill a new trial on the murder
charge within sixty days from this date; otherwise, that charge shall be dismissed.
1

____________________

1
The judgment of conviction on the arson charge, not having been considered by the United States Court of
Appeals, remains in effect.
____________
92 Nev. 665, 665 (1976) State v. Kallio
STATE OF NEVADA, Appellant, v.
JOHN A. KALLIO, Respondent.
No. 8165
JOHN A. KALLIO, Cross-Appellant, v. STATE
OF NEVADA, Cross-Respondent.
No. 8078
December 21, 1976 557 P.2d 705
Appeal from judgment (No. 8165) and cross-appeal from order amending the judgment
(No. 8078), Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Action was brought against the State to recover for injuries which plaintiff passenger
sustained when host's vehicle collided with unbranded horse wandering on public highway.
The district court reduced damages award, and cross-appeals were taken. The Supreme Court
held that where range control fence erected by the State and the federal Bureau of Land
Management blocked natural game crossing for wild horses and numerous reported
vehicle-animal collisions occurred in the area but the State took no action to remedy the
situation or warn unwary motorists of the dangerous condition the jury was justified in
finding the State liable, that finding, in federal suit, that the BLM owed no duty of care to
plaintiff and that no act or neglect on its part proximately caused plaintiff's injuries did not,
on theory of collateral estoppel, preclude instant action and that State did not waive right to
claim any limitation on damages by purchasing liability insurance coverage in excess of
liability limit specified in statue waiving sovereign immunity.
Affirmed.
Peter Chase Neumann, Reno, for Respondent and Cross-Appellant.
Robert List, Attorney General, and Norman C. Robison, Deputy Attorney General, Carson
City, for Appellant and Cross-Respondent.
1. Highways.
State has the duty to exercise due care to keep its highways reasonably safe for the traveling public;
inherent in such duty of care is the alternative duty to either remedy a known hazardous condition on its
highways or give appropriate warning of its presence.
2. Automobiles.
Where government erected range control fence running parallel to and along one side of highway
blocking natural game crossing for wild horses and causing them to congregate on the highway and
numerous reported vehicle-animal collisions occurred in the area but the State took no action to remedy the
situation or warn unwary motorists, the jury was justified in finding the State liable for injuries which
passenger sustained when host's vehicle collided with unbranded horse wandering on the highway.
3. Judgment.
Doctrine of collateral estoppel serves only to prohibit parties or ther [their] privies from relitigating
issues actually litigated and necessarily determined in a prior lawsuit.
4. Judgment.
Ruling, in federal action, that federal Bureau of Land Management, which jointly constructed range
control fence with State of Nevada, owed no duty of care to automobile passenger and was not liable for
injuries sustained when host's vehicle struck unbranded horse wandering on highway did not, under
doctrine of collateral estoppel, preclude subsequent action against the State to recover for the same injuries
since issue of State's liability in failing to maintain highway in a safe condition was not at issue in the
federal suit and was neither actually litigated nor necessarily determined in that action.
Specific grounds for objection must be stated at time an objection is made; reviewing court will not
reverse a ruling admitting evidence on grounds raised for the first time on appeal. NRS 47.040, subd. 1
(a).
Where at oral argument appellant alluded to a motion in limine involving a certain report but failed to
designate and include such motion in the record, reviewing court would not consider the matter.
7. Constitutional Law; States.
The $25,000 limitation on damages specified in statute waiving sovereign immunity does not violate
equal protection. NRS 41.035, subd. 1.
8. States.
The State, sought to be held liable for alleged negligent failure to maintain highway in safe condition, did
not waive right to claim limitation on damages by purchasing liability insurance coverage in excess of the
$25,000 liability limits specified in statute waiving sovereign immunity. NRS 41.035, subd. 1.
OPINION
Per Curiam:
A jury awarded John Kallio a $95,000 judgment against the State of Nevada for injuries
caused by the State's failure to maintain its highway in a safe condition. On motion by the
State, the district court amended the judgment to $25,000 pursuant to NRS 41.035{1).1
Here, the State contends {1) it cannot be held liable for Kallio's injuries, {2) the doctrine
of collateral estoppel bars Kallio's action, and {3) the district court erred by admitting
testimony based upon a fencing priority report prepared by the State.
State, the district court amended the judgment to $25,000 pursuant to NRS 41.035(1).
1
Here,
the State contends (1) it cannot be held liable for Kallio's injuries, (2) the doctrine of
collateral estoppel bars Kallio's action, and (3) the district court erred by admitting testimony
based upon a fencing priority report prepared by the State. Kallio cross-appeals contending
(1) the limitation on damages by NRS 41.035(1) violates his right to equal protection, and (2)
the State waived the right to claim any limitation on damages by its purchase of liability
insurance. These contentions are meritless.
[Headnotes 1, 2]
1. The State first contends it cannot be liable for Kallio's injuries. However, the State has
a duty to exercise due care to keep its highways reasonably safe for the traveling public. State
v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972). Inherent in this duty of care is the alternative
duty to either remedy a known hazardous condition on its highways or give appropriate
warning of its presence. See: Hampton v. State Highway Commission, 498 P.2d 236 (Kan.
1972); Smith v. State, 473 P.2d 937 (Idaho 1970); Meabon v. State, 463 P.2d 789 (Wash.
App. 1970).
Here, Kallio sustained serious injuries when the vehicle in which he was a passenger
collided with an unbranded horse on U.S. Highway 95, approximately 4.5 miles north of
Winnemucca, Nevada. The record discloses that, prior to Kallio's accident, the State and
Bureau of Land Management (BLM) erected a range control fence running parallel to and
along one side of this highway. This fence blocked a natural game crossing for wild horses
and caused them to congregate on the highway. Numerous reported vehicle-animal collisions
had occurred in this vicinity, thereby giving the State actual or constructive notice of the
highway's hazardous condition. The State took no action to remedy the situation or warn
unwary motorists of the dangerous condition. Under these particular circumstances, the jury
was justified in finding the State liable. Jensen v. Maricopa County, 522 P.2d 1096
(Ariz.App. 1974).
[Headnotes 3, 4]
2. Concurrent with filing suit against the State, Kallio also brought a separate action in
federal district court against the United States for the BLM's alleged negligence in
participating in the installation of the range control fence.
____________________

1
NRS 41.035 (1) provides:
1. No award for damages in an action sounding in tort brought under NRS 41.031 may exceed the sum of
$25,000, exclusive of interest computed from the date of judgment, to or for the benefit of any claimant. No such
award may include any amount as exemplary or punitive damages.
brought a separate action in federal district court against the United States for the BLM's
alleged negligence in participating in the installation of the range control fence. The federal
district court ruled the BLM owed no duty of care to Kallio and no act or neglect of the BLM
proximately caused Kallio's injuries. See: Kallio v. United States, Civil No. R-2554 (D. Nev.,
filed Dec. 6, 1972). The State argues this case precludes Kallio's action against the State
pursuant to the doctrine of collateral estoppel. However, that doctrine serves only to prohibit
parties or their privies from re-litigating issues actually litigated and necessarily determined in
the previous lawsuit. Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964). Here, the question of
the State's liability was not even at issue in the federal case and thus neither actually litigated
nor necessarily determined in that action.
[Headnotes 5, 6]
3. The State next contends the district court erred by permitting Kallio to question the
state engineer about a fencing priority report prepared by the State. The State made no
specific objection to this questioning at trial, but merely stated, Object for the record, your
Honor. Specific grounds for objection must be stated at the time an objection is made, and
we will not reverse a ruling admitting evidence on grounds raised for the first time on appeal.
See: NRS 47.040(1)(a).
At oral argument, the State alluded to a motion in limine involving the fencing report.
However, the State failed to designate and include this motion in the record, and, thus, we
will not consider it. See: Leaders v. State, 92 Nev. 250, 548 P.2d 1374 (1976); Lindauer v.
Allen, 85 Nev. 430, 456 P.2d 851 (1969); A Minor v. State, 85 Nev. 323, 454 P.2d 895
(1969).
[Headnote 7]
4. In his cross-appeal, Kallio argues the $25,000 limitation on damages set by NRS
41.035(1) violates his right to equal protection. We have specifically held otherwise. State v.
Silva, 86 Nev. 911, 478 P.2d 591 (1970).
[Headnote 8]
5. Finally, Kallio contends the State waived the right to claim any limitation on damages
by purchasing liability insurance coverage in excess of the $25,000 statutory limit. However,
even assuming the State did purchase excess coverage, this does not constitute a waiver of the
statutory limit. State v. Silva, cited above.
Affirmed.
____________
92 Nev. 669, 669 (1976) Hendee v. State
KARL LAMONT HENDEE, ROBERT HENRY WOODS, Jr., and JAMES DAVID
WEATHERLY, Appellants, v. STATE OF NEVADA, Respondent.
No. 8844
December 21, 1976 557 P.2d 275
Appeal from judgment of conviction and sentence, Second Judicial District Court, Washoe
County; James J. Guinan, Judge.
Defendants were convicted in the district court of robbery and they appealed. The Supreme
Court held that in view of overwhelming evidence of defendants' guilt, any error in admission
of evidence that one of the weapons used in the perpetration of the crime had previously been
reported stolen was harmless.
Affirmed.
William Whitehead III, Reno, for Appellant Hendee.
Richard J. Legarza, Reno, for Appellant Woods.
William N. Dunseath, Public Defender, and William B. Puzey, Deputy, Reno, for Appellant
Weatherly.
Larry R. Hicks, District Attorney, and Mills B. Lane, Chief Criminal Deputy, Reno, for
Respondent.
Criminal Law.
In view of evidence that defendants were arrested shortly after ordering victims to lie on the floor while
they were robbed and that personalty belonging to the victims was found on the persons of defendants, as
were the weapons used by the robbers, any error in permitting evidence that one of the weapons used in the
perpetration of the crimes had previously been reported stolen was harmless. NRS 177.255, 178.598.
OPINION
Per Curiam:
On the evening of August 9, 1975, Mr. and Mrs. Stone returned to their Reno apartment
with their guests, Mr. and Mrs. Pogue. Upon entering, the Pogues and Mrs. Stone
encountered appellants, armed with a sawed-off M-1 carbine and a pistol. Mr. Stone, who had
not yet entered, observed appellants from outside and ran to a neighboring apartment to
summon police.
92 Nev. 669, 670 (1976) Hendee v. State
police. Mrs. Stone and the Pogues were ordered to lie on the floor while appellants proceeded
to rob them. Shortly thereafter, the police arrived and arrested appellants. Personalty
belonging to the victims was found on the persons of the appellants, as were the weapons
described above.
At trial, the district court allowed a Reno police officer to testify that the pistol used in
perpetration of the crimes was reported stolen in January, 1974. Appellants contend we are
compelled to reverse because the district court erred in admitting this irrelevant, prejudicial,
and hearsay testimony. We do not agree. Even if we assume it was error for the district court
to allow the disputed testimony, we believe the overwhelming evidence of guilt renders such
error harmless. NRS 177.255; 178.598; cf. Johnson v. State, 92 Nev. 405, 551 P.2d 241
(1976); Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975); Grimaldi v. State, 90 Nev. 83,
518 P.2d 615 (1974).
Affirmed.
____________
92 Nev. 670, 670 (1976) Burks v. State
DANNY LEE BURKS, Appellant, v. THE
No. 8815
December 21, 1976 557 P.2d 711
Thomas J. O'Donnell, Judge.
Defendant was convicted before the district court of attempted robbery, and he appealed.
The Supreme Court, Batjer, J., held that there was no inconsistency in jury's finding
defendant guilty of attempted robbery and not guilty of battery with intent to kill since
different acts were required to complete each crime and that contention that trial court erred
in refusing to give proposed instruction would not be considered where defendant neither
designated and included the proposed instruction in the record on appeal nor cited authority in
support of his contention.
Affirmed.
Kelly H. Swanson, Las Vegas, for Appellant.
92 Nev. 670, 671 (1976) Burks v. State
1. Criminal Law.
Acquittal on charge of battery with intent to kill did not necessitate an acquittal on charge of attempted
robbery since the two crimes are separate and distinct and different acts are required to complete each.
NRS 200.380, 200.400.
2. Criminal Law.
When a defendant is charged with committing two criminal offenses that involve different elements, a
jury may find him guilty of one crime and not guilty of the other.
3. Criminal Law.
Complaint that trial court erred in admitting photograph of alleged accomplice since its probative value
was greatly outweighed by its prejudicial nature could not be considered reversible error where defendant
failed to cite any relevant authority to support his contention and failed to designate and include the
challenged photograph in the record on appeal. NRS 48.035, subd. 1.
4. Criminal Law.
Contention that trial court erred in refusing to give a proposed instruction would not be considered on
appeal where defendant neither designated and included the proposed instruction in the record nor cited
authority in support of his assertion.
OPINION
The appellant Danny Lee Burks was tried on charges of attempted robbery and battery
with intent to kill. The jury acquitted Burks on the battery with intent to kill charge but
convicted him of attempted robbery and he was sentenced to a seven (7) year term in the
Nevada State Prison. This appeal has been taken from the judgment of conviction.
Burks contends (1) that there was insufficient evidence produced at trial to support his
conviction; (2) that the jury returned inconsistent verdicts which should nullify his conviction
of attempted robbery; (3) that the trial court erred in admitting into evidence a photograph of
his alleged accomplice; and, (4) in refusing to give a proposed instruction to the jury.
1. Burks' contention that there was insufficient evidence produced at the trial to support
the jury's verdict is patently frivolous. A mere glance at the record indicates that there is
substantial evidence to support it. Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969); State v.
Fitch, 65 Nev. 668, 200 P.2d 991 (1948).
[Headnotes 1, 2]
2. Next Burks claims that acquittal on the charge of battery with intent to kill necessitates
an acquittal on the charge of attempted robbery.
92 Nev. 670, 672 (1976) Burks v. State
attempted robbery. We disagree. There is no inconsistency in the jury finding Burks guilty of
attempted robbery and not guilty of battery with intent to kill. When a defendant is charged
with committing two criminal offenses that involve different elements, a jury may find him
guilty of one crime and not guilty of the other. State v. Amerson, 518 S.W.2d 29 (Mo. 1975).
The elements of robbery set forth in NRS 200.380
1
are different from the elements of battery
with an intent to kill. NRS 200.400.
2
These two sections define two separate crimes.
Different acts were required to complete each of the crimes.
3
See State v. Freeman, 424
P.2d 261 {Kan.
____________________

1
NRS 200.380: 1. Robbery is the unlawful taking of personal property from the person of another, or in his
presence, against his will, by means of force or violence or fear of injury, immediate or future, to his person or
property, or the person or property of a member of his family, or of anyone in his company at the time of the
robbery. Such force or fear must be used to obtain or retain possession of the property, or to prevent or
overcome resistance to the taking, in either of which cases the degree of force is immaterial. If used merely as a
means of escape, it does not constitute robbery. Such taking constitutes robbery whenever it appears that,
although the taking was fully completed without the knowledge of the person from whom taken, such knowledge
was prevented by the use of force or fear.
2. Every person who shall commit robbery shall be punished by imprisonment in the state prison for not
less than 1 year nor more than 15 years.

2
NRS 200.400: 1. As used in this section:
(a) Assault' means an unlawful attempt, coupled with a present ability, to commit a violent injury on the
person of another.
(b) Battery means any willful and unlawful use of force or violence upon the person of another.
2. Any person convicted of assault for an offer or threat to kill, commit rape, the infamous crime against
nature, mayhem, robbery or grand larceny shall be punished for a gross misdemeanor.
3. Any person convicted of battery with intent to kill, commit rape, the infamous crime against nature,
mayhem, robbery or grand larceny shall be punished by imprisonment in the state prison for not less than 2 years
nor more than 10 years, except that if a battery with intent to commit rape is committed, and if such crime results
in substantial bodily harm to the victim, the person convicted shall be punished by imprisonment in the state
prison for life, with or without the possibility of parole, as determined by the verdict of the jury, or the judgment
of the court if there is no jury.
4. If the penalty is fixed at life imprisonment with the possibility of parole, eligibility for parole begins
when a minimum of 10 years has been served.

3
The United States Supreme Court in Dunn v. United States, 284 U.S. 390 (1932), held that consistent
verdicts on separate counts are not required. In United States v. Greene, 497 F.2d 1068, 1086 (7th Cir. 1974),
that Court commenting on the holding in Dunn said: The true rationale for the rule permitting inconsistent
verdicts in a single trial is that a jury may convict on some counts but not on others not because they are
unconvinced of guilt, but because of compassion or compromise.
92 Nev. 670, 673 (1976) Burks v. State
See State v. Freeman, 424 P.2d 261 (Kan. 1967). Compare, Lovell v. State, 92 Nev. 128, 546
P.2d 1301 (1976).
[Headnote 3]
3. Burks next argues that the admission into evidence of a photograph of his alleged
accomplice constitutes reversible error because its probative value was greatly outweighed by
its prejudicial nature. Other than reciting the general rule, which is codified in NRS
48.035(1), that relevant evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, . . . , Burks has failed to cite any relevant
authority to support his conclusion that reversible error was committed. See Franklin v. State,
89 Nev. 382, 513 P.2d 1252 (1973). He has also failed to designate and include the
challenged photograph in the record on appeal. Cf. Leaders v. State, 92 Nev. 250, 548 P.2d
1374 (1976); Lamoureaux v. Sheriff, 85 Nev. 44, 449 P.2d 471 (1969). For these reasons the
contention must be rejected.
[Headnote 4]
4. Although Burks concludes that the trial court committed error in refusing to give a
proposed instruction, he has neither designated and included the proposed instruction in the
record on appeal (Leaders, supra; Lamoureaux, supra), nor cited authority in support of this
assertion (Franklin, supra). Therefore his final contention must also fail.
Affirmed.
____________
92 Nev. 673, 673 (1976) Patin v. Sheriff
JACQUELYN MARINE PATIN, Appellant, v. SHERIFF,
No. 9267
December 21, 1976 557 P.2d 708
Defendant was ordered to stand trial for forgery, and her pretrial petition for relief in
habeas corpus was denied by the district court. She appealed. The Supreme Court held that
evidence, at preliminary examination, that defendant attempted to purchase an airline ticket
with a money order that had been stolen and signed her own name on the payee line of the
instrument and that the signature of "J. J. Jones" appeared as maker was sufficient to
establish probable cause.
stolen and signed her own name on the payee line of the instrument and that the signature of
J. J. Jones appeared as maker was sufficient to establish probable cause.
Affirmed.
Morgan D. Harris, Public Defender, and Terrence M. Jackson, Deputy Public Defender,
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Rimantas
A. Rukstele and Al Matteucci, Deputy District Attorneys, Clark County, for Respondent.
1. Criminal Law.
In prosecution for forgery, evidence, at preliminary examination, that defendant attempted to purchase
airline ticket with money order that had been stolen and signed her own name on payee line of instrument
and that signature of J. J. Jones appeared as maker was sufficient to establish probable cause. NRS
47.250, subd. 1, 205.090.
2. Criminal Law.
Where one in possession of forged instrument seeks to pass it, it is permissible to infer, for purpose of
establishing probable cause, that he acted with fraudulent intent necessary to support charge of forgery.
NRS 47.250, subd. 1, 205.090.
3. Habeas Corpus.
On appeal from denial of relief in habeas corpus, sought on ground that there was insufficient evidence
produced at preliminary examination to establish probable cause, Supreme Court was not concerned with
prospect that evidence might by itself be insufficient to support conviction.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Jacquelyn Marine Patin was ordered to
stand trial for forgery, a felony under NRS 205.090. Patin then filed a pretrial petition for a
writ of habeas corpus contending there was insufficient evidence produced at the preliminary
examination to establish probable cause that she committed the charged offense. The district
court denied habeas and in this appeal Patin reurges the same contention.
NRS 205.090 provides, among other things, that any person who (1) passes or attempts to
pass, as true and genuine, a forged or false instrument, (2) knowing it to be forged or false,
(3) with intent to defraud, is guilty of forgery. The thrust of Patin's argument is that the
state failed to establish that she knew the instrument she allegedly attempted to pass
was a forgery; hence, there is no direct proof that she harbored the necessary intent to
defraud.
Patin's argument is that the state failed to establish that she knew the instrument she allegedly
attempted to pass was a forgery; hence, there is no direct proof that she harbored the
necessary intent to defraud.
[Headnotes 1-3]
The record establishes, inter alia, Patin attempted to purchase an airline ticket from United
Airlines in Las Vegas with a $500 money order that had been stolen from a Los Angeles,
California bank. Patin signed her own name on the payee line of the instrument; the signature
of J. J. Jones appeared as maker. No testimony appears explaining how Patin acquired the
money order.
However, where one in possession of a forged instrument seeks to pass it, as here, it is
permissible to infer, for the purpose of establishing probable cause, that she acted with the
fraudulent intent necessary to support a charge of forgery. NRS 47.250(1). See State v.
Ramage, 51 Nev. 82, 269 P. 489 (1928), which held that analogous facts established a
conclusive presumption that the accused committed the forgery. See also, State v. Ogden,
502 P.2d 654 (Kan. 1972).
Accordingly, we believe that the evidence in the record justified the magistrate's
determination that there was probable cause to hold the accused for trial. Perkins v. Sheriff,
92 Nev. 180, 547 P.2d 312 (1976). We are not now concerned with the prospect that such
evidence may, by itself, be insufficient to support a conviction. McDonald v. Sheriff, 89 Nev.
326, 512 P.2d 774 (1973).
Affirmed.
____________
92 Nev. 675, 675 (1976) Armstrong v. State
CHARLES RAYMOND ARMSTRONG, Appellant, v.
No. 8916
December 21, 1976 557 P.2d 272
Appeal from judgment of conviction and sentence, First Judicial District Court, Carson
City; Frank B. Gregory, Judge.
Defendant was convicted in the district court of infamous crime against nature, and he
appealed. The Supreme Court held that the trial judge did not abuse his discretion by
permitting the prosecuting attorney to amend the information by adding thereto the name of
a witness where the record supported the trial judge's determination that the amendment
was not prejudicial.
adding thereto the name of a witness where the record supported the trial judge's
determination that the amendment was not prejudicial.
Affirmed.
William N. Dunseath, Public Defender, and David G. Parraguirre, Deputy Public
Defender, Washoe County, for Appellant.
Robert List, Attorney General, Carson City; Michael Fondi, District Attorney, and Terry
A. Friedman, Deputy District Attorney, Carson City, for Respondent.
Criminal Law.
Trial judge, in prosecution for infamous crime against nature, did not abuse discretion by permitting
prosecuting attorney to amend information by adding thereto name of a witness where record supported
judge's determination that amendment was not prejudicial. NRS 173.095.
OPINION
Per Curiam:
After being convicted, by jury verdict, of the infamous crime against nature (NRS
201.190), and sentenced to a term of imprisonment, Charles Raymond Armstrong perfected
this appeal.
Armstrong's central contention is that he was denied due process of law because, on the
day before the trial began, the trial judge permitted the prosecuting attorney to amend the
information by adding thereto the name of a witness. The witness had been discovered four
days previously and defense counsel had been, at that time, so advised.
This court has previously, and consistently, ruled in analogous situations that [t]he weight
of authority is to the effect that under statutes such as ours the indorsement of names of
witnesses upon an information is largely a matter of discretion with the court; and, in the
absence of a showing of abuse, or that some substantial injury has resulted to the accused, an
order permitting such indorsement, even after the trial has commenced, does not constitute of
itself reversible error. State v. Monahan, 50 Nev. 27, 35, 249 P. 566, 569 (1926). Accord:
Hess v. State, 73 Nev. 175, 313 P.2d 432 (1957); State v. Teeter, 65 Nev. 584, 200 P.2d 657
(1948). Here, the record supports the district judge's determination that the amendment
was not prejudicial.
supports the district judge's determination that the amendment was not prejudicial. See NRS
173.095.
Armstrong's other contentions are also without merit. See Thomas v. Sheriff, 89 Nev. 17,
504 P.2d 1313 (1973); Warden v. Lischko, 90 Nev. 221, 523 P.2d 6 (1974).
Affirmed.
____________
92 Nev. 677, 677 (1976) Warner v. Dillon
EUGENE WARNER, Appellant, v. EASTMAN DILLON, UNION SECURITIES & CO.;
MULTINATIONAL INDUSTRIES; NATIONWIDE REGISTRAR AND TRANSFER
AGENCY, INC.; ENTERPRISE SECURITIES, and MEL RICHARDS, Respondents.
No. 8417
December 21, 1976 558 P.2d 540
Appeal from an order granting motion to dismiss, Eighth Judicial District Court, Clark
County; James A. Brennan, Judge.
Owner of stock brought action against, inter alia, stockbroker, alleging that it was
negligent in its handling of the stock and had conspired with other defendants to prevent a
successful sale of the stock. The district court dismissed and owner appealed. The Supreme
Court held that the defendants did not waive their right to a motion to dismiss for failure to
prove a sufficient case by presenting a defense witness out of order during the owner's
case-in-chief; and that the owner had not presented sufficient evidence to establish a prima
facie case.
Affirmed.
R. Paul Sorenson, of Las Vegas, for Appellant.
Smith & O'Brien; Jones & Barfield; George E. Marshall; and Ashleman, Sabbath &
Rohay, of Las Vegas, for Respondents.
1. Trial.
Defendant may bring motion to dismiss at close of plaintiff's case and rule does not specifically require
him to do so before presenting evidence himself. NRCP 41(b).
2. Trial.
In determining whether to grant motion to dismiss, court is required to accept as true all evidence and
reasonable inferences therefrom presented by plaintiff and is bound to disregard any contradictory evidence
presented by defense during case-in-chief, whether by cross-examination or by direct
testimony of defense witness.
whether by cross-examination or by direct testimony of defense witness. NRCP 41(b).
3. Trial.
Defendants did not waive right to motion to dismiss for failure to prove sufficient case by presenting
defense witness out of order during plaintiff's case-in-chief, absent showing of prejudice. NRCP 41(b).
Plaintiff's failure to object to allowing defense witness to testify during plaintiff's case-in-chief, for
convenience of witness, waived any error.
5. Brokers.
In action by owner of stock against stockbroker and others, alleging that broker had been negligent in its
handling of stock and had conspired with others to prevent successful sale of stock, plaintiff failed to
present sufficient evidence to establish prima facie finding of negligence by broker, or that broker and
others conspired to destroy value of stock.
OPINION
Per Curiam:
Eugene Warner owned 40,000 shares of stock of Multinational Industries. On October 4,
1971, Warner instructed a broker at Eastman Dillon, a national stock brokerage firm, to sell
the shares, in small lots, for the best price available. When the initial sales caused an abrupt
drop in the price of the stock, the broker learnedthrough inquiriesthe stock was
nontransferable, even though such restriction did not appear on the certificates. The broker
canceled the sales made and declined to make further offers. Warner was so notified by mail.
Warner then brought this action against Eastman Dillon and the other named defendants,
alleging Eastman Dillon had been negligent in its handling of his stock and that they and the
other defendants had conspired to prevent a successful sale of the stock. At the close of
Warner's case, the district judge granted the defendants' motion to dismiss for failure to prove
a sufficient case pursuant to NRCP 41(b).
Warner appeals on two theories: (1) that respondents waived their right to such a motion
by presenting a defense witness, out of order, during the appellant's case-in-chief; and, (2)
that he had presented sufficient evidence. We reject both theories and affirm the decision of
the lower court.
[Headnotes 1, 2]
1. A defendant may bring a motion to dismiss at the close of plaintiff's case.
of plaintiff's case. NRCP 41(b).
1
The rule does not specifically require him to do so before
presenting evidence himself. In determining whether to grant a motion to dismiss, the court is
required to accept as true all evidence and reasonable inferences therefrom presented by the
plaintiff. Gunlock v. New Frontier Hotel, 78 Nev. 182, 370 P.2d 682 (1962). The court was,
therefore, bound to disregard any contradictory evidence presented by the defense during the
case-in-chief, whether by cross-examination or by direct testimony of a defense witness.
[Headnotes 3, 4]
Warner has neither suggested nor shown prejudice as a result of the out of order
testimony which had been permitted for the convenience of the witness. Even if we assume
prejudice, Warner did not object at the time the testimony was given; therefore, he waived
any right to now complain. Richfield Oil Corp. v. Harbor Ins. Co., 85 Nev. 185, 452 P.2d 462
(1969); Karns v. State Bank & T. Co., 31 Nev. 170, 101 P. 564 (1909).
[Headnote 5]
2. Warner's second theory is equally without merit. Notwithstanding the favorable
inferences granted in considering a motion to dismiss, Warner totally failed to present enough
evidence to establish a prima facie finding of negligence by Eastman Dillon, or that the
several respondents conspired to destroy the value of the stock. Dodd v. Cowgill, 85 Nev.
705, 463 P.2d 482 (1969); Long v. Flanigan Warehouse Co., 79 Nev. 241, 382 P.2d 399
(1963).
Affirmed.
____________________

1
NRCP 41(b) provides, in part:
. . . 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.
____________
92 Nev. 680, 680 (1976) Darnell v. State
JAMES DARNELL, Appellant, v. STATE
No. 8663
December 21, 1976 558 P.2d 624
Appeal from judgment and order denying motion for new trial, Second Judicial District
Court, Washoe County; Peter I. Breen, Judge.
By a judgment of the district court defendant was convicted of attempted possession of
stolen property and he appealed. The Supreme Court held that although firearms were no
longer stolen because they had been recovered by police, defendant's purchase of firearms
believing them to be stolen was sufficient to convict.
Affirmed.
David Hamilton, Reno, for Appellant
Robert List, Attorney General, Carson City, Larry Hicks, District Attorney, Washoe
County, and Calvin R. Dunlap, Deputy, for Respondent.
1. Criminal Law.
Even though actual commission of substantive crime is impossible because of circumstances unknown to
defendant, he is guilty of an attempt if he has specific intent to commit substantive offense and under the
circumstances, as he reasonably sees them, he does acts necessary to consummate what would be attempted
crime; only when results intended by actor, if they happened as envisaged by him, would fail to
consummate a crime, would his actions fail to constitute an attempt; overruling State v. Charley Lung, 21
Nev. 209, 28 P. 235 (1891).
2. Criminal Law.
An attempt requires only that the accused have an intent to commit crime and take a direct but ineffectual
act toward commission of crime. NRS 208.070.
3. Receiving Stolen Goods.
Police recapture of stolen firearms did not preclude finding defendant guilty of attempted possession of
stolen property by reason of his purchase of the recaptured firearms believing them to be stolen. NRS
208.070.
4. Criminal Law.
Where evidence concerning defendant's prior criminal conduct was offered for the limited purpose of
showing his criminal intent, it was relevant and admissible in prosecution for attempted possession of
stolen goods.
5. Receiving Stolen Goods.
Evidence relating to defendant's purchase of firearms, believing that they were stolen, was sufficient to
sustain conviction for attempted possession of stolen goods. NRS 208.070.
OPINION
Per Curiam:
Convicted by jury verdict of attempted possession of stolen property, appellant contends:
(1) a legal impossibility to commission of the crime precludes conviction; (2) the admission
of evidence of prior criminal conduct was improper; and, (3) the evidence was insufficient to
support the verdict. We disagree.
Joseph Latour was arrested in Sparks, Nevada, on several charges of burglary. Upon
interrogation, Latour admitted the burglaries, led the police to the stolen firearms, and further
admitted he had previously sold stolen firearms to appellant, a Reno police officer.
Subsequently, while working for the police, Latour sold the recaptured firearms to appellant,
who, believing they were stolen, took them to the police station and placed them in a private
vehicle rather than in the police evidence locker.
1. Appellant contends that, since the firearms had been recaptured by the police, they were
no longer stolen, and thus, it would be legally impossible to commit the crime of receiving
stolen property. Therefore, he argues, since it is legally impossible to commit the crime, it
must also be legally impossible to attempt the crime.
[Headnote 1]
While jurisdictions have been in conflict as to whether impossibility bars prosecution for
charges of attempt, we believe the better rule is that it does not.
1
The hypothesis of the rule
we now adopt is that, even though the actual commission of the substantive crime is
impossible because of circumstances unknown to the defendant, he is guilty of an attempt
if he has the specific intent to commit the substantive offense, and under the
circumstances, as he reasonably sees them, he does the acts necessary to consummate
what would be the attempted crime.
____________________

1
Accord: People v. Rojas, 358 P.2d 921 (Cal. 1961); State v. Carner, 541 P.2d 947 (Ariz.App. 1975); State
v. Korelis, 537 P.2d 136 (Or.App. 1975), aff'd, 541 P.2d 468 (Or. 1975); N.Y. Penal Law 110.10 (McKinney
1975); Model Penal Code 5.01, Comment (Tent. Draft No. 10, 1960); Anno., 85 A.L.R.2d 259 (1962). The
Model Penal Code completely eliminates such defenses.
Generally, jurisdictions which previously held otherwise have relied on People v. Jaffe, 78 N.E. 169 (N.Y.
1906), the continued vitality of which has been suspect since the 1965 enactment of N.Y. Penal Law 110.10
(McKinney 1975), and the decision in People v. Bel Air Equipment Corporation, 360 N.Y.S.2d 465 (App.Div.
1974).
unknown to the defendant, he is guilty of an attempt if he has the specific intent to commit
the substantive offense, and under the circumstances, as he reasonably sees them, he does the
acts necessary to consummate what would be the attempted crime. It is only when the results
intended by the actor, if they happened as envisaged by him, would fail to consummate a
crime, then and only then, would his actions fail to constitute an attempt. People v. Rojas,
358 P.2d 921 (Cal. 1961).
We decline to concern ourselves with the niceties of distinction between physical and legal
impossibility; rather, we choose to focus our attention on the question of the specific intent to
commit the substantive offense.
[Headnotes 2, 3]
An attempt requires only that the appellant have an intent to commit the crime and that he
take a direct but ineffectual act toward the commission of the crime. NRS 208.070; Johnson
v. Sheriff, 91 Nev. 161, 532 P.2d 1037 (1975). Here, the evidence clearly indicates that
appellant intended to and did receive goods he thought were stolen. The fact that the firearms
had lost their stolen status was an extrinsic fact unknown to appellant and does not vitiate
the criminality of the attempt. See: People v. Rojas, cited above; State v. Vitale, 530 P.2d 394
(Ariz.App. 1975); Lupo v. Superior Court of Los Angeles County, 110 Cal. Rptr. 185
(Cal.App. 1973).
[Headnote 4]
2. Appellant next contends the district court erred by admitting evidence concerning
appellant's prior criminal conduct. However, such evidence was offered for the limited
purpose of showing appellant's criminal intent and, thus, was relevant and admissible. See:
Richardson v. State, 91 Nev. 266, 534 P.2d 913 (1975); Wallace v. State, 77 Nev. 123, 359
P.2d 749 (1961); cf. State v. Carner, 541 P.2d 947 (Ariz. App. 1975).
[Headnote 5]
3. Finally, appellant contends the evidence adduced at trial was insufficient to support the
verdict. We find the verdict supported by substantial evidence and, thus, it will not be
disturbed. Mitchell v. State, 92 Nev. 458, 552 P.2d 1378 (1976).
Other issues raised by appellant are either not supported by relevant authority or without
merit and we need not consider them. Jacobs v. State, 91 Nev. 155, 532 P.2d 1034 (1975).
Insofar as this opinion is in conflict with our decision in State v. Charley Lung, 21 Nev.
209
v. Charley Lung, 21 Nev. 209, 28 P. 235 (1891), and its progeny, such portion of that case
must be and is hereby overruled.
Affirmed.
____________
92 Nev. 683, 683 (1976) Hughes v. Hobson
EUGENE S. HUGHES, HELEN B. HUGHES, JAY HUGHES and JAN MARY DONATI,
Appellants, v. R. H. HOBSON and OVERLAND INC., a Nevada Corporation, Respondents.
No. 8504
December 21, 1976 558 P.2d 543
Appeal from judgment, Second Judicial District Court, Washoe County; Emile J. Gezlin,
Judge.
Purchasers brought suit against vendors to recover damages for the vendors' failure to
disclose the existence of a lease and to deliver business fixtures. The district court entered
judgment in favor of purchasers, and vendors appealed. The Supreme Court held that while
the trial court properly found on substantial evidence that the lease was valid and enforceable,
and while the court's award of damages in the amount of $10,816 for failure to deliver
personalty pursuant to the sales contract was also supported by the evidence, the damages of
$22,265 awarded for loss of profits had to be reversed, since those damages were based on
prospective profits of a new business venture and were too uncertain and speculative to form
a basis for recovery.
Stewart & Horton, Ltd., Reno, for Appellants.
Bradley & Drendel, Reno, for Respondents.
Fraud, Vendor and Purchaser.
While the trial court, in suit by purchasers against vendors to recover damages for the vendors' failure to
disclose the existence of a lease and to deliver business fixtures, properly found on substantial evidence
that the lease was valid and enforceable, and while the court's award of damages in the amount of $10,816
for failure to deliver personalty pursuant to the sales contract was also supported by the evidence, the
damages of $22,265 awarded for loss of profits had to be reversed, since those damages were based on
prospective profits of a new business venture and were too uncertain and speculative
to form a basis for recovery.
on prospective profits of a new business venture and were too uncertain and speculative to form a basis for
recovery.
OPINION
Per Curiam:
Respondents' offer to purchase commercial property in Reno, Nevada, was accepted by
appellants who, during negotiations, had represented that (1) the sale price included all
business fixtures; (2) the property was not under lease; and, (3) the occupant, one Birches
Bird, was merely a month-to-month tenant. Shortly after the sale was consummated
respondent served Bird with a notice to quit. Bird refused, claiming he was a tenant under a
long-term written lease. After much confusion and litigation not here relevant, Bird
voluntarily surrendered the premises, but took with him many of the business fixtures.
Respondents sought damages from appellants for their failure to disclose the lease and to
deliver the business fixtures. The district court determined there was a valid and enforceable
lease which encumbered the property, the business fixtures were the personal property of
Bird, and appellants were liable for damages incurred by respondents due to appellants'
misrepresentations. Appellants here contend the district court erred in, (1) finding a valid and
enforceable lease encumbered the property and, (2) awarding damages for both loss of
income or profits and failure to deliver the business fixtures.
1. The district court's finding that the Bird lease was valid and enforceable is supported by
substantial evidence and will not be disturbed. Holland Livestock v. B & C Enterprises, 92
Nev. 473, 553 P.2d 950 (1976), and cases cited therein.
2. The district court's award of damages in the amount of $10,816 for failure to deliver
personalty pursuant to the sales contract is also supported by the evidence and will be
sustained. Jones v. Golick, 46 Nev. 10, 206 P. 679 (1922). However, damages of $22,265
awarded for loss of profits must be reversed because those damages were based on
prospective profits of a new business venture which we have held are too uncertain and
speculative to form a basis for recovery. Alper v. Stillings, 80 Nev. 84, 389 P.2d 239 (1964);
Knier v. Azores Constr. Co., 78 Nev. 20, 368 P.2d 673 (1962).
Other issues raised by appellants are without merit and we need not consider them.
The portion of the judgment awarding $22,265 damages for loss of profits is reversed; the
remaining portion is affirmed.
____________
92 Nev. 685, 685 (1976) Penrose v. O'Hara
HERBERT S. PENROSE, Appellant, v. GLEN O'HARA, Lyon County Building Inspector;
WYATT OWEN, Lyon County Engineer; ROBERT GRIFFIN, WARREN LEWIS, JOHN
POLI, Lyon County Board of Commissioners, Individually, et al., Respondents.
No. 8251
December 21, 1976 557 P.2d 276
Appeal from judgment of the Ninth Judicial District Court, Lyon County; Noel E.
Manoukian, Judge.
Action was brought against county building inspector, county engineer, and county board
of commissioners for declaratory relief, damages and an injunction in regard to such
defendants' alleged interference with plaintiff's fabrication of modular homes on land zoned
for single-family dwellings pursuant to county ordinance. The district court denied plaintiff
relief, and he appealed. The Supreme Court held that non-conforming use of land for the
fabrication of modular homes could not be justified merely because such use might be
temporary and that determination that defendants were not estopped to enforce ordinance was
supported by substantial evidence.
Affirmed.
Nicolaus R. Harkins, Carson City, for Appellant.
Ronald T. Banta, District Attorney, Lyon County, for Respondents.
1. Zoning.
Non-conforming use of land, which was zoned for single-family dwellings, for the fabrication of modular
homes could not be justified merely because such use might be temporary.
2. Zoning.
In action against county building inspector, county engineer, and county board of commissioners for
declaratory relief, damages and injunction in regard to such defendants' alleged interference with
plaintiff's fabrication of modular homes on land zoned for single-family dwellings
pursuant to county ordinance, determination that defendants were not estopped to
enforce ordinance was supported by substantial evidence.
with plaintiff's fabrication of modular homes on land zoned for single-family dwellings pursuant to county
ordinance, determination that defendants were not estopped to enforce ordinance was supported by
substantial evidence.
Contentions raised for first time on appeal would not be considered.
OPINION
Per Curiam:
Appellant Herbert Penrose sought declaratory relief, damages, and an injunction due to
respondents' interference with his fabrication of modular homes on land zoned for single
family dwellings pursuant to Lyon County Ordinance No. 50.
1
The district court, finding that
no non-conforming use existed on appellant's land at the time of the Ordinance's enactment
and that respondents were not estopped to enforce the Ordinance, denied appellant relief.
[Headnote 1]
1. Because the fabrication of modular homes will be only temporary, appellant argues his
land use is not violative of Ordinance No. 50. However, in our view, a non-conforming use
cannot be justified merely because it might be temporary. See, for example, Light Company
v. Haughton, 226 N.E.2d 341 (Ind.App. 1967).
[Headnote 2]
2. Appellant also argues that the district court erred in ruling respondents were not
estopped to enforce Ordinance No. 50. This determination is supported by substantial
evidence and will not be interfered with on appeal. Alves v. Bumguardner, 91 Nev. 799, 544
P.2d 436 (1975); County of Clark v. Lucas, 91 Nev. 263, 534 P.2d 499 (1975).
[Headnote 3]
3. Finally, appellant here proffers arguments based upon asserted vagueness and
overbreadth of the Ordinance, and upon principles of res judicata. Appellant raises these
contentions for the first time on appeal; thus, we will not consider them. Alves v.
Bumguardner, supra; Solar, Inc. v. Electric Smith Constr., 88 Nev. 457, 499 P.2d 649 (1972);
Howarth v. El Sobrante Mining Corp., 87 Nev. 492, 489 P.2d 89 (1971); Britz v.
Consolidated Casinos Corp.,
____________________

1
Ordinance No. 50 was enacted on April 5, 1966. In October, 1973, Ordinance No. 136 superseded
Ordinance No. 50. However, the parties agreed the applicable sections of the two ordinances were identical.
Consolidated Casinos Corp., 87 Nev. 441, 488 P.2d 911 (1971).
Affirmed.
____________
92 Nev. 687, 687 (1976) Peters v. Peters
ESTHER P. PETERS, Appellant, v. DONALD G. PETERS, Jr., Executor for the Estate of
DONALD G. PETERS, Sr., Deceased, Respondent.
No. 8426
December 21, 1976 557 P.2d 713
Appeal from judgment of the Sixth Judicial District Court, Humboldt County; Llewellyn
A. Young, Judge.
Testator's son filed in estate proceeding a petition for declaratory relief seeking to have
certain real and personal property declared to be community property and subject to
administration in estate of testator. The district court held that real property as well as
proceeds from life insurance were community property, and that burden of proof was on wife
to show that property was not community property, and wife appealed. The Supreme Court,
Batjer, J., held that burden of proof was on son to show that property which was held in joint
tenancy with right of survivorship had been transmuted into community property; that son
failed to meet burden and, absent proof of intent or agreement to contrary, taking and holding
of property in joint tenancy was tantamount to an agreement to so hold it; and that wife, as
named beneficiary of life insurance policy at time of husband's death, was entitled to receive
entire proceeds from policy.
Reversed in part and remanded with instructions.
Diehl, Evans & Recanzone, of Fallon, for Appellant.
George W. Swainston, and Eric L. Richards, of Reno, for Respondent.
1. Courts.
Estate or probate matters are considered to be civil actions and subject to laws and rules relating to civil
cases.
2. Husband and Wife.
Unless otherwise provided by law, decree, or agreement, all property acquired after marriage is
considered to be community property and that presumption can only be overcome by clear and convincing
evidence. NRS 123.220.
Property held in individual name of a spouse or in the name of both spouses as tenants in common can be
compatible with concept of community property, but property held in joint tenancy cannot because certain
incidents of joint tenancy would be inconsistent with incidents of community property. NRS 123.220.
Whenever property nominally held in joint tenancy is determined to be community property the right of
survivorship is destroyed and is brought within the laws of descent and distribution.
Undisputed fact that title to all real property of husband and wife was in joint tenancy was clear and
certain proof needed to overcome presumption that it was community property.
Fact that community funds, earnings and efforts were used to build up and materially increase value of
joint tenancy property, without further proof of original intent or subsequent agreement to hold property as
community, would not prove a transmutation from joint tenancy to community property.
In action by testator's only son and executor of his estate seeking to have property which was titled in
joint tenancy declared to be community property and subject to administration in the estate, son had burden
to prove, through clear and convincing evidence, that the real property which was held in joint tenancy with
right of survivorship had been nevertheless transmuted into community property.
8. Witnesses.
Although inconsistent allegations made in prior pleading are admissible in evidence for purpose of
impeachment, such allegations must be statements of fact; furthermore they are not conclusive and are
rebuttable by the pleader.
9. Evidence.
The opinion of either spouse as to whether property is separate or community is of no weight whatever.
In testator's son's declaratory judgment action seeking declaration that certain property titled in joint
tenancy was community property subject to administration in estate, evidence presented by ex-wife was not
sufficient to overcome presumption created by joint tenancy deeds and, thus, absent proof of intent or
agreement to contrary taking and holding of property in joint tenancy was tantamount to an agreement to so
hold it.
When one spouse is named beneficiary in life insurance policy of other spouse, and remains so at time of
insured's death, all proceeds vest at that moment in surviving spouse as separate
property even though all the premiums have been paid with community funds.
proceeds vest at that moment in surviving spouse as separate property even though all the premiums have
been paid with community funds.
12. Insurance.
Where husband purchased life insurance policy and named wife as beneficiary, where premiums on
policy had been paid out of community funds, wife, as named beneficiary at time of husband's death, was
entitled to receive entire proceeds from policy.
OPINION
Donald G. Peters, Sr., and Esther P. Peters married on February 22, 1944. In December,
1972, the couple separated; on March 13, 1973, Donald, Sr., executed a new will, and the
next day he filed for divorce.
In the divorce proceedings Esther filed an answer and counterclaim alleging that the
parties have acquired certain community property, both real and personal. In his reply,
Donald, Sr., admitted that allegation and only denied the amount of the balance of the savings
and checking accounts.
On August 8, 1973, Donald, Sr., died, and pursuant to the request in his will, respondent,
who is the couple's only son, was appointed executor of his estate.
On April 2, 1974, respondent filed in the estate proceeding a Petition for Declaratory
Relief to Determine Status of Certain Real and Personal Property, seeking to have the
property described therein declared to be community property and subject to administration in
the Estate of Donald G. Peters, Sr.
[Headnote 1]
1. Initially appellant claims that respondent's petition for a declaratory judgment under
NRS 143.110 was not a valid proceeding in the probate matter. That contention has been
answered by this court in Cord v. District Court, 91 Nev. 260, 262, 263, 533 P.2d 1355
(1975), where we overruled State Ex Rel. Germain v. District Court, 56 Nev. 331, 51 P.2d
219 (1935), and held that . . . [E]state or probate matters are considered to be civil actions
and subject to laws and rules relating to civil cases.
2. Although it is not disputed that the real property was acquired with community funds
during marriage, appellant claims error in the trial court's findings of fact, that: (1) the real
property, as well as the proceeds from the life insurance on Donald G. Peters, Sr., were
community property, and {2) in its conclusion of law that the burden of proof was on
Esther P.
Donald G. Peters, Sr., were community property, and (2) in its conclusion of law that the
burden of proof was on Esther P. Peters to show that the property was not community
property.
[Headnote 2]
In this state, unless otherwise provided by law, decree, or agreement, all property acquired
after marriage is considered to be community property, NRS 123.220,
1
and that presumption
can only be overcome by clear and convincing evidence. Todkill v. Todkill, 88 Nev. 231, 495
P.2d 629 (1972); Kelly v. Kelly, 86 Nev. 301, 468 P.2d 359 (1970).
With misdirected reliance on Burdick v. Pope, 90 Nev. 28, 518 P.2d 146 (1974), the
district court held that the joint tenancy deeds conveying all the real property here involved to
Esther and Donald, Sr., as joint tenants, and not as tenants in common, with full rights of
survivorship, did not without other clear and certain independent evidence overcome the
presumption that such property purchased with community funds was community property.
NRS 123.220.
Burdick v. Pope, supra, is inapposite. There, a wife, during marriage, took real property
solely in her name, and we held that the phrase her sole and separate property in the deed
standing alone without supporting evidence is not the clear and certain proof required to
overcome the presumption of community property.
[Headnotes 3, 4]
Property held in the individual name of a spouse or in the name of both spouses as tenants
in common can be compatible with the concept of community property, but property held in
joint tenancy cannot because certain incidents of joint tenancy would be inconsistent with
incidents of community property. Tomaier v. Tomaier, 146 P.2d 905 (Cal. 1944). Whenever
property nominally held in joint tenancy is determined to be community property the right of
survivorship is destroyed and is brought within the laws of descent and distribution.
[Headnotes 5, 6]
The undisputed fact that the title to all the real property of Esther and Donald, Sr., was in
joint tenancy is the clear and certain proof needed to overcome the presumption that it
was community property. In Bowman v. Bowman, 30S P.2d 906, 907 {Cal.App.
____________________

1
NRS 123.220: All property, other than that stated in NRS 123.130, acquired after marriage by either
husband or wife, or both, is community property unless otherwise provided by:
1. An agreement in writing between the spouses, which is effective only as between them.
2. A decree of separate maintenance issued by a court of competent jurisdiction.
3. NRS 123.190.
Esther and Donald, Sr., was in joint tenancy is the clear and certain proof needed to overcome
the presumption that it was community property. In Bowman v. Bowman, 308 P.2d 906, 907
(Cal.App. 1957), that court said: The deed to the property was taken in joint tenancy. This
fact raises a rebuttal presumption that the property was, in fact, held in joint tenancy, and
places on the party claiming it to be community property the burden of overcoming the
presumption. Schindler v. Schindler, 1954, 126 Cal.App.2d 597, 272 P.2d 566; Jones v.
Jones, 1955, 135 Cal.App.2d 52, 286 P.2d 908. The fact that the property was purchased with
community funds, standing alone, is insufficient to rebut the presumption created by the form
of the deed. Gudelj v. Gudelj, 1953, 41 Cal.2d 202, 259 P.2d 656. See Machado v.
Machado, 375 P.2d 55 (Cal. 1962); Pantano v. Pantano, 521 P.2d 640 (Ariz.App. 1974);
Perkins v. West, 265 P.2d 538 (Cal.App. 1954). Nor will the fact that community funds,
earnings and efforts were used to build up and materially increase the value of the joint
tenancy property without further proof of an original intent or subsequent agreement to hold
the property as community, prove a transmutation from joint tenancy. Mullikin v. Jones, 71
Nev. 14, 278 P.2d 876 (1955).
[Headnote 7]
Here the burden was upon the respondent to prove through clear and convincing evidence
that the real property which was held in joint tenancy with right of survivorship had been
nevertheless transmuted into community property. Petition of Fuller, 63 Nev. 26, 159 P.2d
579 (1945); Mullikin v. Jones, supra. The district court erroneously concluded that Esther
Peters has the burden of proof to show all property acquired after the marriage is not
community property . . . .
We now examine the record to determine whether there is any substantial evidence to
overcome the presumption created by the joint tenancy deeds. Except for the bare conclusion
in Esther's counterclaim to the divorce action that the parties have acquired certain
community property, and Donald, Sr.'s reply to the counterclaim, there is absolutely no
evidence presented by respondent to establish that the real property in the names of Esther
and Donald, Sr., at the time of his death was intended to be held as community property. The
meager evidence presented by Esther under the erroneous burden of proof placed on her by
the district court was to the effect that she and Donald, Sr., intended to hold the property as
joint tenants with right of survivorship.
[Headnote 8]
Respondent's contention that Esther's conclusory allegation in her counterclaim filed in the
divorce action is conclusively binding upon her is unsupportable in law. Although
inconsistent allegations made in a prior pleading are admissible in evidence for the purpose of
impeachment, such allegations must be statements of fact. Furthermore they are not
conclusive and are rebuttable by the pleader. Auto Fair, Inc. v. Spiegelman, 92 Nev. 656, 557
P.2d 273 (1976); Whittlesea Blue Cab Co. v. McIntosh, 86 Nev. 609, 472 P.2d 356 (1970).
[Headnote 9]
The opinion of either spouse as to whether property is separate or community is of no
weight whatever. In Re Wilson's Estate, 56 Nev. 353, 53 P.2d 339 (1936); Barrett v. Franke,
46 Nev. 170, 208 P. 435 (1922). See Morse v. Scott, 130 S.W.2d 1041 (Tex.Civ.App. 1939).
[Headnote 10]
No fact or facts were alleged in Esther's counterclaim showing the conduct, expressions or
intent of the parties at the time of the taking or during the holding of the real property. There
was not even an allegation that the property was acquired during the marriage or that
community funds were used to purchase and improve it. She merely listed in general terms
the property which she believed the parties had acquired. Absent proof of intent or agreement
to the contrary, the taking and holding of the property in joint tenancy was tantamount to an
agreement so to hold it. Mullikin v. Jones, supra.
[Headnotes 11, 12]
3. Donald, Sr., purchased a life insurance policy and named Esther as beneficiary. The
premiums on the policy had been paid out of community funds. The trial court erred in
holding that the policy was community property and that one-half of the proceeds should be
distributed to Esther, with the remaining one-half to become an asset of the Estate of Donald
G. Peters, Sr. Upon this record, Esther, as the named beneficiary at the time of Donald, Sr.'s
death, was entitled to receive the entire proceeds from the policy. When one spouse is the
named beneficiary in the life insurance policy of the other spouse, and remains so at the time
of the insured's death, all proceeds vest at that moment in the surviving spouse as separate
property even though all the premiums had been paid with community funds. Cf. Grimm v.
Grimm, 157 P.2d 841 (Cal. 1945). See In Re Miller's Estate, 71 P.2d 1117 (Cal.App. 1937).
Inapposite are cases relied upon by respondent where the named beneficiary is other than
the widow who was awarded one-half of the proceeds as her share of the community
property. See, Tyre v. Aetna Life Ins. Co., 353 P.2d 725 (Cal. 1960); Blethen v. Pacific Mut.
Life Ins. Co., 243 P.431 (Cal. 1926); New York Life Ins. Co. v. Bank of Italy, 214 P. 61
(Cal.App. 1923).
We reverse that part of the judgment adjudging and decreeing that the real property as
described in Exhibit A and the improvements thereon, as well as all policies of life
insurance insuring the life of Donald G. Peters, Sr., are community property and are subject to
administration of the estate of Donald G. Peters, Sr., and remand for the entry of an amended
judgment not inconsistent with this opinion.
____________
92 Nev. 693, 693 (1976) Guynes v. State
DANIEL EDWIN GUYNES, Appellant, v.
No. 8894
December 21, 1976 558 P.2d 626
Defendant was convicted in the district court of attempted robbery, and he appealed. The
Supreme Court held that instruction that accused was required to prove claimed insanity by
preponderance of evidence was not constitutionally impermissible; that no evidentiary
hearing on voluntariness of confession was required where there was no challenge to
confession; and that no prejudicial error resulted from questions and argument of prosecutor.
Affirmed.
Morgan D. Harris, Public Defender, and Stephen L. Huffaker, Deputy, Clark County, for
Appellant.
1. Criminal Law.
It was not constitutionally impermissible to charge that accused was required to prove claimed insanity by
preponderance of the evidence.
2. Criminal Law.
Jackson hearing is required only when defendant challenges voluntariness of confession, and absent
such challenge, there was no error in failing to hold hearing or to make specific finding that confession was
voluntary.
3. Criminal Law.
No error nor prejudice was demonstrated with respect to prosecutor's questions on cross-examination and
argument to the jury, in case in which objections were made and sustained and evidence of guilt was
overwhelming.
OPINION
Per Curiam:
After having entered a plea of not guilty, by reason of insanity, Daniel Edwin Guynes was
convicted, by jury verdict, of attempted robbery. In this appeal the only cognizable
contentions of error, none of which have merit, are directed to (1) the jury instruction that the
accused was required to prove claimed insanity by a preponderance of the evidence; (2) the
judge's failure to make a specific finding that Guyne's confession was voluntary; and, (3)
alleged prosecutorial misconduct.
The robbery attempt was thwarted when the would-be victim drew a weapon and ordered
Guynes to lie on the ground. After the police arrived Guynes spontaneously declared he was
sick and needed the money. After the police advised him of his rights, Guynes again
volunteered an inculpatory statement.
[Headnote 1]
1. In support of his first assignment of error, Guynes erroneously contends that the
decision in Mullaney v. Wilbur, 421 U.S. 684 (1975), makes it constitutionally impermissible
to place the burden on him to prove insanity, because it is an element of the charged crime
and, therefore, must be proven by the State. See Phillips v. State, 86 Nev. 720, 475 P.2d 671
(1970), where this court held that insanity is an affirmative defense which the defendant must
establish by a preponderance of proof. This holding is neither offensive to, nor incompatible
with, the decision in Mullaney, or with any other High Court pronouncement. See, for
example, Leland v. Oregon, 343 U.S. 790 (1952), which holds that there is no constitutional
requirement that the state must shoulder the burden of proving the sanity of an accused. See
also the concurring opinion in Mullaney, 421 U.S. at 704-706, wherein Chief Justice Burger
joined with Mr.
Mullaney, 421 U.S. at 704-706, wherein Chief Justice Burger joined with Mr. Justice
Rehnquist in a cogent recognition and analysis of the question, which is in accord with our
holding.
[Headnote 2]
2. Guynes also contends the district court erred by admitting his confession without first
holding an evidentiary hearing to determine its voluntariness, pursuant to the mandate of
Jackson v. Denno, 378 U.S. 368 (1964). A Jackson hearing is required only when the
defendant challenges the voluntariness of his confession. Lego v. Twomey, 404 U.S. 477
(1972). Guynes not only failed to make such a challenge, but has never contended his
confession was other than voluntary.
[Headnote 3]
3. Guynes argues that some of the prosecutor's questions on cross-examination were
prejudicial; therefore, he concludes he was deprived of a fair trial. The same conclusion is
directed to a portion of the prosecutor's argument to the jury. Objections to the
questionsand argumentwere made and sustained. These circumstances, coupled with the
overwhelming evidence of guilt, neither demonstrate error nor persuade us that Guynes was
prejudiced. Riley v. State, 91 Nev. 196, 533 P.2d 456 (1975); Pacheco v. State, 82 Nev. 172,
414 P.2d 100 (1966); cf. State v. Kane, 542 P.2d 335 (Kan. 1975); Massengale v. State, 548
P.2d 656 (Okla.Crim.App. 1976).
Ancillary issues raised by appellant are also without merit and will not be considered.
Affirmed.
____________
92 Nev. 695, 695 (1976) Norman v. Sheriff
RODGER WILLIAM NORMAN and JERRY JERALD ZELENIK, Appellants,
v. SHERIFF, CLARK COUNTY, NEVADA, Respondent.
No. 9275
December 21, 1976 558 P.2d 541
Defendants charged with robbery, battery with intent to commit robbery, and use of a
deadly weapon in the commission of a crime filed pretrial petitions for habeas corpus. The
district court denied relief, and defendants appealed.
district court denied relief, and defendants appealed. The Supreme Court, held, inter alia, that
though acts of violence and intimidation preceded actual taking of property and may have
been primarily intended for another purpose, they were sufficient to support charges in the
indictment.
Affirmed.
Morgan D. Harris, Public Defender, and John H. Howard, Deputy, Clark County, for
Appellant Zelenik.
Mills & Galliher and Lamond R. Mills, Las Vegas, for Appellant Norman.
George E. Holt, District Attorney, and Bill C. Hammer, Deputy, Clark County, for
Respondent.
1. Robbery.
Robbery is not confined to a fixed locus, and all matters immediately antecedent to and having a direct
causal connection with the robbery are deemed so closely connected with it as to form a part of the
occurrence.
Though acts of violence and intimidation preceded actual taking of property and may have been primarily
intended for another purpose, where defendants allegedly took advantage of terrifying situation they had
created while demanding to know the whereabouts of the victim's roommate to flee with victim's property,
there was sufficient use of force, violence or fear of injury in connection with the taking to support charges
of robbery, battery with intent to commit robbery, and use of a deadly weapon in the commission of a
crime. NRS 193.165, 200.380, 200.400.
State was not shown to be consciously indifferent to defendants' rights in obtaining grand jury
indictments against them after charges were initially dismissed following preliminary examination. NRS
178.562, subd. 2.
OPINION
Per Curiam:
In the early morning of December 23, 1975, two men, one armed with a shotgun, the other
with a pistol, forced their way into Charles Gaynor's residence, demanding to be told the
whereabouts of Gaynor's roommate. A struggle ensued, resulting in Gaynor being hit over the
head with the shotgun.
1
He was also struck in the back with "paper wadding" from the
"blank bullets" fired from the pistol.
____________________

1
The shotgun discharged, blowing a large hole in the wall.
was also struck in the back with paper wadding from the blank bullets fired from the
pistol. The assailants fled, taking a portable television set and several Christmas presents.
Appellants, after having been identified as the perpetrators, were indicted for robbery, battery
with intent to commit robbery, and the use of a deadly weapon in the commission of a crime.
See: NRS 200.380, NRS 200.400 and NRS 193.165.
Timely filed pretrial petitions for writs of habeas corpus contended: (1) there was
insufficient evidence to sustain the indictments; and, (2) the state was consciously
indifferent to their rights in seeking the grand jury indictments. Habeas relief was denied and
in this appeal the same contentions are reurged.
The thrust of appellants' first contention is that their use of force, violence, or fear of injury
did not, nor was it intended to, effectuate the taking of the Christmas gifts and television set
from Gaynor; hence, an essential element of the crime of robbery is lacking and all charges
must be dismissed.
2
We disagree.
[Headnotes 1, 2]
1. Robbery is not confined to a fixed locus, but is frequently spread over considerable and
varying periods of time. State v. Fouquette, 67 Nev. 505, 527, 221 P.2d 404, 416 (1950). All
matters . . . immediately antecedent to and having a direct causal connection with [the
robbery are deemed] . . . so closely connected with it as to form in reality a part of the
occurrence. Id. 67 Nev. at 529, 221 P.2d at 417. Thus, although the acts of violence and
intimidation preceded the actual taking of the property and may have been primarily intended
for another purpose, it is enough, to support the charges in the indictment, that appellants,
taking advantage of the terrifying situation they created, fled with Gaynor's property. Accord:
State v. Iaukea, 537 P.2d 724 (Haw. 1975).
[Headnote 3]
2. Charges of robbery, battery with intent to commit robbery, and the use of a deadly
weapon in the commission of a crime against Norman and Zelenik were initially dismissed
after a preliminary examination was held. They now argue that the state was consciously
indifferent to their rights in subsequently obtaining grand jury indictments against them.
This contention finds no support in the record and is, therefore, without merit. NRS
178.562(2); Johnson v. Sheriff, 89 Nev.
____________________

2
NRS 200.380 defines robbery, in par, as . . . the unlawful taking of personal property from the person of
another, or in his presence, against his will, by means of force or violence or fear of injury, immediate or future,
to his person or property, . . .
304, 511 P.2d 1051 (1973). Cf. McGee v. Sheriff, 86 Nev. 421, 470 P.2d 132 (1970).
Affirmed.
____________
92 Nev. 698, 698 (1976) City of Reno v. Goldwater
CITY OF RENO, a Municipal Corporation, and JOHN ILIESCU, Appellants, v. BERT
GOLDWATER, PHYLLIS K. GOLDWATER, CORINNE N. FORMAN, MARGARET M.
MUELLER, KATHERINE W. McLAUGHLIN, LUD CORRAO, PATRICIA CORRAO,
HAZEL S. PAYNE, GEORGE J. VUCANOVICH, BARBARA F. VUCANOVICH, HELEN
MEAKER MURPHY, MYRTLE M. MILLER, NELLO GONFIANTINI, Jr., JOANNE R.
GONFIANTINI, LEO D. NANNINI, LUCILLE C. NANNINI, and EMILY WISEMAN
LEWIS, Respondents.
No. 8342
December 21, 1976 558 P.2d 532
Appeal from summary judgement; Second Judicial District Court, Washoe County; James
J. Guinan, Judge.
An action was brought to cancel deeds conveying a small part of the real property which,
in 1923, had been given to the City of Reno in trust by the family of former United States
Senator Francis G. Newlands as a public park and playground for the use and benefit of the
people of the City of Reno. The district court entered summary judgment in favor of
plaintiffs, and defendants appealed. The Supreme Court, Thompson, J., held, inter alia, that
where City traded charitable trust property, donated for use as a public park and playground,
to private persons for a nonpublic use, there was a clear breach of the trust, and the City's
alleged need to acquire some land owned by the private persons for an approach to a bridge
and to widen a street was not a relevant consideration; and that when City accepted the gift of
land from former Senator's family, a contract was created obligating the city to hold such
property in trust for the people of the City to enjoy as a park and playground, and that
obligation could not later be impaired by legislative enactment.
Affirmed.
Robert L. Van Wagoner, City Attorney, and John N. Schroeder, Deputy City Attorney, for
Appellant City of Reno.
Bradley & Drendel, Ltd., of Reno, for Appellant Iliescu.
Goldwater, Hill, Mortimer, Sourwine & Pinkerton, of Reno, for Respondents.
Taxpayers and residents of the City of Reno, living in close proximity to Newlands Park, had standing to
bring action against City to cancel deeds conveying a small part of the real property which, in 1923, had
been given to the City in trust by the family of former United States Senator Francis G. Newlands as a
public park and playground for the use and benefit of the people of the City of Reno.
2. Charities.
In respect to 1923 conveyance of land to City, the language of the indenture was clear . . . to be held by
the party of second part in trust, forever, as a trustee for the people of the City of Reno, as a public park
and playground . . . , and the trust thus created was charitable in nature.
3. Charities.
Where City traded charitable trust property, donated for use as a public park and playground, to private
persons for a nonpublic use, there was a clear breach of the trust, and the City's alleged need to acquire
some land owned by the private person for an approach to a bridge and to widen a street was not a relevant
consideration; such need could have been satisfied by purchasing the property or, if terms could not be
agreed upon, then by resort to the power of eminent domain.
4. Charities.
As a general rule, when individuals give property to a municipality in trust for a specific public use, the
municipality is without power to use the property for any other purpose.
When City accepted gift of land from family of a former United States Senator, a contract was created
obligating the City to hold such property in trust for the people of the City to enjoy as a park and
playground, and that obligation could not later be impaired by legislative enactment. Stats. Nev. 1965, ch.
292; Const. art. 1, 15; U.S.C.A.Const. art. 1, 10, cl. 1.
Taxpayers and residents of the City of Reno, living in close proximity to park, were not barred by laches
from bringing action to cancel 1966 deed whereby City traded park property to private persons for a
nonpublic use, as published notice of the aforesaid transaction did not mention the park property, as the
recording of the deed was not notice except to subsequent purchasers and mortgagees,
and as, most significantly, the City was not prejudiced by plaintiffs' delay in asserting
their rights.
the deed was not notice except to subsequent purchasers and mortgagees, and as, most significantly, the
City was not prejudiced by plaintiffs' delay in asserting their rights. NRS 111.320.
OPINION
This action is to cancel deeds conveying a small part of the real property which, in 1923,
had been given to the City of Reno in trust by the family of former United States Senator
Francis G. Newlands as a public park and playground for the use and benefit of the people of
the City of Reno.
The donated property is and has been a lovely small park for many years and continues to
be suited to that purpose. Consequently, we are not here concerned with donated trust
property which was never used for the purposes designated by the gift, or which has become
inadequate for such purposes.
[Headnote 1]
The plaintiffs, respondents here, are taxpayers and residents of the City of Reno who live
in close proximity to Newlands Park and enjoy its beauty. Their standing to compel the City
to honor its trust is beyond question. Appeal of Leech, 84 A.2d 787 (Pa.Super.Ct. 1951). The
district court, on motion for summary judgment, found in their favor. Since this litigation also
concerns cross claims and other pleadings among or between the defendants below, the court
directed entry of final judgment for the plaintiffs as to all defendants without adjudicating the
rights among or between the defendants themselves. NRCP 54(b). This appeal by the
defendants, City of Reno and Iliescu, followed.
The gift in trust to the City was of Blocks M, N and O of Newlands Heights. In 1966 in
connection with negotiations for the acquisition of property owned by William and Janet Farr
(a portion of Block L in Newlands Heights) which was needed for the approach to the
proposed Keystone Bridge, the City agreed to deed to the Farrs as part of the consideration for
the purchase of such property, a portion of the trust property in Block O. Subsequently in
1971 the Farrs deeded this property to Iliescu. Its size is about 400 square feet.
In 1973 the City conveyed to Iliescu a portion of the trust property in Block M. This piece
of property embraces some 1,223.60 square feet, and was deeded to Iliescu in exchange for
other property owned by him which the City needed to widen California Avenue.
[Headnote 2]
The mentioned conveyances were cancelled by the summary judgment entered below. The
record does not tender a dispute as to any issue of material fact.
1
The City and Iliescu each
contend, however, that the summary judgment thus entered is erroneous as a matter of law.
[Headnotes 3, 4]
1. We find no case authority which would authorize the conveyances by the City.The City
traded trust property to private persons for a nonpublic use. This clearly is a breach of the
trust. As a general rule, when individuals give property to a municipality in trust for a specific
public use, the municipality is without power to use the property for any other purpose.
Appeal of Leech, 84 A.2d 787 (Pa.Super.Ct. 1951); Mulvey v. Wangenheim, 137 P. 1106
(Cal.Dist.Ct.App. 1913); City of St. Louis v. Bedal, 394 S.W.2d 391 (Mo. 1965). Exceptions
may exist to this general rule. Cf. Ward v. Mayor & City Council of Baltimore, 298 A.2d 382
(Md.Ct.App. 1973). The case at hand, however, does not fall within any exception to the
general rule which we have found.
The City's need to acquire some of the land owned by the Farrs and by Iliescu for an
approach to the Keystone Bridge and to widen California Avenue is not a relevant
consideration in this case. That need could have been satisfied by purchasing such property,
or if terms could not be agreed upon, then by resort to the power of eminent domain. Such
need did not authorize the City to trade trust property to those persons for a nonpublic use.
2. The appellants contend that the City was authorized by its charter to dispose of public
park property held in trust. Reno City Charter art. XII, 10.480, first enacted in 1945, later
amended in 1963 and again in 1965, provides in relevant part: The City council shall have
the power to hold, improve, manage and use and dispose of all public grounds, parks,
recreation centers, and all real and personal property of the City, but no...sales of real property
belonging to the City shall be made until after it shall have been appraised by three
disinterested appraisers . . . nor shall it be sold . . . for less than seventy-five percent of such
appraised value. . . ."
____________________

1
We reject the appellants' contention that a factual issue exists as to whether the 1923 conveyance by the
Newlands family to the City was in trust or absolute. The language of the indenture is clear: . . . to be held by
the party of the second part in trust, forever, as a Trustee for the people of the City of Reno, as a public park and
playground. . . . The trust thus created was charitable in nature within the standard enunciated in Nixon v.
Brown, 46 Nev. 439, 461, 214 P. 524 (1923).
seventy-five percent of such appraised value. . . . Stats. Nev. 1965, ch. 292, p. 621.
2

[Headnote 5]
When the City accepted the gift of land from the Newlands family a contract was created
obligating the City to hold such property in trust for the people of Reno to enjoy as a park and
playground. That obligation could not later be impaired by legislative enactment. Nev. Const.
art. 1, 15; U.S. Const. art. 1, 10; City No. Las Vegas v. Central Tel. Co., 85 Nev. 620, 460
P.2d 835 (1969); Town of Milton v. Attorney General, 49 N.E.2d 909 (Mass. 1943).
Consequently, 10.480 of the Charter is inapplicable to the circumstances presented in the
case before us.
3. With regard to the 1966 deed from the City to the Farrs, the appellants argue that the
respondents are precluded from challenging that conveyance by reason of laches. This action
was commenced in June 1974.
[Headnote 6]
The published notice of the Farr transaction did not mention the Newlands Park property.
Consequently, the respondents were not aware of what the City intended to do. Recording of
the deed was not notice under NRS 111.320 except to subsequent purchasers and mortgagees.
Crescent v. White, 88 Nev. 71, 493 P.2d 1323 (1972); In re Wilson's Estate, 56 Nev. 500, 56
P.2d 1207 (1936). In any event, the most significant inquiry is whether the party urging laches
has been prejudiced by his adversay's delay in asserting rights. Lanigir v. Arden, 82 Nev. 28,
409 P.2d 891 (1966). We do not perceive prejudice here. The summary judgment returns the
park property to the City. The City now must pay for the land for which the park property was
traded, the very action it should have pursued initially.
4. We have considered other assigned errors. None has merit.
Affirmed.
____________________

2
The 1966 conveyance by the City to the Farrs apparently was consummated under 10.480.
____________
92 Nev. 703, 703 (1976) Saka v. Sahara-Nevada Corp.
ELIAS SAKA, Appellant, v. SAHARA-NEVADA CORPORATION
a Nevada Corporation, Respondent.
No. 8532
December 21, 1976 558 P.2d 535
Appeal from judgment of Eighth Judicial District Court, Clark County, Keith C. Hayes,
Judge.
Action was brought for a hotel bill. The district court granted plaintiff summary judgment,
and a defendant, who had signed a blank check with instructions to cash it for $800 and give
the cash in payment of hotel bill but whose check was made out for the $3,046.03 full amount
of hotel bill, appealed. The Supreme Court held that such defendant's affidavit opposing
motion for summary judgment was not sufficient to support his denial of liability for hotel
bill; that under normal circumstances, payee who is an immediate party to underlying
transaction cannot claim to be holder in due course; and that mere fact that check was signed
by such defendant, who had not been a party to hotel transaction, and that check was
completed in handwriting other than that of defendant did not impose a duty on payee
plaintiff to inquire as to the authority of person completing the check.
Affirmed.
Robert N. Peccole, Las Vegas, for Appellant.
Lionel Sawyer & Collins and Lenard E. Schwartzer, Las Vegas, for Respondent.
1. Judgment.
A defendant's affidavit opposing motion for summary judgment was not sufficient to support his denial of
liability for hotel bill where such affidavit, which stated that the bill went beyond the agreed upon terms
and was not supposed to cover anything but the room rent, did not indicate that defendant had any
personal knowledge of agreement or the bill or that he would be competent to testify to it. NRCP 56(e).
2. Judgment.
It is not sufficient, in regard to summary judgment, that pleadings be supported by affidavits alleging
specific facts; such facts must be made on the affiant's personal knowledge and there must be an affirmative
showing of his competency to testify to them. NRCP 56(e).
3. Bills and Notes.
While the law might not inquire into whether services or goods provided were worth the amount charged,
allegations, within an action relating to a check, that items not agreed on were charged present a defense to
the action.
4. Innkeepers.
In action to recover on a hotel bill, a defendant could not claim failure of consideration merely because
consideration did not flow directly to him.
5. Bills and Notes.
That a payee may be a holder in due course is the exception rather than the rule; under normal
circumstances a payee who is an immediate party to underlying transaction cannot claim that he is a holder
in due course. NRS 104.3302, subd. 2.
6. Bills and Notes.
Good faith requirement for a holder in due course is defeated not just by actual knowledge; bad faith may
be presumed from a reckless refusal to inquire. NRS 104.3304, subd. 4(d).
7. Bills and Notes.
Mere fact that check, which, without authority, was made out for the $3,046.03 full amount of hotel bill
instead of for only $800, was signed by person, who had not been a party to the hotel transaction, and that
check was completed in a handwriting other than that of signer did not impose a duty on payee to inquire as
to the authority of person completing the check. NRS 104.3304, subd. 4(d).
OPINION
Per Curiam:
This is an appeal from an order of the district court granting a summary judgment in favor
of respondent, Sahara-Nevada Corporation, and against appellant, Elias Saka, in the amount
of $3,046.03.
1. In March 1974, Affinity Pictures, a Nevada corporation, became indebted to Sahara for
hotel charges that Sahara claimed amounted to $3,046.03. Weaver Levy, on March 20, 1974,
gave Sahara a check for that amount. The check was returned unpaid. Saka then gave Levy
his signed blank check with instructions to cash it for $800 and give the cash to Sahara in
payment of the hotel bill. Levy, however, made the check out for the amount of the bill,
$3,046.03, and delivered it to Sahara. Saka later stopped payment on the check. Sahara
initiated this action below, suing Affinity, Levy, and Saka for the hotel bill. Sahara moved for
summary judgment and won. Saka alone appeals.
[Headnote 1]
2. Saka contends that there exists a genuine issue of fact as to the amount of the hotel bill
and whether Sahara took the check in good faith. He urges that Sahara knew that there was a
dispute about the amount owed and should have noticed that the check was signed by Saka
and completed in a different hand.
hand. While Saka's answer to Sahara's denied liability for the bill, his affidavit opposing the
motion for summary judgment was not sufficient to support the denial.
Rule 56(e) of the Nevada Rules of Civil Procedure requires that, in a motion for summary
judgment:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. . . . (Emphasis added.)
Saka's affidavit states that the bill presented by Sahara-Nevada Corporation went beyond
the agreed upon terms and was not supposed to cover anything but the room rent. It does not,
however, indicate that Saka had any personal knowledge of the agreement or the bill or that
he would be competent to testify to it.
[Headnote 2]
The requirements of NRCP 56(e) are clearly stated. It is not sufficient that pleadings be
supported by affidavits alleging specific facts; these facts must be made upon the affiant's
personal knowledge, and there must be an affirmative showing of his competency to testify to
them. This principle has been further established by case authority. See Catrone v. 105 Casino
Corp., 82 Nev. 166, 414 P.2d 106 (1966); Daugherty v. Wabash Life Insurance Co., 87 Nev.
32, 482 P.2d 814 (1971).
[Headnotes 3, 4]
Sahara argues, on the other hand, that even if there had been a dispute as to the amount
owed, this would not preclude it from being a holder in due course. Its sole authority for this
proposition is that the law will not inquire into the sufficiency of the consideration. While this
argument is superfluous in view of our discussion above, the point is misplaced. While the
law might not inquire into whether the services or goods provided were worth the amount
charged, allegations that items not agreed on were charged clearly present a defense to the
action. Sahara is correct in its assertion that Saka cannot claim failure of consideration simply
because the consideration did not flow directly to him.
[Headnote 5]
NRS 104.3302(2) provides that a payee may be a holder in due course. Cases establish,
however, that this is the exception rather than the rule. Where the payee is an immediate party
to the underlying transaction, under normal circumstances he cannot claim this status
because he necessarily knows of any defenses to the contract.
cannot claim this status because he necessarily knows of any defenses to the contract. In Hall
v. Westmoreland, Hall & Bryan, 182 S.E.2d 539 (Ga. 1971), the court reversed summary
judgment for plaintiff on a client's written agreement to pay a stated amount for legal
services, the client having alleged no present consideration for the agreement. The court noted
that the plaintiff had not established that he had not dealt directly with the defendant and
could not therefore claim the status of a holder in due course. See also Briand v. Wild, 268
A.2d 896 (N.H. 1970); Vedder v. Spellman, 480 P.2d 207 (Wash. 1971).
Had Saka's affidavit been competent, its allegations would therefore have raised a genuine
issue of fact as to whether the respondent was a holder in due course. Since no showing was
made of personal knowledge of the dispute as to the hotel charges by Saka's affidavit or any
other evidence offered, no such issue was raised, and the summary judgment may not be
reversed on this ground.
[Headnote 6]
3. Saka claims as a second ground for reversal that the appearance of the check itself was
sufficient to put Sahara on notice of its irregularity. The check was signed by Saka, who was
not a party to the transaction. Furthermore, it was completed in a different handwriting from
that of the one who signed the check. In context, Saka argues, this was sufficient to impose
upon Sahara a duty to make further inquiries. The good faith requirement for a holder in due
course is defeated not just by actual knowledge; bad faith may be presumed from a reckless
refusal to inquire.
[Headnote 7]
Saka's second ground is without merit. NRS 104.3304-4(d) provides that knowledge that
an incomplete instrument has been completed by another does not of itself give the purchaser
notice of a claim or defense unless the purchaser has notice of any improper completion.
Saka makes no claim that Sahara knew Levy had acted in excess of his authority in
completing the check. Instead he insists that the surrounding circumstances were such that
Sahara should have inquired as to Levy's authority. Saka fails to assert specific facts
surrounding Sahara's acceptance of Levy's check sufficient to establish knowledge or a duty
to inquire. This ground is insufficient to require reversal of the summary judgment.
For these reasons, the order of the court below, granting summary judgment, is affirmed.
____________
92 Nev. 707, 707 (1976) Schulman v. Schulman
MARY ANN SCHULMAN, Sometimes Known As MARRIANE SCHULMAN,
Appellant, v. ALBERT S. SCHULMAN, Respondent.
No. 8339
December 21, 1976 558 P.2d 525
Appeal from judgment of the Eighth Judicial District Court, Clark County; Howard W.
Babcock, Judge.
Wife filed for divorce. The district court entered divorce decree, and wife appealed from
that portion of decree settling property rights of parties. The Supreme Court, Mowbray, J.,
held, inter alia, that district judge did not err in rejecting as clearly erroneous parts of master's
report; that district judge did not abuse his discretion in applying Van Camp formula of
apportionment; and that district judge did not abuse his discretion in awarding wife alimony
of $1,000 a month for 6 months only.
Affirmed.
John Peter Lee and James C. Mahan, Las Vegas, for Appellant.
Wiener, Goldwater & Waldman, Ltd., and Gerald M. Gordon, Las Vegas, for Respondent.
1. Divorce.
Where substantial precedent and evidence supported trial court's rulings in divorce proceeding pertaining
to settlement of property rights of parties, judgment had to be affirmed on appeal.
2. Divorce.
District judge did not err in divorce proceeding in rejecting as clearly erroneous parts of master's report
regarding property interests of spouses which he found to be inaccurate, including valuations of meat
business, which was originally owned by husband as sole proprietorship prior to its incorporation, based on
survey of businesses of substantially different nature. NRCP 53(e)(2).
3. Reference.
When court finds portion of master's report clearly erroneous, it has broad discretion as to how to
proceed. NRCP 53(e)(2).
District judge did not abuse its discretion in applying Van Camp formula of apportionment, under
which community is allocated a share of increased value equal to fair value of community services less
amounts withdrawn to meet family expenses, in considering property rights of parties in divorce
proceeding.
Two alternative approaches exist for allocating earnings between separate and community income:
Pereira approach is to allocate fair return on husband's separate property investment as separate income
and to allocate any excess to community property as arising from husband's efforts; alternative
apportionment approach, which traces its derivation to Van Camp approach, is to determine reasonable
value of husband's services, allocate that amount as community property and treat balance as separate
property attributable to normal earnings of separate estate.
Evidence supported findings of trial judge, who applied Van Camp method of apportionment in settling
property rights of spouses in divorce proceeding, that meat business owned by husband as sole
proprietorship prior to its incorporation could not have been conducted without separate property
investment of capital, specifically, without small business administration loan secured by business assets,
and that SBA's primary intent with respect to loan was to rely on husband's separate property assets.
District judge's refusal in divorce proceeding to accept, as necessarily made, wife's statement, in support
of her argument that there was oral agreement transmuting meat business, which was originally owned by
husband as sole proprietorship, into community property, that before incorporating meat business, husband
had expressed intent to issue half of stock to wife and she had suggested issuing all stock jointly, was
determination within his province.
Question of creditor's intent in making loan for expansion of meat business, which was owned by husband
as sole proprietorship prior to its incorporation, as to whether loan was to be secured by separate property
assets of husband was issue of fact to be determined by trial court in divorce action, wherein wife asserted
that loan and therefore assets acquired therefrom became community property because lender had required
her personal guaranty.
9. Divorce.
In view of broad discretion given district judge in determining alimony award, district judge did not
abuse his discretion in ordering 64-year-old husband of 6 years to pay alimony in the amount of $1,000 a
month for 6 months only to 42-year-old wife, notwithstanding wife's contention that she should have
received more, predicated on her uncorroberated ill health, duration of marriage and
amount of property awarded her.
predicated on her uncorroberated ill health, duration of marriage and amount of property awarded her.
OPINION
Mary Ann Schulman commenced this action by filing for divorce against Albert S.
Schulman. She won a decree of divorce, but has appealed from that portion of the decree
settling the property rights of the parties.
1. Mary Ann and Albert were married in 1968. The divorce proceedings were filed in
1973. At the time of the marriage, Albert, who for approximately 40 years had been in the
retail and wholesale business as a market manager, meat market owner, and processor of
meats, was the sole owner and proprietor of Schulman Meats and Provisions (Schulman
Meats), a wholesale and retail meat business operating in Las Vegas, Nevada. The business
continued as a sole proprietorship until 1972, when it was incorporated, Albert receiving all
1,000 shares of the corporation's no-par stock. The accounts receivable of the business, worth
$110,532, were transferred to the corporation as a debt, rather than equity, Albert receiving a
promissory note for that amount. Additionally in 1972, in order to meet standards imposed by
the Food and Drug Administration (FDA), the business was expanded to include a second
facility. A loan from the Small Business Administration (SBA)originally in the amount of
$300,000, but later increased to $440,000was obtained to finance the expansion. Mary Ann
was required by the SBA to sign a guaranty.
During their marriage, the parties acquired a personal residence, title taken in joint
tenancy. The parties also had the use of several cars, title being held by the business. Mary
Ann testified that at the time of incorporation Albert had promised orally to give her one-half
of the stock in the corporation. She further testified that she had contributed her services to
the business by designing advertisements.
[Headnote 1]
2. The parties stipulated to the appointment of a special master to determine their property
interests. A certified public accountant was appointed as the master. After conducting
hearings and receiving evidence, both documentary and oral, he filed his report.
filed his report. Objections were filed to the report, and after a hearing on the same, the
district judge rejected certain portions and adopted, approved, and confirmed the remaining
portions of the report. Mary Ann claims, on this appeal, that the district judge erred in
rejecting the master's findings. She seeks reversal on the principal grounds that the district
judge (1) failed adequately to compensate the community for income attributable to the
husband's skill, efforts, and labors expended in the handling of his separate estate during the
marriage and (2) erred in suggesting that community living expenses, paid from the income of
the husband's separate estate, should be charged against community income in determining
the balance of community funds. In addition, Mary Ann challenges the award of alimony. For
the reasons discussed below, we have concluded that substantial precedent and evidence
support the rulings under attack. Therefore, the judgment must be affirmed.
3. In his report, the master estimated Albert's business to have been worth $28,212 at the
time of the marriage. The master arrived at this figure by subtracting the difference between
the business's 1968 net profit and Albert's draw for that year from the book value of the
business:
Net book value of business $63,196
Net profit $54,984
Albert's draw 20,000

_______

34,984

_______

Net worth of business $28,212
The master estimated the present value of the business to be $600,000. He arrived at this
figure by multiplying the estimated value of the corporation's assets in February 1974 by 50.4
percent, a formula taken from a report published by the American Meat Institute (AMI), and
extrapolating to allow for normal growth to the time of valuation.
In allocating the increased value of Schulman Meats between the separate and community
property, the master used the approach established in Pereira v. Pereira, 103 P. 488 (Cal.
1909), finding that Albert's personal efforts were principally responsible for the growth and
continuity of the business. Under this approach, a fair return is allocated to the separate
property, and the remainder of the increased value is allocated to the community. Here, the
master determined 8.27 percent to be a fair return, a percentage taken from the AMI report.
The return on the separate property investment at this rate over the 7 years of the marriage
was calculated to be $16,000, making Albert's separate property share of the business
$44,547. The master had valued the business at $600,000; so the community share was
$555,453.
The family residence was characterized as community property and valued at $75,000, less
a mortgage of $32,018.12. The total community interest was therefore determined by the
master to be $598,435. The master recommended that other minor assets, i.e., the family cars,
be awarded to their present possessors.
4. The district judge granted Mary Ann a decree. However, he rejected as clearly
erroneous certain portions of the master's report. NRCP 53(e)(2).
1
Specifically found
erroneous was the master's determination that Albert's efforts were primarily responsible for
the increase in value of Schulman Meats. Instead, the district judge attributed the increase in
value to the population growth in Las Vegas during the time of the marriage, and the
business's expansion made possible by the SBA loan. He rejected the Pereira approach used
by the master and adopted the formula announced in Van Camp v. Van Camp, 199 P. 885
(Cal.App. 1921), wherein the community is allocated a share of the increased value equal to
the fair value of the community services less amounts withdrawn to meet family expenses.
2
The district judge found Albert's services for the period of the marriage to be worth $318,777,
predicated on a study by Robert Morris Associates reporting officers' salaries in similar
businesses.3
____________________

1
NRCP 53(e)(2):
In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly
erroneous. . . . The court after hearing may adopt the report or may modify it or may reject it in whole or in part
or may receive further evidence or may recommit it with instructions.

2
The district judge in his written decision ruled in part:
The Master sought to apply the Pereira approach in the instant situation by determining a reasonable rate of
return to be 8.27% based upon American Meat Institute compilations of statistics. The Court rejects this
determination. Although Albert's efforts in building up the business have been substantial, the Court is persuaded
that the considerable economic growth experienced by this locale during the applicable period outweighs those
efforts. Furthermore, the expansion of the business is, to a large entent [sic], attributable to the Small Business
Administration loan. In that Albert's personal services and the incidental services of Mary Ann were not
primarily responsible for the enhancement of the business, it would be inequitable to apply a formula which
effects a greater attribution of profits to the industry of the community.
predicated on a study by Robert Morris Associates reporting officers' salaries in similar
businesses.
3

SALES REVENUE
1968..........................................................$367,452 $8,100
1969........................................................2,311,135 51,285
1970........................................................2,970,458 50,498
1971........................................................3,539,803 56,637
2/28/73........................................................5,219,250 57,412
2/28/74........................................................7,961,138 47,767
2/28/75........................................................7,846,414 47,078

________

$318,777
(Sales revenue figures derived from Albert's Exhibit G.)
The district judge computed the business income used to meet family expenses to be
Albert's actual draw, estimated to be $245,507, plus $2,500 worth of meat and groceries and
$15,000 in the use of cars purchased by the business. Thus, the district judge found that the
family expenses exhausted a total of $263,007 of the $318,777 due for Albert's services.
4
The
Albert's Estimated
Actual Draw
1968................................................................................$8,520
1969................................................................................47,252
1970................................................................................39,993
1971................................................................................36,541
2/28/73................................................................................43,091
2/28/74................................................................................37,160
2/28/75................................................................................32,948

__________

$245,507
[sic]
17,500

__________

$263,007
[sic]
remaining community interest in the business was found to be $55,770, of which Mary Ann's
share was $27,885.
5
Albert was ordered to pay this amount over a period not to exceed 30
months.
____________________

3
The district judge determined Albert's fair salary by adopting a Robert Morris Associates study for officers'
salaries as to percentage of total sales for the period October 1968 (beginning with the marriage) through
February 1975 (the date fixed by the district judge for terminating the community). The district judge found the
following:

4
The district judge summarized the evidence before him as follows, which the record below supports:

5
The district judge used the following computations:
Fair ......... $318,777
Less Albert's actual draw..............................................................................................................263,007

_________

$55,770
The district judge rejected Mary Ann's contention that the business had been transmuted
into community property because the SBA's primary intent in making its loan had been to rely
on the parties' community property, rather than the separate property business by which the
loan was secured. He also rejected Mary Ann's testimony that Albert had promised to give her
one-half the corporate stock in 1972, the time of incorporation.
The district judge ordered a partition sale of the family residence, and equal division of the
proceeds to each of the parties. Other items were, as recommended by the master, awarded to
their present possessors. Mary Ann was awarded temporary alimony of $1,000 a month for 6
months.
[Headnote 2]
5. As a threshold complaint, Mary Ann argues that the district judge erred in rejecting
parts of the master's report as clearly erroneous. NRCP 53(e)(2), supra. We do not agree.
The district judge found, and for good reason, that the AMI report upon which the master
relied was inaccurate, in that it excluded a large number of small plants, such as Schulman
Meats, which represent 15 percent of all meat produced.
6

[Headnote 3]
Since Schulman Meats is a small wholesale and retail operation conducting no
slaughtering operation itself, the district judge did not err in regarding valuations based on a
survey taken of businesses of a substantially different nature as clearly erroneous.
According to NRCP 53(e)(2), when the court finds a portion of the master's report clearly
erroneous, it has broad discretion as to how to proceed. It may adopt the report or may
modify it or may reject it in whole or in part or may receive further evidence or may recommit
it with instructions. Cold Metal Process Co. v. United Engineering & Foundry Co., 132
F.Supp. 597, 599 (W.D.Pa. 1955); I-XL Eastern Furniture Co. v. Holly Hill Lumber Co., 134
F.Supp. 343, 344 (E.D.S.C. 1955).
____________________

6
It should be pointed out that the AMI report relied upon by the Master (Master's Exhibit C') purports to
adopt the Census Bureau's definition of the meat packing industry in the preface thereof. Such a definition,
according to the AMI, excludes a large number of small plants which represent 15% of all meat produced and,
more importantly, adequate data on those types of plants which conduct no slaughtering operations but which
buy at wholesale were not available for compilation in the AMI publication (see preface to Master's Exhibit C').
Consequently, assuming Pereira to be applicable, the determination of 8.27% as a reasonable rate of return
appears to be unfounded.
[Headnotes 4, 5]
6. Mary Ann next contends that the district judge abused his discretion in applying the Van
Camp formula of apportionment, because that formula did not render substantial justice in the
instant case. We do not agree. Two distinct alternative approaches to allocating earnings
between separate and community income have evolved over the years. The approach
announced in Pereira v. Pereira, supra, is to allocate a fair return on the husband's separate
property investment as separate income and to allocate any excess to the community property
as arising from the husband's efforts. The alternative apportionment approach, which traces
its derivation to Van Camp v. Van Camp, supra, is to determine the reasonable value of the
husband's services, allocate that amount as community property, and treat the balance as
separate property attributable to the normal earnings of the separate estate.
In Beam v. Bank of America, 490 P.2d 257, 261 (Cal. 1971), quoting from Logan v.
Forster, 250 P.2d 730, 737 (Cal.App. 1952), the court said:
In making such apportionment between separate and community property our courts
have developed no precise criterion or fixed standard, but have endeavored to adopt a
yardstick which is most appropriate and equitable in a particular situation * * * depending on
whether the character of the capital investment in the separate property or the personal
activity, ability, and capacity of the spouse is the chief contributing factor in the realization of
income and profits [citations]. * * * [Par.] In applying this principle of apportionment the
court is not bound either to adopt a predetermined percentage as a fair return on business
capital which is separate property [the Pereira approach] nor need it limit the community
interest only to [a] salary fixed as the reward for a spouse's service [the Van Camp method]
but may select [whichever] formula will achieve substantial justice between the parties.
[Citations.]'
The reasoning of Beam was adopted by this court in Johnson v. Johnson, 89 Nev. 244,
247, 510 P.2d 625, 626-627 (1973), overruling Lake v. Bender, 18 Nev. 361, 7 P. 74 (1884),
where the court ruled:
We now depart from the all-or-nothing approach of Lake v. Bender, supra, and announce
the rule that the increase in the value of separate property during marriage should be
apportioned between the separate property of the owner and the community property of the
spouses. . . .
. . .
Both approaches [Pereira and Van Camp] have vitality and may be applied as
circumstances warrant.
may be applied as circumstances warrant. Courts of this state are not bound by either the
Pereira or the Van Camp approach, but may select whichever will achieve substantial justice
between the parties. . . .
In Van Camp, the defendant husband was president and manager of the Van Camp Sea
Food Company, to which he devoted his exclusive attention. In rejecting the Pereira
approach, the California court held, 199 P. at 889:
In our opinion, the circumstances attending the Pereira Case are not applicable to the
facts involved herein. While it may be true that the success of the corporation of which
defendant was president and manager was to a large extent due to his capacity and ability,
nevertheless without the investment of his and other capital in the corporation he could not
have conducted the business; and while he devoted his energies and personal efforts to
making it a success, he was by the corporation paid what the evidence shows was an adequate
salary, and for which another than himself with equal capacity could have been secured. . . .
[Headnote 6]
In the instant case, the district judge determined that Schulman Meats could not have been
conducted without the separate property investment of capitalspecifically without the SBA
loan secured by the business assets. This determination was supported by the evidence.
7

Mary Ann's remaining objections to the use of the Van Camp formula are meritless. She
contends that the district judge erred in finding that the increased value of the business was
also the result of the general increase in population in the Las Vegas area, on the ground that
no direct evidence was presented of such growth or its effect on the Schulman business.
Albert contends that the district judge was entitled to take judicial notice of this fact, pursuant
to NRS 47.130. It is not necessary to reach this issue, since the district judge's choice of
approach was alternatively based on an adequate groundthe importance of the capital
investment as security for the SBA loan. Nothing in Johnson or in the Pereira-Van Camp line
of decisions suggests that a court must identify the economic factors which caused the return
on the capital investment. We find that the application by the district judge of the Van
Camp method was inherently fair and that it did not contravene substantial justice.
____________________

7
Q [cross examination by John Peter Lee, attorney for Mary Ann] And this SBA loan was essential to the
growth of the business, was it not?
A [by Albert] Well, the SBA loan was necessary to continue our business, or just liquidate my wholesale
and just operate a little retail meat market.
find that the application by the district judge of the Van Camp method was inherently fair and
that it did not contravene substantial justice.
7. Finally, Mary Ann urges that Albert's separate property was transmuted into community
property, on two additional theories:
[Headnote 7]
First, Mary Ann argues that there was an oral agreement transmuting the business into
community property. In support thereof, she cites her testimony that in 1972, before
incorporating, Albert expressed an intent to issue half the stock to her and that she suggested
issuing all the stock jointly. The district judge refused to accept Mary Ann's statement as
necessarily made.
8
Such a determination was within his province.
[Headnote 8]
Mary Ann's second argument is no more impressive. She urges that the SBA loan, and
therefore the assets acquired therefrom, became community property because the SBA
required Mary Ann's personal guaranty. The district judge considered the evidence and found
that the SBA's primary intent was to rely on Albert's separate property assets, citing Hogevoll
v. Hogevoll, 138 P.2d 693, 697 (Cal.App. 1943).
9
The question of a creditor's intent is an
issue of fact to be determined by the trial court, and in the instant case the record
supports the district judge's finding, particularly in that the loan was secured by separate
property assets.10
____________________

8
Mary Ann argues that Albert should be equitable [sic] estopped from denying that he assured her of an
interest in the business. The Court is not satisfied from the proof presented that such assurances were necessarily
made but in any event, it does not appear that the circumstances were such that any assurance that may have
been made was, in fact, detrimentally relied on by Mary Ann. Accordingly, the Court must reject her
contention.

9
The only other question regarding community interest in the business is whether the proceeds of the SBA
loan and hence the property purchased therefrom were acquired as community property. The evidence before the
Court indicates that the creditor, Small Business Administration, in making the $440,000 loan, was relying
predominately [sic], if not solely, upon the assets of the business as security for the debt. [T]he proceeds of a
loan obtained upon the credit of separate property, whether because of its hypothecation as security for
repayment, or in reliance upon its ownership by the lender, are separate funds.' In re Marriage of Mix, 37
Cal.App.3d 801, 112 Cal.Rptr. 717, 726 (1974); Hicks v. Hicks, Cal.App.2d 144, 153; 27 Cal.Rptr. 307, 312
(1962) [sic]. When one spouse borrows money on the credit of separate property, the fact that both spouses sign
a mortgage or note does not thereby transform the property into community property. Hogevoll v. Hogevoll, 59
Cal.App.2d 188, 138 P.2d 693, 697 (1943). Similarly in the instant situation, Mary Ann signed the stand-by'
agreement and the
question of a creditor's intent is an issue of fact to be determined by the trial court, and in the
instant case the record supports the district judge's finding, particularly in that the loan was
secured by separate property assets.
10

[Headnote 9]
8. Mary Ann also contends that the district judge abused his discretion in awarding her
alimony of $1,000 a month for 6 months only. She claims she should have received more,
predicated on her ill health, the duration of her marriage, and the amount of property awarded
to her. The record shows that Mary Ann was 42 at the time of trial; Albert was 64. The
testimony of her ill health was uncorroborated. The marriage was of a relatively short
duration. In view of the broad discretion given the district judge in determining alimony
awards, Mary Ann's argument must fall, under the circumstances of the case. Buchanan v.
Buchanan, 90 Nev. 209, 523 P.2d 1 (1974).
The judgment of the court below is affirmed.
____________________
guaranty, together with the execution of the deed of trust simply as an accommodation [sic] to the lender who
was lending money for the improvement of Albert's solely and separately owned corporation, and the presence
of her signature did not give rise to any community interest.

10
See Ford v. Ford, 80 Cal.Rpt. 435 (Cal.App. 1969) (reversing trial court's finding that requiring spouse's
signature did indicate intent to rely primarily on her assets rather than property secured).
____________
92 Nev. 718, 718 (1976) Phillips v. Lincoln Co. Sch. Dist.
DONALD K. PHILLIPS, Individually and As Parent, Natural Guardian and Next Friend of
ROBERT SCOTT PHILLIPS, a Minor, Appellant, v. LINCOLN COUNTY SCHOOL
DISTRICT, a Political Subdivision of the State of Nevada, Respondent.
No. 8148
WAYNE LEE, Individually and As Parent, Natural Guardian and Next Friend of NANCY J.
LEE, a Minor, Appellant, v. LINCOLN COUNTY SCHOOL DISTRICT, a Political
Subdivision of the State of Nevada, Respondent.
No. 8149
December 21, 1976 557 P.2d 707
Appeal from judgments, Seventh Judicial District Court, Lincoln County; Joseph O.
McDaniel, Judge.
Affirmed.
Woodburn, Wedge, Blakey, Folsom and Hug, and Gordon H. DePaoli, of Reno, for
Appellants.
Cromer, Barker and Michaelson, and James R. Olson, of Las Vegas, for Respondents.
OPINION
Per Curiam:
The only cognizable issues in these appeals were considered and rejected in State v.
Kallio, 92 Nev. 665, 577 P.2d 705 (1976). Accordingly, we affirm.
____________
92 Nev. 719, 719 (1976) Eckert v. Sheriff
EDWARD DONALD ECKERT, Appellant, v. SHERIFF,
No. 9272
VICTOR JOSEPH TRAPANI, Appellant, v. SHERIFF,
No. 9273
December 21, 1976 557 P.2d 1150
Appeals from orders denying pretrial petitions for writs of habeas corpus, Eighth Judicial
Defendants who were charged with kidnapping, robbery, extortion, conspiracy to commit
extortion, and use of a deadly weapon in the commission of a crime sought pretrial habeas
corpus. The district court denied relief and defendants appealed. The Supreme Court held that
evidence that victims were forcibly moved, even though only a short distance within a house,
was sufficient to support kidnapping charges; that the asportation involved in the kidnapping
was not incidental to the crimes of extortion and robbery; that there was probable cause to
believe that defendants committed the charged offenses; and that attempt to suppress
identification testimony before the grand jury was required to be raised in motion to suppress
and not in habeas corpus petition.
Affirmed.
Kelly H. Swanson, Las Vegas, For Appellant Eckert.
Theodore J. Manos, Las Vegas, for Appellant Trapani.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, Rimantas
A. Rukstele and Frank J. Cremen, Deputy District Attorneys, Clark County, for Respondent.
1. Kidnapping.
No minimum distance of asportation is necessary to support a charge of kidnapping; it is the fact, not the
distance, of forcible removal of a victim which constitutes the offense. NRS 200.310, subd. 1.
2. Kidnapping.
It was sufficient, to support kidnapping charges, that victims were forcibly moved even if only a short
distance within the house. NRS 200.310, subd. 1.
3. Criminal Law.
Asportation of victims who were being held hostage within a house while another person was required to
go to the business where he worked and obtain money for the defendants was not merely
incidental to the crime of extortion or robbery as kidnapping, robbery, and extortion
are distinctly different and separate offenses, so that defendants could be charged
with all three crimes.
where he worked and obtain money for the defendants was not merely incidental to the crime of extortion
or robbery as kidnapping, robbery, and extortion are distinctly different and separate offenses, so that
defendants could be charged with all three crimes. NRS 200.310, subd. 1, 200.380, 205.320.
4. Criminal Law.
Evidence that defendants went to home of a casino owner, that one defendant, an employee of the casino,
went into the house, that second defendant entered the house later and held the occupants at gunpoint and
instructed the casino's general manager and the other defendant, who was apparently feigning, to go to the
casino and return with $125,000 and that one defendant threatened to kill the hostages if the instructions
were not carried out, and that defendant and the casino manager went to the casino and returned with
approximately $50,000 in a brief case was sufficient to provide probable cause to believe that defendants
committed kidnapping, robbery, extortion, conspiracy to commit extortion, and used a deadly weapon in
the commission of a crime. NRS 193.165, 199.480, subd. 2, 200.310, subd. 1, 200.380, 205.320.
5. Habeas Corpus.
Attempt to suppress identification testimony before the grand jury must be raised in motion to suppress
and not in habeas corpus petition. NRS 174.125.
OPINION
Per Curiam:
A multiple court indictment charged Edward Donald Eckert and Victor Joseph Trapani
with first degree kidnapping (NRS 200.310(1)), robbery (NRS 200.380), extortion (NRS
205.320), conspiracy to commit extortion (NRS 199.480(2)), and the use of a deadly weapon
in the commission of a crime (NRS 193.165). Pretrial habeas corpus challenges to the
indictment were denied by the district court and in this appeal appellants reurge the same
contentions they raised below.
The charges arise out of an alleged scheme to extort money from a casino in Las Vegas.
The record establishes that, on June 7, 1976, Trapani, an employee of the casino, arrived at
the home of one of the casino's owners, ostensibly for a visit. Later, Eckert entered the house,
and, holding the occupants at gunpoint, instructed the casino's general manager and Trapani,
who was apparently feigning, to go to the casino and to return with $125,000. Eckert
threatened to kill the hostages if his instructions were not carried out. The two men, pursuant
to the instructions, went to the casino and returned with approximately $50,000 in a briefcase.
Eckert promptly appropriated the money and departed.
1. The specific challenge to the kidnapping charges is based on the lack of asportation of
the victims. Additionally, it is asserted that the asportation, if any, was merely incidental
to the other offenses; thus, no kidnapping occurred.
asserted that the asportation, if any, was merely incidental to the other offenses; thus, no
kidnapping occurred. We disagree.
[Headnotes 1, 2]
This court has previously held that a minimum distance of asportation is not necessary to
support a charge of kidnapping; it is the fact, not the distance, of forcible removal of a victim
that constitutes the offense. Jensen v. Sheriff, 89 Nev. 123, 508 P.2d 4 (1973). Thus, it is
enough, to support the kidnapping charges, that the victims were forcibly moved only a short
distance within the house. Accord: State v. Williams, 526 P.2d 1244 (Ariz. 1974).
[Headnote 3]
We also reject the ancillary contention that the asportation was merely incidental to the
crime of extortion or robbery. Kidnapping, robbery, and extortion are distinctly different and
separate offenses. Burks v. State, 92 Nev. 670, 557 P.2d 711 (1976); Lovell v. State, 92 Nev.
128, 546 P.2d 1301 (1976).
[Headnote 4]
2. Notwithstanding assertions to the contrary, we believe there is enough evidence in the
record to support the district judge's determination that there was probable cause to believe
appellants committed the charged offenses. Kinsey v. Sheriff, 87 Nev. 361, 487 P.2d 340
(1971).
[Headnote 5]
3. Eckert's attempt to suppress identification testimony before the grand jury must be
raised in a motion to suppress, not in a habeas petition. NRS 174.125. Cf. Flowers v. Sheriff,
92 Nev. 217, 548 P.2d 644 (1976); Isler v. Sheriff, 92 Nev. 248, 548 P.2d 1373 (1976).
Affirmed.
____________
92 Nev. 721, 721 (1976) Exber, Inc. v. Sletten Constr. Co.
EXBER, INC., a Nevada Corporation, dba EL CORTEZ HOTEL, Appellant, v. SLETTEN
CONSTRUCTION COMPANY, a Montana Corporation; CHEYENNE CONSTRUCTION,
INC., a Nevada Corporation; and GARCIA/CASE, INC., a California Corporation,
Respondents.
No. 8236
December 22, 1976 558 P.2d 517
Appeal from summary judgment and order of Eighth Judicial District Court, Clark County;
The district court entered summary judgment in favor of general contractor and
subcontractors, ordering owner to submit construction contract dispute to arbitration, and
denied postjudgment motion asking that summary judgment be amended to declare that such
judgment did not obligate owner to arbitrate with subcontractors and to declare that owner
would not be bound by any award made in arbitration between general contractor and
subcontractors. The Supreme Court, Mowbray, J., held that question of timeliness of demand
for arbitration should have been resolved by arbitration rather than by the district court; that
nonetheless district court's holding of timeliness would be upheld where under the terms of
the contract an opposite conclusion by the arbitrator would have been abuse of discretion; that
where the same evidence, witnesses and legal issues involved in dispute between owner and
general contractor would also be presented in dispute between contractor and subcontractors,
district court properly ordered consolidated arbitration; and that where subcontractors orally
joined in written motions for summary judgment submitted by general contractor, owner
made no objection to such procedure during argument on the motion, and owner was not
prejudiced, summary judgment in favor of the subcontractors would be upheld.
Affirmed.
George Rudiak, Las Vegas, for Appellant.
W. Owen Nitz, and Albright & McGimsey, Las Vegas, for Respondents.
1. Arbitration.
Where parties had agreed to arbitrate all disputes arising under contract, question of timeliness of demand
for arbitration should have been resolved by arbitration and not by the district court. NRS 38.035,
38.045, subds. 1, 2.
2. Arbitration.
All doubts concerning arbitrability of subject matter of dispute are to be resolved in favor of arbitration;
once it is determined that an arbitrable issue exists, the parties are not to be deprived by the courts of the
benefits of arbitration for which they bargained.
3. Arbitration.
In determining a question under an arbitration agreement, arbitrator enjoys a broad discretion, but that
discretion is not without limits; he is confined to interpreting and applying the agreements, and his award
need not be enforced if it is arbitrary, capricious, or unsupported by the agreement.
4. Arbitration.
Where contract indicated unequivocally that 30-day time limit on demanding arbitration was applicable
only when architect's written decisions stated that they were final but subject to appeal, for an arbitrator to
have imposed a similar limitation with respect to a decision of the architect omitting such a statement
would have been an abuse of discretion not entitled to enforcement by the district court, and thus district
court's decision that demand 34 days after architect's decision which did not contain such a statement was
timely would be upheld even though question of timeliness was properly for the arbitrator.
5. Arbitration.
Questions of whether filing a copy of demand for arbitration with architect was a condition precedent to
arbitration under construct contract and whether failure to comply with change order provisions of the
contract was such a failure as to render claim for extras unarbitrable were matters that could be presented at
arbitration hearing.
6. Arbitration.
Where contract between owner and general contractor contained arbitration clause, as did contractor's
contracts with subcontractors, and where same evidence, witnesses and legal issues involved in dispute
between owner and general contractor would also be presented in dispute between general contractor and
subcontractors, district court properly ordered consolidation of the arbitration proceedings.
7. Judgment.
Though motions for summary judgment should ordinarily be in writing, where codefendants orally joined
in a written motion submitted by another codefendant and plaintiff made no objection to such procedure
during argument on the motion, and where there was no prejudice to the plaintiff, which was afforded an
opportunity to present argument on the merits of issue raised in motion to amend summary judgment by
denying the oral summary judgment motion, there was no error in denial of the motion to amend. NRCP
56, 59.
Failure to comply with formal requirements of summary judgment rule is subject to the harmless error
rule. NRCP 56.
9. Judgment.
Court may enter judgment on cross-motion for summary judgment made orally at hearing on original
summary judgment motion as long as the opposing party is not prejudiced. NRCP 56.
OPINION
This is an appeal from a summary judgment in favor of Respondents Sletten Construction
Company (Sletten), Cheyenne Construction, Inc. (Cheyenne), and Garcia/Case, Inc.
(Garcia), ordering Appellant Exber, Inc., dba El Cortez Hotel (Exber), to submit to arbitration
a construction contract dispute with its general contractor, Sletten.
This appeal is also taken from the district judge's postjudgment order denying Exber's
motion under NRCP 52, wherein Exber asked that the summary judgment be amended by
denying the oral motion for summary judgment made by Cheyenne and Garcia and by
declaring that such summary judgment does not obligate Exber to arbitrate with the
subcontractors, Cheyenne and Garcia, and by further declaring that Exber would not be bound
by any arbitral award made in arbitration between Sletten and its subcontractors.
1. The Facts.
So far as pertinent to this appeal, the following are the admitted facts. On October 9, 1972,
Exber entered into a construction contract with Sletten as general contractor for the
construction of an addition to the El Cortez Hotel in Las Vegas. The contract incorporates by
reference American Institute of Architects Document A201, entitled General Conditions of
the Contract for Construction. Subparagraph 7.10.1 provides in part:
All claims, disputes and other matters in question arising out of, or relating to, this
Contract or the breach thereof, . . . shall be decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the American Arbitration Association. . . . This
agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. . .
.
1

On October 12, 1972, Sletten entered into subcontracts with Cheyenne and Garcia. Article
8 of each of the subcontracts obligated the subcontractor [t]o be bound to the Contractor by
the terms of the general conditions of the specifications and addenda, and to conform to and
comply with the drawings and specifications and addenda, and to assume toward the
Contractor all the obligations and responsibilities that the Contractor assumes in and by
the aforesaid documents toward the owner, in so far as they are applicable to this
particular sub-contract."
____________________

1
General Conditions of the Contract for Construction, Subparagraph 7.10.1:
All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach
thereof, except as set forth in Subparagraph 2.2.9 with respect to the Architect's decisions on matters relating to
artistic effect, and except for claims which have been waived by the making or acceptance of final payment as
provided by Subparagraphs 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction
Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually
agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration
law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance
with applicable law in any court having jurisdiction thereof.
specifications and addenda, and to assume toward the Contractor all the obligations and
responsibilities that the Contractor assumes in and by the aforesaid documents toward the
owner, in so far as they are applicable to this particular sub-contract. And Article C of each
of the subcontracts provided for arbitration as follows: That where arbitration or [sic]
disputes is granted the Contractor under the terms of his contract on the project covered by
this agreement, such right of arbitration shall be extended to the Sub-Contractor.
Hard rock, commonly known as caliche, was encountered by Cheyenne soon after
excavation of the building site was commenced. On February 13, 1973, Sletten presented to
the architect a claim seeking compensation for extra work resulting from the encountering of
the caliche, Cheyenne having previously made such a demand on Sletten, as provided in
Subparagraphs 12.1.6
2
and 12.2.1
3
of the General Conditions.
The architect denied the claim for additional compensation by letter dated April 27, 1973,
which letter was received by Sletten on April 30, 1973; on that date, Sletten notified
Cheyenne that the claim had been denied. Cheyenne, on May 29, 1973, made a written
demand on Sletten that the claim be submitted for arbitration.
4
On June 4, 1973, Sletten
made a demand for arbitration upon Exber.
____________________

2
Subparagraph 12.1.6:
Should concealed conditions encountered in the performance of the Work below the surface of the ground
be at variance with the conditions indicated by the Contract Documents or should unknown physical conditions
below the surface of the ground of an unusual nature, differing materially from those ordinarily encountered and
generally recognized as inherent in work of the character provided for in this Contract, be encountered, the
Contract Sum shall be equitably adjusted by Change Order upon claim by either party made within twenty days
after the first observance of the conditions.

3
If the Contractor wishes to make a claim for an increase in the Contract Sum, he shall give the Architect
written notice thereof within twenty days after the occurrence of the event giving rise to such claim. This notice
shall be given by the Contractor before proceeding to execute the Work, except in an emergency endangering
life or property in which case the Contractor shall proceed in accordance with Subparagraph 10.3.1. No such
claim shall be valid unless so made. If the Owner and the Contractor cannot agree on the amount of the
adjustment in the Contract Sum, it shall be determined by the Architect. Any change in the Contract Sum
resulting from such claim shall be authorized by Change Order.

4
The demand for arbitration set forth the nature of the dispute and the claim sought as follows:
NATURE OF DISPUTE:
In doing the excavation work under the above mentioned contract
The arbitration proceeding instituted by Cheyenne included Sletten and Exber; Garcia later
joined therein. Consequently, the owner and the general contractor and its two subcontractors
were all joined in a single arbitration proceeding before the American Arbitration
Association. On August 4, 1973, Exber informed Sletten that it declined to participate in the
arbitration for the reasons set forth in its letter of that date, which included the fact that
Sletten had failed to make a timely demand for arbitration within 30 days after receiving the
architect's written decision reflecting its request for additional compensation, as provided by
Subparagraph 2.2.11 of the General Conditions.
5
Exber filed on September 14, 1973, its
complaint for declaratory relief and to stay arbitration. Sletten subsequently filed a motion for
summary judgment, on the ground that the district court was without jurisdiction to decide
whether the demand for arbitration was timely. On April 2, 1974, Garcia, without objection,
joined in the motion. On May 14, 1974, the district court filed a written decision holding
among other things that [h]ere, all the parties, including the subcontractors, Garcia/Case and
Cheyenne Construction, were parties to an agreement to arbitrate" and ordering that
arbitration proceed.
____________________
additional expenses for equipment and labor were incurred due to the unusual and unforeseen hardness of the
caliche encountered beneath the surface of the ground. This area beneath the surface was at a variance with the
conditions indicated by the contract documents. Furthermore, the hardness and extent of the caliche was of an
unusual nature and differed materially from that ordinarily encountered in the area.
CLAIM OR RELIEF SOUGHT (amount, if any)
....................... $1,889.00
Equipment cost beyond schedule........................................................................................................10,640.00
Labor to help drill for blasting.................................................................................................................. 895.27
Breaking ................503.75
Sanders Constructionblasting..........................................................................................................13,775.96
Trigger Bryant Security Service............................................................................................................1,165.50
Garcia Case ....11,035.41

___________

$39,904.89

5
If a decision of the architect is made in writing and states that it is final but subject to appeal, no demand
for arbitration of a claim, dispute or other matter covered by such decision may be made later than thirty days
after the date on which the party making the demand received the decision. The failure to demand arbitration
within said thirty days' period will result in the Architect's decision becoming final and binding upon the Owner
and the Contractor. If the Architect renders a decision after arbitration proceedings have been initiated, such
decision may be entered as evidence but will not supersede any arbitration proceedings unless the decision is
acceptable to the parties concerned. (Emphasis added.)
to arbitrate and ordering that arbitration proceed. Judgment to the same effect was entered
on June 10, 1974.
On June 24, 1974, Exber filed a Rule 52 motion to alter or amend the judgment, asking
that summary judgment be denied as to Cheyenne and Garcia and that the court declare that
Exber had no contractual duty to arbitrate with Cheyenne or Garcia and therefore would not
be bound by any arbitral award rendered in arbitration between Sletten and its subcontractor.
On January 28, 1975, an order was entered denying Exber's motion to alter or amend
judgment.
2. The Issues.
The issues to be determined fall into two categories:
First, whether the district court erred in ruling that there had been substantial compliance
by Sletten, the general contractor, with the condition precedent necessary to enable it to
invoke the covenant to arbitrate contained in the construction contract between Exber and
Sletten.
Second, whether the district court erred in ordering a consolidated arbitration between
Exber and both the general contractor, Sletten, and Sletten's subcontractors, Cheyenne and
Garcia.
A. Thirty-four days after Exber denied Sletten's claim for extra compensation, Sletten
demanded arbitration. Exber contends that the delay violates the 30-day time limit prescribed
in Subparagraph 2.2.11 of the General Condition, supra. Sletten urged, and the district court
so found, that the 30-day period never began to run, because the architect's written denial did
not state that it was final but subject to appeal, as required by Subparagraph 2.2.11 of the
General Conditions.
[Headnote 1]
Exber argued in the court below that the issue of timeliness constituted a condition
precedent to the agreement to arbitrate and was therefore an issue to be decided by the
district court. Sletten urged that this was a dispute arising under the contract and should be
resolved by arbitration.
We believe and so hold that the question of the timeliness of the demand for arbitration
should have been resolved by arbitration and that the court should not have entered the order
staying arbitration.
Both parties have cited the court to cases supporting their respective positions. An
examination of these cases reflects a split of authority. Most of the cases discussing this issue
have been collected in an A.L.R. annotation, Waiver of, or Estoppel to Assert, Substantive
Right or Right to Arbitrate as Question for Court or Arbitrator. Annot., 26 A.L.R.3d 604
(1969, Supp.
Supp. 1975). However, the annotation describes the majority rule as vesting the arbitrator
with jurisdiction to decide this question of the timeliness of the demand for arbitration. Id., at
617. The justification for the rule is based on the breadth of the language ordinarily utilized in
arbitration agreements (such as in the instant case, where the parties have agreed to arbitrate
all disputes arising under the contract), indicating that matters of procedural compliance are
issues for arbitration. In M. Domke, The Law and Practice of Commercial Arbitration,
15.02, at 148 (1968), the author discusses contractual time limits for demanding arbitration
and concludes that compliance with said limits is an issue to be resolved by arbitration: The
question here is not how the arbitrator will apply the time limitsboth contractual and
statutorybut whether the arbitrator should have the competence to do so. That should be
answered in the affirmative. (Emphasis in original.)
Exber, the owner, refused to arbitrate and sought to stay the arbitration proceeding, not
because the arbitrability of the substantive issues was questioned, but rather because of a
dispute as to whether the demand for arbitration had been timely made. The identical question
has been resolved by the United States Supreme Court in a suit brought by a labor
organization to compel arbitration under 301 of the Labor Management Relations Act. In
John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964), the company alleged it had no
duty to arbitrate a dispute found by the court to be arbitrable, because the union had failed to
comply with certain of the procedural prerequisites to arbitration required by the governing
collective bargaining agreement. There, the High Court said, at 556-557:
We think that labor disputes of the kind involved here cannot be broken down so easily
into their substantive' and procedural' aspects. Questions concerning the procedural
prerequisites to arbitration do not arise in a vacuum; they develop in the context of an actual
dispute about the rights of the parties to the contract or those covered by it. . . .
. . . It would be a curious rule which required that intertwined issues of substance' and
procedure' growing out of a single dispute and raising the same questions on the same facts
had to be carved up between two different forums, one deciding after the other. Neither logic
nor considerations of policy compel such a result.
Once it is determined, as we have, that the parties are obligated to submit the subject
matter of a dispute to arbitration, procedural' questions which grow out of the dispute and
bear on its final disposition should be left to the arbitrator. . . .
While the principles enunciated in Wiley do not flow from an interpretation of the
Uniform Arbitration Act, the Congressional policy on agreements to arbitrate, which led the
Supreme Court to its resolution of this issue under 301 of the Labor Management Relations
Act, is parallel to the policies underlying the Uniform Arbitration Act. Under 301, the
function of the court is strictly confined to ascertaining whether the parties agreed to arbitrate
the subject matter of the dispute. Similarly, NRS 38.045 (subsections 1 and 2) provides that,
on application of a party showing an agreement to arbitrate, as described in NRS 38.035, and
upon the opposing party's refusal to arbitrate, the court shall order the parties to proceed with
arbitration; but if the opposing party denies the existence of the agreement to arbitrate, the
court shall proceed summarily to the determination of the issue so raised and shall order
arbitration if found for the moving party. The court may stay an arbitration proceeding only
on a showing that there is no agreement to arbitrate.
6

[Headnote 2]
All doubts concerning the arbitrability of the subject matter of the dispute are to be
resolved in favor of arbitration. Once it is determined that an arbitrable issue exists, the
parties are not to be deprived by the courts of the benefits of arbitration, for which they
bargainedspeed in the resolution of the dispute, and the employment of the specialized
knowledge and competence of the arbitrator. John Wiley & Sons, Inc. v. Livingston, supra,
376 U.S. at 557-558.
In New Pueblo Constructors, Inc. v. Lake Patagonia Recreation Ass'n, 467 P.2d 88
(Ariz.App. 1970), the Arizona court held that arbitration agreements are to be liberally
construed in favor of arbitration of disputes and that the arbitrators have full power to decide
all the questions or controversies arising out of the contract between the parties.
____________________

6
NRS 38.045, subsections 1 and 2:
1. On application of a party showing an agreement described in NRS 38.035, and the opposing party's
refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies
the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so
raised and shall order arbitration if found for the moving party; otherwise, the application shall be denied.
2. On application, the court may stay an arbitration proceeding commenced or threatened on a showing that
there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith
and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court
shall order the parties to proceed to arbitration.
of the contract between the parties. The salient part of the agreement to arbitrate provided:
. . . All questions or controversies which may arise between the Contractor and the
Owner, under or in reference to this contract, shall be subject to the decision of some
competent person to be agreed upon by the Owner and the Contractor, and his decision shall
be final and conclusive upon both parties. Should the Owner and Contractor be unable to
agree upon such person, a board of three arbitrators shall be chosen, one by the Owner, one
by the Contractor, and the third by the two so chosen, and the decision of any two of said
arbitrators shall be final and binding upon the parties. . . .' Id., at 89.
The Arizona statutes are almost identical with the Nevada statutes relating to arbitration.
7
The Arizona court said, at 91:
. . . [A]rbitration clauses should be construed liberally and any doubts as to whether or
not the matter in question is subject to arbitration should be resolved in favor of arbitration.
Metro Industrial Painting Corp. v. Terminal Construction Co., 287 F.2d 382 (2nd Cir. 1961);
United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S.Ct.
1347, 4 L.Ed.2d 1409 (1960); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402
(2nd Cir. 1959); Lundell v. Massey-Ferguson Services N.V., 277 F.Supp. 940 (N.D. Iowa
1967); Southern Bell Telephone & Telegraph Co. v. Louisiana Power and Light Co., 221
F.Supp. 364 (D.La. 1963); Firestone Tire & Rubber Co. v. United Rubber Workers of
America, Local Union No. 100, AFL-CIO, 168 Cal.App.2d 444, 335 P.2d 990 (1959);
Bewick v. Mecham, 26 Cal.2d 92, 156 P.2d 757 (1945).
The evils incident to bifurcating the adjudication process (procedural issues being
judiciable, and substantive issues being arbitrable) are manifest, as in the present case. The
parties, obviously aware of congestion and delay in our court system, sought to protect
themselves by providing for a quick and ready forum for resolution of any disputes that might
arise between them. On June 4, 1973, such a dispute arose. Sletten made a demand for
arbitration. Three and a half years later, because the court assumed jurisdiction to decide a
question of procedural irregularity in presenting the demand, the dispute is still not resolved.
[Headnotes 3-5]
For the reasons hereinabove expressed, we believe that the question of the timeliness of
the demand to arbitrate should have been determined by an arbitrator rather than the
district court.
____________________

7
Arizona has also adopted the Uniform Arbitration Act. See Ariz. Rev. Stat. 12-1501 (West Supp.
1975-1976).
question of the timeliness of the demand to arbitrate should have been determined by an
arbitrator rather than the district court. The decision of the district court is, however, so
clearly correct that it is unnecessary to remand and further compound the delays already
incurred by the parties. In determining a question under an arbitration agreement, an arbitrator
enjoys a broad discretion, but that discretion is not without limits. He is confined to
interpreting and applying the agreement, and his award need not be enforced if it is arbitrary,
capricious, or unsupported by the agreement. United Steelworkers of America v. Enterprise
Wheel and Car Corp., 363 U.S. 593 (1960); Dallas Typographical Union v. A. H. Belo Corp.,
372 F.2d 577 (5th Cir. 1967). The language in the instant agreement indicates unequivocally
that a time limit is applicable only when the architect's written decisions state that they are
final but subject to appeal. Subparagraph 2.2.11, supra. For an arbitrator to have imposed a
similar limitation with respect to a decision omitting such a statement would have been an
abuse of discretion not entitled to enforcement by the district court. See Sollenberger v. AA
Constr. Co., 481 P.2d 428 (Colo.App. 1971).
8

[Headnote 6]
B. Next, we shall consider whether the district court erred in ordering a consolidated
arbitration hearing between Exber and Sletten and Sletten's subcontractors, Cheyenne and
Garcia.
The Minnesota Supreme Court has held that, under the Uniform Arbitration Act, its courts
have power to order consolidation pursuant to provisions which confer upon its courts power
to order parties to proceed with arbitration and to enforce an award as any other judgment.
Grover-Dimond Assocs. v. American Arbitration Ass'n, 211 N.W.2d 787 (Minn. 1973). In
Grover-Dimond Assocs., it was held that arbitration proceedings between the owners of a
building and their contractor could be conducted jointly with an arbitration between the
owners and their architect. The proceedings arose out of the construction of a building. The
owners' contract with the architect contained an arbitration provision, as did the contractor's
contract with the owners. The owners concluded that, in the course of construction, certain
unauthorized expenses had been incurred by the architect and the contractor.
____________________

8
Appellant Exber also complains that the district court did not address itself to (1) the question of whether
filing a copy of the demand for arbitration with the architect was a condition precedent to arbitration or (2)
whether failure to comply with the change order provisions of the contract was such a failure as to render the
claim for extras unarbitrable. In accordance with the views expressed herein, we hold that these matters may be
presented at the arbitration hearing.
course of construction, certain unauthorized expenses had been incurred by the architect and
the contractor. The owners sought joint arbitration, in which the contractor concurred but the
architect resisted. Affirming the trial court's decision denying the architect's motion to
prohibit joint arbitration, the appellate court noted that nothing in the arbitration provisions in
the contracts, or in the statute concerning arbitration, expressly deals with the question of
joint arbitration. The court stated that it was clearly Minnesota's policy, as reflected by its
arbitration statute, to encourage arbitration (as is reflected in Nevada's Arbitration Statute).
9
The court observed that the parties would use the same arbitrators and that to require the
arbitrators to hear the same evidence twice would be to ascribe to the parties an intention not
expressed in their agreements. It was added that, whether the proceedings in the case were
treated as concurrent, joint, or consolidated hearings, it was manifestly in the interest of
justice that all of the issues raised be laid to rest in one proceeding.
In the instant case, the same evidence, witnesses, and legal issues involved in the
Exber-Sletten dispute will also be presented in the Sletten-Cheyenne-Garcia dispute. This is
not a case of requiring a party to join in a proceeding against a stranger. There has been no
showing of prejudice. We agree with the ruling of the district court that consolidation of the
claims will make it possible to determine all the issues in one proceeding and avoid the
possibility of conflicting awards, as well as the additional time and expense of separate
proceedings.
3. The Summary Judgment in Favor of Cheyenne and Garcia.
Exber finally contends that the district court erred in entering summary judgment in favor
of Respondents Cheyenne and Garcia, because they failed to comply with the formal
requirements of NRCP 56.
At the hearing on Sletten's motion for summary judgment, all defendants appeared and
argued through their attorneys. The proceeding was conducted as if it were a joint hearing on
a consolidated motion for summary judgment. Garcia formally joined in the motion, whereas
Cheyenne merely indicated that it joined in the arguments presented by Sletten's attorney.
On June 10, 1974, the court entered summary judgment for all defendants, noting that
Garcia and Cheyenne had orally joined in Sletten's formal Rule 56 motion.
____________________

9
See Lane-Tahoe, Inc. v. Kindred Constr. Co., 91 Nev. 385, 389, 536 P.2d 491, 493 (1975): The whole
tenor of the [Uniform Arbitration] Act favors arbitration when the parties have agreed to that method of settling
disputes between them.
joined in Sletten's formal Rule 56 motion. On June 24, 1974, Exber filed a Rule 59 motion to
amend the judgment by denying the oral summary judgment motions advanced by Cheyenne
and Garcia, and by seeking an order declaring that Exber was under no duty to arbitrate in a
consolidated proceeding. The court found that Exber's objection was untimely. The court also
refused to restore the injunction against Cheyenne and Garcia by staying consolidated
arbitration. In doing so, the court considered whether it had authority to order consolidated
arbitration. In arrogating to itself such power, the court adopted the more enlightened
Grover-Dimond rationale discussed above.
[Headnotes 7, 8]
Although Rule 56 motions should ordinarily be in writing, the instant case presents a
situation wherein codefendants have orally joined in a written motion submitted by another
codefendant. Appellant Exber made no objection to this procedure during argument on the
motion. Failure to comply with the formal requirements of Rule 56 is subject to the
harmless-error rule. See 6 Moore's Federal Practice, 56.14, at 56-357 (2d ed. 1948, 1975
Cum.Supp.), and cases cited therein.
[Headnote 9]
A court may enter a judgment on a cross-motion for summary judgment made orally at a
hearing on the original Rule 56 motion as long as the opposing party is not prejudiced. Here,
despite the trial court's refusal to amend the judgment on the procedural grounds raised in
appellant's Rule 59 motion to amend, the court nevertheless considered Exber's contention
that consolidated arbitration was unauthorized. The parties submitted points and authorities
on the subject, and the court rendered a decision on the merits.
Rule 56 does not specify whether the court can enter summary judgment on its own in the
absence of any request to do so. As is discussed more fully in the next section, the most
common situation in which this question arises is when the court desires to enter judgment
for a party opposing a summary judgment motion but no cross-motion has been made. It is
well established that under these circumstances it is appropriate for the court to grant
summary judgment. . . . Wright & Miller, Federal Practice & Procedure, Civil 2719, at 454
(1973).
The situation presented on this appeal is analogous to the one described above. The bases
for permitting judgment on a cross-motion for summary judgment made orally at the original
Rule 56 hearing are lack of any real prejudice visited on the party against whom the
judgment was granted, and implementation of the policy underlying Rule 56, which is
expediting the disposition of cases wherever possible.
party against whom the judgment was granted, and implementation of the policy underlying
Rule 56, which is expediting the disposition of cases wherever possible. Wright & Miller,
supra, at 454-455. The same reasons justify the judgment in the instant case, because (1)
Exber failed to timely object, (2) the court already had before it a proper motion submitted by
one of the codefendants and merely granted the motion as to all defendants, and (3) Exber
was afforded an opportunity to present argument on the merits of consolidated arbitration,
which issue was resolved against Exber. Accordingly, for lack of any prejudice, and because
of failure to timely object, the judgment is affirmed.
____________
92 Nev. 734, 734 (1976) State v. Wright
RAYMON WRIGHT, Respondent.
No. 8928
December 30, 1976 558 P.2d 1139
Appeal from dismissal of indictment charging defendant with sale of a controlled
substance under NRS 453.321. Eighth Judicial District Court, Clark County; James A.
Brennan, Judge.
The Supreme Court, overruling prior decision, held that under statute making it illegal for
any person to sell, exchange, barter, supply or give away a controlled or counterfeit
substance, defendant's age is not an essential element of the offense but only a factor that
applies to punishment in the event of a finding that defendant is guilty, and age of defendant
need be neither alleged nor proved as part of the process of deciding guilt or innocence, but is
germane only to the question of punishment.
Reversed and remanded with direction to reinstate the indictment.
George E. Holt, District Attorney, and Thomas D. Beatty, Assistant District Attorney,
Morgan D. Harris, Public Defender, John P. Lukens, Deputy Public Defender, and John
Houston, Deputy Public Defender, Clark County, for Respondent.
City; Larry R. Hicks, District Attorney, and John L. Conner, Deputy District Attorney,
Washoe County, Amici Curiae.
Under statute making it illegal for any person to sell, exchange, barter, supply or give away a controlled
or counterfeit substance, defendant's age is not an essential element of the offense but only a factor that
applies to punishment in the event of a finding that defendant is guilty, and age of defendant need be
neither alleged nor proved as part of the process of deciding guilt or innocence, but is germane only to the
question of punishment; overruling Hass v. State, 92 Nev. 256, 548 P.2d 1367 (1976). NRS 453.321.
2. Infants.
Subject only to common-law limits of legal capacity, no individual can be absolved of criminal liability
because of age under statute declaring it unlawful for any person to sell, exchange, barter, supply or give
away a controlled or counterfeit substance. NRS 453.321.
It would appear appropriate, in prosecution for sale of controlled substance, to allege the age of the
victim if the fact of age is known. NRS 453.321, subd. 2(a)(2).
OPINION
Per Curiam:
On October 2, 1975, Raymon Wright was indicted by the Clark County Grand Jury for the
sale of a controlled substance under NRS 453.321. A motion to dismiss was later granted for
the failure of the indictment to allege the defendant's age under the authority of Hass v. State,
92 Nev. 256, 548 P.2d 1367 (1976), in which we ruled that the defendant's age was an
essential element of the crime of sale of a controlled substance under the statute and had to be
alleged and proved.
From the dismissal the State has appealed asking this court to limit the application of Hass
v. State, supra, to those cases where the prosecution seeks to augment the available
punishment solely by virtue of the defendant's age.
[Headnote 1]
Upon our renewed consideration we are of the opinion that Hass v. State, supra, is
inappropriate, improvidently decided and should be overruled in its future application. Under
NRS 453.321 defendant's age is not an essential element of the offense but only a factor that
applies to the punishment in the event of a finding that defendant is guilty of the crime of
sale of a controlled substance.
event of a finding that defendant is guilty of the crime of sale of a controlled substance. As
such it neither need be alleged nor proved as a part of the process of deciding guilt or
innocence. It is germane only to the question of punishment.
[Headnote 2]
The charging portion of NRS 453.321(1) makes it illegal for any person to sell, exchange,
barter, supply or give away a controlled or counterfeit substance. (Emphasis added.) It is
manifest that subject only to the common-law limits of legal capacity, no individual can be
absolved of criminal liability because of age under NRS 453.321.
1

After defining the conduct circumscribed as criminal in subsection 1 of the statute,
subsections 2 and 3 speak exclusively to the degrees of punishment which would apply
upon a determination of guilt under subsection 1.
____________________

1
NRS 453.321: Offenses and penalties: Prohibited acts A; penalties.
1. Except as authorized by the provisions of NRS 453.011 to 453.551, inclusive, it is unlawful for any
person to sell, exchange, barter, supply or give away a controlled or counterfeit substance.
2. Any person 21 years of age or older who sells, exchanges, barters, supplies or gives away a controlled or
counterfeit substance in violation of subsection 1 classified in:
(a) Schedule I or II, to a person who is:
(1) Twenty-one years of age or older shall be punished by imprisonment in the state prison for not less
than 1 year nor more than 20 years and may be further punished by a fine of not more than $5,000. For a second
or subsequent offense, such offender shall be punished by imprisonment in the state prison for life, without
possibility of parole, and may be further punished by a fine of not more than $5,000. If the offender has
previously been convicted of any violation of the laws of the United States or any state, territory or district
relating to a controlled substance, the term of imprisonment imposed pursuant to this subsection shall be served
without benefit of probation.
(2) Under 21 years of age shall be punished by imprisonment in the state prison for life with possibility of
parole and may be further punished by a fine of not more than $5,000. Eligibility for parole begins when a
minimum of 7 years has been served. For a second or subsequent offense such offender shall be punished by
imprisonment in the state prison for life without possibility of parole. If the offender has previously been
convicted of any violation of laws of the United States or any state, territory, or district relating to a controlled
substance, the term of imprisonment imposed pursuant to this subsection shall be served without benefit of
probation.
. . . .
3. Any person who is under 21 years of age and is convicted:
(a) Of an offense otherwise punishable under subsection 2 shall be punished by imprisonment in the state
prison for not less than 1 year nor more than 20 years, with possibility of probation.
(b) Of a second or subsequent offense otherwise punishable under subsection 2 shall be punished as provided
in subsection 2 for a second or subsequent offense and any term of imprisonment imposed shall be served
without possibility of probation.
to the degrees of punishment which would apply upon a determination of guilt under
subsection 1. If the seller proves to be over 21 years of age, subsection 2 applies specifically
to a violation of subsection 1. Subsection 3 similarly addresses the punishment of a seller
who is under the age of 21 who stands convicted . . . [o]f an offense otherwise punishable
under subsection 2.
[Headnote 3]
Being so structured the statute does not set forth two separate and distinct crimes
depending upon the age of the defendant but instead one crime which is punishable
differently for a convicted defendant over the age of 21 than for one under the age of 21.
Since the age of a defendant under this interpretation is not an element of the crime, age
therefore need not be alleged and an indictment which fails to incorporate it is not defective.
It naturally follows that because age need not be alleged there is no necessity of its proof in
the determination of guilt.
2

This decision overrules Hass v. State, supra. The dismissal of the indictment herein is
reversed and the case remanded for reinstatement. We commend the trial court for its judicial
courage in adhering to precedent for the fault is ours and we hasten to resolve the problem
reflected in this appeal.
Reversed and remanded with direction to reinstate the indictment.
____________________

2
This court is aware of NRS 453.321(2)(a)(2) wherein the penalty immeasurably increases in the event the
victim is under the age of 21. That issue is not before us. However, it would appear appropriate in such event to
allege the age of the victim if the fact of age is known, at least until this court can rule upon that situation.
____________
92 Nev. 737, 737 (1976) Warden v. Studdard
WARDEN, NEVADA STATE PRISON, Appellant, v.
ROBERT ALLEN STUDDARD, Respondent.
No. 9325
December 30, 1976 558 P.2d 1142
Appeal from order granting petition for writ of habeas corpus, First Judicial District Court,
Reversed.
92 Nev. 737, 738 (1976) Warden v. Studdard
Robert List, Attorney General, and D. Geno Menchetti, Chief Deputy Attorney General,
Rodlin Goff, State Public Defender, Carson City, for Respondent.
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, State v. Wright, 92 Nev. 734, 558
P.2d 1139 (1976), we, sua sponte, reverse the district court's order which granted respondent's
petition for a writ of habeas corpus.
____________
92 Nev. 738, 738 (1976) Warden v. Robinson
ELIJAH ROBINSON, Respondent.
No. 9327
December 30, 1976 558 P.2d 1142
Reversed.
OPINION
Per Curiam:
____________
92 Nev. 739, 739 (1976) Warden v. Petitti
GARY PETITTI, Respondent.
No. 9299
December 30, 1976 558 P.2d 1141
Reversed.
Horace R. Goff, State Public Defender, Carson City, for Respondent.
OPINION
Per Curiam:
____________
92 Nev. 739, 739 (1976) Warden v. Forman
NED GEORGE FORMAN, Respondent.
No. 9201
December 30, 1976 558 P.2d 1141
Reversed.
Kenneth J. Jordan, Carson City, for Respondent.
OPINION
Per Curiam:
On the authority of, and for the same reasons stated in, State v. Wright, 92 Nev. 734
92 Nev. 739, 740 (1976) Warden v. Forman
State v. Wright, 92 Nev. 734, 558 P.2d 1139 (1976), we, sua sponte, reverse the district
court's order which granted respondent's petition for a writ of habeas corpus.
____________
92 Nev. 740, 740 (1976) Warden v. Reese
EDWIN L. REESE, Respondent.
No. 9298
December 30, 1976 558 P.2d 1142
Reversed.
Horace R. Goff, State Public Defender, Carson City, for Respondent.
OPINION
Per Curiam:
____________
92 Nev. 740, 740 (1976) Warden v. Jackson
WARDEN NEVADA STATE PRISON, Appellant, v.
ROBERT JACKSON, Jr. Respondent.
No. 9323
December 30, 1976 558 P.2d 1141
Reversed.
92 Nev. 740, 741 (1976) Warden v. Jackson
OPINION
Per Curiam:
____________
92 Nev. 741, 741 (1976) Craig v. Sheriff
ROBBIE OLAN CRAIG, Appellant, v. SHERIFF,
No. 9253
December 30, 1976 557 P.2d 710
Appeal from order denying pretrial petitions for writs of habeas corpus, Second Judicial
District Court, Washoe County; John E. Gabrielli, Judge.
On petition for habeas corpus challenging existence of a probable cause to support charged
offenses and contending the grand jury was without jurisdiction to indict petitioner, the
district court denied the petitions and the petitioner appealed. The Supreme Court held that
second petition containing grounds for relief which could have and should have been asserted
in the prior petition was not cognizable below; that portion of probable cause challenge
contending that certain evidence was inadmissible must be raised in motion to suppress, not
in habeas corpus; and that record supported determination of probable cause.
Affirmed.
William N. Dunseath, Public Defender, and Lawrence W. McNabney, Deputy Public
Defender, Washoe County, for Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and Joseph
B. Key, Deputy District Attorney, Washoe County, for Respondent.
1. Habeas Corpus.
Habeas petition which contained grounds for relief which could have and should have been asserted in a
prior petition was not cognizable in the trial court. NRS 34.380, subd. 1(c)(2).
2. Habeas Corpus.
Contention that certain evidence is inadmissible must be raised in motion to suppress, not in a pretrial
petition for habeas corpus.
3. Habeas Corpus.
Record on appeal from denial of pretrial petition for habeas corpus challenging existence of probable
cause supported determination that there was probable cause to hold petitioner for trial on the charged
offense. NRS 171.206, 172.155.
4. Habeas Corpus.
On pretrial petition for habeas corpus challenging existence of a probable cause to support the charged
offenses, court is not concerned with prospect that evidence may be insufficient to support a conviction.
OPINION
Per Curiam:
At the conclusion of a preliminary examination, Robbie Olan Craig was ordered to stand
trial for possession of stolen property, a violation of NRS 205.275. He was also indicted,
pursuant to a True Bill returned by the Washoe County Grand Jury, for being an ex-felon in
possession of a concealable firearm, a violation of NRS 202.360. On September 24, 1976, he
filed a pretrial petition for habeas corpus challenging the existence of probable cause to
support the charged offenses. On October 29, 1976, he filed a second habeas petition
contending the grand jury was without jurisdiction to indict him. The district judge
considered and denied both petitions and in this appeal Craig reurges the same contentions.
[Headnote 1]
1. The second habeas petition was not cognizable below because it contained grounds for
relief which could haveand should havebeen asserted in the prior petition. See NRS
34.380(1)(c)(2).
[Headnote 2]
2. The portion of Craig's probable cause challenge which contends that certain evidence is
inadmissible must be raised in a motion to suppress, not in a habeas petition. Cook v. State,
85 Nev. 692, 462 P.2d 523 (1969).
[Headnotes 3, 4]
3. In our view, the record supports the district judge's determination that there was
probable cause to hold Craig for trial on the charged offenses.
determination that there was probable cause to hold Craig for trial on the charged offenses.
NRS 171.206; NRS 172.155. Kinsey v. Sheriff, 87 Nev. 361, 487 P.2d 340 (1971). We are
not now concerned with the prospect that such evidence may, by itself, be insufficient to
support a conviction. McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973).
Affirmed.
____________
92 Nev. 743, 743 (1976) Grosner v. Grosner
SHIRLEE ANN GROSNER, Appellant, v. MARGARET M. GROSNER, Individually and as
Administratrix of the Estate of ALAN L. GROSNER, Deceased, Respondent.
No. 8607
December 30, 1976 557 P.2d 273
Appeal from order granting summary judgment, Fifth Judicial District Court, Mineral
County; William P. Beko, Judge.
Affirmed.
Stewart and Horton, Ltd., and Raymond B. Little, Reno, for Appellant.
Larry G. Bettis, Hawthorne, for Respondent.
OPINION
Per Curiam:
Appellant contends the district court erred in finding that she was not vested with an
equitable interest as beneficiary of two insurance policies. We disagree.
The district court's finding is supported by substantial evidence and, further, we fail to
perceive any abuse of the district court's discretion. Holland Livestock v. B & C Enterprises,
92 Nev. 473, 553 P.2d 950 (1976); cf. Evans v. Evans, 92 Nev. 608, 555 P.2d 839 (1976).
Accordingly, we affirm the district court order.
____________
92 Nev. 744, 744 (1976) Edwards v. Board of Regents
GORDON A. L. EDWARDS, Appellant, v. THE BOARD OF REGENTS OF THE
UNIVERSITY OF NEVADA; DONALD H. BAEPLER, PRESIDENT, UNIVERSITY OF
NEVADA, LAS VEGAS, Respondents.
No. 8611
December 30, 1976 557 P.2d 709
Appeal from judgment, Eighth Judicial District Court, Clark County; Michael J. Wendell,
Judge.
Appeal was taken from a judgment of the district court finding that appellant's
employment as a nontenured probationary faculty member at the University of Nevada was
properly terminated. The Supreme Court held that, on review of the record, appellant received
a notice of termination sufficient to satisfy the mandate of the Univerity of Nevada System
Code and thus, the termination was lawful.
Affirmed.
Paul H. Schofield, Las Vegas, for Appellant.
Jones, Jones, Bell, LeBaron, Close & Brown, and Gary R. Goodheart, Las Vegas, for
Respondents.
Colleges and Universities.
Review of record established that nontenured probationary faculty member at University of Nevada
received notice of termination sufficient to satisfy mandate of University of Nevada System Code and thus,
his termination was lawful.
OPINION
Per Curiam:
The only cognizable issue raised by appellant is whether the district court erred in finding
appellant's employment as a nontenured probationary faculty member at the University of
Nevada, Las Vegas, was properly terminated. After reviewing the record, we believe
appellant received a notice of termination sufficient to satisfy the mandate of University of
Nevada System Code, 4.8.1, and thus, the termination was lawful and the judgment is
affirmed. See: State Ex Rel. Walton v. Roberts, 55 Nev. 415, 36 P.2d 517 (1934). Cf. State v.
Wanamaker, 289 P.2d 697 (Wash. 1955); State v. Edwards, SS N.E.2d 763 {Ind.
92 Nev. 744, 745 (1976) Edwards v. Board of Regents
88 N.E.2d 763 (Ind. 1949); Miller v. Board of Education of School Dist. No. 132, 186 N.E.2d
790 (Ill.App. 1962).
Affirmed.
____________
92 Nev. 745, 745 (1976) Mills v. Cammack
DOLLY MILLS, as Guardian ad Litem for FRANCES A. MILLS, a Minor, DOLLY MILLS,
et al., Appellants, v. KIRK V. CAMMACK, M.D., RICHARD D. COLQUITT, M.D., et al.,
Respondents.
No. 8452
December 30, 1976 558 P.2d 622
Appeal from order dismissing complaint for failure to prosecute under NRCP 41(e),
Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge.
In a medical malpractice action, the district court dismissed complaint for want of
prosecution, and plaintiffs appealed. The Supreme Court held that the record failed to support
plaintiffs' contention that they were prosecuting their claim with reasonable diligence at the
time it was dismissed.
Affirmed.
C. A. Jack Nelson, Chartered, Las Vegas, for Appellants.
Beckley, Singleton, DeLanoy, Jemison and Reid, Chartered, Las Vegas, for Respondents.
Dismissal and Nonsuit.
Record in medical malpractice action failed to support plaintiffs' contention that they were prosecuting
their claim with reasonable diligence at time court dismissed it for lack of prosecution. NRCP 41(e).
OPINION
Per Curiam:
Appellants, alleging medical malpractice, filed a complaint for damages August 13, 1970.
More than four and three-quarter years thereafter the trial judge, exercising the discretion
delineated in NRCP 41(e), dismissed the complaint for want of prosecution. Appellants now
ask this court to hold that the judge abused his discretion because, they claim, they were
actively pursuing the case at the time it was dismissed.
92 Nev. 745, 746 (1976) Mills v. Cammack
actively pursuing the case at the time it was dismissed. The record does not support the claim.
In Spiegelman v. Gold Dust Texaco, 91 Nev. 542, 546, 539 P.2d 1216, 1218 (1975), we
said that a case should not be dismissed where the plaintiff was presently prosecuting the
claim with reasonable diligence. We have neither been directed to, nor have we found,
anything in this record to establish that appellants were using reasonable diligence at the time
the case was dismissed; therefore, we cannot say that the district judge abused his discretion.
Custom Catering, Inc. v. Local Union No. 226, 91 Nev. 334, 536 P.2d 488 (1975), Valente v.
First Western Savings & Loan, 90 Nev. 377, 528 P.2d 699 (1974), Northern Ill. Corp. v.
Miller, 78 Nev. 213, 370 P.2d 955 (1962).
The record is replete with delays. For example: appellants did not answer supplemental
interrogatories for over four years; four years and eleven months transpired before they
acquired an expert witness, and so informed respondents; and, they failed to appear and
contest a motion to dismiss or vacate a trial setting. This last dereliction caused one trial
setting to be cancelled and effectively precluded trial before the five year date, which would
have necessitated mandatory dismissal under NRCP 41(e).
Affirmed.
____________
92 Nev. 746, 746 (1976) Archie v. State
ROBERT ARCHIE, Appellant, v. THE STATE
No. 8709
December 30, 1976 557 P.2d 1153
Appeal from judgment of contempt, Eighth Judicial District Court, Clark County; James A
Brennan, Judge.
The district court adjudicated attorney in contempt of court for his failure to proceed with
trial as appointed defense counsel, and attorney appealed. The Supreme Court held that where
attorney had neither served notice of his intention to withdraw on the district attorney, nor
filed same with the clerk of the district court more than 10 days prior to the trial date, as
required by Eighth Judicial District Court Rule, trial judge did not abuse his discretion in
citing attorney for contempt and ordering him to pay fine commensurate with travel costs of a
prosecution witness, despite prior dispute regarding efforts of attorney to obtain payment
for his services.
costs of a prosecution witness, despite prior dispute regarding efforts of attorney to obtain
payment for his services.
Affirmed.
Robert Archie, Thorndal and Liles, Ltd., and A. Bill Maupin, Las Vegas, for Appellant.
George E. Holt, District Attorney, and H. Leon Simon, Deputy District Attorney, Clark
Contempt.
Where attorney neither served notice of his intention to withdraw from case to district attorney nor did he
file same with clerk of district court more than 10 days prior to trial date, as required by Eighth Judicial
District Court Rule, trial judge did not abuse his discretion in adjudging attorney in contempt of court for
attorney's failure to proceed with trial as appointed defense counsel and in ordering attorney to pay fine
commensurate with travel costs of prosecution witness, despite fact that attorney's attempt to withdraw as
appointed counsel was precipitated by prior dispute regarding efforts to obtain payment for his services.
DCR 26.
OPINION
Per Curiam:
On Monday, February 9, 1976, appellant, Robert Archie, was adjudged in contempt of
court for his failure to proceed with trial as appointed defense counsel. Claiming the
adjudication was an abuse of discretion, Archie has appealed.
The defense belowand argument hererelies on a motion to withdraw which was first
offered for consideration on Thursday, February 5, 1976. Since the accused was not present,
resolution of the motion was continued until the next day, Friday, February 6, 1976, at which
time it was denied. The following Monday, when the case was called for trial, Archie refused
to proceed. He was cited for contempt and ordered to pay a fine commensurate with the travel
costs of a prosecution witness.
Archie's attempt to withdraw as appointed counsel was precipitated by a prior dispute
regarding efforts to obtain payment for his services, in excess of the amount provided by
statute.
Apparently he had been permitted to withdraw from other cases; however, here, he neither
served notice of his intention to withdraw on the district attorney, nor filed the same with the
clerk of the district court more than 10 days prior to the trial date, as required by Eighth
Judicial District Court Rule XXVI.
trial date, as required by Eighth Judicial District Court Rule XXVI.
The recited circumstances do not compel us to say that the trial judge abused his
discretion. See: Brown v. Board of County Comm'rs, 85 Nev. 149, 451 P.2d 708 (1969),
where this court ruled that, notwithstanding inadequate remuneration, it is the obligation of
every attorney to represent indigent defendants as an incident to practicing law.
Affirmed.
____________
92 Nev. 748, 748 (1976) D'Atri v. Vignalats
JOHN D'ATRI and LIVIA D'ATRI, Appellants, v.
ROBERT VIGNALATS, Respondent.
No. 8938
December 30, 1976 557 P.2d 272
Appeal from summary judgment, Ninth Judicial District Court, Douglas County; Merlyn
H. Hoyt, Judge.
Affirmed.
Ralph M. Crow, Carson City, for Appellants.
A. J. Bayer, Jr., Carson City, for Respondent.
OPINION
Per Curiam:
Although appellants contend the district court erred in granting respondent's motion for
summary judgment, they have failed to demonstrate error, as contemplated by our rules,
through briefs citing pertinent portions of the record and relevant authority. Accordingly, we
will not consider their contentions. Holland Livestock v. B & C Enterprises, 92 Nev. 473, 553
P.2d 950 (1976).
Affirmed.
____________
92 Nev. 749, 749 (1976) Krueger v. State
GARY HAROLD KRUEGER, Appellant, v. THE
No. 8784
December 30, 1976 557 P.2d 717
Appeal from judgment of conviction of first-degree murder; Eighth Judicial District Court,
Clark County; Joseph S. Pavlikowski, Judge.
The Supreme Court, Mowbray, J., held that evidence did not sustain contention by
defendant, who had waived his right to remain silent at beginning of interrogation, that he
revoked waiver when, after initial interview, detective confronted him with incriminating
evidence received from his companion, and that there was no error with respect to failure to
instruct on manslaughter and that prosecutor's closing statement was not prejudicial.
Affirmed.
Morgan D. Harris, Clark County Public Defender, and Stephen L. Huffaker, Deputy, Las
Attorney, H. Leon Simon and Elliott A. Sattler, Deputy District Attorneys, Clark County, for
Respondent.
1. Criminal Law.
Even though defendant was not under arrest and had appeared voluntarily at police station for interview,
where his companion made incriminating statements while defendant was waiting for her in station after his
interview, his status changed and he became focus of investigation, was in custody, and was entitled to
Miranda protection.
2. Criminal Law.
Evidence did not sustain contention by defendant, who had waived his right to remain silent at beginning
of interrogation, that he revoked waiver when, after initial interview, detective confronted him with
incriminating evidence received from his companion. U.S.C.A.Const. Amends. 5, 14.
3. Criminal Law.
Instruction must be given only if there is evidence to support it.
4. Homicide.
Failure to instruct on elements of manslaughter was not error where there was no evidence to support any
theory of manslaughter. NRS 200.050.
5. Criminal Law.
Prosecutorial misconduct is ground for reversal only if it prejudices substantial rights of accused.
6. Criminal Law.
Prosecutor's closing statements were not of sufficient magnitude to prejudice defendant or distract jury.
OPINION
Gary Harold Krueger, the appellant, was tried to a jury and found guilty of first-degree
murder. He has appealed from his judgment of conviction, asserting several assignments of
error, which we reject as meritless. We therefore affirm.
1. The Facts.
On March 5, 1975, at approximately 2:00 a.m., passersby discovered a car containing a
man's body off an embankment of East Lake Mead Boulevard in Clark County, Nevada. The
highway patrol was summoned. From his examination of the scene, the car's condition, and
the multiple injuries to the body, the patrolman concluded that the victim's death could not
have been caused by a traffic accident. The car was removed from the scene and processed for
fingerprints. An autopsy was performed on the deceased. It revealed that death had been
caused by multiple blows to the head, made with great force by a heavy instrument. The
victim was identified as James King. A tracer on the car revealed the owner resided at a local
trailer park. Early on March 5, police detectives visited the address and found the decedent's
wife. They also found Krueger, who had been living at the same address. The detectives
inquired whether Mrs. King or Krueger knew the whereabouts of King. They replied that he
had left the premises about 11:00 o'clock the previous evening, in a drunken condition. The
detectives then told them that King had been found dead, and asked them to come to the
police station to give statements.
Krueger and Mrs. King agreed to come to the detectives' headquarters at the Las Vegas
Metropolitan Police Department on March 11 for the purpose of giving statements. On that
date, Mrs. King telephoned the detectives and advised that she and Krueger would be late for
their appointment because of car trouble. Detective Gary Barlow, who was in charge of
investigating the crime, offered to furnish a police car for their transportation. The offer was
accepted, and the couple arrived at about 11:00 a.m. Detective Barlow and Ken Cook
interviewed Krueger. He denied any implication in the crime and gave the detectives a written
statement to that effect. He was excused and returned to the hallway leading into the
detectives' headquarters, to wait for Mrs.
excused and returned to the hallway leading into the detectives' headquarters, to wait for Mrs.
King. The open hallway is furnished with chairs and serves as a waiting area. Detectives
Barlow and Cook left for lunch. In the meantime, Detective Charles Lee was interviewing
Mrs. King. Her attorney was present. A polygraph examination was administered by
Detective Lee. Mrs. King told Lee how the murder had occurredthat Krueger had axed her
husband to death and then disposed of his body out on the highway. With this information,
Detective Lee returned to the waiting area and asked Krueger if he would return to the
interrogation room. Lee also sent word for Barlow and Cook to return immediately. Lee then
advised Krueger of his constitutional rights under Miranda.
1
Krueger said he understood
them. Lee then advised Krueger that he had received new information about the death of Mr.
King, and he asked Krueger if he wanted to make any changes in the statement he had
previously given. Krueger replied that he had already given his statement. Lee then stated that
he had information indicating that Krueger had killed King with an ax, whereupon Krueger
responded that was the way it happened.
2
Detectives Barlow and Cook, in response to Lee's
message, returned immediately and continued the questioning.
____________________

1

2
At the pretrial hearing on the motion to suppress Krueger's statement, Detective Lee testified in part as
follows:
Q (By Mr. Huffaker) Did you have occasion on March 11 to have Gary Krueger in your office or the office
of the Metropolitan Police Department?
A Yes.
Q Did you talk to him at that time?
A Yes, I did.
Q What did you say to him at that time, the first time you saw him?
A Advised him of his constitutional rights under the Miranda decision.
Q Did you notWhat was the occasion of that? Why did you go talk to Defendant Krueger?
A It was subsequent to an interview that I had just completed with Donna King.
. . .
Q And what were those rights that you advised him of?
A I read them off the card.
Want me to read the card?
The Court: Do you have the card with you at this time, Detective Lee?
The Witness: Yes, sir.
The Court: Would this be the very card that you read from at that time, Detective Lee?
The Witness: Yes. This is the card that I have carried with me as a homicide investigator since 1969.
Detectives Barlow and Cook, in response to Lee's message, returned immediately and
continued the questioning. Barlow again gave Krueger a full Miranda warning and had him
sign a Rights of Prisoner-Arrest Card that sets forth the Miranda warnings. Thereafter,
Krueger gave a detailed statement regarding the killing and the disposition of the body. The
statement was typed, and Krueger signed it.
3
2.
____________________
Q (By Mr. Huffaker) And would you read what you read to him at that time?
A No. 1: You have the right to remain silent.
No. 2: Anything you say can and will be used against you in a court of law.
No. 3: You have the right to talk to a lawyer and have him present with you while you're being questioned.
No. 4: If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning,
if you wish one.'
At that point I asked him the following two questions:
Do you understand each of these rights I've explained to you'
Q Are you reading from the card now?
A Yes. I'm reading from the card.
Q Thank you.
A He replied yes.
Having these rights in mind, do you wish to talk to us now?'
He replied yes.
Q And after that what happened?
. . . .
. . .
I asked him if he wanted to make any changes in his statement.
Q Well, he said he didn't, that he denied any further involvement, I think you testified. And I think you
testified that
A No. I said that he said he wasn't involved.
Q Well, if he said he wasn't involved and that he'd already made a statementI believe you testified
A Yes.
Q then what happened then? What did you say?
A I advised him that we had received some new information. I advised him that we had information that he
had used a hatchet on the victim; also advised him that after he disposed of the body he walked back to the
trailer park.
Q And then what did Mr. Krueger say, if anything?
A He said, That's the way it happened. I was tired of him beating the kids.'

3
During trial, Detective Gary Barlow testified as follows:
Q [by Mr. Harmon] Prior to commencing the interview was Mr. Krueger, the Defendant, advised of any
constitutional rights?
A Yes, he was.
Q Will you describe your procedure in making him aware of certain rights?
A He was read his rights off the rights of person arrested card.
Q Who read those rights?
A I did.
2. The Admission of Krueger's Statement.
Krueger's principal contention on this appeal is focused on the admission of the written
confession which he gave Detective Barlow on March 11. He claims that he did not waive his
right to remain silent, and he requested and was denied assistance of counsel. These same
arguments were presented before and during trial, and motions to suppress the incriminating
evidence were properly denied.
[Headnote 1]
The State has suggested that the detectives were not required to give the Miranda
warnings because Krueger was not subjected to custodial interrogation. The State argues that
at the time Krueger made the incriminating statements he was not under arrest and had
voluntarily appeared for the interview. We do not agree. The record supports the argument as
to Krueger's status when he first came to the police station. However, by the time the
incriminating statements were made, Krueger's status had changed. When Mrs. King
implicated Krueger, he then became the focus of the investigation, rather than a mere
suspect.
____________________
Q Did you read to him verbatim from the card?
A Yes.
Q What happened then?
A After I read them to him, gave it back to him, he read them and signed them, Larry Caccialini' and Gary
Krueger,' and dated it and put the time on it.
. . .
Q Detective Barlow, I am handing you the rights card back to you. I would like you to read into the record
what you have read to Mr. Krueger March the 11th, 1975.
A The card is titled Rights of a Person Arrested.'
You have the right to remain silent. Anything you say can be used against you in a court of law. You have a
right to have an attorney present during any questioning. If you can not afford an attorney, one will be furnished
for you free of charge. If you waive these rights you may revoke that waiver at any point of questioning.
I have read the above and fully understand these rights.'
Dated 3-11-75, at 1:00 p.m.,' signed Larry Caccialini, Gary H. Krueger.'
Q Thank you.
After this card had been signed, did you reiterate any of the rights appearing on the card?
A Yes, I did.
Q What did you say in that regard?
A After he had signed it I told him that I was going to readvise him of his rights again, which I did.
Q Did you repeat the same rights?
A Yes, I did. And then I asked him if he understood at this point that he had the right to have his attorney
with him right now. And he stated, Yes.'
Krueger, he then became the focus of the investigation, rather than a mere suspect. From then
on, he was in custody and entitled to the protection established by Miranda. See People v.
White, 446 P.2d 993 (Cal. 1968).
[Headnote 2]
Having concluded that Krueger was subjected to custodial interrogation, we turn to
consider whether he was denied his rights under Miranda. Krueger admits that he waived his
right to remain silent at the beginning of the interrogation. He contends on appeal that he
revoked that waiver when the detective confronted him with the incriminating evidence
received from Mrs. King. The record simply does not support Krueger's contention. He was
given the full Miranda warning by Lee, and he signed a card and acknowledged that he
understood the same. When he was asked if he wished to change his previous statement, he
replied in the negative, but he never stated that he did not wish to be questioned by the
officers. When Lee, in response to Krueger's statement, said that he (Lee) had information
indicating that Krueger had killed King with an ax, Krueger readily responded that was the
way it happened. When Detective Barlow returned and resumed the inquiry, Krueger was
given another full Miranda warning and signed a card acknowledging that he understood the
warning and waived his right to remain silent before giving his confession. Krueger did not
testify at trial, but he did so at the pretrial hearing on the motion to suppress, and that
testimony corroborated Barlow's testimony.
4
Under the factual position of this case, we
cannot say that Krueger's rights under the Fifth and Fourteenth Amendments were
violated.
____________________

4
Krueger testified on cross-examination, at the pretrial hearing to suppress, as follows:
Q [by Deputy District Attorney Melvyn T. Harmon] Were you advised by Detective Barlow that you had the
right to remain silent?
A [by Krueger] Yes, sir.
Q Did he explain to you that anything you said could and would be used against you in a court of law?
A Yes.
Q Did he explain to you that you had the right to have an attorney present?
A Yes, he did.
Q Did he reemphasize that you are entitled to have one present right there at the time you were waiving a
statement?
A No, he just read me the rights.
Q Is it your testimony that after you had signed this card that he didn't reemphasize your right to have an
attorney present?
A No, he reread me my rights.
Q Did you understand those rights when he reread them?
A Yes, I did.
Under the factual position of this case, we cannot say that Krueger's rights under the Fifth
and Fourteenth Amendments were violated.
3. The Instructions.
[Headnotes 3, 4]
Additionally, Krueger urges that the court's failure to instruct the jury on the elements of
manslaughter constituted reversible error. This argument is wholly meritless. An instruction
must be given only if there is evidence to support it. Williams v. State, 91 Nev. 533, 539 P.2d
461 (1975); Walker v. State, 85 Nev. 337, 455 P.2d 34 (1969). In the instant case, there is no
evidence to support any theory of manslaughter. Manslaughter requires . . . a serious and
highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible
passion in a reasonable person, or an attempt by the person killed to commit a serious
personal injury on the person killing. NRS 200.050. There is no such evidence in the record
before us. The court did not err in instructing the jury.
4. The Prosecutor's Closing Argument.
[Headnotes 5, 6]
Krueger's final assignment of error involves improprieties in the prosecutor's closing
statement, which he claims prejudiced him. Only two of the alleged improprieties were
objected to at trial and may be considered on appeal. Walker v. State, 89 Nev. 568, 516 P.2d
739 (1973); Clark v. State, 89 Nev.
____________________
Q Did you understand that you had the right to have an attorney present?
A Yes, sir.
Q Did any one threaten you in any way to get you to sign this card?
A No, sir.
Q I am showing you now what has been marked as State's Proposed Exhibit 76. It consists of ten pages.
Would you examine that document and state whether you recognize it?
A Yes, sir. This is the document that I signed.
Q Is this the statement which you signed on March the 11th, 1975?
A Yes.
Q Does this appear to reproduce the interview which you had with Detective Barlow and Sergeant Anderson?
A Yes it does.
Q Prior to signing this statement [his confession] were you given an opportunity to read it?
A Yes, I was.
Q Were you allowed to make any corrections which you felt were appropriate?
A Yes.
392, 513 P.2d 1224 (1973). Prosecutorial misconduct is a ground for reversal only if it
prejudices the substantial rights of the accused. Mears v. State, 83 Nev. 3, 422 P.2d 230
(1967); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964). We have reviewed the remarks
complained of, and they clearly were not of sufficient magnitude to prejudice Krueger or
distract the jury.
The judgment of conviction is affirmed.
____________
92 Nev. 756, 756 (1976) City of Las Vegas v. Bailey
THE CITY OF LAS VEGAS, a Municipal Corporation; BOARD OF COMMISSIONERS
OF THE CITY OF LAS VEGAS, NEVADA, and WILLIAM BRIARE, ROY WOOFTER,
MYRON LEAVITT, RON LURIE, and PAUL J. CHRISTENSEN, Constituting the Members
of Said Board, and ILA BRITT, Director of License and Revenue Department, Appellants
and Cross-Respondents, v. HILMA BAILEY, ESTHER CHAPMAN, G. N. NAOMI
CHERRINGTON, DEBRA DEMPSEY, URSULA FOHMANN, CAROL FOREMAN,
CHARLOTTE MILLER, DELORES JOHNSON, MARIA SANTA MARIA, CYNTHIA
SENOR, JOANNA SHELDON, EDITH ELAINE TANT, VICKI DAVID YORTON, and
BAXTER BOULET, Doing Business as SULTAN'S PALACE, Respondents and
Cross-Appellants.
No. 8643
December 30, 1976 558 P.2d 622
Appeal and cross-appeal from findings of fact, conclusions of law, and judgment, Eighth
A city ignored an extraordinary writ of mandamus and, in ancillary proceedings to compel
compliance, the district court awarded special damages in the form of an attorney fee. The
city appealed. The Supreme Court held that an award of damages for bad faith conduct of
the city in ignoring the writ was not shown to be reversible error.
Appeal affirmed; Cross-appeal dismissed.
92 Nev. 756, 757 (1976) City of Las Vegas v. Bailey
Carl E. Lovell, Jr., Las Vegas City Attorney, for Appellants and Cross-Respondents.
Oshins, Brown & Singer, Chartered, and George Spizzirri, Las Vegas, for Respondents
and Cross-Appellants.
1. Mandamus.
Award of damages for bad faith conduct of city in ignoring extraordinary writ of mandamus was not
shown to be reversible error and was accordingly affirmed.
Cross-appeal contending that respondents were entitled to additional fees was dismissed where
respondents advanced neither relevant nor authoritative argument on their behalf.
OPINION
Per Curiam:
Respondents sought and obtained, in the district court, an extraordinary writ of mandamus
against the City of Las Vegas. The City ignored the writ; and, in ancillary proceedings to
compel compliance, the district court found, as fact, bad faith conduct on the part of the
City because of its willful and deliberate failure to obey the lawful and unchallenged writ.
[Headnote 1]
Special damages, in the form of an attorney's fee, were awarded respondents for the legal
work which the bad faith conduct necessitated. The City has appealed.
We are not persuaded by the record, nor the briefs submitted by the City, that in this
factual setting, the award of damages constituted reversible error. See American Fed.
Musicians v. Reno's Riverside, 86 Nev. 695, 475 P.2d 221 (1970). Accordingly, we affirm.
See also: Holland Livestock v. B & C Enterprises, 92 Nev. 473, 553 P.2d 950 (1976); City of
Las Vegas v. Cragin Industries, 86 Nev. 933, 478 P.2d 585 (1970); Swallow Ranches, Inc. v.
Bidart, 525 F.2d 995 (9th Cir. 1975).
[Headnote 2]
Although respondents filed a cross-appeal, which contended they were entitled to
additional fees, they have advanced neither relevant nor authoritative argument on their
behalf; therefore, the cross-appeal is dismissed.
____________
92 Nev. 758, 758 (1976) McRoy v. State
FREDDIE GENE McROY, Appellant, v. THE
No. 8841
December 30, 1976 557 P.2d 1151
Appeal from judgment of conviction and sentence, Second Judicial District Court, Washoe
Defendant was convicted in district court of armed robbery and he appealed. The Supreme
Court held that substantial proof supported findings that inculpatory statements given to
police by defendant were not coerced; that trial court did not abuse its discretion in denying
motion for severance and separate trial where codefendant's confession contained no direct
references to defendant; and that in view of statute declaring that firearm is a deadly weapon,
proof of its deadly capabilities was not required.
Affirmed.
James W. Hardesty, Reno, for Appellant.
Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, and John L.
Conner, Deputy, Washoe County, for Respondent.
1. Criminal Law.
Substantial proof supported findings that defendant who gave statements to police was fully advised of
his rights, was not uninitiated in criminal law, was not menaced or coerced, and that statements were
product of his own free choice.
2. Criminal Law.
Judge's decision regarding voluntariness of a confession is final unless such finding is plainly untenable.
3. Criminal Law.
Denial of motion for severance and separate trial was not an abuse of discretion where codefendant's
confession which was introduced at trial contained no direct references to defendant and posed no
substantial threat to his right of confrontation. NRS 173.135, 174. 155.
4. Robbery.
In view of statute declaring that firearm is a deadly weapon, proof of its deadly capabilities was not
required in prosecution for armed robbery. NRS 193.165.
OPINION
Per Curiam:
Convicted by jury of armed robbery, Freddie Gene McRoy contends we must reverse
because the trial court erred in {1) admitting inculpatory statements; {2) failing to sever
his trial from that of a codefendant; and, {3) refusing to give a requested instruction.
92 Nev. 758, 759 (1976) McRoy v. State
contends we must reverse because the trial court erred in (1) admitting inculpatory
statements; (2) failing to sever his trial from that of a codefendant; and, (3) refusing to give a
requested instruction. We disagree.
[Headnotes 1, 2]
1. The record negates McRoy's claim that the inculpatory statements he gave to police
were coerced and taken in violation of rights afforded by Miranda v. Arizona, 384 U.S. 436
(1966). Here, the trial judge, in the absence of the jury, received evidence on the issue and
found McRoy had been fully advised on his Miranda rights, was not uninitiated in criminal
law, was not menaced or coerced, and gave statements that were indeed the product of his
own free choice. The record reveals substantial proof to support these findings and, thus, they
will not be disturbed. See: Paulette v. State, 92 Nev. 71, 545 P.2d 205 (1976); Wallace v.
State, 84 Nev. 603, 447 P.2d 30 (1968); United States v. Reynolds, 532 F.2d 1150 (7th Cir.
1976); United States v. Cluchette, 465 F.2d 749 (9th Cir. 1972); Moser v. United States, 381
F.2d 363 (9th Cir. 1967). The voluntariness of a confession depends upon the facts that
surround it, and the judge's decision regarding voluntariness is final unless such finding is
plainly untenable, a situation which does not here exist. Moser, supra; Wallace, supra.
[Headnote 3]
2. We also reject McRoy's claim that the trial court abused its discretion in denying his
motion for severance and separate trial. He argues that a codefendant's confession which was
introduced at trial contained inculpatory references to him and, thus, he was denied an
opportunity to cross-examine a witness against him. However, the statements admitted at trial
contained no direct references to McRoy and posed no substantial threat to his right of
confrontation. Compare: Bruton v. United States, 391 U.S. 123 (1968), with United States v.
Hicks, 524 F.2d 1001 (5th Cir. 1975), and Posey v. United States, 416 F.2d 545 (5th Cir.
1969). In light of the foregoing, we perceive no abuse in the trial court's discretion. See: NRS
173.135; 174.155; Posey, supra. Cf. Lovell v. State, 92 Nev. 128, 546 P.2d 1301 (1976);
White v. State, 83 Nev. 292, 429 P.2d 55 (1967).
[Headnote 4]
3. Finally, McRoy contends the trial court erred in failing to instruct the jury that the state
has the burden of proving the firearm used in the crime was a deadly weapon.
92 Nev. 758, 760 (1976) McRoy v. State
the firearm used in the crime was a deadly weapon. However, our legislature, in enacting
NRS 193.165, has declared that a firearm is a deadly weapon; thus, proof of its deadly
capabilities is not required.
1
Stalley v. State, 91 Nev. 671, 541 P.2d 658 (1975).
Affirmed.
____________________

1
1. Any person who uses a firearm or other deadly weapon in the commission of a crime. . . .
____________
92 Nev. 760, 760 (1976) Margrave v. Craig
EMMA GLADYS MARGRAVE and WILTON MARGRAVE,
Appellants, v. FLORINE I. CRAIG, Respondent.
No. 8300
December 30, 1976 558 P.2d 623
Appeal from judgment of the Second Judicial District Court, Washoe County; John E.
Gabrielli, Judge.
Garnishees appealed from a garnishment judgment rendered in the district court. The
Supreme Court held that where the garnishee's obligation to the debtor was contingent and
might never become due, no garnishment judgment could issue against garnishees.
Reversed.
Robinson & Cassas, Reno, for Appellants.
Stewart & Horton, Ltd., Reno, for Respondent.
1. Garnishment.
At time of garnishment, garnishee's obligation to debtor must be fixed, definite and absolute; and
obligation which is uncertain and contingent, in sense that it might never become due and payable, is not
subject to garnishment.
2. Garnishment.
Where garnishees' obligation to debtor was contingent and might never become due, no judgment of
garnishment could issue against garnishees.
OPINION
Per Curiam:
In December, 1974, the district court awarded respondent a garnishment judgment
against appellants pursuant to an October, 1967, garnishment order.
92 Nev. 760, 761 (1976) Margrave v. Craig
a garnishment judgment against appellants pursuant to an October, 1967, garnishment order.
This Court previously considered the propriety of the 1967 garnishment order in Craig v.
Margrave, 84 Nev. 638, 446 P.2d 653 (1968). Appellants here contend that, because no
garnishable debt existed in 1967, no garnishment order could be given, and thus, the
judgment based on the 1967 order is invalid. We agree.
[Headnotes 1, 2]
At the time of garnishment, the garnishee's obligation to the defendant must be fixed,
definite, and absolute. See: Weir v. Galbraith, 376 P.2d 396 (Ariz. 1962). An obligation
which is uncertain or contingent, in the sense that it might never become due and payable, is
not subject to garnishment. Reinhart v. Hardesty, 17 Nev. 141, 30 P. 694 (1882); see also
Washburn v. Andrew, 496 P.2d 1367 (Kan. 1972); American Nat. Ins. Co. v. United States
Fidelity & G. Co., 215 So.2d 245 (Miss. 1968); Dawson v. Bank of America Nat. Trust &
Sav. Ass'n, 223 P.2d 280 (Cal.App. 1950). We determined in Craig v. Margrave, cited above,
that the very obligation here involved was contingent and might never become due. Thus,
since no garnishable obligation existed in 1967, no order could then issue directing
garnishment, and the subsequent 1974 judgment rendered pursuant to that order is invalid.
Reversed.
____________

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